Republic Act 9225 Distinguishes Between Re-Acquisition And Retention Of Philippine

Citizenship
April 14, 2015 by The Lawyer's Post
The Facts:

Renato, who had been a naturalized Canadian citizen, returned to the Philippines
upon retirement, and bought, in 2000, a 600-square meter property where they
built a residential house. In 2004, however, he and his wife learned that the portion
of the lot where they built their house is public land, hence, on April 12, 2007,
Renato filed a Miscellaneous Lease Application before the Community Environment
And Natural Resources Office of the DENR, where he stated his citizenship as
Filipino. Edita, the private respondent, opposed his petition on the ground that as a
Canadian citizen, he is disqualified to own land. She also filed a criminal case for
falsification of public documents under Art. 172 of the Revised Penal Code. Renato
meanwhile re-acquired his Filipino citizenship under Republic Act 9225 issued by the
Consulate General of the Philippines in Toronto, Canada. In his defense, Renato
alleged that he relied on the assurances by the CENRO officer that he could declare
himself as Filipino, and at the time of the application, he intended to acquire Filipino
citizenship. It was Agbays misrepresentation that the land was titled that prompted
him to file the application, and the incident had spawned numerous civil and
criminal charges between the parties.
The Office of the Provincial Prosecutor issued a Resolution finding probable cause to
charge him with falsification of public documents, which the Secretary of Justice
affirmed when it denied his petition for review. His application for MLA was also
denied by the CENRO, ruling that his subsequent re-acquisition of Filipino citizenship
did not cure the defect in his application for MLA.
When the Information was filed against him before the MTC, and a warrant of arrest
issued against him, Renato filed a Motion for Redetermination of Probable Cause
which the MTC denied. According to the MTC, Republic Act 9225 makes a distinction
between those who became foreign citizens during its effectivity, and those who
lost it before its effectivity, when the governing law was CA 63. It ruled that since
the crime was alleged to have been committed before Renato re-acquired his
Filipino citizenship on April 12, 2007, he was still a Canadian citizen thus may be
charged with falsification. It also denied his motion on the ground that the court had
not yet acquired jurisdiction over his person. His motion for reconsideration denied,
Renato filed a petition for certiorari with the RTC, alleging that the MTC disregarded
the legal fiction under RA 9225 that once a natural-born citizen reacquired his
Filipino citizenship, it was as if he had not lost his Filipino citizenship. In his
opposition, the public prosecutor emphasised that his subsequent re-acquisition of
citizenship only affected his citizenship status, not the criminal liability for
falsification which had long been consummated.

The RTC denied Renatos petition for certiorari, hence Renato elevated his case to
the Supreme Court on petition for review on certiorari, putting forward the following
issues for consideration:
1. Whether he may be charged for falsification considering that he is a natural-born
Filipino citizen whose re-acquisition of Philippine citizenship under Republic Act
9225, was by legal fiction, deemed not to have lost his natural born status.
2. By compelling him to return from Canada so the lower court may acquire
jurisdiction over his person, the lower court is pre-empting his right to question the
validity of the warrant of arrest.
The Courts ruling:
R.A. 9225, otherwise known as the Citizenship Retention and Re-acquisition Act of
2003, was signed into law by President Gloria Macapagal-Arroyo on August 29,
2003. Sections 2 and 3 of said law read:
SEC. 2. Declaration of Policy.It is hereby declared the policy of the State that all
Philippine citizens who become citizens of another country shall be deemed not to
have lost their Philippine citizenship under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship.Any provision of law to the contrary
notwithstanding, natural-born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization as citizens of a foreign
country are hereby deemed to have reacquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:
I ______________________, solemnly swear (or affirm) that I will support and defend
the Constitution of the Republic of the Philippines and obey the laws and legal
orders promulgated by the duly constituted authorities of the Philippines; and I
hereby declare that I recognize and accept the supreme authority of the Philippines
and will maintain true faith and allegiance thereto; and that I impose this obligation
upon myself voluntarily without mental reservation or purpose of evasion.
Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath. (Emphasis supplied)
While Section 2 declares the general policy that Filipinos who have become citizens
of another country shall be deemed not to have lost their Philippine citizenship,
such is qualified by the phrase under the conditions of this Act. Section 3 lays
down such conditions for two categories of natural-born Filipinos referred to in the
first and second paragraphs. Under the first paragraph are those natural-born
Filipinos who have lost their citizenship by naturalization in a foreign country who
shall re-acquire their Philippine citizenship upon taking the oath of allegiance to the
Republic of the Philippines. The second paragraph covers those natural-born
Filipinos who became foreign citizens after R.A. 9225 took effect, who shall retain
their Philippine citizenship upon taking the same oath. The taking of oath of
allegiance is required for both categories of natural-born Filipino citizens who

became citizens of a foreign country, but the terminology used is different, reacquired for the first group, and retain for the second group.
The law thus makes a distinction between those natural-born Filipinos who became
foreign citizens before and after the effectivity of R.A. 9225. Although the heading of
Section 3 is Retention of Philippine Citizenship, the authors of the law intentionally
employed the terms re-acquire and retain to describe the legal effect of taking
the oath of allegiance to the Republic of the Philippines. This is also evident from
the title of the law using both re-acquisition and retention.
In fine, for those who were naturalized in a foreign country, they shall be deemed to
have re-acquired their Philippine citizenship which was lost pursuant to CA 63,
under which naturalization in a foreign country is one of the ways by which
Philippine citizenship may be lost. As its title declares, R.A. 9225 amends CA 63 by
doing away with the provision in the old law which takes away Philippine citizenship
from natural-born Filipinos who become naturalized citizens of other countries and
allowing dual citizenship[1], and also provides for the procedure for re-acquiring and
retaining Philippine citizenship. In the case of those who became foreign citizens
after R.A. 9225 took effect, they shall retain Philippine citizenship despite having
acquired foreign citizenship provided they took the oath of allegiance under the new
law.
Petitioner insists we should not distinguish between re-acquisition and retention in
R.A. 9225. He asserts that in criminal cases, that interpretation of the law which
favors the accused is preferred because it is consistent with the constitutional
presumption of innocence, and in this case it becomes more relevant when a
seemingly difficult question of law is expected to have been understood by the
accused, who is a non-lawyer, at the time of the commission of the alleged offense.
He further cites the letter-reply dated January 31, 2011[2] of the Bureau of
Immigration (BI) to his query, stating that his status as a natural-born Filipino will be
governed by Section 2 of R.A. 9225.
These contentions have no merit.
That the law distinguishes between re-acquisition and retention of Philippine
citizenship was made clear in the discussion of the Bicameral Conference
Committee on the Disagreeing Provisions of House Bill No. 4720 and Senate Bill No.
2130 held on August 18, 2003, where Senator Franklin Drilon was responding to the
query of Representative Exequiel Javier:
REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of the Senate
version, Any provision of law on the contrary notwithstanding, natural-born citizens
of the Philippines who, after the effectivity of this Act, shall and so forth, ano, shall
retain their Philippine citizenship.
Now in the second paragraph, natural-born citizens who have lost their citizenship
by reason of their naturalization after the effectivity of this Act are deemed to have
reacquired
THE CHAIRMAN (SEN. DRILON). Prior to the effectivity.

REP. JAVIER. Well, you have two kinds of natural-born citizens here. Natural-born
citizens who acquired foreign citizenship after the effectivity of this act are
considered to have retained their citizenship. But natural-born citizens who lost their
Filipino citizenship before the effectivity of this act are considered to have
reacquired. May I know the distinction? Do you mean to say that natural-born
citizens who became, lets say, American citizens after the effectivity of this act are
considered natural-born?
Now in the second paragraph are the natural-born citizens who lost their citizenship
before the effectivity of this act are no longer natural born citizens because they
have just reacquired their citizenship. I just want to know this distinction, Mr.
Chairman.
THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely retention
and reacquisition. The reacquisition will apply to those who lost their Philippine
citizenship by virtue of Commonwealth Act 63. Upon the effectivity assuming that
we can agree on this, upon the effectivity of this new measure amending
Commonwealth Act 63, the Filipinos who lost their citizenship is deemed to have
reacquired their Philippine citizenship upon the effectivity of the act.
The second aspect is the retention of Philippine citizenship applying to future
instances. So thats the distinction.
REP. JAVIER. Well, Im just asking this question because we are here making
distinctions between natural-born citizens. Because this is very important for certain
government positions, no, because natural-born citizens are only qualified for a
specific
THE CHAIRMAN (SEN. DRILON). That is correct.
REP. JAVIER. positions under the Constitution and under the law.
THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. Its one of the
provisions, yes. But just for purposes of the explanation, Congressman Javier, that is
our conceptualization. Reacquired for those who previously lost [Filipino citizenship]
by virtue of Commonwealth Act 63, and retention for those in the future. (Emphasis
supplied)
Considering that petitioner was naturalized as a Canadian citizen prior to the
effectivity of R.A. 9225, he belongs to the first category of natural-born Filipinos
under the first paragraph of Section 3 who lost Philippine citizenship by
naturalization in a foreign country. As the new law allows dual citizenship, he was
able to re-acquire his Philippine citizenship by taking the required oath of allegiance.
For the purpose of determining the citizenship of petitioner at the time of filing his
MLA, it is not necessary to discuss the rulings in Frivaldo and Altarejos on the
retroactivity of such reacquisition because R.A. 9225 itself treats those of his
category as having already lost Philippine citizenship, in contradistinction to those
natural-born Filipinos who became foreign citizens after R.A. 9225 came into force.

In other words, Section 2 declaring the policy that considers Filipinos who became
foreign citizens as not to have lost their Philippine citizenship, should be read
together with Section 3, the second paragraph of which clarifies that such policy
governs all cases after the new laws effectivity.
As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without any
reference to Section 3 on the particular application of reacquisition and retention to
Filipinos who became foreign citizens before and after the effectivity of R.A. 9225.
Petitioners plea to adopt the interpretation most favorable to the accused is
likewise misplaced. Courts adopt an interpretation more favorable to the accused
following the time-honored principle that penal statutes are construed strictly
against the State and liberally in favor of the accused[3]. R.A. 9225, however, is not
a penal law.
Falsification of documents under paragraph 1, Article 172[[4] in relation to Article
171[5] of the RPC refers to falsification by a private individual, or a public officer or
employee who did not take advantage of his official position, of public, private, or
commercial documents. The elements of falsification of documents under paragraph
1, Article 172 of the RPC are:
(1)that the offender is a private individual or a public officer or employee who did
not take advantage of his official position;
(2) that he committed any of the acts of falsification enumerated in Article 171 of
the RPC; and
(3)that the falsification was committed in a public, official or commercial
document[6].
Petitioner made the untruthful statement in the MLA, a public document, that he is
a Filipino citizen at the time of the filing of said application, when in fact he was
then still a Canadian citizen. Under CA 63, the governing law at the time he was
naturalized as Canadian citizen, naturalization in a foreign country was among those
ways by which a natural-born citizen loses his Philippine citizenship. While he reacquired Philippine citizenship under R.A. 9225 six months later, the falsification
was already a consummated act, the said law having no retroactive effect insofar as
his dual citizenship status is concerned. The MTC therefore did not err in finding
probable cause for falsification of public document under Article 172, paragraph 1.
The MTC further cited lack of jurisdiction over the person of petitioner accused as
ground for denying petitioners motion for re-determination of probable cause, as
the motion was filed prior to his arrest. However, custody of the law is not required
for the adjudication of reliefs other than an application for bail[7]. In Miranda v.
Tuliao[8] which involved a motion to quash warrant of arrest, this Court discussed
the distinction between custody of the law and jurisdiction over the person, and
held that jurisdiction over the person of the accused is deemed waived when he
files any pleading seeking an affirmative relief, except in cases when he invokes the
special jurisdiction of the court by impugning such jurisdiction over his person.
Thus:

In arguing, on the other hand, that jurisdiction over their person was already
acquired by their filing of the above Urgent Motion, petitioners invoke our
pronouncement, through Justice Florenz D. Regalado, in Santiago v. Vasquez:
The voluntary appearance of the accused, whereby the court acquires jurisdiction
over his person, is accomplished either by his pleading to the merits (such as by
filing a motion to quash or other pleadings requiring the exercise of the courts
jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On
the matter of bail, since the same is intended to obtain the provisional liberty of the
accused, as a rule the same cannot be posted before custody of the accused has
been acquired by the judicial authorities either by his arrest or voluntary surrender.
Our pronouncement in Santiago shows a distinction between custody of the law and
jurisdiction over the person. Custody of the law is required before the court can act
upon the application for bail, but is not required for the adjudication of other reliefs
sought by the defendant where the mere application therefor constitutes a waiver of
the defense of lack of jurisdiction over the person of the accused. Custody of the
law is accomplished either by arrest or voluntary surrender, while jurisdiction over
the person of the accused is acquired upon his arrest or voluntary appearance. One
can be under the custody of the law but not yet subject to the jurisdiction of the
court over his person, such as when a person arrested by virtue of a warrant files a
motion before arraignment to quash the warrant. On the other hand, one can be
subject to the jurisdiction of the court over his person, and yet not be in the custody
of the law, such as when an accused escapes custody after his trial has
commenced. Being in the custody of the law signifies restraint on the person, who is
thereby deprived of his own will and liberty, binding him to become obedient to the
will of the law. Custody of the law is literally custody over the body of the accused.
It includes, but is not limited to, detention.
xxxx
While we stand by our above pronouncement in Pico insofar as it concerns bail, we
clarify that, as a general rule, one who seeks an affirmative relief is deemed to have
submitted to the jurisdiction of the court. As we held in the aforecited case of
Santiago, seeking an affirmative relief in court, whether in civil or criminal
proceedings, constitutes voluntary appearance.
xxxx
To recapitulate what we have discussed so far, in criminal cases, jurisdiction over
the person of the accused is deemed waived by the accused when he files any
pleading seeking an affirmative relief, except in cases when he invokes the special
jurisdiction of the court by impugning such jurisdiction over his person. Therefore, in
narrow cases involving special appearances, an accused can invoke the processes
of the court even though there is neither jurisdiction over the person nor custody of
the law. However, if a person invoking the special jurisdiction of the court applies for
bail, he must first submit himself to the custody of the law[9]. (Emphasis supplied)
Considering that petitioner sought affirmative relief in filing his motion for redetermination of probable cause, the MTC clearly erred in stating that it lacked

jurisdiction over his person. Notwithstanding such erroneous ground stated in the
MTCs order, the RTC correctly ruled that no grave abuse of discretion was
committed by the MTC in denying the said motion for lack of merit.
WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of the
Regional Trial Court of Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-11
(Criminal Case No. 2012) is hereby AFFIRMED and UPHELD.
With costs against the petitioner.
SO ORDERED.
THIRD DIVISION, G.R. No. 199113, March 18, 2015, RENATO M. DAVID, PETITIONER,
VS. EDITHA A. AGBAY AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

[1] ASJS (Advocates and Adherents of Social Justice for School Teachers and Allied
Workers) v. Datumanong, 551 Phil. 110, 117-118 (2007).
[2] Rollo, p. 59.
[3] People v. Temporada, 594 Phil. 680, 735 (2008), citing People v. Ladjaalam, 395
Phil. 1, 35 (2000).
[4] Art. 172. Falsification by private individuals and use of falsified documents.
The penalty of prision correccional in its medium and maximum periods and a fine
of not more than 5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of the falsifications enumerated in
the next preceding article in any public or official document or letter of exchange or
any other kind of commercial document; and
2. Any person who, to the damage of a third party, or with the intent to cause such
damage, shall in any private document commit any of the acts of falsification
enumerated in the next preceding article.
Any person who shall knowingly introduce in evidence in any judicial proceeding or
to the damage of another or who, with the intent to cause such damage, shall use
any of the false documents embraced in the next preceding article, or in any of the
foregoing subdivisions of this article, shall be punished by the penalty next lower in
degree.
[5] ART. 171. Falsification by public officer, employee or notary or ecclesiastical
minister. The penalty of prision mayor and a fine not to exceed 5,000 pesos shall
be imposed upon any public officer, employee, or notary who, taking advantage of
his official position, shall falsify a document by committing any of the following
acts:
1. Counterfeiting or imitating any handwriting, signature or rubric;
2. Causing it to appear that persons have participated in any act or proceeding
when they did not in fact so participate;
3. Attributing to persons who have participated in an act or proceeding statements
other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document which changes its
meaning;

7. Issuing in an authenticated form a document purporting to be a copy of an

original document when no such original exists, or including in such copy a
statement contrary to, or different from, that of the genuine original; or
8. Intercalating any instrument or note relative to the issuance thereof in a protocol,
registry, or official book.
The same penalty shall be imposed upon any ecclesiastical minister who shall
commit any of the offenses enumerated in the preceding paragraphs of this article,
with respect to any record or document of such character that its falsification may
affect the civil status of persons.
[6] Panuncio v. People, 610 Phil. 595, 603-604 (2009).
[7] Jimenez v. Sorongon, G.R. No. 178607, December 5, 2012, 687 SCRA 151, 161,
citing Alawiya, et al. v. Court of Appeals, et al., 603 Phil. 264, 276 (2009); and
Miranda v. Tuliao, 520 Phil. 907, 919 (2006).
[8] Id. at 919 & 921.
[9] Id. at 918-922.

A Filipino Lawyer Who Becomes A Citizen Of Another Country And Later Re-Acquires
His Philippine Citizenship Under R.A. No. 9225, Remains To Be A Member Of The
Philippine Bar
August 7, 2015 by The Lawyer's Post
The Facts:
Epifanio Muneses (petitioner), a member of the Philippine Bar since 1966, became a
citizen of the United States on August 21, 1981, hence lost his privilege to practice
law in the Philippines. On september 15, 2006, he reacquired his citizenship
pursuant to Republic Act 9225 by taking his oath of allegiance as a Filipino cityien
before the Philippine Consulate in Washington, D.C. He filed the instant petition to
be allowed to practice law in the Philippines, stating therein that he intends to retire
in the country. He submitted pertinent documents to support his petition.
The Issue:
Whether or not Epifanio should be allowed to resume practice of law in the
Philippines.
The Ruling:
In Bar Matter No. 1678, dated December 17, 2007, the Court was confronted with a
similar petition filed by Benjamin M. Dacanay (Dacanay) who requested leave to
resume his practice of law after availing the benefits of R.A. No. 9225. Dacanay was
admitted to the Philippine Bar in March 1960. In December 1998, he migrated to

Canada to seek medical attention for his ailments and eventually became a
Canadian citizen in May 2004. On July 14, 2006, Dacanay re-acquired his Philippine
citizenship pursuant to R.A. No. 9225 after taking his oath of allegiance before the
Philippine Consulate General in Toronto, Canada. He returned to the Philippines and
intended to resume his practice of law.
The Court reiterates that Filipino citizenship is a requirement for admission to the
bar and is, in fact, a continuing requirement for the practice of law. The loss thereof
means termination of the petitioners membership in the bar; ipso jure the privilege
to engage in the practice of law. Under R.A. No. 9225, natural-born citizens who
have lost their Philippine citizenship by reason of their naturalization as citizens of a
foreign country are deemed to have re-acquired their Philippine citizenship upon
taking the oath of allegiance to the Republic 1. Thus, a Filipino lawyer who becomes
a citizen of another country and later re-acquires his Philippine citizenship under
R.A. No. 9225, remains to be a member of the Philippine Bar. However, as stated
in Dacanay, the right to resume the practice of law is not automatic. 2 R.A. No. 9225
provides that a person who intends to practice his profession in the Philippines must
apply with the proper authority for a license or permit to engage in such practice. 3
It can not be overstressed that:
The practice of law is a privilege burdened with conditions. It is so delicately
affected with public interest that it is both the power and duty of the State (through
this Court) to control and regulate it in order to protect and promote the public
welfare.
Adherence to rigid standards of mental fitness, maintenance of the highest degree
of morality, faithful observance of the legal profession, compliance with the
mandatory continuing legal education requirement and payment of membership
fees to the Integrated Bar of the Philippines (IBP) are the conditions required for
membership in good standing in the bar and for enjoying the privilege to practice
law. Any breach by a lawyer of any of these conditions makes him unworthy of the
trust and confidence which the courts and clients repose in him for the continued
exercise of his professional privilege.4
Thus, in pursuance to the qualifications laid down by the Court for the practice of
law, the OBC required the herein petitioner to submit the original or certified true
copies of the following documents in relation to his petition:

1. Petition for Re-Acquisition of Philippine Citizenship;

2. Order (for Re-Acquisition of Philippine citizenship);
3. Oath of Allegiance to the Republic of the Philippines;
4. Identification Certificate (IC) issued by the Bureau of Immigration;
5. Certificate of Good Standing issued by the IBP;
6. Certification from the IBP indicating updated payments of annual membership
dues;
7. Proof of payment of professional tax; and
8. Certificate of compliance issued by the MCLE Office.
In compliance thereof, the petitioner submitted the following:
1. Petition for Re-Acquisition of Philippine Citizenship;
2. Order (for Re-Acquisition of Philippine citizenship);
3. Oath of Allegiance to the Republic of the Philippines;
4. Certificate of Re-Acquisition/Retention of Philippine Citizenship issued by the
Bureau of Immigration, in lieu of the IC;
5. Certification dated May 19, 2010 of the IBP-Surigao City Chapter attesting to
his good moral character as well as his updated payment of annual
membership dues;
6. Professional Tax Receipt (PTR) for the year 2010;
7. Certificate of Compliance with the MCLE for the 2nd compliance period; and
8. Certification dated December 5, 2008 of Atty. Gloria Estenzo-Ramos,
Coordinator, UC-MCLE Program, University of Cebu, College of Law attesting
to his compliance with the MCLE.

The OBC further required the petitioner to update his compliance, particularly with
the MCLE. After all the requirements were satisfactorily complied with and finding
that the petitioner has met all the qualifications and none of the disqualifications for
membership in the bar, the OBC recommended that the petitioner be allowed to
resume his practice of law.
Upon this favorable recommendation of the OBC, the Court adopts the same and
sees no bar to the petitioners resumption to the practice of law in the Philippines.
WHEREFORE, the petition of Attorney Epifanio B. Muneses is hereby GRANTED,
subject to the condition that he shall re-take the Lawyers Oath on a date to be set
by the Court and subject to the payment of appropriate fees.
Furthermore, the Office of the Bar Confidant is directed to draft the necessary
guidelines for the re-acquisition of the privilege to resume the practice of law for the
guidance of the Bench and Bar.
SO ORDERED.
REYES, J.:
Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Abad,
Villarama, Jr., Perez, Sereno, and Perlas-Bernabe, JJ., concur.
Brion, J., on leave.
Mendoza, J., on leave.
EN BANC, B.M. No. 2112, July 24, 2012, IN RE: PETITION TO RE-ACQUIRE THE
PRIVILEGE TO PRACTICE LAW IN THE PHILIPPINES, EPIFANJO B. MUNESES,
PETITIONER.
1

Section 3. Retention of Philippine Citizenship Any provision of law to the contrary

notwithstanding, natural born citizens of the Philippines by reason of their

naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance to the
Republic:
I_________, solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders

promulgated by the duly constituted authorities of the Philippines and I hereby

declare that 1 recognize and accept the supreme authority of the Philippines and
will maintain true faith and allegiance thereto; and that I imposed this obligation
upon myself voluntarily without mental reservation or purpose of evasion.
Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.
2

Petition for Leave to Resume Practice of Law, Benjamin Dacanay, Petitioner, B.M.

No. 1678, December 17,2007.

3

R.A. No. 9225, Section 5.

Supra note 2.

Like this:
Election Law: Use Of US Passport Negates Affidavit of Renunciation Of US
Citizenship
December 2, 2014 by The Lawyer's Post
Rommel, a natural born Filipino citizen, lost his citizenship when he was naturalised
as a US citizen. On July 10, 2008, he took his Oath of Allegiance to the Republic of
the Philippines under the provisions of Republic Act 9225; thereupon an Order of
Approval of his citizenship retention and re-acquisition was issued in his favour. On
April 3, 2009, he again took his Oath of Allegiance as well as executed an Affidavit
of Renunciation of his US citizenship. On November 30, 2009, Rommel filed his
Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte. On April 28,
2010, Liong, another mayoralty candidate, filed a petition to disqualify and/or
cancel his certificate of candidacy in connection with the 2010 elections. According
to Linog, Rommel is not a resident of Kauswagan; he is also a foreigner, as attested
to by the Bureau of Immigration. In support of his claim, Linog presented in his
Memorandum a computer-generated travel record[ dated 03 December 2009
indicating that Arnado has been using his US Passport No. 057782700 in entering
and departing the Philippines. The said record shows that Arnado left the country on
14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009,
arriving back in the Philippines on 24 November 2009.

When required to answer, Rommel did not file any. It was only after his proclamation
as winner that he filed an answer, traversing the allegations of Linog, and
submitting his documentary evidence in support of his answer. The COMELEC First
Division instead of treating the case as a petition for cancellation of the certificate
of candidacy, treated as a petition for disqualification. Although the division
dismissed Linogs claim that Rommel is a US resident, it agreed with him in saying
Rommel is a US citizen, citing that Rommels consistent use of his American
passport negated his Affidavit of Renunciation of US citizenship and showed his
intention to retain US citizenship. It therefore annulled his proclamation as Municipal
Mayor of Kauswagan, and ordered the rule of replacement of Rommel pursuant to
the rule of succession under the Local Government Code. Rommel thus filed his
Motion for Reconsideration to the order. Meanwhile, Casan, another mayoralty
candidate and who garnered the second highest number of votes in the 2010
elections, filed his Motion For Intervention and opposition to the Motion for
Reconsideration filed by Rommel. According to Casan, while the Comelec First
Division ruled correctly on Rommels citizenship, it erred when it ruled that the order
of succession under the Local Government should be followed. Following the
cancellation of Rommels certificate of candidacy and his disqualification, he
(Casan), as the legitimate candidate with the highest number of votes, should be
proclaimed the winner. Rommel opposed the Motion For Intervention filed by Casan,
alleging that intervention is not allowed after the Comelec had already rendered a
decision, and Casan was never the winner.
The COMELEC En Banc, acting on the Motion for Reconsideration filed by Rommel
and the Motion for Intervention of Casan, granted the Motion for Reconsideration. It
allowed the Motion for Intervention by Casan, but ruled that he will not be
prejudiced by the decision of the First Division as it correctly ruled that the order of
succession should be followed. However, it reversed the First Division and held that
Rommels use of the US passport was not one of the grounds by which citizenship
may be lost under RA 9225. It ruled that Rommel had a plausible explanation as to
why he used his US passport in his travels, that is, his Philippine passport was
issued late. When he took the oath of allegiance and executed his Affidavit of
Renunciation on April 3, 2009, he regained his Philippine citizenship.
Casan thus elevated his case to the Supreme Court:
The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:

Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his
guilt is strong.
Mercado v. Manzano clarified the right of intervention in a disqualification case. In
that case, the Court said:
That petitioner had a right to intervene at that stage of the proceedings for the
disqualification against private respondent is clear from Section 6 of R.A. No. 6646,
otherwise known as the Electoral Reforms Law of 1987, which provides: Any
candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong. Under this provision, intervention may be
allowed in proceedings for disqualification even after election if there has yet been
no final judgment rendered.
Clearly then, Maquiling has the right to intervene in the case. The fact that the
COMELEC En Banc has already ruled that Maquiling has not shown that the
requisites for the exemption to the second-placer rule set forth in Sinsuat v.
COMELEC[ are present and therefore would not be prejudiced by the outcome of the
case, does not deprive Maquiling of the right to elevate the matter before this
Court.
Arnados claim that the main case has attained finality as the original petitioner and
respondents therein have not appealed the decision of the COMELEC En Banc,
cannot be sustained. The elevation of the case by the intervenor prevents it from
attaining finality. It is only after this Court has ruled upon the issues raised in this

instant petition that the disqualification case originally filed by Balua against Arnado
will attain finality
xxx
Arnado himself subjected the issue of his citizenship to attack when, after
renouncing his foreign citizenship, he continued to use his US passport to travel in
and out of the country before filing his certificate of candidacy on 30 November
2009. The pivotal question to determine is whether he was solely and exclusively a
Filipino citizen at the time he filed his certificate of candidacy, thereby rendering
him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30
November 2009, the date he filed his COC, he used his US passport four times,
actions that run counter to the affidavit of renunciation he had earlier executed. By
using his foreign passport, Arnado positively and voluntarily represented himself as
an American, in effect declaring before immigration authorities of both countries
that he is an American citizen, with all attendant rights and privileges granted by
the United States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be
professed at any time, only to be violated the next day. It requires an absolute and
perpetual renunciation of the foreign citizenship and a full divestment of all civil and
political rights granted by the foreign country which granted the citizenship.
Mercado v. Manzano already hinted at this situation when the Court declared:
His declarations will be taken upon the faith that he will fulfill his undertaking made
under oath. Should he betray that trust, there are enough sanctions for declaring
the loss of his Philippine citizenship through expatriation in appropriate proceedings.
In Yu v. Defensor-Santiago, we sustained the denial of entry into the country of
petitioner on the ground that, after taking his oath as a naturalized citizen, he
applied for the renewal of his Portuguese passport and declared in commercial
documents executed abroad that he was a Portuguese national. A similar sanction
can be taken against anyone who, in electing Philippine citizenship, renounces his
foreign nationality, but subsequently does some act constituting renunciation of his
Philippine citizenship.

While the act of using a foreign passport is not one of the acts enumerated in
Commonwealth Act No. 63 constituting renunciation and loss of Philippine
citizenship,[35] it is nevertheless an act which repudiates the very oath of
renunciation required for a former Filipino citizen who is also a citizen of another
country to be qualified to run for a local elective position.1
When Arnado used his US passport on 14 April 2009, or just eleven days after he
renounced his American citizenship, he recanted his Oath of Renunciation that he
absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED
STATES OF AMERICA and that he divest(s) [him]self of full employment of all civil
and political rights and privileges of the United States of America.
We agree with the COMELEC En Banc that such act of using a foreign passport does
not divest Arnado of his Filipino citizenship, which he acquired by repatriation.
However, by representing himself as an American citizen, Arnado voluntarily and
effectively reverted to his earlier status as a dual citizen. Such reversion was not
retroactive; it took place the instant Arnado represented himself as an American
citizen by using his US passport.
This act of using a foreign passport after renouncing ones foreign citizenship is fatal
to Arnados bid for public office, as it effectively imposed on him a disqualification to
run for an elective local position.
Arnados category of dual citizenship is that by which foreign citizenship is acquired
through a positive act of applying for naturalization. This is distinct from those
considered dual citizens by virtue of birth, who are not required by law to take the
oath of renunciation as the mere filing of the certificate of candidacy already carries
with it an implied renunciation of foreign citizenship. Dual citizens by naturalization,
on the other hand, are required to take not only the Oath of Allegiance to the
Republic of the Philippines but also to personally renounce foreign citizenship in
order to qualify as a candidate for public office.
By the time he filed his certificate of candidacy on 30 November 2009, Arnado was
a dual citizen enjoying the rights and privileges of Filipino and American citizenship.
He was qualified to vote, but by the express disqualification under Section 40(d) of
the Local Government Code, he was not qualified to run for a local elective position.

In effect, Arnado was solely and exclusively a Filipino citizen only for a period of
eleven days, or from 3 April 2009 until 14 April 2009, on which date he first used his
American passport after renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements and must be possessed
not only at the time of appointment or election or assumption of office but during
the officers entire tenure. Once any of the required qualifications is lost, his title
may be seasonably challenged. x x x.[
The citizenship requirement for elective public office is a continuing one. It must be
possessed not just at the time of the renunciation of the foreign citizenship but
continuously. Any act which violates the oath of renunciation opens the citizenship
issue to attack.
We agree with the pronouncement of the COMELEC First Division that Arnados act
of consistently using his US passport effectively negated his Affidavit of
Renunciation. This does not mean, that he failed to comply with the twin
requirements under R.A. No. 9225, for he in fact did. It was after complying with the
requirements that he performed positive acts which effectively disqualified him from
running for an elective public office pursuant to Section 40(d) of the Local
Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual citizens from
running for any elective public office would be thwarted if we were to allow a person
who has earlier renounced his foreign citizenship, but who subsequently represents
himself as a foreign citizen, to hold any public office
EN BANC, G.R. No. 195649, April 16, 2013, CASAN MACODE MAQUILING,
PETITIONER, VS. COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, LINOG
G. BALUA, RESPONDENTS.
An Alien Wife Married To A Filipino Is Entitled To Filipino Citizenship
January 1, 2015 by The Lawyer's Post
Azucena was born to Chinese parents in Zamboanga in 1941. She had never
departed the Philippines since birth. She can speak several Philippine languages
and dialects, and studied in Philippine schools, graduating with a degree in Bachelor

of Science in education. She practiced teaching for five years. In 1968, she married
Santiago, a Filipino citizen. They have five children, who studied in Philippine
schools and are now professionals, two working abroad. She then helped her
husband in their business of rice milling, retail business and rice and corn
distribution. As proof of income, she submitted their joint income tax return. On
December 2, 2002, Azucena filed a petition for naturalisation before the RTC of
Zamboanga del Sur, alleging that she possesses all the qualifications and none of
the disqualifications required under CA 473. The Solicitor General filed a Motion to
Dismiss, alleging that she did not posses the lawful income or occupation required
for naturalization. Ruling that the matter is evidentiary, the RTC denied the same.
After compliance with jurisdictional requisites, where no representatives from the
OSG or the Provincial Prosecutor appeared, the RTC on motion of Azucenas counsel,
allowed her to present evidence ex-parts before the Clerk of Court. After completion
of the testimony, the RTC granted Azucenas petition and declared her eligible for
Filipino citizenship, which the OSG contested, citing as grounds the lack of a public
hearing when the fourt allowed ex-parts presentation of evidence, and the lack of
proof of lawful income/occupation by Azucena. On appeal, the Court of Appeals
affirmed the judgment of the RTC, hence, the OSG elevated the case to the Supreme
Court.
The Supreme Court:
Under existing laws, an alien may acquire Philippine citizenship through either
judicial naturalization under CA 473 or administrative naturalization under Republic
Act No. 9139 (the Administrative Naturalization Law of 2000). A third option,
called derivative naturalization, which is available to alien women married to Filipino
husbands is found under Section 15 of CA 473, which provides that:
[a]ny woman who is now or may hereafter be married to a citizen of the Philippines
and who might herself be lawfully naturalized shall be deemed a citizen of the
Philippines.
Under this provision, foreign women who are married to Philippine citizens may be
deemed ipso facto Philippine citizens and it is neither necessary for them to prove
that they possess other qualifications for naturalization at the time of their marriage
nor do they have to submit themselves to judicial naturalization. Copying from
similar laws in the United States which has since been amended, the Philippine
legislature retained Section 15 of CA 473, which then reflects its intent to confer
Filipino citizenship to the alien wife thru derivative naturalization.

Thus, the Court categorically declared in Moy Ya Lim Yao v. Commissioner of

Immigration:
Accordingly, We now hold, all previous decisions of this Court indicating otherwise
notwithstanding, that under Section 15 of Commonwealth Act 473, an alien woman
marrying a Filipino, native born or naturalized, becomes ipso facto a Filipina
provided she is not disqualified to be a citizen of the Philippines under Section 4 of
the same law. Likewise, an alien woman married to an alien who is subsequently
naturalized here follows the Philippine citizenship of her husband the moment he
takes his oath as Filipino citizen, provided that she does not suffer from any of the
disqualifications under said Section 4.[39]
As stated in Moy Ya Lim Yao, the procedure for an alien wife to formalize the
conferment of Filipino citizenship is as follows:
Regarding the steps that should be taken by an alien woman married to a Filipino
citizen in order to acquire Philippine citizenship, the procedure followed in the
Bureau of Immigration is as follows: The alien woman must file a petition for the
cancellation of her alien certificate of registration alleging, among other things, that
she is married to a Filipino citizen and that she is not disqualified from acquiring her
husbands citizenship pursuant to Section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which should be accompanied or
supported by the joint affidavit of the petitioner and her Filipino husband to the
effect that the petitioner does not belong to any of the groups disqualified by the
cited section from becoming naturalized Filipino citizen x x x, the Bureau of
Immigration conducts an investigation and thereafter promulgates its order or
decision granting or denying the petition.
Records however show that in February 1980, Azucena applied before the then
Commission on Immigration and Deportation (CID) for the cancellation of her Alien
Certificate of Registration (ACR) No. 030705[41] by reason of her marriage to a
Filipino citizen. The CID granted her application. However, the Ministry of Justice set
aside the ruling of the CID as it found no sufficient evidence that Azucenas husband
is a Filipino citizen as only their marriage certificate was presented to establish his
citizenship.
Having been denied of the process in the CID, Azucena was constrained to file a
Petition for judicial naturalization based on CA 473. While this would have been
unnecessary if the process at the CID was granted in her favor, there is nothing that
prevents her from seeking acquisition of Philippine citizenship through regular

naturalization proceedings available to all qualified foreign nationals. The choice of

what option to take in order to acquire Philippine citizenship rests with the
applicant. In this case, Azucena has chosen to file a Petition for judicial
naturalization under CA 473. The fact that her application for derivative
naturalization under Section 15 of CA 473 was denied should not prevent her from
seeking judicial naturalization under the same law. It is to be remembered that her
application at the CID was denied not because she was found to be disqualified, but
because her husbands citizenship was not proven. Even if the denial was based on
other grounds, it is proper, in a judicial naturalization proceeding, for the courts to
determine whether there are in fact grounds to deny her of Philippine citizenship
based on regular judicial naturalization proceedings.
As the records before this Court show, Santiagos Filipino citizenship has been
adequately proven. Under judicial proceeding, Santiago submitted his birth
certificate indicating therein that he and his parents are Filipinos. He also submitted
voters registration, land titles, and business registrations/licenses, all of which are
public records. He has always comported himself as a Filipino citizen, an operative
fact that should have enabled Azucena to avail of Section 15 of CA 473. On the
submitted evidence, nothing would show that Azucena suffers from any of the
disqualifications under Section 4 of the same Act.
However, the case before us is a Petition for judicial naturalization and is not based
on Section 15 of CA 473 which was denied by the then Ministry of Justice. The lower
court which heard the petition and received evidence of her qualifications and
absence of disqualifications to acquire Philippine citizenship, has granted the
Petition, which was affirmed by the CA. We will not disturb the findings of the lower
court which had the opportunity to hear and scrutinize the evidence presented
during the hearings on the Petition, as well as determine, based on Azucenas
testimony and deportment during the hearings, that she indeed possesses all the
qualifications and none of the disqualifications for acquisition of Philippine
citizenship.
The OSG has filed this instant Petition on the ground that Azucena does not have
the qualification required in no. 4 of Section 2 of CA 473 as she does not have any
lucrative income, and that the proceeding in the lower court was not in the nature
of a public hearing. The OSG had the opportunity to contest the qualifications of
Azucena during the initial hearing scheduled on May 18, 2004. However, the OSG or
the Office of the Provincial Prosecutor failed to appear in said hearing, prompting

the lower court to order ex parte presentation of evidence before the Clerk of Court
on November 5, 2004. The OSG was also notified of the ex parte proceeding, but
despite notice, again failed to appear. The OSG had raised this same issue at the CA
and was denied for the reasons stated in its Decision. We find no reason to disturb
the findings of the CA on this issue. Neither should this issue further delay the grant
of Philippine citizenship to a woman who was born and lived all her life, in the
Philippines, and devoted all her life to the care of her Filipino family. She has more
than demonstrated, under judicial scrutiny, her being a qualified Philippine citizen.
On the second issue, we also affirm the findings of the CA that since the
government who has an interest in, and the only one who can contest, the
citizenship of a person, was duly notified through the OSG and the Provincial
Prosecutors office, the proceedings have complied with the public hearing
requirement under CA 473.
No. 4, Section 2 of CA 473 provides as qualification to become a Philippine citizen:
4. He must own real estate in the Philippines worth not less than five thousand
pesos, Philippine currency, or must have known lucrative trade, profession, or lawful
occupation.
Azucena is a teacher by profession and has actually exercised her profession before
she had to quit her teaching job to assume her family duties and take on her role as
joint provider, together with her husband, in order to support her family. Together,
husband and wife were able to raise all their five children, provided them with
education, and have all become professionals and responsible citizens of this
country. Certainly, this is proof enough of both husband and wifes lucrative trade.
Azucena herself is a professional and can resume teaching at any time. Her
profession never leaves her, and this is more than sufficient guarantee that she will
not be a charge to the only country she has known since birth.
Moreover, the Court acknowledged that the main objective of extending the
citizenship privilege to an alien wife is to maintain a unity of allegiance among
family members, thus:
It is, therefore, not congruent with our cherished traditions of family unity and
identity that a husband should be a citizen and the wife an alien, and that the
national treatment of one should be different from that of the other. Thus, it cannot
be that the husbands interests in property and business activities reserved by law
to citizens should not form part of the conjugal partnership and be denied to the

wife, nor that she herself cannot, through her own efforts but for the benefit of the
partnership, acquire such interests. Only in rare instances should the identity of
husband and wife be refused recognition, and we submit that in respect of our
citizenship laws, it should only be in the instances where the wife suffers from the
disqualifications stated in Section 4 of the Revised Naturalization Law.
We are not unmindful of precedents to the effect that there is no proceeding
authorized by the law or by the Rules of Court, for the judicial declaration of the
citizenship of an individual. Such judicial declaration of citizenship cannot even be
decreed pursuant to an alternative prayer therefor in a naturalization proceeding.
This case however is not a Petition for judicial declaration of Philippine citizenship
but rather a Petition for judicial naturalization under CA 473. In the first, the
petitioner believes he is a Filipino citizen and asks a court to declare or confirm his
status as a Philippine citizen. In the second, the petitioner acknowledges he is an
alien, and seeks judicial approval to acquire the privilege of becoming a Philippine
citizen based on requirements required under CA 473. Azucena has clearly proven,
under strict judicial scrutiny, that she is qualified for the grant of that privilege, and
this Court will not stand in the way of making her a part of a truly Filipino family.
SECOND DIVISION, G.R. No. 183110, October 07, 2013, REPUBLIC OF THE
PHILIPPINES, PETITIONER, VS. AZUCENA SAAVEDRA BATUIGAS, RESPONDENT.
Naturalization Proceedings: Failure To Comply With Requirements Of C.A. 473, As
Amended
November 30, 2014 by The Lawyer's Post
Stephen, a Chinese national, born on November 29, 1963 arrived in the Philippines
on March 15, 1988 from Mainland China, a country which grants naturalisation
privilege to Filipinos. In 1989 he married Cindy, a British national, with whom he had
four children, all born in the Philippines and studying in local schiils; he had been
continuously residing in the Philippines, can speak English and Filipino, and
successfully established a general trading merchandise, deriving income thereof
more than sufficient to be able to buy condominium unit and several vehicles. Thus,
on August 22, 2007, he filed his Declaration of Intention to Become a Citizen of the
Philippines before the Office of the Solicitor General. On March 12, 2008, or almost
seven months later, he filed his Petition for Naturalization before the RTC, and
attached the requisite documentary evidence to support his petition. The RTC, after

notice and hearing granted his petition; this after Stephens Motion For Early Setting
was opposed by the OSG since it does not comply with the 6-month mandatory
period from the last date of publication. On appeal to the Court of Appeals, the
appellate court brushed aside the OSGs appeal and affirmed the RTC ruling.
The OSG elevated the appeal to the Supreme Court, one of its main contention
being that Stephen filed his Petition for Naturalization less than one year after filing
his Declaration of Intention to Become a Citizen of the Philippines, as provided for
under Commonwealth Act 473, the law under which Stephen filed his petition for
naturalization.
The Supreme Court:
Section 5 of CA No. 473, as amended, expressly states:
Section 5. Declaration of intention. One year prior to the filing of his petition for
admission to Philippine citizenship, the applicant for Philippine citizenship shall file
with the Bureau of Justice (now Office of the Solicitor General) a declaration under
oath that it is bona fide his intention to become a citizen of the Philippines. Such
declaration shall set forth name, age, occupation, personal description, place of
birth, last foreign residence and allegiance, the date of arrival, the name of the
vessel or aircraft, if any, in which he came to the Philippines, and the place of
residence in the Philippines at the time of making the declaration. No declaration
shall be valid until lawful entry for permanent residence has been established and a
certificate showing the date, place, and manner of his arrival has been issued. The
declarant must also state that he has enrolled his minor children, if any, in any of
the public schools or private schools recognized by the Office of Private Education of
the Philippines, where Philippine history, government, and civics are taught or
prescribed as part of the school curriculum, during the entire period of the residence
in the Philippines required of him prior to the hearing of his petition for
naturalization as Philippine citizen. Each declarant must furnish two photographs of
himself. (Emphasis supplied)
As held in Tan v. Republic, the period of one year required therein is the time fixed
for the State to make inquiries as to the qualifications of the applicant. If this period
of time is not given to it, the State will have no sufficient opportunity to investigate
the qualifications of the applicants and gather evidence thereon. An applicant may
then impose upon the courts, as the State would have no opportunity to gather
evidence that it may present to contradict whatever evidence that the applicant

may adduce on behalf of his petition. The period is designed to give the
government ample time to screen and examine the qualifications of an applicant
and to measure the latters good intention and sincerity of purpose. Stated
otherwise, the waiting period will unmask the true intentions of those who seek
Philippine citizenship for selfish reasons alone, such as, but not limited to, those
who are merely interested in protecting their wealth, as distinguished from those
who have truly come to love the Philippines and its culture and who wish to become
genuine partners in nation building.
The law is explicit that the declaration of intention must be filed one year prior to
the filing of the petition for naturalization. Republic v. Go Bon Lee likewise decreed
that substantial compliance with the requirement is inadequate. In that case, Go
filed his declaration of intention to become a citizen of the Philippines on May 23,
1940. After eleven months, he filed his petition for naturalization on April 18, 1941.
In denying his petition, the Court wrote:
The language of the law on the matter being express and explicit, it is beyond the
province of the courts to take into account questions of expediency, good faith and
other similar reasons in the construction of its provisions (De los Santos vs. Mallare,
87 Phil., 289; 48 Off. Gaz., 1787). Were we to accept the view of the lower court on
this matter, there would be no good reason why a petition for naturalization cannot
be filed one week after or simultaneously with the filing of the required declaration
of intention as long as the hearing is delayed to a date after the expiration of the
period of one year. The ruling of the lower court amounts, in our opinion, to a
substantial change in the law, something which courts can not do, their duty being
to apply the law and not tamper with it.
The only exception to the mandatory filing of a declaration of intention is
specifically stated in Section 6 of CA No. 473, to wit:
Section 6. Persons exempt from requirement to make a declaration of intention.
Persons born in the Philippines and have received their primary and secondary
education in public schools or those recognized by the Government and not limited
to any race or nationality, and those who have resided continuously in the
Philippines for a period of thirty years or more before filing their application, may be
naturalized without having to make a declaration of intention upon complying with
the other requirements of this Act. To such requirements shall be added that which
establishes that the applicant has given primary and secondary education to all his
children in the public schools or in private schools recognized by the Government

and not limited to any race or nationality. The same shall be understood applicable
with respect to the widow and minor children of an alien who has declared his
intention to become a citizen of the Philippines, and dies before he is actually
naturalized. (Emphases supplied)
Unquestionably, respondent does not fall into the category of such exempt
individuals that would excuse him from filing a declaration of intention one year
prior to the filing of a petition for naturalization. Contrary to the CA finding,
respondents premature filing of his petition for naturalization before the expiration
of the one-year period is fatal.
xxx
It should be emphasized that a naturalization proceeding is so infused with public
interest that it has been differently categorized and given special treatment. x x x
[U]nlike in ordinary judicial contest, the granting of a petition for naturalization does
not preclude the reopening of that case and giving the government another
opportunity to present new evidence. A decision or order granting citizenship will
not even constitute res judicata to any matter or reason supporting a subsequent
judgment cancelling the certification of naturalization already granted, on the
ground that it had been illegally or fraudulently procured. For the same reason,
issues even if not raised in the lower court may be entertained on appeal. As the
matters brought to the attention of this Court x x x involve facts contained in the
disputed decision of the lower court and admitted by the parties in their pleadings,
the present proceeding may be considered adequate for the purpose of determining
the correctness or incorrectness of said decision, in the light of the law and extant
jurisprudence.
Petition granted.
THIRD DIVISION, G.R. No. 197450, March 20, 2013, REPUBLIC OF THE PHILIPPINES,
PETITIONER, VS. LI CHING CHUNG, A.K.A. BERNABE LUNA LI, A.K.A. STEPHEN LEE
KENG, RESPONDENT.
Naturalization Proceedings: Requirement of Lucrative Trade, Profession Or Lawful
Occupation
October 24, 2014 by The Lawyer's Post

Kerry, a Chinese citizen, filed a petition for naturalisation before the Regional Trial
Court of Cebu City. After complying with the jurisdictional requirements of the
petition, Kerry presented his documentary and testimonial evidence in support of
his petition. Among his exhibits are his income tax returns for the year 1994 to
1997. In his petition, he alleged that he is a businessman/business manager since
1989, with an average annual income of P150,000.00. After due hearing, the RTC
granted his petition.
The Republic of the Philippines thru the Office of the Solicitor General appealed this
grant of naturalisation to Kerry, alleging in the main that Kerry failed to prove that
he possesses a known lucrative trade, profession, or lawful occupation as required
under the Revised Naturalization Law.
The Court of Appeals denied the Republics appeal, holding that the income tax
returns submitted by Kerry were enough to prove Kerrys possession of a lucrative
trade, profession, or lawful occupation. It also took judicial notice of the value of the
peso when the petition was filed in 1996.
Hence, the Republic elevated the case to the Supreme Court:
In the case at bar, the controversy revolves around respondent Ongs compliance
with the qualification found in Section 2, fourth paragraph of the Revised
Naturalization Law, which provides:
SECTION 2. Qualifications. Subject to section four of this Act, any person having
the following qualifications may become a citizen of the Philippines by
naturalization:
xxxx
Fourth. He must own real estate in the Philippines worth not less than five thousand
pesos, Philippine currency, or must have some known lucrative trade, profession, or
lawful occupation;
xxxx
Based on jurisprudence, the qualification of some known lucrative trade,
profession, or lawful occupation means not only that the person having the
employment gets enough for his ordinary necessities in life. It must be shown that

the employment gives one an income such that there is an appreciable margin of
his income over his expenses as to be able to provide for an adequate support in
the event of unemployment, sickness, or disability to work and thus avoid ones
becoming the object of charity or a public charge. His income should permit him
and the members of his family to live with reasonable comfort, in accordance with
the prevailing standard of living, and consistently with the demands of human
dignity, at this stage of our civilization.
xxx
The paucity of evidence is unmistakable upon a reading of the trial courts
decision. The trial court held that respondent Ong is a businessman engaged in
lawful trade and business since 1989 but did not cite the evidence, which supports
such finding. After poring over the records, the Court finds that the reason for the
lack of citation is the absence of evidence to support such conclusion. The trial
courts conclusion that Ong has been a businessman since 1989 is only an assertion
found in Ongs petition for naturalization. But, on the witness stand, Ong did not
affirm this assertion. Instead, he testified that he had been a businessman since he
graduated from college, which was in 1978.
Further, the trial court, citing Exhibits U, V, W, and X (which are Ongs tax returns),
mistakenly found that Ong derives an average annual income of more than One
Hundred Fifty Thousand Pesos. This conclusion is not supported by the evidence.
The cited tax returns show that Ongs gross annual income for the years 1994 to
1997 were P60,000.00, P118,000.00, P118,000.00, and P128,000.00, respectively.
The average annual income from these tax returns is P106,000.00 only, not
P150,000.00 as the trial court held. It appears that the trial court again derived its
conclusion from an assertion in Ongs petition, but not from the evidence.
As for the CA, it no longer ruled on the question whether Ong has a known business
or trade. Instead, it ruled on the issue whether Ongs income, as evidenced by his
tax returns, can be considered lucrative in 1996. In determining this issue, the CA
considered the ages of Ongs children, the income that he earned in 1996, and the
fact that Ongs wife was also employed at that time. It then concluded that there is
an appreciable margin of Ongs income over his expenses.
The Court finds the appellate courts decision erroneous. First, it should not have
included the spouses income in its assessment of Ongs lucrative income. Second,
it failed to consider the following circumstances which have a bearing on Ongs

expenses vis--vis his income: (a) that Ong does not own real property; (b) that his
proven average gross annual income around the time of his application, which was
only P106,000.00, had to provide for the education of his four minor children; and
(c) that Ongs children were all studying in exclusive private schools in Cebu City.
Third, the CA did not explain how it arrived at the conclusion that Ongs income had
an appreciable margin over his known expenses.
Ongs gross income might have been sufficient to meet his familys basic needs, but
there is simply no sufficient proof that it was enough to create an appreciable
margin of income over expenses. Without an appreciable margin of his income over
his familys expenses, his income cannot be expected to provide him and his family
with adequate support in the event of unemployment, sickness, or disability to
work.
Clearly, therefore, respondent Ong failed to prove that he possesses the
qualification of a known lucrative trade provided in Section 2, fourth paragraph, of
the Revised Naturalization Law.
<
p style=padding-left: 30px;>FIRST DIVISION, G.R. No. 175430, June 18,
2012, REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. KERRY LAO ONG,
RESPONDENT.
Act Granting Permanent Residency, Rights And Privileges To Filipino Veterans Of
WW2 Who Acquired US Citizenship-Republic Act 8737
September 8, 2014 by The Lawyer's Post
REPUBLIC ACT NO. 7837
AN ACT GRANTING PERMANENT RESIDENT STATUS, OTHER RIGHTS AND PRIVILEGES
TO FILIPINO VETERANS OF WORLD WAR II WHO ACQUIRED AMERICAN CITIZENSHIP
UNDER THE UNITED STATES IMMIGRATION ACT OF 1990, AND FOR OTHER
PURPOSES
Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:
SECTION 1. Title. This Act shall be known as Act Granting Permanent Resident
Status, Other Rights and Privileges to Filipino Veterans of World War II Who Acquired

American Citizenship under the United States Immigration Act of 1990 and Any
Other Prior Acts for These Purposes.
SEC. 2. Declaration of Policy. It is hereby declared to be the policy of the State to
foster the general well-being of the countrys veterans in recognition of their
patriotic services in times of war and peace for the cause of freedom and
democracy; for the attainment of national unity and independence, and for the
maintenance of peace and order, in keeping with the goals of the Government and
the aspirations of the people.
SEC. 3. Qualifications. Any Filipino veteran of World War II who acquired American
citizenship pursuant to the United States Immigration Act of 1990 shall be qualified
for permanent resident status and is hereby granted limited property rights and
other privileges as provided for in this Act. The same rights and privileges shall
likewise automatically accrue upon proper application to the spouses and
legitimate, natural, recognized illegitimate, and unmarried children of Filipino
veterans who thereafter acquired American citizenship.
SEC. 4. Application for Permanent Residence. Filipino veterans, their spouses and
their legitimate, natural, recognized illegitimate, and unmarried children who are
American citizens and residing in foreign lands, who wish to avail of permanent
resident status in the Philippines shall comply with reentry requirements as
prescribed by Philippine laws. Upon entry in the Philippines, they may acquire
permanent resident status from the Bureau of Immigration and Deportation.
Filipino veterans who did not leave the Philippines and who have acquired American
citizenship in the United States Embassy may likewise apply for permanent resident
status with the Bureau of Immigration and Deportation.
SEC. 5. Requirements. Filipino veterans and their family members, upon filing their
application for permanent residence, shall present their American passports and
their birth or baptismal certificates, or any other documents that will prove that
they were former Filipino citizens. All other requirements as required by law and by
the Bureau of Immigration and Deportation are waived.
SEC. 6. Land Ownership. Any Filipino veteran and his spouse and legitimate,
natural, recognized illegitimate, and unmarried children who acquired American
citizenship as provided in the United States Immigration Act of 1990 shall be
entitled to continue to hold and retain all the lands they have acquired before
becoming American citizens, subject to the provisions of existing laws: Provided,
however, That if they have had no landholding upon becoming American citizens,
they shall be qualified to acquire one (1) residential lot of not more than one
thousand square meters and/or a farm lot of not more than three hectares.

SEC. 7. Practice of Profession. Any Filipino veteran and his spouse and legitimate,
natural, recognized illegitimate, and unmarried children who became American
citizens as provided in the United States Immigration Act of 1990 shall be entitled to
practice their professions in the Philippines.
Sec. 8. Other Privileges Granted to Filipino Veterans and their Immediate Family
Members.

Exemption from registration and other fees Filipino veterans, their spouses and
their legitimate, natural, recognized illegitimate, and unmarried children qualified
under this Act shall be exempt from the payment of registration and other
immigration fees after complying with the provisions of the Alien Registration Law.
Multiple entry visa Filipino veterans, their spouses and their legitimate, natural,
recognized illegitimate, and unmarried children, shall be entitled to multiple entry
visa
which
shall
be
valid
for
a
period
of
two
(2)
years.
Reentry permit Filipino veterans, their spouses and their legitimate, natural,
recognized illegitimate, and unmarried children, as qualified in Section 2 of this Act,
may avail from the Bureau of Immigration and Deportation of reentry permits that
shall
be
valid
for
two
(2)
years.
Immunity from deportation Filipino veterans, their spouses and their legitimate,
natural, recognized illegitimate, and unmarried children shall not be subject to
deportation unless they commit and are convicted of crimes against the State:
Provided, That their permanent resident status has been previously cancelled.
Other properties Beneficiaries of this Act who acquired shares of stocks in
corporations and other properties as Filipino citizens shall continue to retain
ownership of such properties registered in their name prior to their acquisition of
American citizenship.
SEC. 9. Implementation. The Commissioner of Immigration shall within thirty (30)
days after the effectivity of this Act, issue the rules and regulations necessary for
the effective implementation of this Act.
The Bureau of Immigration and Deportation shall establish, for purposes of
implementing the mandate of this Act, such registration centers as may be
necessary.
SEC. 10. Repealing Clause. Any provision of law, presidential decree, executive
order, and other executive issuances inconsistent with this Act are hereby repealed
or modified accordingly.
SEC. 11. Separability Clause. If any provision of this Act shall be held
unconstitutional the other provisions shall not be affected thereby.
SEC. 12. Effectivity Clause. This Act shall take effect fifteen (15) days after its
publication in at least two (2) national newspapers of general circulation.

Approved, December 16, 1994.

While Mandating Adherence To The General Policy Of The Government That
Contracts for The Procurement Of Civil Works Or Supply Of Goods And Equipment
Shall Be Undertaken Only After Competitive Public Bidding, RA 9184 Recognizes The
Countrys Commitment To Abide By Its Obligations Under Any Treaty Or International
Or Executive Agreement
August 29, 2015 by The Lawyer's Post
The Facts:
Timeline:
October 3, 2006- Landbank of the Philippines and the International Bank for
Reconstruction and Development entered into Loan Agreement 4833-PH for the
implementation of the IBRDs support for Strategic Local Development and
Investment Project. The Loan Agreement was fully guaranteed by the Government
of the Republic of the Philippines and conditioned upon participation of at least two
local government units thru a Subsidiary Loan Agreement (SLA) with Land Bank.
February 23, 2007- A SLA was entered into between Land Bank and the City of Iligan
for the development and expansion of the citys water supply system. The SLA
expressly provided that the goods, works, and services to be financed out of
the proceeds of the loan with Land Bank were to be procured in
accordance with the provisions of Section I of the Guidelines:
Procurement under IBRD Loans and IDA Credits x xx,and with the
provisions of [the] Schedule 4. The City of Iligan then conducted a public
bidding, where Respondent Atlanta Industries participated, using the IBRD
Procurement Guidelines.
July 27, 2009- The Bids and Awards Committee (BAC) informed the respondent that
a failure of bidding was declared upon recommendation of the Land Bank due to
IBRDs non-concurrence with the bid evaluation report.
August 28, 2009- The BAC informed Atlanta that it was disqualified from the bidding
because it lacked several documentary exhibits. Atlanta responded thru a letter
dated September 8, 2009, seeking to correct the BACs assumption that to failed to
submit the necessary bid documents. It also expressed its objection against the
BACs declaration of a failure of bidding, asserting that had it not been improperly
disqualified there would have also been no need to declare the bidding a failure

because its tender would be the sole responsive bid necessary to save the bid
process.
September 25, 2009- The BAC thru a Resolution deemed it futile to address
Atlantas objections, in view of the failure of bidding declared by the BAC
November 16, 2009- Atlanta called the BAC attention to the latters use of bidding
documents, which it claimed, failed to conform with the Third Edition of the
Philippine Bidding Documents for the Procurement of Goods (PBDs) prescribed by
the Government Procurement Policy Board (GPPB) but also contained numerous
provisions that were not in accordance with RA 9184 and its Implementing Rules
and Regulations(IRR). The BAC declared that the project was not covered by RA
9184 or by the GPPBs issuances during the pre-bid conference.
December 10, 2009-Atlanta filed a petition for Prohibition and Mandamus to enjoin
the bidding of the project, apprehensive that the BACs use of bidding documents
which appeared to be in contravention of RA 9184 and its implementing rules and
regulations. The petitioners filed their separate comments, alleging he case was
dismissible for improper venue, mootness, non-exhaustion of administrative
remedies, failure to implead an indispensable party, and the inapplicability of RA
9184. Bidding proceeded on December 14, 2009. The case proceeded.
September 3, 2010- The Manila RTC declared the bidding null and void for being
contrary to the rules and procedure prescribed by RA 9184 and its IRR. The City of
Iligan also cannot claim exemption from the provisions of RA 9184 by virtue of Loan
Agreement No. 4833-PH as it was not a party to Loan Agreement No. 4833-PH. IBRD
cannot be claimed to have passed its status as an international institution exempt
from Ra 9814 by virtue of its having lent money to Land Bank; likewise, the SLA
between the City of Iligan and Land Bank cannot provide for the use of bidding
documents other than those provided under RA 9184 as the SLA was not an
international agreement similar to the Loan Agreement with the IBRD.
Landbank elevated the case to the Supreme Court on pure question of law.
The Issue:
a) Whether or not the Manila RTC has jurisdiction over the instant prohibition case
and eventually issue the writ prayed for; and,

b)Whether or not the SLA between the Land Bank and the City Government of Iligan
is an executive agreement similar to Loan Agreement No. 4833-PH such that the
procurement of water pipes by the BAC of the City Government of Iligan should be
deemed exempt from the application of RA 9184

The Ruling:
The petition is meritorious.
The Court first resolves the procedural issues of this case, then proceeds to its
substantive aspects.
1. PROCEDURAL ISSUES:THE MANILA RTCS LACK OF JURISDICTION TO ISSUE
THE WRIT OF PROHIBITION SUBJECT OF THIS CASE; AND ATLANTAS FAILURE
TO EXHAUST ADMINISTRATIVE REMEDIES.
2. ____________________________________
Preliminarily, Land Bank asserts that the Petition for Prohibition was improperly filed
before the Manila RTC considering that the acts sought to be enjoined, i.e., the
public bidding for the supply of water pipes, are beyond the said courts territorial
jurisdiction.1 Atlanta, for its part, counter-argues that the acts of Land Bank are as
much to be enjoined for causing the City Government of Iligan and its BAC to
continuously violate the provisions of RA 9184, its IRR, and the PBDs in the conduct
of the public bidding2 and that the filing of the prohibition case in the City of Manila
was in accordance with the rules on venue given that Land Banks main office is in
the City of Manila.3
The Court finds for Land Bank.
A petition for prohibition is a special civil action that seeks for a judgment ordering
the respondent to desist from continuing with the commission of an act perceived to
be illegal. Section 2, Rule 65 of the Rules of Court (Rules) reads:
Sec. 2. Petition for Prohibition. When the proceedings of any tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts

with certainty andpraying that judgment be rendered commanding the

respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and justice
may require.
x x x x (Emphasis supplied)
While the Court, Court of Appeals and Regional Trial Court have original concurrent
jurisdiction to issue writs of certiorari,prohibition and mandamus, if what is assailed
relates to acts or omissions of a lower court or of a corporation, board, officer or
person, the petition must be filed in the Regional Trial Court exercising jurisdiction
over the territorial area as defined by the Court. Section 4 of the same Rules
provides that:
Sec. 4. When and Where to file the petition. The petition shall be filed not later
than sixty (60) days from notice of the judgment, order or resolution. In case a
motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the petition shall be filed not later than sixty (60) days counted
from the notice of the denial of the motion.
If the petition relates to an act or an omission of a municipal trial court or
of a corporation, a board, an officer or a person, it shall be filed with the
Regional Trial Court exercising jurisdiction over the territorial area as
defined by the Supreme Court. It may also be filed with the Court of Appeals or
with the Sandiganbayan, whether or not the same is in aid of the courts appellate
jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency,
unless otherwise provided by law or these rules, the petition shall be filed with and
be cognizable only by the Court of Appeals.
x x x x (Emphasis supplied)
The foregoing rule corresponds to Section 21 (1) of Batas PambansaBlg.
129,4 otherwise known as The Judiciary Reorganization Act of 1980 (BP 129),
which gives Regional Trial Courts original jurisdiction over cases of certiorari,
prohibition,mandamus, quo warranto, habeas corpus, and injunction but lays down
the limitation that the writs issued therein are enforceable only within their
respective territorial jurisdictions.The pertinent provision reads:

Sec. 21. Original jurisdiction in other cases. Regional Trial Courts shall exercise
original jurisdiction:
(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction, which may be enforced in any part of their
respective regions;
x x x x (Emphasis supplied)
The Court already ruled in numerous cases, beginning with the very early case
of Castao v. Lobingier,5 that the power to administer justice conferred upon judges
of the Regional Trial Courts, formerly Courts of First Instance(CFI), can only be
exercised within the limits of their respective districts, outside of which they have
no jurisdiction whatsoever. Applying previous legislation similar to the present
Section 21 of BP 129 and its complementary provision, i.e., Section 4, Rule 65 of the
Rules, the Court held in said case that the CFI of Leyte had no power to issue writs
of injunction and certiorari against the Justice of the Peace of Manila, as the same
was outside the territorial boundaries of the issuing court. Also, in Samar Mining
Co., Inc. v. Arnado,6 a petition forcertiorari and prohibition with preliminary
injunction was filed in the CFI of Manila to question the authority of the Regional
Administrator and Labor Attorney of the Department of Labor in Cebu City to hear a
complaint for sickness compensation in Catbalogan, Samar and to enjoin said
respondents from conducting further proceedings thereat. The Court affirmed the
dismissal of the case on the ground of improper venue, holding that the CFI of
Manila had no authority to issue writs of injunction, certiorari,and prohibition
affecting persons outside its territorial boundaries. Further, in both Cudiamat v.
Torres (Cudiamat)7 and National Waterworks and Sewerage Authority v.
Reyes8 (NAWASA), the losing bidders succeeded in securing an injunctive writ from
the CFI of Rizal in order to restrain, in Cudiamat, the implementation of an award on
a public bidding for the supply of a police call and signal box system for the City of
Manila, and, in NAWASA, the conduct of the public bidding for the supply of steel
pipes for its Manila and Suburbs Waterworks Project. The Court held in both cases
that the injunction issued by the CFI of Rizal purporting to restrain acts outside the
province of Rizal was null and void for want of jurisdiction.
Undoubtedly, applying the aforementioned precepts and pronouncements to the
instant case, the writ of prohibition issued by the Manila RTC in order to restrain acts
beyond the bounds of the territorial limits of its jurisdiction (i.e., in Iligan City) is null
and void.

Also on a matter of procedure, the Court further discerns that the Manila RTC should
have dismissed the case outright for failure of Atlanta to exhaust administrative
remedies. Under RA 9184, the decisions of the BAC in all stages of procurement
may be protested to the head of the procuring entity through a verified position
paper and upon payment of a protest fee. 9 The necessity for the complaining bid
participant to complete the protest process before resorting to court action cannot
be overemphasized. It is a condition precedent to the courts taking cognizance of
an action that assails a bid processs. 10 When precipitately taken prior to the
completion of the protest process, such case shall be dismissed for lack of
jurisdiction.11 While Atlanta may have written the BAC a letter objecting to some of
the terms and conditions contained in the bidding documents to be used for the rebidding, its action fell short of the required protest. It failed to follow through with its
protest and opted instead to participate in the re-bidding with full knowledge that
the IBRD Procurement Guidelines were to be followed throughout the conduct of the
bid. Having failed to observe the protest procedure required by law, Atlantas case
should not have prospered with the RTC altogether.
With the procedural matters having been resolved, the Court now proceeds to
discuss the substantive aspect of this case concerning the SLA and Land Banks
claimed exemption from the provisions of RA 9184.
1. SUBSTANTIVE ISSUES:THE APPLICABILITY OF THE BIDDING PROCEDURE
UNDER RA 9184; AND THE NATURE OF LOAN NO. 4833-PH AND ITS RELATION
TO THE SLA.
____________________________________
While mandating adherence to the general policy of the government that contracts
for the procurement of civil works or supply of goods and equipment shall be
undertaken only after competitive public bidding, RA 9184 recognizes the countrys
commitment to abide by its obligations under any treaty or international or
executive agreement. This is pertinently provided in Section 4 of RA 9184 which
reads as follows:
Sec. 4. Scope and Application. This Act shall apply to the Procurement of
Infrastructure Projects, Goods and Consulting Services, regardless of source of
funds, whether local or foreign, by all branches and instrumentalities of the
government, its department, offices and agencies, including government owned
and/or controlled corporations and local government units, subject to the
provisions of Commonwealth Act No. 138. Any treaty or international or

executive agreement affecting the subject matter of this Act to which the
Philippine government is a signatory shall be observed. (Emphasis supplied)
The IRR of RA 9184 further supplements the laws treatment of treaties and
international or executive agreements as follows:
Section 4. Scope and Application of the IRR
4.1 This IRR shall apply to all procurement of any branch, agency, department,
bureau, office or instrumentality of the GOP, including government-owned and/or
-controlled corporations (GOCCs), government financial institutions (GFIs), state
universities and colleges (SUCs) and local government units (LGUs).
4.2 Any Treaty or International or Executive Agreement to which the GOP is a
signatory affecting the subject matter of the Act and this IRR shall be observed. In
case of conflict between the terms of the Treaty or International or Executive
Agreement and this IRR, the former shall prevail.
4.3 Unless the Treaty or International or Executive Agreement expressly
provides use of foreign government/foreign or international financing
institution procurement procedures and guidelines, this IRR shall apply to
Foreign-funded Procurement for goods, infrastructure projects, and consulting
services by the GOP.
Consistent with the policies and principles set forth in Sections 2 and 3 of this IRR,
the GOP negotiating panels shall adopt, as its default position, use of this IRR, or at
the very least, selection through competitive bidding, in all Foreign-funded
Procurement. If the Treaty or International or Executive Agreement states otherwise,
then the negotiating panels shall explain in writing the reasons therefor. (Emphasis
supplied)
While Atlanta admits that there are exceptions to the application of RA 9184, it
posits that the City Government of Iligan could not claim to be exempt under any of
the enumerated instances because it is not a party to the IBRD Loan Agreement. 12
It further asserts that a provision in the SLA between Land Bank and the City
Government of Iligan providing for procurement procedures different from that

required under RA 9184 would not be valid since it is not a treaty or an executive
agreement in the way that Loan Agreement No. 4833-PH is.
The argument lacks merit.
As the parties have correctly discerned, Loan Agreement No. 4833-PH is in the
nature of an executive agreement. In Bayan Muna v. Romulo13 (Bayan Muna) the
Court defined an international agreement as one concluded between states in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation,14 and further expounded that it may be in the form of either (a)
treaties that require legislative concurrence after executive ratification; or
(b) executive agreements that are similar to treaties, except that they do
not require legislative concurrence and are usually less formal and deal
with a narrower range of subject matters than treaties.15 Examining its
features, Loan Agreement No. 4833-PH between the IBRD and the Land Bank is an
integral component of the Guarantee Agreement executed by the Government of
the Philippines as a subject of international law possessed of a treaty-making
capacity, and the IBRD, which, as an international lending institution organized by
world governments to provide loans conditioned upon the guarantee of repayment
by the borrowing sovereign state, is likewise regarded a subject of international law
and possessed of the capacity to enter into executive agreements with sovereign
states. Being similar to a treaty but without requiring legislative concurrence, Loan
Agreement No. 4833-PH following the definition given in the Bayan Muna case is
an executive agreement and is, thus, governed by international law.Owing to this
classification, the Government of the Philippines is therefore obligated to observe its
terms and conditions under the rule of pacta sunt servanda, a fundamental maxim
of international law that requires the parties to keep their agreement in good
faith.16 It bears pointing out that the pacta sunt servanda rule has become part of
the law of the land through the incorporation clause found under Section 2, Article II
of the 1987 Philippine Constitution, which states that the Philippines adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity
with all nations.Keeping in mind the foregoing attributions, the Court now
examines the SLA and its relation with Loan Agreement No. 4833-PH.
As may be palpably observed, the terms and conditions of Loan Agreement No.
4833-PH, being a project-based and government-guaranteed loan facility,
were incorporated and made part of the SLA that was subsequently entered
into by Land Bank with the City Government of Iligan. 17 Consequently, this means

that the SLA cannot be treated as an independent and unrelated contract but as a
conjunct of, or having a joint and simultaneous occurrence with, Loan Agreement
No. 4833-PH. Its nature and consideration, being a mere accessory contract
of Loan Agreement No. 4833-PH, are thus the same as that of its principal
contract from which it receives life and without which it cannot exist as an
independent contract.18 Indeed, the accessory follows the principal; 19 and,
concomitantly, accessory contracts should not be read independently of the main
contract.20 Hence, as Land Bank correctly puts it, the SLA has attained indivisibility
with the Loan Agreement and the Guarantee Agreement through the incorporation
of each others terms and conditions such that the character of one has likewise
become the character of the other.
Considering that Loan Agreement No. 4833-PH expressly provides that the
procurement of the goods to be financed from the loan proceeds shall be in
accordance with the IBRD Guidelines and the provisions of Schedule 4, and that the
accessory SLA contract merely follows its principals terms and conditions, the
procedure for competitive public bidding prescribed under RA 9184 therefore finds
no application to the procurement of goods for the Iligan City Water Supply System
Development and Expansion Project. The validity of similar stipulations in foreign
loan agreements requiring the observance of IBRD Procurement Guidelines in the
procurement process has, in fact, been previously upheld by the Court in the case
of Department of Budget and Management Procurement Service (DBM-PS) v.
Kolonwel Trading,21 viz.:
The question as to whether or not foreign loan agreements with international
financial institutions, such as Loan No. 7118-PH, partake of an executive or
international agreement within the purview of Section 4 of R.A. No. 9184, has been
answered by the Court in the affirmative in [Abaya v. Sec. Ebdane, Jr., 544 Phil. 645
(2007)]. Significantly, Abaya declared that the RP-JBIC loan agreement was to be of
governing application over the CP I project and that the JBIC Procurement
Guidelines, as stipulated in the loan agreement, shall primarily govern the
procurement of goods necessary to implement the main project.
Under the fundamental international law principle of pacta sunt servanda, which is
in fact embodied in the afore-quoted Section 4 of R.A. No. 9184, the RP, as
borrower, bound itself to perform in good faith its duties and obligation under Loan
No. 7118-PH. Applying this postulate in the concrete to this case, the IABAC was
legally obliged to comply with, or accord, primacy to, the WB Guidelines on the
conduct and implementation of the bidding/procurement process in question. 22

With the nature and treatment of Loan Agreement No. 4833-PH as well as its
accessory SLA herein explained, the Court thus holds that the RTC committed
reversible error in ruling that the provisions of RA 9184 were to be applied in this
case. Quite the contrary, it is the IBRD Guidelines and the provisions of Schedule 4
which should govern. As such, the procurement of water pipes by the BAC of the
City Government of Iligan as Land Bank meritoriously submits in its petition is
beyond the purview of RA 9184, yielding as it should to the express stipulations
found in the executive agreement, to which the latters accessory merely follows.
In view of all these errors, both on procedural and substantive counts, the Court is
hereby bound to reverse the trial courts decision and accordingly grant the present
petition.
WHEREFORE, the petition is GRANTED. The Decision dated September 3, 2010 of
the Regional Trial Court of Manila, Branch 21 (Manila RTC) in Civil Case No. 09122643 is hereby REVERSED and SET ASIDE. The Petition for Prohibition and
Mandamus filed before the Manila RTC is DISMISSED.
SO ORDERED.
PERLAS-BERNABE, J.:
Carpio, (Chairperson), Brion, Del Castillo and Perez, JJ., concur.
SECOND DIVISION, G.R. No. 193796, July 02, 2014, LAND BANK OF THE
PHILIPPINES, PETITIONER, VS. ATLANTA INDUSTRIES, INC., RESPONDENT.

A Judge Cannot Claim That Engaging In Sexual Relations With Another Person During
The Subsistence Of A Marriage Is An Exercise Of Her Religious Expression. Legal
Implications And Obligations Attach To Any Person Who Chooses To Enter Civil
Marriages. This Is Regardless Of How Civil Marriages Are Treated In That Persons
Religion
August 24, 2015 by The Lawyer's Post
The Facts:

In his administrative complaint against Judge Alma Consuelo Desales-Esidera

(respondent) of RTC Branch 20 Catarman City, Eladio Perfecto (complainant),
accused the judge of being first married to one Richard Tepace on May 7, 1987.
During their marriage, Alma gave birth to a daughter with Renato Esidera. Her
marriage to Richard was lated declared void on January 27, 1992, and Alma married
Renato on June 3, 1992. Eladio further added that Alma falsified her daughters
birth certificate to make it appear that she and Renato were married on March 18,
1990 and their daughter was a legitimate child. Verification, however, revealed that
no marriage took place on that day and Judge Desales-Esidera did not take steps to
rectify her daughters birth certificate. Eladio thus prayed for Judge DesalesEsideras dismissal from the service for dishonesty.
In her Comment, Judge Desales-Esidera prayed for the complaints dismissal for
failure to comply with the elements of personal knowledge, failing which, the
allegations were mere tsismis or hearsay. She claimed that Eladio secured the
documents in connivance with persons involved in or were related to parties in
other administrative cases. They wanted her out of the judiciary so they could
continue their illegal activities in the office. She claimed that the charges against
her were personal, not judicial. She did not participate in the preparation of her
daughters birth certificate; she had wanted to correct it but did not do so for the
best interest of the child. She admitted being married on Mach 18, 1990, but only
in accordance with recognized Catholic rites. The person who officiated the
ceremony had no license to solemnize marriages under civil law. While her religious
marriage was done before the declaration of nullity of her first marriage, the
prevailing jurisprudence at that time was that there was no need for a judicial
decree to establish the invalidity of a void marriage. When she married for the first
time, it was not their intention to live together as husband and wife. They planned
a church wedding for later but it did not push through because Richards mother
was sick and his father , a Chinese would not agree because it was then the Year of
the Dragon. They never lived together as husband and wife. They both wanted it
quits. Then she met Renato. She realized it was unfair to live in a marriage that
was never consummated. She wanted very much an annulment, but it was a long
and tedious process. Then she got pregnant. Being both religious, they consulted
priests who were knowledgeable in canon law. Because of the separation of Church
and State, civil marriages are not recognised by the Catholic Church; couples who
are civilly married are considered living in sin and may be excommunicated. Her

marriage to Richard Tang was not recognised by the Catholic Church. Further, as a
foreign citizen, Richard needed to secure a certificate of legal capacity before she
can secure a marriage license. Not having presented the certificate before securing
the marriage license, Richards marriage to her was void. At that time, there was no
need to secure a judicial declaration to establish the invalidity of a marriage. The
logical conclusion, according to the judge, was that there was no impediment for
her and Renato to get married, although she needed to cancel the registration of
the first marriage. While waiting for the outcome of the declaration of nullity of the
first marriage, they proceeded with the Catholic marriage to continue living in a
state of grace. Her daughters pregnancy was very complicated, and it was Renato,
a non-lawyer who prepared the birth certificate. To Renato, their union was blessed
by God, and their daughter was a legitimate child. She had always wanted to
correct her daughters birth certificate, but decided against it for the best interest of
the child, who may not understand why she is different from her other siblings. The
date of marriage indicated in her birth certificate is the days she and Renato
received the sacrament of matrimony. The officiating priest had no license to
solemnize marriages in the country. While she is being charged with immorality, the
judges argues that the test of morality are those set by whatever religion one has.
In her case, it was the Ten Commandments which she violated but which she
rectified by availing of the Sacrament of Reconciliation and Matrimony. Finally, she
never kept the status of her daughter a secret, a fact which could not have escaped
scrutiny when she applied in the Judiciary. The first civil marriage was never
consummated; the second marriage was purely a sacramental rite in obedience to
the Law of God, and the third marriage was to formalize their status in the eyes of
the law of man.
The Office of the Court Administrator in its findings found that Judge DesalesEsidera condoned the misrepresentation made on her childs birth certificate and
engaged in an illicit affair and contracted a second marriage while another
marriage subsisted. She contracted the second marriage knowing that there were
legal impediments to that marriage. Judge Desales-Esidera did not comport herself
according to her Roman Catholic faith.

The Issue:

Whether or not Judge Desales-Esidera should be held administratively liable.

The Ruling:

We find that Judge Desales-Esideras omission to correct her childs birth certificate
is not sufficient to render her administratively liable under the circumstances. The
error in the birth certificate cannot be attributed to her. She did not participate in
filling in the required details in the document. The birth certificate shows that it was
her husband who signed it as informant.1
Judge Desales-Esidera is also not guilty of disgraceful and immoral conduct under
the Code of Professional Responsibility.
Morality refers to what is good or right conduct at a given circumstance. In Estrada
v. Escritor,2 this court described morality as how we ought to live and why. 3
Morality may be religious, in which case what is good depends on the moral
prescriptions of a high moral authority or the beliefs of a particular religion. Religion,
as this court defined in Aglipay v. Ruiz,4 is a profession of faith to an active power
that binds and elevates man to his Creator. 5 A conduct is religiously moral if it is
consistent with and is carried out in light of the divine set of beliefs and obligations
imposed by the active power.
Morality may also be secular, in which case it is independent of any divine moral
prescriptions. What is good or right at a given circumstance does not derive its basis
from any religious doctrine but from the independent moral sense shared as
humans.
The non-establishment clause6 bars the State from establishing, through laws and
rules, moral standards according to a specific religion. Prohibitions against
immorality should be based on a purpose that is independent of religious beliefs.
When it forms part of our laws, rules, and policies, morality must be secular. Laws
and rules of conduct must be based on a secular purpose. 7
In the same way, this court, in resolving cases that touch on issues of morality, is
bound to remain neutral and to limit the bases of its judgment on secular moral

standards. When laws or rules refer to morals or immorality, courts should be

careful not to overlook the distinction between secular and religious morality if it is
to keep its part in upholding constitutionally guaranteed rights. 8
There is the danger of compelled religion 9 and, therefore, of negating the very
idea of freedom of belief and non-establishment of religion when religious morality
is incorporated in government regulations and policies. As explained in Estrada v.
Escritor:10
Otherwise, if government relies upon religious beliefs in formulating public policies
and morals, the resulting policies and morals would require conformity to what
some might regard as religious programs or agenda. The non-believers would
therefore be compelled to conform to a standard of conduct buttressed by a
religious belief, i.e., to a compelled religion anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary religious
or non-religious views that would not support the policy. As a result, government will
not provide full religious freedom for all its citizens, or even make it appear that
those whose beliefs are disapproved are second-class citizens. Expansive religious
freedom therefore requires that government be neutral in matters of religion;
governmental reliance upon religious justification is inconsistent with this policy of
neutrality.11
The Office of the Court Administrator recommended that we find respondent judge
guilty of immoral conduct based on, among others, her alleged affair and her failure
to comport herself according to the Roman Catholic faith.
This court may not sit as judge of what is moral according to a particular religion.
We do not have jurisdiction over and is not the proper authority to determine which
conduct contradicts religious doctrine. We have jurisdiction over matters of morality
only insofar as it involves conduct that affects the public or its interest.
Thus, for purposes of determining administrative liability of lawyers and judges,
immoral conduct should relate to their conduct as officers of the court. To be
guilty of immorality under the Code of Professional Responsibility, a lawyers
conduct must be so depraved as to reduce the publics confidence in the Rule of
Law. Religious morality is not binding whenever this court decides the
administrative liability of lawyers and persons under this courts supervision. At
best, religious morality weighs only persuasively on us.

Therefore, we cannot properly conclude that respondent judges acts of contracting

a second marriage during the subsistence of her alleged first marriage and having
an alleged illicit affair are immoral based on her Catholic faith. This court is not
a judge of religious morality.
We also do not find that respondent judges acts constitute immorality for purposes
of administrative liability. Under the circumstances, respondent judges second
marriage and her alleged affair with her second husband were not of such
depravity as to reduce confidence in the Rule of Law. Respondent judge and her first
husband never really lived together as husband and wife. She claimed that her first
husband did not want to have a church wedding. She and her husband did not have
a child. She claimed that this marriage was not recognized by her church.
Eventually, their marriage was declared void, 12 and she was wed civilly to her
second husband, with whom respondent judge allegedly had an affair.
Moreover, respondent judges acts were not intrinsically harmful. When respondent
judge married her second husband, no harm was inflicted upon any one, not even
the complainant. There was no evidence on the records that the first husband, who
was the most interested person in the issue, even objected to the second marriage.
While we do not find respondent judge administratively liable for immorality, we can
determine if she is administratively liable for possible misconduct. The Code of
Professional Responsibility directs lawyers to obey the laws and promote respect for
the law.13
We cannot conclude that, for purposes of determining administrative liability,
respondent judge disobeyed the law against bigamy when she and her second
husband conducted a marriage ceremony on March 18, 1990.
Respondent judge claimed that this marriage was merely a sacramental marriage
entered into only to comply with the requirements of their religious beliefs. It was
valid only under the Roman Catholic Church but has no legal effect. Their
solemnizing officer was not licensed to solemnize marriage from the National
Archives or from the civil government. 14
Article 349 of the Revised Penal Code prohibits a second or subsequent marriage
before the legal dissolution of a first marriage:

Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings.
The second or subsequent marriage contemplated under this provision is the
marriage entered into under the law. Article 1 of the Family Code defines marriage
as a special contract of permanent union between a man and a woman entered
into in accordance with law for the establishment of conjugal and family life[.]
Thus, the validity of the second marriage, if not for the subsistence of the first
marriage, is considered one of the elements of the crime of bigamy. The elements of
bigamy are:
(a) the offender has been legally married; (b) the marriage has not been legally
dissolved or, in case his or her spouse is absent, the absent spouse could not yet be
presumed dead according to the Civil Code; (c) that he contracts a second or
subsequent marriage; and (d) the second or subsequent marriage has all the
essential requisites for validity. The felony is consummated on the celebration of the
second marriage or subsequent marriage. It is essential in the prosecution for
bigamy that the alleged second marriage, having all the essential requirements,
would be valid were it not for the subsistence of the first marriage.15 (Emphasis
supplied, citations omitted)
Respondent judges act of participating in the marriage ceremony as governed only
by the rules of her religion is not inconsistent with our law against bigamy. What the
law prohibits is not second marriage during a subsisting marriage per se. What the
law prohibits is a second marriage that would have been valid had it not been for
the subsisting marriage. Under our law, respondent judges marriage in 1990 was
invalid because of the solemnizing officers lack of authority.
Marriages entered into in accordance with the law may or may not include
marriages recognized in certain religions. Religious marriages are recognized in and
may be governed by our laws only if they conform to legal requirements. Religious
marriages that lack some or all the requirements under the law are invalid. 16 They
are not considered to have been entered into. They do not enjoy the benefits,
consequences, and incidents of marriage provided under the law.

The lack of authority of the officer that solemnized respondent judges marriage in
1990 renders such marriage invalid. It is not recognized in our law. Hence, no
second marriage can be imputed against respondent judge while her first marriage
subsisted.
However, respondent judge may have disobeyed the law, particularly Article 350 of
the Revised Penal Code, which prohibits knowingly contracting marriages against
the provisions of laws. Article 350 of the Revised Penal Code provides:
ART. 350. Marriage contracted against provisions of laws. The penalty of prision
correccional in its medium and maximum periods shall be imposed upon any person
who, without being included in the provisions of the next preceding article, shall
contract marriage knowing that the requirements of the law have not been
complied with or that the marriage is in disregard of a legal impediment. (Emphasis
supplied)
Respondent judge knew that the solemnizing officer during her and her husbands
marriage in 1990 had no civil authority to solemnize marriages. It is clear from her
Comment that she and her husbands only consideration for their 1990 marriage
was the recognition from the Roman Catholic Church. She stated that:
Fr. David Tither had no license to solemnize marriage from the National Archives or
from the civil government. Hence, he was not under obligation to register our
marriage. It was a purely sacramental marriage rite, without legal effect but
definitely valid and recognized by the Roman Catholic Church. It is called
matrimona de conciencia.17
However, Article 350 may be of doubtful constitutionality when applied to religious
exercise and expression insofar as it prescribes upon individuals and religious
communities formal requirements for the conduct of their religious ceremonies. It
puts a burden18upon the exercise of beliefs by criminalizing marriages performed in
accordance with those beliefs, but lacks some or all the requisites of a valid
marriage under the law. These requirements include not only age and consent, but
also formal requisites such as marriage license and civil authority of the solemnizing
officer even though violence, fraud, or intimidation was not present under the
circumstances. It may, therefore, limit religious exercise and expression to the
formalities of law.

Thus, unless respondent judges act of participating in a marriage ceremony

according to her religious beliefs violates other peoples rights or poses grave and
imminent danger to the society,19 we cannot rule that respondent judge is
administratively liable for her participation in her religious marriage ceremony. 20
In Estrada,21 this court ruled that in religious freedom cases, the test of benevolent
neutrality should be applied. Under the test of benevolent neutrality, religious
freedom is weighed against a compelling state interest:
Benevolent neutrality recognizes that government must pursue its secular goals and
interests but at the same time strives to uphold religious liberty to the greatest
extent possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend
compelling state interests.22 (Emphasis in the original)
We find that there is no compelling state interest that may limit respondent judges
right to participate in religious and merely ceremonial acts that are non-violative of
other peoples rights and with no legally binding effect. The institution of marriage
is not threatened when we accommodate respondent judges freedom to participate
in such ceremonies even if they have secular counterparts under our laws.
In any case, respondent judge did not ask that she and her husband be given the
same rights as civilly married partners before their civil wedding in 1992. She does
not ask that our laws recognize her marriage in 1990 as valid. Respondent judge
also does not seem to be against civil marriages. She and her husband were even
civilly wed after her marriage with her first spouse was declared void.
However, benevolent neutrality and claims of religious freedom cannot shield
respondent judge from liability for misconduct under our laws. Respondent judge
knowingly entered into a civil marriage with her first husband. She knew its effects
under our laws. She had sexual relations with her second husband while her first
marriage was subsisting.
Respondent judge cannot claim that engaging in sexual relations with another
person during the subsistence of a marriage is an exercise of her religious
expression. Legal implications and obligations attach to any person who chooses to
enter civil marriages. This is regardless of how civil marriages are treated in that
persons religion.

Moreover, respondent judge, as a lawyer and even more so as a judge, is expected

to abide by the law. Her conduct affects the credibility of the courts in dispensing
justice. Thus, in finding respondent judge administratively liable for a violation of
her marriage obligations under our laws, this court protects the credibility of the
judiciary in administering justice. In the words of Justice Carpio in his dissenting
opinion in Estrada:
Court employees, from the highest magistrate to the lowliest clerk, are expected to
abide scrupulously with the law. They are held to a higher standard since they are
part of the judicial machinery that dispenses justice. [T]here exists a compelling
state interest to hold Escritor to the same standards required of every court
employee. If unsanctioned, Escritors unlawful conduct would certainly impair the
integrity and credibility of the judiciary.23
Lawyers are not and should not be expected to be saints. What they do as citizens
of their faiths are beyond this courts power to judge. Lawyers, however, are officers
of court. They are expected to care about and sustain the law. This courts
jurisdiction over their actions is limited to their acts that may affect public
confidence in the Rule of Law. Our state has secular interests to protect. This court
cannot be expected to condone misconduct done knowingly on account of religious
freedom or expression.
Finally, the Office of the Court Administrator and the Administrators of lower courts
should look into the motives of persons who file complaints against our judges and
officers of court when allegations point to possible administrative violations. This is
not to say that complainants motives are relevant to their causes of actions.
However, complainants who come to court with unclean hands should not be spared
from liability just because they were the first to submit their accusations.
WHEREFORE, we find respondent Judge Alma Consuelo Desales-Esidera guilty of
violating Canon 1 of the Code of Professional Responsibility. Respondent Judge
Desales-Esidera is SUSPENDED from judicial service for one (1) month with a
warning that repetition of a similar offense will be dealt with more severely. She
is STERNLY WARNED that repetition of the same violations in the future will be
dealt with more severely.
The Office of the Court Administrator is ORDERED to conduct an investigation
regarding respondents claims of illegal court activities.

SO ORDERED.
LEONEN, J.:
Carpio, (Chairperson), Brion, Del Castillo, and Mendoza, JJ., concur.
SECOND DIVISION, A.M. No. RTJ-15-2417 [Formerly known as OCA IPI No. 10-3466RTJ], July 22, 2015, ELADIO D. PERFECTO, COMPLAINANT, VS. JUDGE ALMA
CONSUELO D. ESIDERA, RESPONDENT.

The Prohibition Against Dual Or Multiple Offices Being Held By One Official Must Be
Construed As To Apply To All Appointments Or Designations, Whether Permanent Or
Temporary, For It Is Without Question That The Avowed Objective Of Section 13,
ARTICLE VII Of The 1987 Constitution, Is To Prevent The Concentration Of Powers In
The Executive Department Officials
August 16, 2015 by The Lawyer's Post
The Facts:

In this petition for certiorari and prohibition, Dennis A.B. Funa (petitioner)
alleges that on March 1, 2010, then President Arroyo appointed Acting
Secretary of Justice Alberto Agra in order to replace outgoing Secretary
Agnes Devanadera who resigned to run for Congress; on March 5, 2010,
Agra was designated in a concurrent capacity as Acting Solicitor General.
As a taxpayer, Funa challenged the appointments as unconstitutional
being in violation of Section 13, Article VII of the 1987 Constitution. Agra,
on the other hand offers a different angle. He was then Government
Corporate Counsel when he was designated as Acting Solicitor General in
place of Devanadera who had been appointed Secretary of Justice; when
Devanadera resigned, he was designated as Acting Secretary of Justice.
What differentiates the case from the challenged posed by Funa in Funa vs
Ermita1 was that the appointments in this case were In acting or
temporary capacities, which the petitioner believes were still
unconstitutional as the constitutional prohibition does not distinguish
between an appointment and a designation of a member of the Cabinet in
an acting or temporary capacity; the position of Solicitor General, being
an autonomous and independent office attached to the Secretary of
Justice, is not an ex-officio position in relation to the office of the
Secretary of Justice; that Agra was extended an appointment as the Acting
Solicitor General showed that he did not occupy the office in a ex-officio
capacity because the latter does not require any further warrant or
appointment. The respondent argue otherwise, advancing the view that
Agras appointment was only an imposition of additional duties; an
appointment, to be covered by the constitutional prohibition, must be
regular and permanent, instead of a mere designation, as in the case of
Agra. Even assuming his appointment constituted multiple offices, his
service as Acting Solicitor General was merely in a hold-over capacity;
upon his appointment as Acting Secretary of Justice, his term as Acting
Solicitor General expired; he did not receive additional salary or
emoluments from the OSG after becoming Secretary of Justice on March 5,
2010. The independence of the OSG are defined by the powers and
functions conferred to that office by law, not by the person appointed to
the position; and DOJs authority over the OSG is limited to budgetary
purposes. In reply, Funa asserted that there was no prevailing special
circumstance that justified the non-application of the constitutional
provision on Agra; the permanence or temporariness of the appointment
does not excuse the disregard of the constitutional prohibition. Agras

concurrent designations violated the Administrative Code of 1987 which

mandated the OSG to be autonomous and independent.
The Issue:
Whether or not the concurrent designations of Agra as Acting Solicitor
General and Acting Secretary of Justice was unconstitutional.
The Ruling:

The petition is meritorious.

The designation of Agra as Acting Secretary of Justice concurrently with
his position of Acting Solicitor General was unconstitutional and void for
being in violation of the constitutional prohibition under Section 13,
Article VII of the 1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to wit: (1) there
must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing to assail
the validity of the subject act or issuance, that is, he must have a personal
and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case.2
Here, the OSG does not dispute the justiciability and ripeness for
consideration and resolution by the Court of the matter raised by the
petitioner. Also, the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer to bring a suit of this nature has already
been settled in his favor in rulings by the Court on several other public
law litigations he brought. In Funa v. Villar,3 for one, the Court has held:

To have legal standing, therefore, a suitor must show that he has

sustained or will sustain a direct injury as a result of a government
action, or have a material interest in the issue affected by the
challenged official act. However, the Court has time and again acted
liberally on the locus standi requirements and has accorded certain
individuals, not otherwise directly injured, or with material interest
affected, by a Government act, standing to sue provided a constitutional
issue of critical significance is at stake. The rule on locus standi is after all
a mere procedural technicality in relation to which the Court, in
a catena of cases involving a subject of transcendental import, has
waived, or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been personally injured by the
operation of a law or any other government act. In David, the Court laid
out the bare minimum norm before the so-called non-traditional suitors
may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity
of the election law in question;
3.) For concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has
far-reaching implications, and there is a need to promulgate rules that
will guide the bench, bar, and the public in future analogous cases. We,
thus, assume a liberal stance and allow petitioner to institute the instant
petition.4 (Bold emphasis supplied)

In Funa v. Ermita,5 the Court recognized the locus standi of the petitioner
as a taxpayer, a concerned citizen and a lawyer because the issue raised
therein involved a subject of transcendental importance whose resolution
was necessary to promulgate rules to guide the Bench, Bar, and the public
in similar cases.
But, it is next posed, did not the intervening appointment of and
assumption by Cadiz as the Solicitor General during the pendency of this
suit render this suit and the issue tendered herein moot and academic?
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value.6 Although the controversy could
have ceased due to the intervening appointment of and assumption by
Cadiz as the Solicitor General during the pendency of this suit, and such
cessation of the controversy seemingly rendered moot and academic the
resolution of the issue of the constitutionality of the concurrent holding of
the two positions by Agra, the Court should still go forward and resolve
the issue and not abstain from exercising its power of judicial review
because this case comes under several of the well-recognized exceptions
established in jurisprudence. Verily, the Court did not desist from
resolving an issue that a supervening event meanwhile rendered moot
and academic if any of the following recognized exceptions obtained,
namely: (1) there was a grave violation of the Constitution; (2) the case
involved a situation of exceptional character and was of paramount public
interest; (3) the constitutional issue raised required the formulation of
controlling principles to guide the Bench, the Bar and the public; and (4)
the case was capable of repetition, yet evading review. 7

It is the same here. The constitutionality of the concurrent holding by

Agra of the two positions in the Cabinet, albeit in acting capacities, was
an issue that comes under all the recognized exceptions. The issue
involves a probable violation of the Constitution, and relates to a situation
of exceptional character and of paramount public interest by reason of its
transcendental importance to the people. The resolution of the issue will
also be of the greatest value to the Bench and the Bar in view of the broad
powers wielded through said positions. The situation further calls for the
review because the situation is capable of repetition, yet evading
review.8 In other words, many important and practical benefits are still to
be gained were the Court to proceed to the ultimate resolution of the
constitutional issue posed.
2.
Unconstitutionality of Agras concurrent designation as Acting
Secretary of Justice and Acting Solicitor General
At the center of the controversy is the correct application of Section 13,
Article VII of the 1987 Constitution, viz:
Section 13. The President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly practice any other
profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.
A relevant and complementing provision is Section 7, paragraph (2),
Article IX-B of the 1987 Constitution, to wit:
Section 7. x x x

Unless otherwise allowed by law or the primary functions of his position,

no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries.
The differentiation of the two constitutional provisions was well stated
in Funa v. Ermita,9 a case in which the petitioner herein also assailed the
designation of DOTC Undersecretary as concurrent Officer-in-Charge of
the Maritime Industry Authority, with the Court reiterating its
pronouncement in Civil Liberties Union v. The Executive Secretary10 on the
intent of the Framers behind these provisions of the Constitution, viz:
Thus, while all other appointive officials in the civil service are allowed to
hold other office or employment in the government during their tenure
when such is allowed by law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words,
Section 7, Article IX-B is meant to lay down the general rule applicable to
all elective and appointive public officials and employees, while Section
13, Article VII is meant to be the exception applicable only to the
President, the Vice-President, Members of the Cabinet, their deputies and
assistants.
xxxx

Since the evident purpose of the framers of the 1987 Constitution is to

impose a stricter prohibition on the President, Vice-President, members of
the Cabinet, their deputies and assistants with respect to holding multiple
offices or employment in the government during their tenure, the
exception to this prohibition must be read with equal severity. On its face,
the language of Section 13, Article VII is prohibitory so that it must be
understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment. Verily,
wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. The
phrase unless otherwise provided in this Constitution must be given a
literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a
member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3),
Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII. (Bold
emphasis supplied.)
Being designated as the Acting Secretary of Justice concurrently with his
position of Acting Solicitor General, therefore, Agra was undoubtedly
covered by Section 13, Article VII, supra, whose text and spirit were too
clear to be differently read. Hence, Agra could not validly hold any other
office or employment during his tenure as the Acting Solicitor General,
because the Constitution has not otherwise so provided.11

It was of no moment that Agras designation was in an acting or

temporary capacity. The text of Section 13, supra, plainly indicates that
the intent of the Framers of the Constitution was to impose a stricter
prohibition on the President and the Members of his Cabinet in so far as
holding other offices or employments in the Government or in
government-owned or government controlled-corporations was
concerned.12 In this regard, to hold an office means to possess or to
occupy the office, or to be in possession and administration of the office,
which implies nothing less than the actual discharge of the functions and
duties of the office.13 Indeed, in the language of Section 13
itself, supra, the Constitution makes no reference to the nature of the
appointment or designation. The prohibition against dual or multiple
offices being held by one official must be construed as to apply to all
appointments or designations, whether permanent or temporary, for it is
without question that the avowed objective of Section 13,supra, is to
prevent the concentration of powers in the Executive Department officials,
specifically the President, the Vice-President, the Members of the Cabinet
and their deputies and assistants.14 To construe differently is to open the
veritable floodgates of circumvention of an important constitutional
disqualification of officials in the Executive Department and of limitations
on the Presidents power of appointment in the guise of temporary
designations of Cabinet Members, undersecretaries and assistant
secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled corporations. 15

According to Public Interest Center, Inc. v. Elma,16 the only two exceptions
against the holding of multiple offices are: (1) those provided for under
the Constitution, such as Section 3, Article VII, authorizing the Vice
President to become a member of the Cabinet; and (2) posts occupied by
Executive officials specified in Section 13, Article VII without additional
compensation in ex officio capacities as provided by law and as required
by the primary functions of the officials offices. In this regard, the
decision inPublic Interest Center, Inc. v. Elma adverted to the resolution
issued on August 1, 1991 in Civil Liberties Union v. The Executive
Secretary, whereby the Court held that the phrase the Members of the
Cabinet, and their deputies or assistants found in Section
13, supra, referred only to the heads of the various executive
departments, their undersecretaries and assistant secretaries, and did not
extend to other public officials given the rank of Secretary,
Undersecretary or Assistant Secretary.17 Hence, in Public Interest Center,
Inc. v. Elma, the Court opined that the prohibition under Section 13 did
not cover Elma, a Presidential Assistant with the rank of Undersecretary. 18
It is equally remarkable, therefore, that Agras designation as the Acting
Secretary of Justice was not in an ex officio capacity, by which he would
have been validly authorized to concurrently hold the two positions due to
the holding of one office being the consequence of holding the other.
Being included in the stricter prohibition embodied in Section
13, supra, Agra cannot liberally apply in his favor the broad exceptions
provided in Section 7, paragraph 2, Article IX-B of the Constitution
(Unless otherwise allowed by law or the primary functions of his
position) to justify his designation as Acting Secretary of Justice
concurrently with his designation as Acting Solicitor General, or vice
versa. Thus, the Court has said

[T]he qualifying phrase unless otherwise provided in this Constitution in

Section 13, Article VII cannot possibly refer to the broad exceptions
provided under Section 7, Article IX-B of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and purpose of the
framers of the Constitution to impose a stricter prohibition on the
President, Vice-President, Members of the Cabinet, their deputies and
assistants with respect to holding other offices or employment in the
government during their tenure. Respondents interpretation that Section
13 of Article VII admits of the exceptions found in Section 7, par. (2) of
Article IX-B would obliterate the distinction so carefully set by the framers
of the Constitution as to when the high-ranking officials of the Executive
Branch from the President to Assistant Secretary, on the one hand, and
the generality of civil servants from the rank immediately below Assistant
Secretary downwards, on the other, may hold any other office or position
in the government during their tenure.19
To underscore the obvious, it is not sufficient for Agra to show that his
holding of the other office was allowed by law or the primary functions of
his position. To claim the exemption of his concurrent designations from
the coverage of the stricter prohibition under Section 13, supra, he
needed to establish herein that his concurrent designation was expressly
allowed by the Constitution. But, alas, he did not do so.
To be sure, Agras concurrent designations as Acting Secretary of Justice
and Acting Solicitor General did not come within the definition of an ex
officio capacity. Had either of his concurrent designations been in an ex
officio capacity in relation to the other, the Court might now be ruling in
his favor.
The import of an ex officio capacity has been fittingly explained in Civil
Liberties Union v. Executive Secretary,20 as follows:

x x x. The term ex officio means from office; by virtue of office. It refers

to an authority derived from official character merely, not expressly
conferred upon the individual character, but rather annexed to the official
position. Ex officio likewise denotes an act done in an official character,
or as a consequence of office, and without any other appointment or
authority other than that conferred by the office. An ex officio member of
a board is one who is a member by virtue of his title to a certain office,
and without further warrant or appointment. x x x.
xxxx
The ex officio position being actually and in legal contemplation part of
the principal office, it follows that the official concerned has no right to
receive additional compensation for his services in the said position. The
reason is that these services are already paid for and covered by the
compensation attached to his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is mandated to provide
the government with a principal law agency which shall be both its legal
counsel and prosecution arm; administer the criminal justice system in
accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of
the correctional system; implement the laws on the admission and stay of
aliens, citizenship, land titling system, and settlement of land problems
involving small landowners and members of indigenous cultural
minorities; and provide free legal services to indigent members of the
society.21 The DOJs specific powers and functions are as follows:
(1) Act as principal law agency of the government and as legal counsel
and representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and
administer the probation and correction system;
(3) Extend free legal assistance/representation to indigents and poor
litigants in criminal cases and non-commercial civil disputes;
(4) Preserve the integrity of land titles through proper registration;

(5) Investigate and arbitrate untitled land disputes involving small

landowners and members of indigenous cultural communities;
(6) Provide immigration and naturalization regulatory services and
implement the laws governing citizenship and the admission and stay of
aliens;
(7) Provide legal services to the national government and its
functionaries, including government-owned or controlled corporations and
their subsidiaries; and
(8) Perform such other functions as may be provided by law. 22
On the other hand, the Administrative Code of 1987 confers upon the
Office of the Solicitor General the following powers and functions, to wit:
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 lawyers. 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 discharge duties
requiring the services of lawyers. It shall have the following specific
powers and functions:
1. Represent the Government in the Supreme Court and the Court of
Appeals in all criminal proceedings; represent the Government and its
officers in the Supreme Court, the Court of Appeals, and all other courts or
tribunals in all civil actions and special proceedings in which the
Government or any officer thereof in his official capacity is a party.
2. Investigate, initiate court action, or in any manner proceed against any
person, corporation or firm for the enforcement of any contract, bond,
guarantee, mortgage, pledge or other collateral executed in favor of the
Government. Where proceedings are to be conducted outside of the
Philippines the Solicitor General may employ counsel to assist in the
discharge of the aforementioned responsibilities.

3. Appear in any court in any action involving the validity of any treaty,
law, executive order or proclamation, rule or regulation when in his
judgment his intervention is necessary or when requested by the Court.
4. Appear in all proceedings involving the acquisition or loss of Philippine
citizenship.
5. Represent the Government in all land registration and related
proceedings. Institute actions for the reversion to the Government of
lands of the public domain and improvements thereon as well as lands
held in violation of the Constitution.
6. Prepare, upon request of the President or other proper officer of the
National Government, rules and guidelines for government entities
governing the preparation of contracts, making investments, undertaking
of transactions, and drafting of forms or other writings needed for official
use, with the end in view of facilitating their enforcement and insuring
that they are entered into or prepared conformably with law and for the
best interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General the public
interest requires, any provincial or city fiscal to assist him in the
performance of any function or discharge of any duty incumbent upon
him, within the jurisdiction of the aforesaid provincial or city fiscal. When
so deputized, the fiscal shall be under the control and supervision of the
Solicitor General with regard to the conduct of the proceedings assigned
to the fiscal, and he may be required to render reports or furnish
information regarding the assignment.
8. Deputize legal officers of government departments, bureaus, agencies
and offices to assist the Solicitor General and appear or represent the
Government in cased involving their respective offices, brought before the
courts and exercise supervision and control over such legal Officers with
respect to such cases.

9. Call on any department, bureau, office, agency or instrumentality of the

Government for such service, assistance and cooperation as may be
necessary in fulfilling its functions and responsibilities and for this
purpose enlist the services of any government official or employee in the
pursuit of his tasks.
10. Departments, bureaus, agencies, offices, instrumentalities and
corporations to whom the Office of the Solicitor General renders legal
services are authorized to disburse funds from their sundry operating and
other funds for the latter Office. For this purpose, the Solicitor General
and his staff are specifically authorized to receive allowances as may be
provided by the Government offices, instrumentalities and corporations
concerned, in addition to their regular compensation.
11. Represent, upon the instructions of the President, the Republic of the
Philippines in international litigations, negotiations or conferences where
the legal position of the Republic must be defended or presented.
12. Act and represent the Republic and/or the people before any court,
tribunal, body or commission in any matter, action or proceedings which,
in his opinion affects the welfare of the people as the ends of justice may
require; and
13. Perform such other functions as may be provided by law. 23
The foregoing provisions of the applicable laws show that one position
was not derived from the other. Indeed, the powers and functions of the
OSG are neither required by the primary functions nor included by the
powers of the DOJ, and vice versa. The OSG, while attached to the
DOJ,24 is not a constituent unit of the latter, 25 as, in fact,
the Administrative Code of 1987 decrees that the OSG is independent and
autonomous.26 With the enactment of Republic Act No. 941727 the
Solicitor General is now vested with a cabinet rank, and has the same
qualifications for appointment, rank, prerogatives, salaries, allowances,
benefits and privileges as those of the Presiding Justice of the Court of
Appeals.28

Moreover, the magnitude of the scope of work of the Solicitor General, if

added to the equally demanding tasks of the Secretary of Justice, is
obviously too much for any one official to bear. Apart from the sure peril
of political pressure, the concurrent holding of the two positions, even if
they are not entirely incompatible, may affect sound government
operations and the proper performance of duties. Heed should be paid to
what the Court has pointedly observed in Civil Liberties Union v. Executive
Secretary:

29

Being head of an executive department is no mean job. It is more than a

full-time job, requiring full attention, specialized knowledge, skills and
expertise. If maximum benefits are to be derived from a department
heads ability and expertise, he should be allowed to attend to his duties
and responsibilities without the distraction of other governmental offices
or employment. He should be precluded from dissipating his efforts,
attention and energy among too many positions of responsibility, which
may result in haphazardness and inefficiency. Surely the advantages to be
derived from this concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic development, far
outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting
Solicitor General, was not covered by the stricter prohibition under
Section 13, supra, due to such position being merely vested with a cabinet
rank under Section 3, Republic Act No. 9417, he nonetheless remained
covered by the general prohibition under Section 7, supra. Hence, his
concurrent designations were still subject to the conditions under the
latter constitutional provision. In this regard, the Court aptly pointed out
in Public Interest Center, Inc. v. Elma:30
The general rule contained in Article IX-B of the 1987 Constitution permits
an appointive official to hold more than one office only if allowed by law
or by the primary functions of his position. In the case of Quimson v.
Ozaeta, this Court ruled that, [t]here is no legal objection to a
government official occupying two government offices and performing the
functions of both as long as there is no incompatibility. The crucial test
in determining whether incompatibility exists between two offices was
laid out in People v. Green whether one office is subordinate to the
other, in the sense that one office has the right to interfere with the other.

[I]ncompatibility between two offices, is an inconsistency in the functions

of the two; x x x Where one office is not subordinate to the other, nor the
relations of the one to the other such as are inconsistent and repugnant,
there is not that incompatibility from which the law declares that the
acceptance of the one is the vacation of the other. The force of the word,
in its application to this matter is, that from the nature and relations to
each other, of the two places, they ought not to be held by the same
person, from the contrariety and antagonism which would result in the
attempt by one person to faithfully and impartially discharge the duties of
one, toward the incumbent of the other. x x x The offices must
subordinate, one [over] the other, and they must, per se, have the right to
interfere, one with the other, before they are incompatible at common law.
x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution applies in general to
all elective and appointive officials, Section 13, Article VII, thereof applies
in particular to Cabinet secretaries, undersecretaries and assistant
secretaries. In the Resolution in Civil Liberties Union v. Executive
Secretary, this Court already clarified the scope of the prohibition
provided in Section 13, Article VII of the 1987 Constitution. Citing the case
of US v. Mouat, it specifically identified the persons who are affected by
this prohibition as secretaries, undersecretaries and assistant secretaries;
and categorically excluded public officers who merely have the rank of
secretary, undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor General refers to the
persons affected by the constitutional prohibition. The persons cited in
the constitutional provision are the Members of the Cabinet, their
deputies and assistants. These terms must be given their common and
general acceptation as referring to the heads of the executive
departments, their undersecretaries and assistant secretaries. Public
officials given the rank equivalent to a Secretary, Undersecretary, or
Assistant Secretary are not covered by the prohibition, nor is the Solicitor
General affected thereby. (Italics supplied).

It is clear from the foregoing that the strict prohibition under Section 13,
Article VII of the 1987 Constitution is not applicable to the PCGG Chairman
nor to the CPLC, as neither of them is a secretary, undersecretary, nor an
assistant secretary, even if the former may have the same rank as the
latter positions.
It must be emphasized, however, that despite the non-applicability of
Section 13, Article VII of the 1987 Constitution to respondent Elma, he
remains covered by the general prohibition under Section 7, Article IX-B
and his appointments must still comply with the standard of compatibility
of officers laid down therein; failing which, his appointments are hereby
pronounced in violation of the Constitution.31
Clearly, the primary functions of the Office of the Solicitor General are not
related or necessary to the primary functions of the Department of
Justice. Considering that the nature and duties of the two offices are such
as to render it improper, from considerations of public policy, for one
person to retain both,32 an incompatibility between the offices exists,
further warranting the declaration of Agras designation as the Acting
Secretary of Justice, concurrently with his designation as the Acting
Solicitor General, to be void for being in violation of the express
provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of Agras concurrent
appointment;
the de facto officer doctrine
In view of the application of the stricter prohibition under Section
13, supra, Agra did not validly hold the position of Acting Secretary of
Justice concurrently with his holding of the position of Acting Solicitor
General. Accordingly, he was not to be considered as a de jure officer for
the entire period of his tenure as the Acting Secretary of Justice. A de
jure officer is one who is deemed, in all respects, legally appointed and
qualified and whose term of office has not expired.33
That notwithstanding, Agra was a de facto officer during his tenure as
Acting Secretary of Justice. In Civil Liberties Union v. Executive
Secretary,34 the Court said:

During their tenure in the questioned positions, respondents may be

considered de facto officers and as such entitled to emoluments for actual
services rendered. It has been held that in cases where there is no de
jure, officer, a de facto officer, who, in good faith has had possession of
the office and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an appropriate action
recover the salary, fees and other compensations attached to the office.
This doctrine is, undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the services of an officer de
facto and then be freed from all liability to pay any one for such services.
Any per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.
A de facto officer is one who derives his appointment from one having
colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face.35 He may also be one who is in
possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment,
however irregular or informal, so that the incumbent is not a mere
volunteer.36 Consequently, the acts of the de facto officer are just as valid
for all purposes as those of ade jure officer, in so far as the public or third
persons who are interested therein are concerned.37
In order to be clear, therefore, the Court holds that all official actions of
Agra as a de facto Acting Secretary of Justice, assuming that was his later
designation, were presumed valid, binding and effective as if he was the
officer legally appointed and qualified for the office. 38 This clarification is
necessary in order to protect the sanctity of the dealings by the public
with persons whose ostensible authority emanates from the
State.39 Agras official actions covered by this clarification extend to but
are not limited to the promulgation of resolutions on petitions for review
filed in the Department of Justice, and the issuance of department orders,
memoranda and circulars relative to the prosecution of criminal cases.

WHEREFORE, the Court GRANTS the petition for certiorari and

prohibition; ANNULS AND VOIDS the designation of Hon. Alberto C. Agra
as the Acting Secretary of Justice in a concurrent capacity with his
position as the Acting Solicitor General for being unconstitutional and
violative of Section 13, Article VII of the 1987 Constitution;
and DECLARES that Hon. Alberto C. Agra was a de facto officer during his
tenure as Acting Secretary of Justice.
No pronouncement on costs of suit.
SO ORDERED.
BERSAMIN, J.:
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Del
Castillo, Abad, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe,
and Leonen, JJ., concur.
EN BANC, G.R. No. 191644, February 19, 2013, DENNIS A.B. FUNA, PETITIONER, VS.
ACTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL CONCURRENT
CAPACITIES AS ACTING SECRETARY OF THE DEPARTMENT OF JUSTICE AND AS
ACTING SOLICITOR GENERAL, EXECUTIVE SECRETARY LEANDRO R. MENDOZA,
OFFICE OF THE PRESIDENT, RESPONDENTS.
DECISION
Even In Public Interest Cases, The Court Has Generally Adopted The Direct Injury
Test That The Person Who Impugns The Validity Of A Statute Must Have A Personal
And Substantial Interest In The Case Such That He Has Sustained, Or Will Sustain
Direct Injury As Result
August 14, 2015 by The Lawyer's Post
The Facts:
Republic Act No. 265 created the Central Bank of the Philippines, which was
empowered, among others to set the maximum interest rates which banks may
charge for all types of loans and other credit operations, within limits prescribed by
the Usury Law. Section 109 of R.A. No. 265 reads:

Sec. 109. Interest Rates, Commissions and Charges. The Monetary Board may fix
the maximum rates of interest which banks may pay on deposits and on other
obligations.
The Monetary Board may, within the limits prescribed in the Usury Law fix the
maximum rates of interest which banks may charge for different types of loans and
for any other credit operations, or may fix the maximum differences which may
exist between the interest or rediscount rates of the Central Bank and the rates
which the banks may charge their customers if the respective credit documents are
not to lose their eligibility for rediscount or advances in the Central Bank.
Any modifications in the maximum interest rates permitted for the borrowing or
lending operations of the banks shall apply only to future operations and not to
those made prior to the date on which the modification becomes effective.
In order to avoid possible evasion of maximum interest rates set by the Monetary
Board, the Board may also fix the maximum rates that banks may pay to or collect
from their customers in the form of commissions, discounts, charges, fees or
payments of any sort.
The Usury Law was amended by PD 1684 in 1980, giving the CB-MB authority to
prescribe different maximum rates of interest on loans and renewals or the
forbearance of any money, goods, or credits. Sec 1-a was amended to read:
Sec. 1-a. The Monetary Board is hereby authorized to prescribe the maximum rate
or rates of interest for the loan or renewal thereof or the forbearance of any money,
goods or credits, and to change such rate or rates whenever warranted by
prevailing economic and social conditions: Provided, That changes in such rate or
rates may be effected gradually on scheduled dates announced in advance.
In the exercise of the authority herein granted the Monetary Board may prescribe
higher maximum rates for loans of low priority, such as consumer loans or renewals
thereof as well as such loans made by pawnshops, finance companies and other
similar credit institutions although the rates prescribed for these institutions need
not necessarily be uniform. The Monetary Board is also authorized to prescribe
different maximum rate or rates for different types of borrowings, including deposits
and deposit substitutes, or loans of financial intermediaries.

Resolution No, 2224 of the CB-MB issued CB Circular No. 905 Series of 1982,
removing the ceilings on interest on loans or forbearance of any money, goods or
credits. It also amended Books I to IV of the CBs Manual of Regulations for Banks
and Other Financial Intermediaries (Manual of Regulations) by removing the
applicable ceilings on specific interest rates.
On June 14, 1993, President Ramos signed into law Republic Act 7653 establishing
the Bangko Sentral ng Pilipinas (BSP) to replace the CB. The repealing clause
thereof, Section 135, reads:
Sec. 135. Repealing Clause. Except as may be provided for in Sections 46 and
132 of this Act, Republic Act No. 265, as amended, the provisions of any other law,
special charters, rule or regulation issued pursuant to said Republic Act No. 265, as
amended, or parts thereof, which may be inconsistent with the provisions of this Act
are hereby repealed. Presidential Decree No. 1792 is likewise repealed.
Petitioners filed a petition for certiorari under Rule 65, claiming that it raises issues
of transcendental importance. They raised the following issues:

Whether under R.A. No. 265 and/or P.D. No. 1684, the CB-MB had the statutory or constitutiona
prescribe the maximum rates of interest for all kinds of credit transactions and forbearance of
or credit beyond the limits prescribed in the Usury Law;

If so, whether the CB-MB exceeded its authority when it issued CB Circular No. 905, which remo
interest ceilings and thus suspended Act No. 2655 as regards usurious interest rates;

Whether under R.A. No. 7653, the new BSP-MB may continue to enforce CB Circular No. 905
The Ruling:
The petition must fail.
A. The Petition is procedurally infirm.

The decision on whether or not to accept a petition for certiorari, as well as to grant
due course thereto, is addressed to the sound discretion of the court. 1 A petition
for certiorari being an extraordinary remedy, the party seeking to avail of the same
must strictly observe the procedural rules laid down by law, and non-observance
thereof may not be brushed aside as mere technicality. 2
As provided in Section 1 of Rule 65, a writ of certiorari is directed against a tribunal
exercising judicial or quasi-judicial functions. 3 Judicial functions are exercised by a
body or officer clothed with authority to determine what the law is and what the
legal rights of the parties are with respect to the matter in controversy. Quasijudicial function is a term that applies to the action or discretion of public
administrative officers or bodies given the authority to investigate facts or ascertain
the existence of facts, hold hearings, and draw conclusions from them as a basis for
their official action using discretion of a judicial nature. 4
The CB-MB (now BSP-MB) was created to perform executive functions with respect
to the establishment, operation or liquidation of banking and credit institutions, and
branches and agencies thereof. 5 It does not perform judicial or quasi-judicial
functions. Certainly, the issuance of CB Circular No. 905 was done in the exercise of
an executive function. Certiorari will not lie in the instant case.6
B. Petitioners have no locus standi to file the Petition
Locus standi is defined as a right of appearance in a court of justice on a given
question. In private suits, Section 2, Rule 3 of the 1997 Rules of Civil Procedure
provides that every action must be prosecuted or defended in the name of the real
party in interest, who is the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the suit. Succinctly put, a
partys standing is based on his own right to the relief sought. 7
Even in public interest cases such as this petition, the Court has generally adopted
the direct injury test that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result.8 Thus, while petitioners assert a public right to
assail CB Circular No. 905 as an illegal executive action, it is nonetheless required of
them to make out a sufficient interest in the vindication of the public order and the
securing of relief. It is significant that in this petition, the petitioners do not allege
that they sustained any personal injury from the issuance of CB Circular No. 905.

Petitioners also do not claim that public funds were being misused in the
enforcement of CB Circular No. 905. In Kilosbayan, Inc. v. Morato,9 involving the online lottery contract of the PCSO, there was no allegation that public funds were
being misspent, which according to the Court would have made the action a public
one, and justify relaxation of the requirement that an action must be prosecuted in
the name of the real party-in-interest. The Court held, moreover, that the status
of Kilosbayan as a peoples organization did not give it the requisite personality to
question the validity of the contract. Thus:
Petitioners do not in fact show what particularized interest they have for bringing
this suit. It does not detract from the high regard for petitioners as civic leaders to
say that their interest falls short of that required to maintain an action under the
Rule 3, Sec. 2.10
C. The Petition raises no issues of transcendental importance.
In the 1993 case of Joya v. Presidential Commission on Good Government, 11 it was
held that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the court unless there is
compliance with the legal requisites for judicial inquiry, namely: (a) that the
question must be raised by the proper party; (b) that there must be an actual case
or controversy; (c) that the question must be raised at the earliest possible
opportunity; and (d) that the decision on the constitutional or legal question must
be necessary to the determination of the case itself.
In Prof. David v. Pres. Macapagal-Arroyo,12 the Court summarized the requirements
before taxpayers, voters, concerned citizens, and legislators can be accorded a
standing to sue, viz:

(1)

the cases involve constitutional issues;

(2)

for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax m
unconstitutional;

(3)

for voters, there must be a showing of obvious interest in the validity of the election law in q

(4)

for concerned citizens, there must be a showing that the issues raised are of transcendenta
which must be settled early; and (5) for legislators, there must be a claim that the official ac
complained of infringes upon their prerogatives as legislators.

While the Court may have shown in recent decisions a certain toughening in its
attitude concerning the question of legal standing, it has nonetheless always made
an exception where the transcendental importance of the issues has been
established, notwithstanding the petitioners failure to show a direct
injury13. In CREBA v. ERC,14 the Court set out the following instructive guides as
determinants on whether a matter is of transcendental importance, namely: (1) the
character of the funds or other assets involved in the case; (2) the presence of a
clear case of disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government; and (3) the lack of any
other party with a more direct and specific interest in the questions being raised.
Further, the Court stated in Anak Mindanao Party-List Group v. The Executive
Secretary15 that the rule on standing will not be waived where these determinants
are not established.
In the instant case, there is no allegation of misuse of public funds in the
implementation of CB Circular No. 905. Neither were borrowers who were actually
affected by the suspension of the Usury Law joined in this petition. Absent any
showing of transcendental importance, the petition must fail.
More importantly, the Court notes that the instant petition adverted to the regime of
high interest rates which obtained at least 15 years ago, when the banks prime
lending rates ranged from 26% to 31%,16 or even 29 years ago, when the 91day Jobo bills reached 40% per annum. In contrast, according to the BSP, in the first
two (2) months of 2012 the bank lending rates averaged 5.91%, which implies that
the banks prime lending rates were lower; moreover, deposit interests on savings
and long-term deposits have also gone very low, averaging 1.75% and 1.62%,
respectively.17

Judging from the most recent auctions of T-bills, the savings rates must be
approaching 0%. In the auctions held on November 12, 2012, the rates of 3-month,
6-month and 1-year T-bills have dropped to 0.150%, 0.450% and 0.680%,
respectively18. According to Manila Bulletin, this very low interest regime has been
attributed to high liquidity and strong investor demand amid positive economic
indicators of the country.19
While the Court acknowledges that cases of transcendental importance demand
that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure,20 the delay of at least 15 years in the filing of the
instant petition has actually rendered moot and academic the issues it now raises.
For its part, BSP-MB maintains that the petitioners allegations of constitutional and
statutory violations of CB Circular No. 905 are really mere challenges made by
petitioners concerning the wisdom of the Circular. It explains that it was in view of
the global economic downturn in the early 1980s that the executive department
through the CB-MB had to formulate policies to achieve economic recovery, and
among these policies was the establishment of a market-oriented interest rate
structure which would require the removal of the government-imposed interest rate
ceilings.21
D. The CB-MB merely suspended the effectivity of the Usury Law when it issued CB
Circular No. 905.
The power of the CB to effectively suspend the Usury Law pursuant to P.D. No. 1684
has long been recognized and upheld in many cases. As the Court explained in the
landmark case of Medel v. CA,22 citing several cases, CB Circular No. 905 did not
repeal nor in anyway amend the Usury Law but simply suspended the latters
effectivity;23 that a [CB] Circular cannot repeal a law, [for] only a law can repeal
another law;24 that by virtue of CB Circular No. 905, the Usury Law has been
rendered ineffective;25 and Usury has been legally non-existent in our jurisdiction.
Interest can now be charged as lender and borrower may agree upon. 26
In First Metro Investment Corp. v. Este Del Sol Mountain Reserve, Inc.27 cited in DBP
v. Perez,28 we also belied the contention that the CB was engaged in self-legislation.
Thus:
Central Bank Circular No. 905 did not repeal nor in any way amend the Usury Law
but simply suspended the latters effectivity. The illegality of usury is wholly the

creature of legislation. A Central Bank Circular cannot repeal a law. Only a law can
repeal another law. x x x.29
In PNB v. Court of Appeals,30 an escalation clause in a loan agreement authorized
the PNB to unilaterally increase the rate of interest to 25% per annum, plus a
penalty of 6% per annum on past dues, then to 30% on October 15, 1984, and to
42% on October 25, 1984. The Supreme Court invalidated the rate increases made
by the PNB and upheld the 12% interest imposed by the CA, in this wise:
P.D. No. 1684 and C.B. Circular No. 905 no more than allow contracting parties to
stipulate freely regarding any subsequent adjustment in the interest rate that shall
accrue on a loan or forbearance of money, goods or credits. In fine, they can agree
to adjust, upward or downward, the interest previously stipulated. x x x. 31
Thus, according to the Court, by lifting the interest ceiling, CB Circular No. 905
merely upheld the parties freedom of contract to agree freely on the rate of
interest. It cited Article 1306 of the New Civil Code, under which the contracting
parties may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good customs,
public order, or public policy.
E. The BSP-MB has authority to
enforce CB Circular No. 905.
Section 1 of CB Circular No. 905 provides that The rate of interest, including
commissions, premiums, fees and other charges, on a loan or forbearance
of any money, goods, or credits, regardless of maturity and whether secured or
unsecured, that may be charged or collected by any person, whether natural or
juridical, shall not be subject to any ceiling prescribed under or pursuant to the
Usury Law, as amended. It does not purport to suspend the Usury Law only as it
applies to banks, but to all lenders.
Petitioners contend that, granting that the CB had power to suspend the Usury
Law, the new BSP-MB did not retain this power of its predecessor, in view of Section
135 of R.A. No. 7653, which expressly repealed R.A. No. 265. The petitioners point
out that R.A. No. 7653 did not reenact a provision similar to Section 109 of R.A. No.
265.

A closer perusal shows that Section 109 of R.A. No. 265 covered only loans
extended by banks, whereas under Section 1-a of the Usury Law, as amended, the
BSP-MB may prescribe the maximum rate or rates of interest for all loans or
renewals thereof or the forbearance of any money, goods or credits, including those
for loans of low priority such as consumer loans, as well as such loans made by
pawnshops, finance companies and similar credit institutions. It even authorizes the
BSP-MB to prescribe different maximum rate or rates for different types of
borrowings, including deposits and deposit substitutes, or loans of financial
intermediaries.
Act No. 2655, an earlier law, is much broader in scope, whereas R.A. No. 265, now
R.A. No. 7653, merely supplemented it as it concerns loans by banks and other
financial institutions. Had R.A. No. 7653 been intended to repeal Section 1-a of Act
No. 2655, it would have so stated in unequivocal terms.
Moreover, the rule is settled that repeals by implication are not favored, because
laws are presumed to be passed with deliberation and full knowledge of all laws
existing pertaining to the subject.32 An implied repeal is predicated upon the
condition that a substantial conflict or repugnancy is found between the new and
prior laws. Thus, in the absence of an express repeal, a subsequent law cannot be
construed as repealing a prior law unless an irreconcilable inconsistency and
repugnancy exists in the terms of the new and old laws. 33 We find no such conflict
between the provisions of Act 2655 and R.A. No. 7653.
F. The lifting of the ceilings for interest rates does not authorize
stipulations charging excessive, unconscionable, and iniquitous interest.
It is settled that nothing in CB Circular No. 905 grants lenders a carte
blanche authority to raise interest rates to levels which will either enslave their
borrowers or lead to a hemorrhaging of their assets. 34 As held in Castro v. Tan:
The imposition of an unconscionable rate of interest on a money debt, even if
knowingly and voluntarily assumed, is immoral and unjust. It is tantamount to a
repugnant spoliation and an iniquitous deprivation of property, repulsive to the
common sense of man. It has no support in law, in principles of justice, or in the
human conscience nor is there any reason whatsoever which may justify such
imposition as righteous and as one that may be sustained within the sphere of
public or private morals.35

Stipulations authorizing iniquitous or unconscionable interests have been invariably

struck down for being contrary to morals, if not against the law. 36 Indeed, under
Article 1409 of the Civil Code, these contracts are deemed inexistent and void ab
initio, and therefore cannot be ratified, nor may the right to set up their illegality as
a defense be waived.
Nonetheless, the nullity of the stipulation of usurious interest does not affect the
lenders right to recover the principal of a loan, nor affect the other terms
thereof.37 Thus, in a usurious loan with mortgage, the right to foreclose the
mortgage subsists, and this right can be exercised by the creditor upon failure by
the debtor to pay the debt due. The debt due is considered as without the stipulated
excessive interest, and a legal interest of 12% per annum will be added in place of
the excessive interest formerly imposed,38 following the guidelines laid down in the
landmark case of Eastern Shipping Lines, Inc. v. Court of Appeals, regarding the
manner of computing legal interest:
II. With regard particularly to an award of interest in the concept of actual and
compensatory damages, the rate of interest, as well as the accrual thereof, is
imposed, as follows:
1. When the obligation is breached, and it consists in the payment of a sum of
money, i.e., a loan or forbearance of money, the interest due should be that which
may have been stipulated in writing. Furthermore, the interest due shall itself earn
legal interest from the time it is judicially demanded. In the absence of stipulation,
the rate of interest shall be 12% per annum to be computed from default, i.e., from
judicial or extrajudicial demand under and subject to the provisions of Article 1169
of the Civil Code.
2. When an obligation, not constituting a loan or forbearance of money, is breached,
an interest on the amount of damages awarded may be imposed at the discretion of
the court at the rate of 6% per annum. No interest, however, shall be adjudged on
unliquidated claims or damages except when or until the demand can be
established with reasonable certainty. Accordingly, where the demand is established
with reasonable certainty, the interest shall begin to run from the time the claim is
made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty
cannot be so reasonably established at the time the demand is made, the interest
shall begin to run only from the date the judgment of the court is made (at which
time the quantification of damages may be deemed to have been reasonably

ascertained). The actual base for the computation of legal interest shall, in any
case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and
executory, the rate of legal interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 12% per annum from such finality until its satisfaction,
this interim period being deemed to be by then an equivalent to a forbearance of
credit.39 (Citations omitted)
The foregoing rules were further clarified in Sunga-Chan v. Court of Appeals,40 as
follows:
Eastern Shipping Lines, Inc. synthesized the rules on the imposition of interest, if
proper, and the applicable rate, as follows: The 12% per annum rate under CB
Circular No. 416 shall apply only to loans or forbearance of money, goods, or
credits, as well as to judgments involving such loan or forbearance of money,
goods, or credit, while the 6% per annum under Art. 2209 of the Civil Code applies
when the transaction involves the payment of indemnities in the concept of
damage arising from the breach or a delay in the performance of obligations in
general, with the application of both rates reckoned from the time the complaint
was tiled until the [adjudged] amount is fully paid. In either instance, the reckoning
period for the commencement of the running of the legal interest shall be subject to
the condition that the courts are vested with discretion, depending on the equities
of each case, on the award of interest.41 (Citations omitted)
WHEREFORE, premises considered, the Petition for certiorari is DISMISSED.
SO ORDERED.
REYES, J.:
Sereno, C.J, Carpio, Velasco, Jr., Leonardo-De Castro,Peralta, Bersamin, Del Castillo,
Abad, Villarama, Jr., Perez, Mendoza, Perlas-Bernabe, and Leonen, JJ., concur.
Brion, J., on leave.

EN BANC, G.R. No. 192986, January 15, 2013, ADVOCATES FOR TRUTH IN
LENDING, INC. AND EDUARDO B. OLAGUER, PETITIONERS, VS. BANGKO
SENTRAL MONETARY BOARD, REPRESENTED BY ITS CHAIRMAN, GOVERNOR
ARMANDO M. TETANGCO, JR., AND ITS INCUMBENT MEMBERS: JUANITA D.
AMATONG, ALFREDO C. ANTONIO, PETER FAVILA, NELLY F. VILLAFUERTE,
IGNACIO R. BUNYE AND CESAR V. PURISIMA, RESPONDENTS
OCA Circular No. 49-2003 Does Not Restrict But Merely Regulates, By Providing
Guidelines To Be Complied By Judges And Court Personnel, Before They Can Go On
Leave To Travel Abroad. To Restrict Is To Restrain Or Prohibit A Person From Doing
Something; To Regulate Is To Govern Or Direct According To Rule
August 12, 2015 by The Lawyer's Post
The Facts:
To celebrate his 65th birthday, Judge Ignacio B. Macarines daughter, who works as a
nurse in New Jersey, U.S.A. gave him a trip to Hongkong as a gift. On August 13,
2009, Judge Macarine wrote the then Court Administrator, Jose Portugal Perez
requesting authority to travel to Hongkong with his family for the period September
10-14, 2009, which travel shall be charged to his annual forced leave. However, he
did not submit the corresponding application for leave with the requirements stated
in OCA Circular No. 49-2003, which require, aside from the leave application
favourably recommended by the Executive Judge, a certification form the Statistics
Division, Court Management Office, OCA as to the condition of the docket. Hence,
his application for leave remained unacted. Despite this, Judge Macarine proceeded
to travel abroad without the required travel authority. It was only on January 28,
2010 that his application for leave was disapproved and he was informed by the
OCA that his absences shall not be deducted from his leave credits but from his
salary. He was also required to submit his explanation. In his explanation, Judge
Macarine averred that he was informed by his daughter that she booked him and his
wife and two sons in a hotel in Hongkong from September 13 to 15, 2009. They
flew to Manila on September 9, 2009 to prepare the necessary papers for his
authority to travel from the Supreme Court the following day. Due to time
constraints, he opted not to immediately complete the requirements and went
ahead with the travel and thought of submitting his compliance upon his return to
Manila. He admitted his mistake and regretted his failure, promised not to commit
the same infraction, but requested reconsideration of the OCAs intended action to
deduct the absences from his salary, instead of the leave credits. The OCA, in its

Evaluation Report found Judge Macarine liable for violation of OCA Circular 49-2003,
recommended that he be fined P5,000.00, and deduction of his seven days absence
from his salary instead of his leave credits.
The Issue:
Whether or not Judge Macarine should be held liable for violation of OCA Circular 492003 for traveling abroad without the required travel authority.
The Ruling:
True, the right to travel is guaranteed by the Constitution. However, the exercise of
such right is not absolute. Section 6, Article III of the 1987 Constitution allows
restrictions on ones right to travel provided that such restriction is in the interest of
national security, public safety or public health as may be provided by law. This,
however, should by no means be construed as limiting the Courts inherent power of
administrative supervision over lower courts. OCA Circular No. 49-2003 does not
restrict but merely regulates, by providing guidelines to be complied by judges and
court personnel, before they can go on leave to travel abroad. To restrict is to
restrain or prohibit a person from doing something; to regulate is to govern or
direct according to rule.
To ensure management of court dockets and to avoid disruption in the
administration of justice, OCA Circular No. 49-2003 requires a judge who wishes to
travel abroad to submit, together with his application for leave of absence duly
recommended for approval by his Executive Judge, a certification from the Statistics
Division, Court Management Office of the OCA, as to the condition of his docket,
based on his Certificate of Service for the month immediately preceding the date of
his intended travel, that he has decided and resolved all cases or incidents within
three (3) months from date of submission, pursuant to Section 15(1) and (2), Article
VIII of the 1987 Constitution.1
For traveling abroad without having been officially allowed by the Court, the
respondent is guilty of violation of OCA Circular No. 49-2003. Under Section 9(4),
Rule 140 of the Revised Rules of Court, violation of Supreme Court directives and
circular is considered a less serious charge and, therefore, punishable by suspension
from office without salary and other benefits for not less than one (1) month nor
more than three (3) months; or a fine of more than P10,000.00 but not exceeding
P20,000.00.2

Section 53, Rule IV of the Revised Rules on Administrative Cases in the Civil Service
grants the disciplining authority the discretion to consider mitigating circumstances
in the imposition of the proper penalty. The Court had in several instances refrained
from imposing the actual penalties in the presence of mitigating facts, such as the
employees length of service, acknowledgement of his or her infractions and
feelings of remorse for the same, advanced age, family circumstances, and other
humanitarian and equitable considerations.
In the present case, the respondent, after learning that his daughter had already
booked him and his family in a hotel in Hongkong, immediately went to Manila to
secure his travel authority from the Court. However, with the short period of time
from their arrival in Manila on September 9, 2009 up to the time of their booking in
Hongkong from September 13 to 15, 2009, he was pressed for time and opted not
to complete the required travel authority, with the intention of securing one after
his travel. The respondent regretted his failure to comply with the requirements of
OCA Circular No. 49-2003. He acknowledged his mistake and promised not to
commit the same infraction in the future.
We consider the outlined circumstances as mitigating. Following judicial precedents,
the respondent deserves some degree of leniency in imposing upon him the
appropriate penalty.
WHEREFORE, respondent Judge Ignacio B. Macarine, Municipal Circuit Trial Court,
Gen. Luna, Surigao del Norte, is hereby given the ADMONITION that he acted
irresponsibly when he opted not to immediately secure a travel authority and is
saved only from the full force that his violation carries by the attendant mitigating
circumstances. He is also WARNED that the commission of a similar violation in the
future will merit a more severe penalty. The recommendation of the Office of the
Court Administration that his absences, which were unauthorized, shall not be
deducted from his leave credits but from his salary is hereby APPROVED.
SO ORDERED.
BRION, J.:
Carpio, J., join the concurring & dissenting opinion of J. Sereno.
Abad*, and Reyes, JJ., concur.

Sereno, J., please see my concurring & dissenting opinion.

SECOND DIVISION, A.M. No. MTJ-10-1770, July 18, 2012, OFFICE OF
ADMINISTRATIVE SERVICES-OFFICE OF THE COURT ADMINISTRATOR,
COMPLAINANT, VS. JUDGE IGNACIO B. MACARINE, MUNICIPAL CIRCUIT
TRIAL COURT, GEN. LUNA, SURIGAO DEL NORTE, RESPONDENT.
Although Considered A Fundamental Right, The Right To Privacy May Nevertheless
Succumb To An Opposing Or Overriding State Interest Deemed Legitimate And
Compelling
August 10, 2015 by The Lawyer's Post
The Facts:
Administrative Order No. 275 (A.O.275) issued by then President Gloria Arroyo on
December 8, 2009, entitled Creating an Independent Commission to Address the
Alleged Existence of Private Armies in the Country created a body,later on referred
to as the Zearosa Commission, to investigate the existence of privates armed
groups (PAGs) in the country with the view to eliminating them before the 2010
elections. At the end of the investigation, the Zenarosa Commission submitted its
report, Among its highlights are:
(a) The Report cited the PNP as its source for the portion regarding the status of
PAGs in the Philippines.
(b) The Report stated that x x x the PNP organized one dedicated Special Task
Group (STG) for each private armed group (PAG) to monitor and counteract their
activities.
(c) Attached as Appendix F of the Report is a tabulation generated by the PNP and
captioned as Status of PAGs Monitoring by STGs as of April 19, 2010, which
classifies PAGs in the country according to region, indicates their identity, and lists
the prominent personalities with whom these groups are associated.
Included in the report was the name of Marynette, Gamboa, then mayor of Dingras,
Ilocos Sur. A press conference was thereafter conducted to present the report, as
well as the status of the private armed groups, and the manner by which the report
was validated, which relied heavily on PNP reporting. Alleging that an ABS-CBN
news broadcast , as well as articles in print media identified her as one of those

maintaining private armed groups, Mayor Marynette filed a petition for issuance of
writ of habeas data, averring that her right to privacy was violated and her
reputation maligned and destroyed. The respondents were sued in their capacity as
official of the PNP Ilocos Norte. She prayed for the following reliefs: (a) destruction
of the unverified reports from the PNP- Ilocos Norte database; (b) withdrawal of all
information forwarded to higher PNP officials; (c) rectification of the damage done to
her honor; (d) ordering respondents to refrain from forwarding unverified reports
against her; and (e) restraining respondents from making baseless reports. After
finding the petition sufficient on its face, the RTC issued the writ, instructed
respondents to submit all information and reports forwarded to and used by the
Zearosa Commission as basis to include her in the list of persons maintaining
PAGs; directed respondents, and any person acting on their behalf, to cease and
desist from forwarding to the Zearosa Commission, or to any other government
entity, any information that they may have gathered against her without the
approval of the court; and ordered respondents to make a written return of the writ
together with supporting affidavits; and scheduled the summary hearing of the case
on 23 July 2010. In their Return of the writ, the respondents averred that they
merely acted in the performance of their duty in conducting the investigation and
surveillance of Gamboa, and, the information in their database pertained to two
criminal cases where she was implicated. They also argued that the petition was
incomplete for failure to comply with the requisites of the Rule of Habeas Data, such
as the manner by which her right to privacy was violated; the action she took to
secure the data; and location of the files, registers and databases. They also
alleged that the petition was not the proper remedy to address the alleged
besmirching of Gamboas reputation.
The RTC dismissed the complaint. While it held that Gamboas inclusion in the list
of persons maintaining PAGs violated her right to privacy, Gamoba had not shown
that the information gathered originated from the respondents who forwarded the
same to the commission without the benefit of further validation. She should have
impleaded the Zenarosa Commission as a necessary if not compulsory party to the
petition. Gamboa elevated her case to the Supreme Court.
The Issue:
Whether or not Marynette is entitled to the writ of habeas data.

The Ruling:
In determining whether Gamboa should be granted the privilege of the writ
of habeas data, this Court is called upon to, first, unpack the concept of the right to
privacy; second, explain the writ of habeas data as an extraordinary remedy that
seeks to protect the right to informational privacy; and finally, contextualize the
right to privacy vis--vis the state interest involved in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been recognized as
a constitutional right. This Court, in Morfe v. Mutuc,1 thus enunciated:
The due process question touching on an alleged deprivation of liberty as thus
resolved goes a long way in disposing of the objections raised by plaintiff that the
provision on the periodical submission of a sworn statement of assets and liabilities
is violative of the constitutional right to privacy. There is much to be said for this
view of Justice Douglas: Liberty in the constitutional sense must mean more than
freedom from unlawful governmental restraint; it must include privacy as well, if it is
to be a repository of freedom. The right to be let alone is indeed the beginning of all
freedom. As a matter of fact, this right to be let alone is, to quote from Mr. Justice
Brandeis the most comprehensive of rights and the right most valued by civilized
men.
The concept of liberty would be emasculated if it does not likewise compel respect
for his personality as a unique individual whose claim to privacy and interference
demands respect. x x x.
xxx

xxx

xxx

x x x [I]n the leading case of Griswold v. Connecticut, Justice Douglas, speaking for
five members of the Court, stated: Various guarantees create zones of privacy. The
right of association contained in the penumbra of the First Amendment is one, as we
have seen. The Third Amendment in its prohibition against the quartering of soldiers
in any house in time of peace without the consent of the owner is another facet of
that privacy. The Fourth Amendment explicitly affirms the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures. The Fifth Amendment in its Self- Incrimination Clause enables the
citizen to create a zone of privacy which government may not force him to

surrender to his detriment. The Ninth Amendment provides: The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people. After referring to various American Supreme Court
decisions, Justice Douglas continued: These cases bear witness that the right of
privacy which presses for recognition is a legitimate one.
xxx

xxx

xxx

So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is particularly
apt: The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the
citizen. This is indeed one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects of his
life, is the hallmark of the absolute state. In contrast, a system of limited
government, safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of
this private sector protection, in other words, of the dignity and integrity of the
individual has become increasingly important as modern society has developed.
All the forces of a technological age industrialization, urbanization, and
organization operate to narrow the area of privacy and facilitate intrusion into it.
In modern terms, the capacity to maintain and support this enclave of private life
marks the difference between a democratic and a totalitarian society. 2 (Emphases
supplied)
In Ople v. Torres,3 this Court traced the constitutional and statutory bases of the
right to privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. It is expressly
recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions of the Bill of
Rights, viz:

Sec. 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
xxx

xxx

xxx

Sec. 6. The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of national security, public safety,
or public health as may be provided by law.
xxx

xxx

xxx

Sec. 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law
shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil Code
provides that [e]very person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons and punishes as actionable torts
several acts by a person of meddling and prying into the privacy of another. It also
holds a public officer or employee or any private individual liable for damages for
any violation of the rights and liberties of another person, and recognizes the
privacy of letters and other private communications. The Revised Penal Code makes
a crime the violation of secrets by an officer, the revelation of trade and industrial
secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws
like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual
Property Code. The Rules of Court on privileged communication likewise recognize
the privacy of certain information.

Unlike the dissenters, we prescind from the premise that the right to privacy is a
fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state interest
and that it is narrowly drawn. x x x.4 (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that must be
protected from intrusion or constraint. However, inStandard Chartered Bank v.
Senate Committee on Banks,5 this Court underscored that the right to privacy is not
absolute, viz:
With respect to the right of privacy which petitioners claim respondent has violated,
suffice it to state that privacy is not an absolute right. While it is true that Section
21, Article VI of the Constitution, guarantees respect for the rights of persons
affected by the legislative investigation, not every invocation of the right to privacy
should be allowed to thwart a legitimate congressional inquiry. InSabio v. Gordon,
we have held that the right of the people to access information on matters of public
concern generally prevails over the right to privacy of ordinary financial
transactions. In that case, we declared that the right to privacy is not absolute
where there is an overriding compelling state interest. Employing the rational basis
relationship test, as laid down in Morfe v. Mutuc, there is no infringement of the
individuals right to privacy as the requirement to disclosure information is for a
valid purpose, in this case, to ensure that the government agencies involved in
regulating banking transactions adequately protect the public who invest in foreign
securities. Suffice it to state that this purpose constitutes a reason compelling
enough to proceed with the assailed legislative investigation. 6
Therefore, when the right to privacy finds tension with a competing state objective,
the courts are required to weigh both notions. In these cases, although considered a
fundamental right, the right to privacy may nevertheless succumb to an opposing or
overriding state interest deemed legitimate and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy designed to
protect the image, privacy, honor, information, and freedom of information of an
individual, and to provide a forum to enforce ones right to the truth and to
informational privacy.7 It seeks to protect a persons right to control information
regarding oneself, particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful ends. 8 It must be

emphasized that in order for the privilege of the writ to be granted, there must exist
a nexus between the right to privacy on the one hand, and the right to life, liberty or
security on the other. Section 1 of the Rule on the Writ of Habeas Data reads:
Habeas data. The writ of habeas data is a remedy available to any person whose
right to privacy in life, liberty or security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data information regarding the
person, family, home and correspondence of the aggrieved party.
The notion of informational privacy is still developing in Philippine law and
jurisprudence. Considering that even the Latin Americanhabeas data, on which our
own Rule on the Writ of Habeas Data is rooted, finds its origins from the European
tradition of data protection,9 this Court can be guided by cases on the protection of
personal data decided by the European Court of Human Rights (ECHR). Of particular
note is Leander v. Sweden,10 in which the ECHR balanced the right of citizens to be
free from interference in their private affairs with the right of the state to protect its
national security. In this case, Torsten Leander (Leander), a Swedish citizen, worked
as a temporary replacement museum technician at the Naval Museum, which was
adjacent to a restricted military security zone. 11 He was refused employment when
the requisite personnel control resulted in an unfavorable outcome on the basis of
information in the secret police register, which was kept in accordance with the
Personnel Control Ordinance and to which he was prevented access. 12 He claimed,
among others, that this procedure of security control violated Article 8 of the
European Convention of Human Rights 13 on the right to privacy, as nothing in his
personal or political background would warrant his classification in the register as a
security risk.14
The ECHR ruled that the storage in the secret police register of information relating
to the private life of Leander, coupled with the refusal to allow him the opportunity
to refute the same, amounted to an interference in his right to respect for private
life.15However, the ECHR held that the interference was justified on the following
grounds: (a) the personnel control system had a legitimate aim, which was the
protection of national security,16 and (b) the Personnel Control Ordinance gave the
citizens adequate indication as to the scope and the manner of exercising discretion
in the collection, recording and release of information by the authorities 17. The
following statements of the ECHR must be emphasized:

58. The notion of necessity implies that the interference corresponds to a pressing
social need and, in particular, that it is proportionate to the legitimate aim
pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series A no.
109, p. 22, 55).
59. However, the Court recognises that the national authorities enjoy a margin of
appreciation, the scope of which will depend not only on the nature of the legitimate
aim pursued but also on the particular nature of the interference involved. In the
instant case,the interest of the respondent State in protecting its national security
must be balanced against the seriousness of the interference with the applicants
right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting national
security, for the Contracting States to have laws granting the competent domestic
authorities power, firstly, to collect and store in registers not accessible to the public
information on persons and, secondly, to use this information when assessing the
suitability of candidates for employment in posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leanders legitimate
interests through the consequences it had on his possibilities of access to certain
sensitive posts within the public service. On the other hand, the right of access to
public service is not as such enshrined in the Convention (see, inter alia, the Kosiek
judgment of 28 August 1986, Series A no. 105, p. 20, 34-35), and, apart from
those consequences, the interference did not constitute an obstacle to his leading a
private life of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation available
to the respondent State in assessing the pressing social need in the present case,
and in particular in choosing the means for achieving the legitimate aim of
protecting national security, was a wide one.
xxx

xxx

xxx

66. The fact that the information released to the military authorities was not
communicated to Mr. Leander cannot by itself warrant the conclusion that the
interference was not necessary in a democratic society in the interests of national
security, as it is the very absence of such communication which, at least partly,
ensures the efficacy of the personnel control procedure (see, mutatis mutandis, the
above-mentioned Klass and Others judgment, Series A no. 28, p. 27, 58).

The Court notes, however, that various authorities consulted before the issue of the
Ordinance of 1969, including the Chancellor of Justice and the Parliamentary
Ombudsman, considered it desirable that the rule of communication to the person
concerned, as contained in section 13 of the Ordinance, should be effectively
applied in so far as it did not jeopardise the purpose of the control (see paragraph
31 above).
67. The Court, like the Commission, thus reaches the conclusion that the safeguards
contained in the Swedish personnel control system meet the requirements of
paragraph 2 of Article 8 (art. 8-2). Having regard to the wide margin of appreciation
available to it, the respondent State was entitled to consider that in the present
case the interests of national security prevailed over the individual interests of the
applicant (see paragraph 59 above). The interference to which Mr. Leander was
subjected cannot therefore be said to have been disproportionate to the legitimate
aim pursued. (Emphases supplied)
Leander illustrates how the right to informational privacy, as a specific component
of the right to privacy, may yield to an overriding legitimate state interest. In similar
fashion, the determination of whether the privilege of the writ of habeas data, being
an extraordinary remedy, may be granted in this case entails a delicate balancing of
the alleged intrusion upon the private life of Gamboa and the relevant state interest
involved.
The collection and forwarding of information
by the PNP vis--vis the interest of the state to
dismantle private armies
The Constitution explicitly mandates the dismantling of private armies and other
armed groups not recognized by the duly constituted authority. 18 It also provides for
the establishment of one police force that is national in scope and civilian in
character, and is controlled and administered by a national police commission. 19
Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275
articulates a legitimate state aim, which is to investigate the existence of PAGs with
the ultimate objective of dismantling them permanently.

To enable the Zearosa Commission to achieve its goals, A.O. 275 clothed it with the
powers of an investigative body, including the power to summon witnesses,
administer oaths, take testimony or evidence relevant to the investigation and use
compulsory processes to produce documents, books, and records. 20 A.O. 275
likewise authorized the Zearosa Commission to deputize the Armed Forces of the
Philippines, the National Bureau of Investigation, the Department of Justice, the PNP,
and any other law enforcement agency to assist the commission in the performance
of its functions.21
Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce
all laws and ordinances relative to the protection of lives and properties; (b)
maintain peace and order and take all necessary steps to ensure public safety; and
(c) investigate and prevent crimes.22
Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers
and functions accorded to the Zearosa Commission and the PNP, the latter
collected information on individuals suspected of maintaining PAGs, monitored them
and counteracted their activities. 23 One of those individuals is herein petitioner
Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the data
contained in the Report listing her as a PAG coddler came from the PNP. Contrary to
the ruling of the trial court, however, the forwarding of information by the PNP to
the Zearosa Commission was not an unlawful act that violated or threatened her
right to privacy in life, liberty or security.
The PNP was rationally expected to forward and share intelligence regarding PAGs
with the body specifically created for the purpose of investigating the existence of
these notorious groups. Moreover, the Zearosa Commission was explicitly
authorized to deputize the police force in the fulfillment of the formers mandate,
and thus had the power to request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that the PNP
released information to the Zearosa Commission without prior communication to
Gamboa and without affording her the opportunity to refute the same cannot be
interpreted as a violation or threat to her right to privacy since that act is an
inherent and crucial component of intelligence- gathering and investigation.
Additionally, Gamboa herself admitted that the PNP had a validation system, which
was used to update information on individuals associated with PAGs and to ensure

that the data mirrored the situation on the field. 24 Thus, safeguards were put in
place to make sure that the information collected maintained its integrity and
accuracy.
Pending the enactment of legislation on data protection, this Court declines to make
any further determination as to the propriety of sharing information during specific
stages of intelligence gathering. To do otherwise would supplant the discretion of
investigative bodies in the accomplishment of their functions, resulting in an undue
encroachment on their competence. However, to accord the right to privacy with
the kind of protection established in existing law and jurisprudence, this Court
nonetheless deems it necessary to caution these investigating entities that
information-sharing must observe strict confidentiality. Intelligence gathered must
be released exclusively to the authorities empowered to receive the relevant
information. After all, inherent to the right to privacy is the freedom from
unwarranted exploitation of ones person or from intrusion into ones private
activities in such a way as to cause humiliation to a persons ordinary
sensibilities.25
In this case, respondents admitted the existence of the Report, but emphasized its
confidential nature. That it was leaked to third parties and the media was
regrettable, even warranting reproach. But it must be stressed that Gamboa failed
to establish that respondents were responsible for this unintended disclosure. In any
event, there are other reliefs available to her to address the purported damage to
her reputation, making a resort to the extraordinary remedy of the writ of habeas
data unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through substantial
evidence that her inclusion in the list of individuals maintaining PAGs made her and
her supporters susceptible to harassment and to increased police surveillance. In
this regard, respondents sufficiently explained that the investigations conducted
against her were in relation to the criminal cases in which she was implicated. As
public officials, they enjoy the presumption of regularity, which she failed to
overcome.
It is clear from the foregoing discussion that the state interest of dismantling PAGs
far outweighs the alleged intrusion on the private life of Gamboa, especially when
the collection and forwarding by the PNP of information against her was pursuant to
a lawful mandate. Therefore, the privilege of the writ of habeas data must be
denied.

WHEREFORE, the instant petition for review is DENIED. The assailed Decision in
Special Proc. No. 14979 dated 9 September 2010 of the Regional Trial Court, Laoag
City, Br. 13, insofar as it denies Gamboa the privilege of the writ of habeas data,
isAFFIRMED.
SO ORDERED.
SERENO, J.:
Carpio, Velasco, Jr.,Bersamin, Del Castillo, Abad, Villarama, Jr., Perez,
Reyes, and Perlas-Bernabe, JJ., concur.
Leonardo-De Castro, J., on official leave.
Brion and Mendoza, JJ., on leave.
Peralta, J., on official business.
EN BANC, G.R. No. 193636, July 24, 2012, MARYNETTE R. GAMBOA,
PETITIONER, VS. P/SSUPT. MARLOU C. CHAN, IN HIS CAPACITY AS THE PNPPROVINCIAL DIRECTOR OF ILOCOS NORTE, AND P/SUPT. WILLIAM O. FANG,
IN HIS CAPACITY AS CHIEF, INTELLIGENCE DIVISION, PNP PROVINCIAL
OFFICE, ILOCOS NORTE, RESPONDENTS.
To Yield Unreserved Power Of Governance To The Local Government Unit As To
Preclude Any And All Involvement By The National Government In Programs
Implemented In The Local Level Would Be To Shift The Tide Of Monopolistic Power To
The Other Extreme, Which Would Amount To A Decentralization Of Power, Which Is
Beyond The Concept Of Constitutional Autonomy
August 9, 2015 by The Lawyer's Post
The Facts:
It was in 2007 that the DSWD first started a poverty reduction program to target the
poorest of the poor, testing the program in several pilot areas, initially funded by a
Special Allotment Release Order issued by the DBM. On July 16, 208, the DSWD
issued Administrative Order No. 16, series of 2008 (A.O. No. 16, s. 2008), setting
the implementing guidelines for the project renamed Pantawid Pamilyang Pilipino
Program (4Ps), upon the following stated objectives, to wit:

1. To improve preventive health care of pregnant women and young children

2. To increase enrollment/attendance of children at elementary level
3. To reduce incidence of child labor
4. To raise consumption of poor households on nutrient dense foods
5. To encourage parents to invest in their childrens (and their own) future
6. To encourage parents participation in the growth and development of young
children, as well as involvement in the community.
The program identified as the CCTP/ 4Ps provided cash grants to extreme poor
households with the corresponding obligations on the part of the beneficiaries to
comply with certain requirements imposed by the program. A Memorandum of
Agreement between the DSWD and the LGU participants outlined in detail the
obligations of the parties during the five-year implementation of the CCTP.

To

institutionalise the program, Congress provided funding under the General

appropriations Act of 2008 in the amount of P298.5 Million, increasing tremendously
to P% Billion in the GAA of 2009, and P10Billion in the GAA of 2010. In the GAA of
2011, it ballooned to P21 Billion. The petitioners challenged before the Supreme
Court the disbursement of public funds and the implementation of the CCTP which
they allege encroach into the local autonomy of the local government units. They
take exception to the manner by which it is being implemented, that is, primarily
through a national agency like DSWD instead of the LGUs to which the responsibility
and functions of delivering social welfare, agriculture and health care services have
been devolved pursuant to Section 17 of Republic Act No. 7160, also known as the
Local Government Code o f 191, in relation to Section 25, Article I & Section 3,
Article X of the 1987 Constitution. The program results in the recentralization of
basic government functions which is contrary to the principles of autonomy and the
avowed policy of decentralization.
The Issue:
Whether or not the CCTP program is unconstitutional for violating the principle on
local autonomy and decentralisation.

The Ruling:
The Constitution declares it a policy of the State to ensure the autonomy of local
governments1 and even devotes a ful article on the subject of local
governance2 which includes the following pertinent provisions:
Section 3. The Congres shall enact a local government code which shall provide for
a more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications , election,
appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other maters relating to the organization and operation of the local
units.
xxx
Section 14. The President shall provide for regional development councils or other
similar bodies composed of local government officials, regional heads of
departments and other government offices, and representatives from non
governmental organizations within the regions for purposes of administrative
decentralization to strengthen the autonomy of the units therein and to accelerate
the economic and social growth and development of the units in the region.
(Underscoring supplied)
In order to fully secure to the LGUs the genuine and meaningful autonomy that
would develop them into self reliant communities and effective partners in the
attainment of national goals,

Section 17 of the Local Government Code vested

upon the LGUs the duties and functions pertaining to the delivery of basic services
and facilities, as follows:
SECTION 17. Basic Services and Facilities. (a) Local government units shall
endeavor to be self reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local government units shall like wise
exercise such other powers and discharge such other f unctions and responsibilities
as are necessary, appropriate, or incidental to efficient and effective provision of the
basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national
agencies on the aspect of providing for basic services and facilities in their
respective jurisdictions , paragraph (c) of the same provision provides a categorical
exception of cases involving nationally funded projects, facilities, programs and
services, thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by the
National Government under the annual General Appropriations Act, other special
laws, pertinent executive orders, and those wholly or partially funded from foreign
sources, are not covered under this Section, except in those cases where the local
government unit concerned is duly designated as the implementing agency for such
projects, facilities, programs and services. (Underscoring supplied)
The essence of this express reservation of power by the national government is
that, unles an LGU is particularly designated as the implementing agency, it has no
power over a program for which funding has ben provided by the national
government under the anual general apropriations act, even if t he program
involves the delivery of basic services within the jurisdiction of the LGU.
The Court held in Ganzon v. Court of Apeals4 that while it is through a system of
decentralization that the State shall promote a more responsive and accountable
local government structure, the concept of local autonomy does not imply the
conversion of local government units into mini-states. 5 We explained that, with
local autonomy, the Constitution did nothing more than to break up the monopoly
of the national government over the afairs of the local government and, thus, did
not intend to sever the relation of partnership and interdependence betwen the
central administration and local government units. 6 In Pimentel v. Aguire,7 the
Court defined the extent of the local governments autonomy in terms of its
partnership with the national government in the pursuit of comonational goals,
refering to such key concepts as integration and cordination. Thus:
Under the Philippine concept of local autonomy, the national government has not
completely relinquished all its powers over local governments , including
autonomous regions. Only administrative powers over local affairs are delegated to
political subdivisions. The purpose of the delegation is to make governance more

directly responsive and effective at the local levels. In turn, economic, political and
social development at the smaller political units are expected to propel social and
economic growth and development. But to enable the country to develop as a
whole, the programs and policies effected localy must be integrated and cordinated
towards a common national goal. Thus, policy setting for the entire country still
lies in the President and Congress .
Certainly, to yield unreserved power of governance to the local government unit as
to preclude any and all involvement by the national government in programs
implemented in the local level would be to shift the tide of monopolistic power to
the other extreme, which would amount to a decentralization of power explicated
in Limbona v. Mangelin8 as beyond our constitutional concept of autonomy, thus:
Now, autonomy is either decentralization of administration or decentralization of
power. There is decentralization of administration when the central government
delegates administrative powers to political subdivisions in order to broaden the
base of government power and in the proces to make local governments more
responsive and accountable and ensure their fullest development a self-reliant
comunities and make them more effective partners in the pursuit of national
development and social progress . A tthe same time, it relieves the central
government of the burden of managing local affairs and enables it to concentrate
on national concerns. The President exercises general supervision over them, but
only to ensure that local affairs are administered according to law. He has no
control over their acts in the sense that he can substitute their judgments with his
own.
Decentralization of power, on the other hand, involves an abdication of political
power in the [sic] favor of local governments [sic] units declared to be autonomous.
In that case, the autonomous government is free to chart its own destiny and shape
its future with minimum intervention from central authorities. According to a
constitutional author, decentralization of power amounts to selfimmolation, since
in that event, the autonomous government becomes accountable not to the central
authorities but to its constituency.9
Indeed, a complete relinquishment of central government powers on the matter of
providing basic facilities and services cannot be implied as the Local Government
Code itself weighs against it. The national government is, thus, not precluded from
taking a direct hand in the formulation and implementation of national development

programs especially where it is implemented locally in coordination with the LGUs

concerned.
Every law has in its favor the presumption of constitutionality, and to justify its
nullification, there must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative one.10 Petitioners have failed to discharge the burden
of proving the invalidity of the provisions under the GAA of 2011. The allocation of a
P21 billion budget for an intervention program formulated by the national
government itself but implemented in partnership with the local government units
to achieve the common national goal development and social progress can by no
means be an encroachment upon the autonomy of local governments.
WHEREFORE, premtses considered, the petition is hereby DISMISSED.
SO ORDERED.
PERLAS-BERNABE, J.:
Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo,
Abad, Villarama, Perez, Mendoza, Sereno, andReyes, JJ., concur.
EN BANC, G.R. No. 195770, July 17, 2012, AQUILINO Q. PIMENTEL, JR.,
SERGIO TADEO AND NELSON ALCANTARA, PETITIONERS, VS. EXECUTIVE
SECRETARY PAQUITO N. OCHOA AND SECRETARY CORAZON JULIANOSOLIMAN OF THE DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT,
RESPONDENTS.
A Mayor Cannot Be Compelled By Mandamus To Issue A Business Permit Since The
Exercise Of The Same Is A Delegated Police Power Hence, Discretionary In Nature
August 8, 2015 by The Lawyer's Post
The Facts:
Naguillian Emission Testing Center Inc., filed a petition for mandamus and damages
against Abraham Rimando (petitioner), the municipal mayor of Naguilian, La Union.
In its complaint, the company alleged that from 2005 to 2007 its business is located
on a land formerly belonging to the national government which was later certified
as an alienable and disposable land of the public domain by the DENR. On January
18, 2008, it applied for a renewal of its business permit and paid the corresponding

fees, but the petitioner refused to issue a business permit, until such time that the
company executes a contract of lease with the municipality; the respondent is
amenable to signing the contract but with some revisions, which the petitioner did
not accept; no common ground was reached among the parties, hence the company
filed the petition. The RTC ruled in favour of the petitioner; ratiocinating that: (a)
the Municipality of Naguiian is the declared owner of the subject parcel of land by
virtue of Tax Declaration No. 002-01197; (b) under Section 6A.01 of the Revenue
Code of the Municipality of Naguilian, the municipality has the right to require the
petitioner to sign a contract of lease because its business operation is being
conducted on a real property owned by the municipality; and (c) a mayors duty to
issue business permits is discretionary in nature which may not be enforced by a
mandamus writ.
On appeal, the CA proceeded to discuss the merits of the case even though the
petition itself is dismissible on the ground of mootness. It held that the factual
milieu of the case justifies issuance of the writ; the tax declaration in the name of
the municipality was insufficient basis to require the execution of a contract of lease
as a condition sine qua non for the renewal of a business permit. The CA further
observed that Sangguniang Bayan Resolution No. 2007-81, upon which the
municipality anchored its imposition of rental fees, was void because it failed to
comply with the requirements of the Local Government Code and its Implementing
Rules and Regulations. It held the mayor not liable for damages since he acted in
the performance of his duties which are legally protected by the presumption of
regularity in the performance of official duty; the case against the mayor also was
moot and academic since his term as mayor expired. Nevertheless, the CA reversed
and set aside the RTC decision.
The petitioner elevated the matter to the Supreme Court.
The Issue:
Whether or not the issue had become moot and academic;
Whether or not the issuance of a business permit maybe compelled thru a petition
for mandamus.

The Ruling:
We agree with the CA that the petition for mandamus has already become moot and
academic owing to the expiration of the period intended to be covered by the
business permit.
An issue or a case becomes moot and academic when it ceases to present a
justiciable controversy so that a determination thereof would be without practical
use and value1 or in the nature of things, cannot be enforced. 2 In such cases, there
is no actual substantial relief to which the applicant would be entitled to and which
would be negated by the dismissal of the petition. 3 As a rule, courts decline
jurisdiction over such case, or dismiss it on ground of mootness. 4
The objective of the petition for mandamus to compel the petitioner to grant a
business permit in favor of respondent corporation for the period 2008 to 2009 has
already been superseded by the passage of time and the expiration of the
petitioners term as mayor. Verily then, the issue as to whether or not the petitioner,
in his capacity as mayor, may be compelled by a writ of mandamus to release the
respondents business permit ceased to present a justiciable controversy such that
any ruling thereon would serve no practical value. Should the writ be issued, the
petitioner can no longer abide thereby; also, the effectivity date of the business
permit no longer subsists.
While the CA is not precluded from proceeding to resolve the otherwise moot appeal
of the respondent, we find that the decretal portion of its decision was erroneously
couched.
The CAs conclusions on the issue of ownership over the subject land and the
invalidity of Sangguniang Bayan Resolution No. 2007-81, aside from being
unsubstantiated by convincing evidence, can no longer be practically utilized in
favor of the petitioner. Thus, the overriding and decisive factor in the final
disposition of the appeal was its mootness and the CA should have dismissed the
same along with the petition for mandamus that spawned it.
More importantly, a mayor cannot be compelled by mandamus to issue a business
permit since the exercise of the same is a delegated police power hence,
discretionary in nature. This was the pronouncement of this Court in Roble Arrastre,
Inc. v. Hon. Villaflor5 where a determination was made on the nature of the power of
a mayor to grant business permits under the Local Government Code 6, viz:

Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of

the Local Government Code of 1991, which provides, thus:
SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation.
(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the municipality and its inhabitants pursuant to Section 16 of this
Code, the municipal mayor shall: x x x x
3) Initiate and maximize the generation of resources and revenues, and apply the
same to the implementation of development plans, program objectives and
priorities as provided for under Section 18 of this Code, particularly those resources
and revenues programmed for agroindustrial development and country-wide growth
and progress, and relative thereto, shall:
xxxx
(iv) Issue licenses and permits and suspend or revoke the same for any violation of
the conditions upon which said licenses or permits had been issued, pursuant to law
or ordinance.
As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue
licenses is pursuant to Section 16 of the Local Government Code of 1991, which
declares:
SEC. 16. General Welfare. Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Section 16, known as the general welfare clause, encapsulates the delegated police
power to local governments. Local government units exercise police power through

their respective legislative bodies. Evidently, the Local Government Code of 1991 is
unequivocal that the municipal mayor has the power to issue licenses and permits
and suspend or revoke the same for any violation of the conditions upon which said
licenses or permits had been issued, pursuant to law or ordinance. x x x
xxxx
Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of
the respondent mayor to issue license and permits is circumscribed, is a
manifestation of the delegated police power of a municipal corporation. Necessarily,
the exercise thereof cannot be deemed ministerial. As to the question of whether
the power is validly exercised, the matter is within the province of a writ
of certiorari, but certainly, not of mandamus.7 (Citations omitted)
Indeed, as correctly ruled by the RTC, the petition for mandamus filed by the
respondent is incompetent to compel the exercise of a mayors discretionary duty to
issue business permits.
WHEREFORE, premises considered, the Decision dated March 30, 2011 of the Court
of Appeals in CA-G.R. SP No. 112152 is hereby SET ASIDE. The Decision dated May
26, 2009 of the Regional Trial Court of Bauang, La Union is REINSTATED.
SO ORDERED.
REYES, J.:
Carpio, (Chairperson), Del Castillo*, Perez, and Sereno, JJ., concur.
SECOND DIVISION, G.R. No. 198860, July 23, 2012, ABRAHAM RIMANDO,
PETITIONER, VS. NAGUILIAN EMISSION TESTING CENTER, INC.,
REPRESENTED BY ITS PRESIDENT, ROSEMARIE LLARENAS AND HON. COURT
OF APPEALS, RESPONDENTS.
Jurisprudence Dictates That A Taxpayer May Be Allowed To Sue Where There Is A
Claim That Public Funds Are Illegally Disbursed Or That Public Money Is Being
Deflected To Any Improper Purpose, Or That Public Funds Are Wasted Through The
Enforcement Of An Invalid Or Unconstitutional Law Or Ordinance.
August 2, 2015 by The Lawyer's Post

The Facts:
Sometime in 1957, the administratrix of the estate of the late Guillermo de Villa,
Marietta, donated a portion (134,957) of their 396,622-square meter property to the
Province of Cavite. In 1981 and 1982, the Province of Cavite filed a Complaint and
later an Amended Complaint to expropriate the remainder of the property for the
amount of P215,050 to be developed as the Provincial Capitol Site, and made a
preliminary deposit of 10% of the amount. The RTC then issued a Confirmatory Writ
of Possession, and thereafter, the province took possession of the entire property.
In her answer to the expropriation proceedings, Marietta opposed the expropriation
proceedings; there were areas still to be developed out of her donated lot,
according to her, and the value of the property should be pegged at P45.00 per
square meter. In 1989, she sold the remainder of the property to Goldenrod, owned
by Sonya Mathay and Eleuterio Pascual, who thereafter intervened in the
proceedings. By virtue of Executive Order No. 004, then Governor Ireneo Maliksi
created a committee for the proper settlement of the expropriation case. As a
result of the committee report, the parties to the expropriation case agreed as
follows:
a) the just compensation be pegged at the amount of P495.00 per sq. m. plus 6%
annual interest for 22 years, for a total net consideration of P50,000,000.00, which
amount shall be equally shouldered by the Province of Cavite and Trece Martires
City;
(b) the total area to be expropriated be limited to only 116,287 sq. m. and the
donated portion be reduced to 48,429 sq. m.; and (
c) 193,662 sq. m. of the subject property be reverted to Goldenrod which include a
fenced stadium, one-half of the Trece Martires Cemetery, the forest park; a
residential area, and some stalls; in turn, Goldenrod will construct a
commercial/business center, an art/historical museum, and an educational
institution within five years from the signing of the compromise agreement.
The parties then executed a Compromise Agreement, which the RTC approved on
March 18, 2004, both of which were ratified by the Sangguniang Panglunsod of
Trece Martires City and the Sangguniang Panlalawigan of Cavite.
Vice. Governor Jovic Remulla, in his capacity as a taxpayer and as then ViceGovernor, assailed the RTC decision thru a petition for annulment of judgment

before the Court of Appeals. He alleged that the compromise agreement was
grossly disadvantageous to the government; overpriced; nullified the 1957 Deed of
Donation, and made without authority by Maliksi, who authorized it without
conformity from the Sangguniang Panglalawigan. There was also no certification as
to availability of funds. There was also extrinsic fraud since there was collusion
between the parties. The CA however dismissed his petition on motion of the
respondents, holding that there was no disbursement of public funds yet for it to be
considered a taxpayers suit, nor was Remulla a real party in interest as he was not
a signatory to the compromise agreement. Remulla elevated the case to the
Supreme Court.
The Issue:
Whether or not the Court of Appeals erred in dismissing the petition for annulment
of judgment.
The Ruling:
The petition is meritorious.
Records bear out that Remulla filed his petition for annulment of judgment in two
capacities: first, in his personal capacity as a taxpayer; and, second, in his official
capacity as then presiding officer of the Sangguniang Panlalawigan of the Province
of Cavite.
With respect to the first, jurisprudence dictates that a taxpayer may be allowed to
sue where there is a claim that public funds are illegally disbursed or that public
money is being deflected to any improper purpose, or that public funds are wasted
through the enforcement of an invalid or unconstitutional law or ordinance. 1 In this
case, public funds of the Province of Cavite stand to be expended to enforce the
compromise judgment. As such, Remulla being a resident-taxpayer of the Province
of Cavite has the legal standing to file the petition for annulment of judgment and,
therefore, the same should not have been dismissed on said ground. Notably, the
fact that there lies no proof that public funds have already been disbursed should
not preclude Remulla from assailing the validity of the compromise judgment. Lest it
be misunderstood, the concept of legal standing is ultimately a procedural
technicality which may be relaxed by the Court if the circumstances so warrant. As
observed in Mamba v. Lara,2 the Court did not hesitate to give standing to taxpayers
in cases3 where serious legal issues were raised or where public expenditures of

millions of pesos were involved. Likewise, it has also been ruled that a taxpayer
need not be a party to the contract in order to challenge its validity, 4 or to seek the
annulment of the same on the ground of extrinsic fraud. 5 Indeed, for as long as
taxes are involved, the people have a right to question contracts entered into by the
government,6 as in this case.
Anent the second, Remulla equally lodged the petition for annulment of judgment in
his official capacity as then Vice-Governor and Presiding Officer of the Sangguniang
Panlalawigan of the Province of Cavite. As such, he represents the interests of the
province itself which is, undoubtedly, a real party in interest since it stands to be
either benefited or injured7 by the execution of the compromise judgment.
For these reasons, the CA should not have dismissed the petition for annulment of
judgment on account of Remullas lack of legal standing. Consequently, the case
should be remanded to the said court for further proceedings.
WHEREFORE, the petition is GRANTED. Accordingly, the Resolutions dated May 18,
2005 and February 16, 2006 of the Court of Appeals in CA-G.R. SP No. 86465 are
hereby. REVERSED and SET ASIDE. The case is REINSTATED and REMANDED to the
Court of Appeals for further proceedings.
SO ORDERED.
PERLAS-BERNABE, J.:
Carpio, (Chairperson), Brion, Perez, and Leonen,* JJ., concur.
SECOND DIVISION, G.R. No. 171633, September 18, 2013, JUANITO VICTOR
C. REMULLA, PETITIONER, VS. ERINEO S. MALIKSI, IN HIS CAPACITY AS
GOVERNOR OF THE PROVINCE OF CAVITE, RENATO A. IGNACIO, IN HIS
CAPACITY AS PROVINCIAL LEGAL OFFICER OF THE PROVINCE OF CAVITE,
MARIETTA OHARA DE VILLA, HEIRS OF HIGINO DE VILLA, GOLDENROD,
INC., SONYA G. MATHAY, AND ELEUTERIO M. PASCUAL, RESPONDENTS.
Declaratory Relief Is Not Proper Where There Is Serious Doubt That An Actual
Justiciable Controversy Or The Ripening Seeds Of One Exists in A Case
July 31, 2015 by The Lawyer's Post
The Facts:

The petitioners filed a petition for declaratory relief to assail the following provisions
of Republic Act 9372, the Human Security Act of 2007:
a) Section 3, for being void for vagueness;
b) Section 7, for violating the right to privacy of communication and due process
and the privileged nature of priest-penitent relationships;
c) Section 18, for violating due process, the prohibition against ex post facto laws or
bills of attainder, the Universal Declaration of Human Rights, and the International
Covenant on Civil and Political Rights, as well as for contradicting Article 125 of the
Revised Penal Code, as amended;
d) Section 26, for violating the right to travel; and
e) Section 27, for violating the prohibition against unreasonable searches and
seizures.
Petitioners moved to suspend the proceedings, since several petitions were then
pending at the Supreme Court assailing the constitutionality of RA 9372; the RTC
granted the motion. On October 5, 2010, the Supreme Court promulgated its
decision in theSouthern Hemisphere1 case and dismissed the SC petitions. In view
of the decision, the petitioner moved to dismiss the proceedings, arguing that the
SC had already ruled on the constitutionality of RA 9372, and the petition did not
meet the requisites for declaratory relief, which the respondents opposed, arguing
otherwise that the cases were dismissed on mere technicalities and their petitions
meet the requisites for a declaratory relief.
The RTC denied the motion to dismiss, holding that the SC did not pass upon the
constitutionality of the law in the Southern Hemisphere case and the petition
satisfied the requirements of a declaratory relief. On motion for reconsideration, the
RTC maintained its stance, holding that it observed that private respondents have
personal and substantial interests in the case and that it would be illogical to await
the adverse consequences of the aforesaid laws implementation considering that
the case is of paramount impact to the Filipino people.

The petitioners assailed the denial of the motion to dismiss before the Supreme
Court via a petition for review on certiorari.
The Issues:
Whether the Supreme Court have already ruled on the constitutionality of RA 9372;
Whether the petition satisfied all the requirements for declaratory relief.
The Ruling:
The petition is meritorious.
An act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment
as is equivalent to lack of jurisdiction.2 It is wellsettled that the abuse of discretion
to be qualified as grave must be so patent or gross as to constitute an evasion of
a positive duty or a virtual refusal to perform the duty or to act at all in
contemplation of law.3 In this relation, case law states that not every error in the
proceedings, or every erroneous conclusion of law or fact, constitutes grave abuse
of discretion.4 The degree of gravity, as above-described, must be met.
Applying these principles, the Court observes that while no grave abuse of
discretion could be ascribed on the part of the RTC when it found that the Court did
not pass upon the constitutionality of RA 9372 in the Southern Hemisphere cases, it,
however, exceeded its jurisdiction when it ruled that private respondents petition
had met all the requisites for an action for declaratory relief. Consequently, its
denial of the subject motion to dismiss was altogether improper.
To elucidate, it is clear that the Court, in Southern Hemisphere, did not make any
definitive ruling on the constitutionality of RA 9372. The certiorari petitions in those
consolidated cases were dismissed based solely on procedural grounds, namely: (a)
the remedy of certiorari was improper;5 (b) petitioners therein lack locus
standi;6 and (c) petitioners therein failed to present an actual case or
controversy.7 Therefore, there was no grave abuse of discretion.
The same conclusion cannot, however, be reached with regard to the RTCs ruling
on the sufficiency of private respondents petition for declaratory relief.

Case law states that the following are the requisites for an action for declaratory
relief: first, the subject matter of the controversy must be a deed, will, contract or
other written instrument, statute, executive order or regulation, or
ordinance; second, the terms of said documents and the validity thereof are
doubtful and require judicial construction; third, there must have been no breach of
the documents in question; fourth, there must be an actual justiciable controversy
or the ripening seeds of one between persons whose interests are adverse; fifth,
the issue must be ripe for judicial determination; and sixth, adequate relief is not
available through other means or other forms of action or proceeding 8.
Based on a judicious review of the records, the Court observes that while the
first,9 second,10 and third11 requirements appear to exist in this case, the fourth,
fifth, and sixth requirements, however, remain wanting.
As to the fourth requisite, there is serious doubt that an actual justiciable
controversy or the ripening seeds of one exists in this case.
Pertinently, a justiciable controversy refers to an existing case or controversy that is
appropriate or ripe for judicial determination, not one that is conjectural or merely
anticipatory.12 Corollary thereto, by ripening seeds it is meant, not that sufficient
accrued facts may be dispensed with, but that a dispute may be tried at its
inception before it has accumulated the asperity, distemper, animosity, passion,
and violence of a full blown battle that looms ahead. The concept describes a state
of facts indicating imminent and inevitable litigation provided that the issue is not
settled and stabilized by tranquilizing declaration. 13
A perusal of private respondents petition for declaratory relief would show that they
have failed to demonstrate how they are left to sustain or are in immediate danger
to sustain some direct injury as a result of the enforcement of the assailed
provisions of RA 9372. Not far removed from the factual milieu in the Southern
Hemisphere cases, private respondents only assert general interests as citizens,
and taxpayers and infractions which the government could prospectively commit if
the enforcement of the said law would remain untrammelled. As their petition would
disclose, private respondents fear of prosecution was solely based on remarks of
certain government officials which were addressed to the general public. 14 They,
however, failed to show how these remarks tended towards any prosecutorial or
governmental action geared towards the implementation of RA 9372 against them.
In other words, there was no particular, real or imminent threat to any of them. As
held in Southern Hemisphere:

Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory
actions characterized by double contingency, where both the activity the
petitioners intend to undertake and the anticipated reaction to it of a public official
are merely theorized, lie beyond judicial review for lack of ripeness.
The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such
possibility is not peculiar to RA 9372 since the exercise of any power granted by law
may be abused. Allegations of abuse must be anchored on real events before courts
may step in to settle actual controversies involving rights which are legally
demandable and enforceable.15 (Emphasis supplied; citations omitted)
Thus, in the same light that the Court dismissed the SC petitions in the Southern
Hemisphere cases on the basis of, among others, lack of actual justiciable
controversy (or the ripening seeds of one), the RTC should have dismissed private
respondents petition for declaratory relief all the same.
It is well to note that private respondents also lack the required locus standi to
mount their constitutional challenge against the implementation of the abovestated provisions of RA 9372 since they have not shown any direct and personal
interest in the case.16 While it has been previously held that transcendental public
importance dispenses with the requirement that the petitioner has experienced or is
in actual danger of suffering direct and personal injury, 17 it must be stressed that
cases involving the constitutionality of penal legislation belong to an altogether
different genus of constitutional litigation. 18 Towards this end, compelling State and
societal interests in the proscription of harmful conduct necessitate a closer judicial
scrutiny of locus standi,19 as in this case. To rule otherwise, would be to corrupt the
settled doctrine of locus standi, as every worthy cause is an interest shared by the
general public.20
As to the fifth requisite for an action for declaratory relief, neither can it be inferred
that the controversy at hand is ripe for adjudication since the possibility of abuse,
based on the above-discussed allegations in private respondents petition, remain
highly-speculative and merely theorized. It is well-settled that a question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it.21 This private respondents failed to demonstrate in the
case at bar.

Finally, as regards the sixth requisite, the Court finds it irrelevant to proceed with a
discussion on the availability of adequate reliefs since no impending threat or injury
to the private respondents exists in the first place.
All told, in view of the absence of the fourth and fifth requisites for an action for
declaratory relief, as well as the irrelevance of the sixth requisite, private
respondents petition for declaratory relief should have been dismissed. Thus, by
giving due course to the same, it cannot be gainsaid that the RTC gravely abused its
discretion.
WHEREFORE, the petition is GRANTED. Accordingly, the April 23, 2012 and July 31,
2012 Orders of the Regional Trial Court of Quezon City, Branch 92 in SCA No. Q-0760778 are REVERSED and SET ASIDE and the petition for declaratory relief before
the said court is hereby DISMISSED.
SO ORDERED.
PERLAS-BERNABE, J.:
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Castillo, Abad, Perez, Reyes,
and Leonen, JJ., concur.
Brion, and Villarama, Jr., JJ., on leave.
Peralta, Bersamin, and Mendoza, JJ., on official leave.

EN BANC, G.R. No. 204603, September 24, 2013, REPUBLIC OF THE

PHILIPPINES, REPRESENTED BY THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT THE SECRETARY OF FINANCE, THE NATIONAL
SECURITY ADVISER, THE SECRETARY OF BUDGET AND MANAGEMENT THE
TREASURER. OF THE PHILIPPINES, THE CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, PETITIONERS, VS. HERMINIO HARRY ROQUE, MORO
CHRISTIAN PEOPLES ALLIANCE, FR. JOE DIZON, RODINIE SORIANO,
STEPHANIE ABIERA, MARIA LOURDES ALCAIN, VOLTAIRE ALFEREZ, CZARINA
MAY ALTEZ, SHERYL BALOT, RENIZZA BATACAN, EDAN MARRI CANETE,
LEANA CARAMOAN, ALDWIN CAMANCE, RENE DELORINO, PAULYN MAY
DUMAN, RODRIGO FAJARDO III, ANNA MARIE GO, ANNA ARMINDA JIMENEZ,
MARY ANN LEE, LUISA MANALAYSAY, MIGUEL MUSNGI, MICHAEL OCAMPO,
NORMAN ROLAND OCANA III, WILLIAM RAGAMAT, MARICAR RAMOS,
CHERRY LOU REYES, MELISSA ANN SICAT, CRISTINE MAE TABING, VANESSA
TORNO, AND HON. JUDGE ELEUTERIO L. BATHAN, AS PRESIDING JUDGE OF
REGIONAL TRIAL COURT, QUEZON CITY, BRANCH 92, RESPONDENTS.
When Local Governments Invoke The Power To Tax On National Government
Instrumentalities, Such Power Is Construed Strictly Against Local Governments
August 8, 2015 by The Lawyer's Post
The Facts:
The Philippine Estates Authority was created by virtue of PD No. 1084 and was
designated as the agency primarily responsible for integrating, directing and
coordinating all reclamation projects for and on behalf of the National Government.
On October 26, 2004, Executive Order No. 525 issued by then President Arroyo
transformed the PEA into the Philippine Reclamation Authority. In accordance with
its mandate, the PRA reclaimed portions of the foreshore areas of Manila Bay, and
OCT Nos.180, 202, 206, 207, 289, 557, and 559) and Transfer Certificates of Title
(TCT Nos. 104628, 7312, 7309, 7311, 9685, and 9686 were issued in its name. On
February 19, 2003, then Paranaque City Treasurer Liberato Carabeo issued
Warrants of Levy on the reclaimed properties, based on its assessment for
delinquent real property taxes for the years 2001 and 2002. To forestall the
issuance of the warrants, the PRA filed a petition for prohibition with prayer for

preliminary injunction, but the the RTC denied the prayer for temporary restraining
order. Since the public auction could not be deferred because no TRO was issued,
the city government proceeded with the auction sale on April 7, 2003, hence, the
RTC denied the petition for prohibition for having become moot and academic. On
August 3, 2009, PRA filed a Motion for Leave to File and Admit Attached
Supplemental Petition seeking to declare as null and void the assessment of real
property taxes, the levy, the public auction sale, and the Certificate of Sale issued
pursuant to the sale. The RTC dismissed the petition, holding that PRA was not
exempt from the payment of the real property taxes since it is a government owned
and controlled corporation (GOCC) under Section 3 of PD 1084; it was a stock
corporation because it had an authorised capital stock divided into no par value
shares. As a GOCC therefore, its local tax exemption was withdrawn by Section 193
of Republic Act 7160. It also ruled that the the tax exemption claimed by PRA under
EO 654 had been expressly repealed by RA 7160, and the company failed to comply
with the procedural requirements under Section 206 of RA 7160.
The PRA elevated the case to the Supreme Court on pure question of law. It argues
that it is not a GOCC under Section 2(13) of the Introductory Provisions of the
Administrative Code, nor under Section 16, Article XII of the 1987 Constitution. It is
a government instrumentality vested with corporate powers and performing an
essential public service pursuant to Section 2(10) of the Introductory Provisions of
the Administrative Code. Although it has a capital stock divided into shares, it is not
authorized to distribute dividends and allotment of surplus and profits to its
stockholders. Therefore, it may not be classified as a stock corporation because it
lacks the second requisite of a stock corporation which is the distribution of
dividends and allotment of surplus and profits to the stockholders. It cannot be
classified as a non-stock corporation because it has no members and was not
organised for charitable, religious, educational, professional, cultural recreational,
fraternal, literary or other simile purposes as provided under Section 88 of the
Corporation Code. It was not created to compete in the market place; while it was
vested with corporate powers under PD 1084, such does not make it a corporation
but merely an incorporated instrumentality; while it holds real property in its name
as an incorporated instrumentality, that fact alone does not make it a GOCC. Thus,
it is exempt from the payment of real estate taxes; while the reclaimed lands are
still in its hands, these lands remain public lands and form part of the public
domain, thus the assessment of real estate taxes on these lands are invalid and of
no effect. The City of Paranaque argue otherwise.

The Issue:
Whether or not the PRA is a GOCC and is thus liable to pay real estate taxes.
The Ruling:
The Court finds merit in the petition.
Section 2(13) of the Introductory Provisions of the Administrative Code of 1987
defines a GOCC as follows:
SEC. 2. General Terms Defined. x x x x
(13) Government-owned or controlled corporation refers to any agency organized as
a stock or non-stock corporation, vested with functions relating to public needs
whether governmental or proprietary in nature, and owned by the Government
directly or through its instrumentalities either wholly, or, where applicable as in the
case of stock corporations, to the extent of at least fifty-one (51) percent of its
capital stock: x x x.
On the other hand, Section 2(10) of the Introductory Provisions of the Administrative
Code defines a government instrumentality as follows:
SEC. 2. General Terms Defined. x x x x
(10) Instrumentality refers to any agency of the National Government, not
integrated within the department framework, vested with special functions or
jurisdiction by law, endowed with some if not all corporate powers, administering
special funds, and enjoying operational autonomy, usually through a charter. x x x
From the above definitions, it is clear that a GOCC must be organized as a stock or
non-stock corporation while an instrumentality is vested by law with corporate
powers. Likewise, when the law makes a government instrumentality operationally
autonomous, the instrumentality remains part of the National Government
machinery although not integrated with the department framework.
When the law vests in a government instrumentality corporate powers, the
instrumentality does not necessarily become a corporation. Unless the government
instrumentality is organized as a stock or non-stock corporation, it remains a

government instrumentality exercising not only governmental but also corporate

powers.
Many government instrumentalities are vested with corporate powers but they do
not become stock or non-stock corporations, which is a necessary condition before
an agency or instrumentality is deemed a GOCC. Examples are the Mactan
International Airport Authority, the Philippine Ports Authority, the University of the
Philippines, and Bangko Sentral ng Pilipinas. All these government instrumentalities
exercise corporate powers but they are not organized as stock or non-stock
corporations as required by Section 2(13) of the Introductory Provisions of the
Administrative Code. These government instrumentalities are sometimes loosely
called government corporate entities. They are not, however, GOCCs in the strict
sense as understood under the Administrative Code, which is the governing law
defining the legal relationship and status of government entities. 1
Correlatively, Section 3 of the Corporation Code defines a stock corporation as one
whose capital stock is divided into shares and x x x authorized to distribute to the
holders of such shares dividends x x x. Section 87 thereof defines a non-stock
corporation as one where no part of its income is distributable as dividends to its
members, trustees or officers. Further, Section 88 provides that non-stock
corporations are organized for charitable, religious, educational, professional,
cultural, recreational, fraternal, literary, scientific, social, civil service, or similar
purposes, like trade, industry, agriculture and like chambers.
Two requisites must concur before one may be classified as a stock corporation,
namely: (1) that it has capital stock divided into shares; and (2) that it is authorized
to distribute dividends and allotments of surplus and profits to its stockholders. If
only one requisite is present, it cannot be properly classified as a stock corporation.
As for non-stock corporations, they must have members and must not distribute any
part of their income to said members.2
In the case at bench, PRA is not a GOCC because it is neither a stock nor a nonstock corporation. It cannot be considered as a stock corporation because although
it has a capital stock divided into no par value shares as provided in Section 7 3 of
P.D. No. 1084, it is not authorized to distribute dividends, surplus allotments or
profits to stockholders. There is no provision whatsoever in P.D. No. 1084 or in any
of the subsequent executive issuances pertaining to PRA, particularly, E.O. No.
525,4 E.O. No. 6545 and EO No. 7986 that authorizes PRA to distribute dividends,
surplus allotments or profits to its stockholders.

PRA cannot be considered a non-stock corporation either because it does not have
members. A non-stock corporation must have members. 7 Moreover, it was not
organized for any of the purposes mentioned in Section 88 of the Corporation Code.
Specifically, it was created to manage all government reclamation projects.
Furthermore, there is another reason why the PRA cannot be classified as a GOCC.
Section 16, Article XII of the 1987 Constitution provides as follows:
Section 16. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations. Government-owned or
controlled corporations may be created or established by special charters in the
interest of the common good and subject to the test of economic viability.
The fundamental provision above authorizes Congress to create GOCCs through
special charters on two conditions: 1) the GOCC must be established for the
common good; and 2) the GOCC must meet the test of economic viability. In this
case, PRA may have passed the first condition of common good but failed the
second one economic viability. Undoubtedly, the purpose behind the creation of
PRA was not for economic or commercial activities. Neither was it created to
compete in the market place considering that there were no other competing
reclamation companies being operated by the private sector. As mentioned earlier,
PRA was created essentially to perform a public service considering that it was
primarily responsible for a coordinated, economical and efficient reclamation,
administration and operation of lands belonging to the government with the object
of maximizing their utilization and hastening their development consistent with the
public interest. Sections 2 and 4 of P.D. No. 1084 reads, as follows:
Section 2. Declaration of policy. It is the declared policy of the State to provide for a
coordinated, economical and efficient reclamation of lands, and the administration
and operation of lands belonging to, managed and/or operated by the government,
with the object of maximizing their utilization and hastening their development
consistent with the public interest.
Section 4. Purposes. The Authority is hereby created for the following purposes:
(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or
other means, or to acquire reclaimed land;

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and
sell any and all kinds of lands, buildings, estates and other forms of real property,
owned, managed, controlled and/or operated by the government.
(c) To provide for, operate or administer such services as may be necessary for the
efficient, economical and beneficial utilization of the above properties.
The twin requirement of common good and economic viability was lengthily
discussed in the case of Manila International Airport Authority v. Court of
Appeals,8 the pertinent portion of which reads:
Third, the government-owned or controlled corporations created through special
charters are those that meet the two conditions prescribed in Section 16, Article XII
of the Constitution. The first condition is that the government-owned or controlled
corporation must be established for the common good. The second condition is that
the government-owned or controlled corporation must meet the test of economic
viability. Section 16, Article XII of the 1987 Constitution provides:
SEC. 16. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or controlled
corporations may be created or established by special charters in the interest of the
common good and subject to the test of economic viability.
The Constitution expressly authorizes the legislature to create government-owned
or controlled corporations through special charters only if these entities are
required to meet the twin conditions of common good and economic viability. In
other words, Congress has no power to create government-owned or controlled
corporations with special charters unless they are made to comply with the two
conditions of common good and economic viability. The test of economic viability
applies only to government-owned or controlled corporations that perform economic
or commercial activities and need to compete in the market place. Being essentially
economic vehicles of the State for the common good meaning for economic
development purposes these government-owned or controlled corporations with
special charters are usually organized as stock corporations just like ordinary
private corporations.
In contrast, government instrumentalities vested with corporate powers and
performing governmental or public functions need not meet the test of economic
viability. These instrumentalities perform essential public services for the common

good, services that every modern State must provide its citizens. These
instrumentalities need not be economically viable since the government may even
subsidize their entire operations. These instrumentalities are not the governmentowned or controlled corporations referred to in Section 16, Article XII of the 1987
Constitution.
Thus, the Constitution imposes no limitation when the legislature creates
government instrumentalities vested with corporate powers but performing
essential governmental or public functions. Congress has plenary authority to create
government instrumentalities vested with corporate powers provided these
instrumentalities perform essential government functions or public services.
However, when the legislature creates through special charters corporations that
perform economic or commercial activities, such entities known as governmentowned or controlled corporations must meet the test of economic viability
because they compete in the market place.
This is the situation of the Land Bank of the Philippines and the Development Bank
of the Philippines and similar government- owned or controlled corporations, which
derive their income to meet operating expenses solely from commercial
transactions in competition with the private sector. The intent of the Constitution is
to prevent the creation of government-owned or controlled corporations that cannot
survive on their own in the market place and thus merely drain the public coffers.
Commissioner Blas F. Ople, proponent of the test of economic viability, explained to
the Constitutional Commission the purpose of this test, as follows:
MR. OPLE: Madam President, the reason for this concern is really that when the
government creates a corporation, there is a sense in which this corporation
becomes exempt from the test of economic performance. We know what happened
in the past. If a government corporation loses, then it makes its claim upon the
taxpayers money through new equity infusions from the government and what is
always invoked is the common good. That is the reason why this year, out of a
budget of P115 billion for the entire government, about P28 billion of this will go into
equity infusions to support a few government financial institutions. And this is all
taxpayers money which could have been relocated to agrarian reform, to social
services like health and education, to augment the salaries of grossly underpaid
public employees. And yet this is all going down the drain.

Therefore, when we insert the phrase ECONOMIC VIABILITY together with the
common good, this becomes a restraint on future enthusiasts for state capitalism
to excuse themselves from the responsibility of meeting the market test so that
they become viable. And so, Madam President, I reiterate, for the committees
consideration and I am glad that I am joined in this proposal by Commissioner Foz,
the insertion of the standard of ECONOMIC VIABILITY OR THE ECONOMIC TEST,
together with the common good.
Father Joaquin G. Bernas, a leading member of the Constitutional Commission,
explains in his textbook The 1987 Constitution of the Republic of the Philippines: A
Commentary:
The second sentence was added by the 1986 Constitutional Commission. The
significant addition, however, is the phrase in the interest of the common good and
subject to the test of economic viability. The addition includes the ideas that they
must show capacity to function efficiently in business and that they should not go
into activities which the private sector can do better. Moreover, economic viability is
more than financial viability but also includes capability to make profit and generate
benefits not quantifiable in financial terms.
Clearly, the test of economic viability does not apply to government entities vested
with corporate powers and performing essential public services. The State is
obligated to render essential public services regardless of the economic viability of
providing such service. The non-economic viability of rendering such essential
public service does not excuse the State from withholding such essential services
from the public.
However, government-owned or controlled corporations with special charters,
organized essentially for economic or commercial objectives, must meet the test of
economic viability. These are the government-owned or controlled corporations that
are usually organized under their special charters as stock corporations, like the
Land Bank of the Philippines and the Development Bank of the Philippines. These
are the government- owned or controlled corporations, along with governmentowned or controlled corporations organized under the Corporation Code, that fall
under the definition of government-owned or controlled corporations in Section
2(10) of the Administrative Code. [Emphases supplied]
This Court is convinced that PRA is not a GOCC either under Section 2(3) of the
Introductory Provisions of the Administrative Code or under Section 16, Article XII of

the 1987 Constitution. The facts, the evidence on record and jurisprudence on the
issue support the position that PRA was not organized either as a stock or a nonstock corporation. Neither was it created by Congress to operate commercially and
compete in the private market. Instead, PRA is a government instrumentality vested
with corporate powers and performing an essential public service pursuant to
Section 2(10) of the Introductory Provisions of the Administrative Code. Being an
incorporated government instrumentality, it is exempt from payment of real
property tax.
Clearly, respondent has no valid or legal basis in taxing the subject reclaimed lands
managed by PRA. On the other hand, Section 234(a) of the LGC, in relation to its
Section 133(o), exempts PRA from paying realty taxes and protects it from the
taxing powers of local government units. Sections 234(a) and 133(o) of the LGC
provide, as follows:
SEC. 234. Exemptions from Real Property Tax The following are exempted from
payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person.
xxxx
SEC. 133. Common Limitations on the Taxing Powers of Local Government Units.
Unless otherwise provided herein, the exercise of the taxing powers of provinces,
cities, municipalities, and barangays shall not extend to the levy of the following:
xxxx
(o) Taxes, fees or charges of any kinds on the National Government, its agencies
and instrumentalities, and local government units. [Emphasis supplied]
It is clear from Section 234 that real property owned by the Republic of the
Philippines (the Republic) is exempt from real property tax unless the beneficial use
thereof has been granted to a taxable person. In this case, there is no proof that
PRA granted the beneficial use of the subject reclaimed lands to a taxable entity.
There is no showing on record either that PRA leased the subject reclaimed
properties to a private taxable entity.

This exemption should be read in relation to Section 133(o) of the same Code, which
prohibits local governments from imposing [t]axes, fees or charges of any kind on
the National Government, its agencies and instrumentalities x x x. The
Administrative Code allows real property owned by the Republic to be titled in the
name of agencies or instrumentalities of the national government. Such real
properties remain owned by the Republic and continue to be exempt from real
estate tax.
Indeed, the Republic grants the beneficial use of its real property to an agency or
instrumentality of the national government. This happens when the title of the real
property is transferred to an agency or instrumentality even as the Republic
remains the owner of the real property. Such arrangement does not result in the loss
of the tax exemption, unless the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person. 9
The rationale behind Section 133(o) has also been explained in the case of
the Manila International Airport Authority,10 to wit:
Section 133(o) recognizes the basic principle that local governments cannot tax the
national government, which historically merely delegated to local governments the
power to tax. While the 1987 Constitution now includes taxation as one of the
powers of local governments, local governments may only exercise such power
subject to such guidelines and limitations as the Congress may provide.
When local governments invoke the power to tax on national government
instrumentalities, such power is construed strictly against local governments. The
rule is that a tax is never presumed and there must be clear language in the law
imposing the tax. Any doubt whether a person, article or activity is taxable is
resolved against taxation. This rule applies with greater force when local
governments seek to tax national government instrumentalities.
Another rule is that a tax exemption is strictly construed against the taxpayer
claiming the exemption. However, when Congress grants an exemption to a national
government instrumentality from local taxation, such exemption is construed
liberally in favor of the national government instrumentality. As this Court declared
in Maceda v. Macaraig, Jr.:
The reason for the rule does not apply in the case of exemptions running to the
benefit of the government itself or its agencies. In such case the practical effect of

an exemption is merely to reduce the amount of money that has to be handled by

government in the course of its operations. For these reasons, provisions granting
exemptions to government agencies may be construed liberally, in favor of non taxliability of such agencies.
There is, moreover, no point in national and local governments taxing each other,
unless a sound and compelling policy requires such transfer of public funds from
one government pocket to another.
There is also no reason for local governments to tax national government
instrumentalities for rendering essential public services to inhabitants of local
governments. The only exception is when the legislature clearly intended to tax
government instrumentalities for the delivery of essential public services for sound
and compelling policy considerations. There must be express language in the law
empowering local governments to tax national government instrumentalities. Any
doubt whether such power exists is resolved against local governments.
Thus, Section 133 of the Local Government Code states that unless otherwise
provided in the Code, local governments cannot tax national government
instrumentalities. As this Court held in Basco v. Philippine Amusements and Gaming
Corporation:
The states have no power by taxation or otherwise, to retard, impede, burden or in
any manner control the operation of constitutional laws enacted by Congress to
carry into execution the powers vested in the federal government. (MC Culloch v.
Maryland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the supremacy of the National Government over
local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire
absence of power on the part of the States to touch, in that way (taxation) at least,
the instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it
can be agreed that no state or political subdivision can regulate a federal
instrumentality in such a way as to prevent it from consummating its federal
responsibilities, or even to seriously burden it in the accomplishment of them.
(Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)

Otherwise, mere creatures of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable activities or
enterprise using the power to tax as a tool for regulation. (U.S. v. Sanchez, 340 US
42)
The power to tax which was called by Justice Marshall as the power to destroy
(McCulloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or
creation of the very entity which has the inherent power to wield it. [Emphases
supplied]
The Court agrees with PRA that the subject reclaimed lands are still part of the
public domain, owned by the State and, therefore, exempt from payment of real
estate taxes.
Section 2, Article XII of the 1987 Constitution reads in part, as follows:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned by the State. With the
exception of agricultural lands, all other natural resources shall not be alienated.
The exploration, development, and utilization of natural resources shall be under
the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least 60 per
centum of whose capital is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than twenty-five
years, and under such terms and conditions as may provided by law. In cases of
water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of waterpower, beneficial use may be the measure and limit of the
grant.
Similarly, Article 420 of the Civil Code enumerates properties belonging to the
State:
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks, shores, roadsteads, and others of similar
character;

(2) Those which belong to the State, without being for public use, and are intended
for some public service or for the development of the national wealth. [Emphases
supplied]
Here, the subject lands are reclaimed lands, specifically portions of the foreshore
and offshore areas of Manila Bay. As such, these lands remain public lands and form
part of the public domain. In the case of Chavez v. Public Estates Authority and
AMARI Coastal Development Corporation,11 the Court held that foreshore and
submerged areas irrefutably belonged to the public domain and were inalienable
unless reclaimed, classified as alienable lands open to disposition and further
declared no longer needed for public service. The fact that alienable lands of the
public domain were transferred to the PEA (now PRA) and issued land patents or
certificates of title in PEAs name did not automatically make such lands private.
This Court also held therein that reclaimed lands retained their inherent potential as
areas for public use or public service.
As the central implementing agency tasked to undertake reclamation projects
nationwide, with authority to sell reclaimed lands, PEA took the place of DENR as
the government agency charged with leasing or selling reclaimed lands of the public
domain. The reclaimed lands being leased or sold by PEA are not private lands, in
the same manner that DENR, when it disposes of other alienable lands, does not
dispose of private lands but alienable lands of the public domain. Only when
qualified private parties acquire these lands will the lands become private lands. In
the hands of the government agency tasked and authorized to dispose of alienable
of disposable lands of the public domain, these lands are still public, not private
lands.
Furthermore, PEAs charter expressly states that PEA shall hold lands of the public
domain as well as any and all kinds of lands. PEA can hold both lands of the
public domain and private lands. Thus, the mere fact that alienable lands of the
public domain like the Freedom Islands are transferred to PEA and issued land
patents or certificates of title in PEAs name does not automatically make such
lands private.12
Likewise, it is worthy to mention Section 14, Chapter 4, Title I, Book III of the
Administrative Code of 1987, thus:
SEC 14. Power to Reserve Lands of the Public and Private Dominion of the
Government.-

(1) The President shall have the power to reserve for settlement or public use, and
for specific public purposes, any of the lands of the public domain, the use of which
is not otherwise directed by law. The reserved land shall thereafter remain subject
to the specific public purpose indicated until otherwise provided by law or
proclamation.
Reclaimed lands such as the subject lands in issue are reserved lands for public use.
They are properties of public dominion. The ownership of such lands remains with
the State unless they are withdrawn by law or presidential proclamation from public
use.
Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged
areas of Manila Bay are part of the lands of the public domain, waters x x x and
other natural resources and consequently owned by the State. As such, foreshore
and submerged areas shall not be alienated, unless they are classified as
agricultural lands of the public domain. The mere reclamation of these areas by
PEA does not convert these inalienable natural resources of the State into alienable
or disposable lands of the public domain. There must be a law or presidential
proclamation officially classifying these reclaimed lands as alienable or disposable
and open to disposition or concession. Moreover, these reclaimed lands cannot be
classified as alienable or disposable if the law has reserved them for some public or
quasi-public use.
As the Court has repeatedly ruled, properties of public dominion are not subject to
execution or foreclosure sale13. Thus, the assessment, levy and foreclosure made on
the subject reclaimed lands by respondent, as well as the issuances of certificates of
title in favor of respondent, are without basis.
WHEREFORE, the petition is GRANTED. The January 8, 2010 Order of the Regional
Trial Court, Branch 195, Paraaque City, isREVERSED and SET ASIDE. All reclaimed
properties owned by the Philippine Reclamation Authority are hereby
declaredEXEMPT from real estate taxes. All real estate tax assessments, including
the final notices of real estate tax delinquencies, issued by the City of Paraaque on
the subject reclaimed properties; the assailed auction sale, dated April 7, 2003; and
the Certificates of Sale subsequently issued by the Paraaque City Treasurer in favor
of the City of Paraaque, are all declared VOID.
SO ORDERED.

MENDOZA, J.:
Peralta, (Acting Chairperson), Del Castillo, * Abad, and Perlas-Bernabe, JJ., concur.
THIRD DIVISION, G.R. No. 191109, July 18, 2012, REPUBLIC OF THE PHILIPPINES,
REPRESENTED BY THE PHILIPPINE RECLAMATION AUTHORITY (PRA), PETITIONER, VS.
CITY OF PARAAQUE, RESPONDENT.
An Accuseds Extra-Judicial Confession When Replete With Details That Only He
Could Supply Is Voluntary And Duly Executed
July 26, 2015 by The Lawyer's Post
The Facts:
Jorie Wahiman (appellant) was charged with murder for the death of Jose
Buensuceso. During trial, the prosecution submitted in evidence the extrajudicial
confession of Jorie taken during the preliminary investigation of the case, admitting
his killing of Jose. Jorie interposed alibi in his defense, averring that he was at
Landing Casisang, Malaybalay City, Bukindono at the time of the killing.
The RTC convicted Jorie as charged, hence he appealed to the CA, arguing that his
extrajudicial confession is inadmissible as the lawyer who assisted him, Atty.
Michael Florentino Dumlao, was not around when his confession was taken. He
arrived only when Jorie was about to sign the extrajudicial confession. The
prosecution witness also did not witness the incident.
The CA denied his appeal. It held that appellants contention that he lacked legal
intervention and assistance during the taking of his extrajudicial confession was
totally belied by the testimony of Atty. Dumlao that he rendered assistance to the
appellant throughout the entire proceedings and carefully explained to the latter the
consequences of his admission. Besides, the voluntariness of the execution of the
extrajudicial confession was apparent considering that it is replete with details that
only appellant would know. The appellate court brushed aside appellants assertion
of torture, the same being unsupported by medical certificate or marks of physical
abuse. In any case, he never bothered to narrate how he was tortured or to identify
his alleged tormentors. Moreover, the ballistic examination proved that the slugs
used in killing Buensuceso were fired from the firearm earlier confiscated from
appellant. The CA also found no merit in appellants claim that Azucena did not
actually see him shoot the victim. The CA opined that although Azucena did not see

appellant actually shoot the victim, he nonetheless saw appellant within seconds
from hearing the gunshots fleeing from the immediate vicinity of the crime scene
aboard a motorcycle with a gun in hand. Based on the foregoing, the appellate court
found appellants denial and alibi undeserving of credence.
Jorie appealed to the Supreme Court.
The Issue:
Whether or not Jorie should be convicted for Murder.
The Ruling:
We totally agree with the RTC and the CA in finding that the guilt of appellant for the
crime of murder was proved beyond reasonable doubt. There is no doubt that on
April 2, 2003, at around 10 oclock in the evening, appellant shot Buensuceso while
the latter was about to enter the gate of the staff house of Stanfilco-Dole in
Malaybalay City, Bukidnon. Moreover, we agree with the findings of the RTC and the
CA that appellants extrajudicial confession1 was voluntarily and duly executed and
replete with details that only appellant could supply, viz.:

xxx But before proceeding in questioning you, I am informing you that under our new constitution
right to the following:

A. You have the right to remain silent and not answer xxx my questions; it might be that I might u
answers as evidence against you or favorable to you.

1.

QUESTION:

Do you understand your right?

ANSWER:

Yes[,] Sir.

2.

QUESTION:

Are you going to use your right?

ANSWER:

I would rather not[,] sir[,] because I would tell the truth as to what had happe

B. You have the right to avail [of] the services of a counsel of your choice to help you in this inves
you cant afford to hire the services of a lawyer, the government will provide you with free legal s
lawyer from the Integrated Bar of the Philippines (IBP).

03.

QUESTION:

Do you understand your right? ANSWER: Yes[,] sir.

04:

QUESTION:

Are you going to use your right?

ANSWER:

I have my own lawyer, he is Atty. Michael Florentino Dumlao III, we already ha

made me understand xxx my rights, and he also made me understand about
investigation where I will voluntarily narrate what I x x x [know].

05.

06.

QUESTION:

Did anybody give you money or promised to give you a reward, or did anybod
you in giving this affidavit?

ANSWER:

Nobody[,] sir.

QUESTION:

Did you understand your rights that I told you?

ANSWER:

Yes[,] sir.2

Appellant then proceeded to narrate that he was hired by Alex Laranjo (Laranjo) and
Kid Canadilla (Canadilla), for and in behalf of a certain Alonzo who owns a quarry in
San Isidro, Valencia, to kill the victim for a fee. According to appellant, Alonzo
wanted the victim killed because the latter withheld the release of his collectibles
from Stanfilco-Dole. Appellant then narrated how he met with Laranjo, Canadilla and
Alonzo; how he received payments and instructions; how he planned the killing; and
how he executed the plan. Appellant signed his extrajudicial confession, with the
assistance of Arty. Dumlao, and subscribed the same before Atty. Dennis B.
Caayupan at the Office of the Clerk of Court. 3
Moreover, Atty. Dumlao testified that he ably provided legal assistance to appellant
all throughout the proceedings and carefully explained to him the ramifications of
his admission. He informed appellant of his rights and that anything he says may be
used in evidence against him. Notwithstanding, appellant insisted on giving his
extrajudicial confession.4
In any event, it must be stressed that appellants conviction was not based solely on
his extrajudicial confession. The prosecution likewise presented the eyewitness
account of Azucena who testified that immediately after hearing gunshots, he saw
appellant about 5 meters away from the Isuzu pick-up of the victim. Appellant was
riding in tandem aboard a black motorcycle and was holding a gun. The ballistic
report also confirmed that the slugs found at the crime scene were fired from the

firearm earlier confiscated from the appellant. Moreover, appellant was not able to
establish that it was physically impossible for him to be present at the crime scene
at the time of its commission.
The RTC and the CA thus properly found appellant guilty of murder and sentenced
him to suffer the penalty of reclusion perpetua. However, it must be stated that
appellant is not eligible for parole pursuant to Section 3 of Republic Act No. 9346 or
the Act Prohibiting the Imposition of Death Penalty in the Philippines.
Anent the damages awarded, we find that modification is in order.
Regarding the award for lost earnings, the general rule is that there must be
documentary proof to support indemnity for loss of earning capacity. Admittedly,
there are exceptions to this rule, viz.:
By way of exception, damages for loss of earning capacity may be awarded despite
the absence of documentary evidence when (1) the deceased is self-employed
earning less than the minimum wage under current labor laws, and judicial notice
may be taken of the fact that in the deceaseds line of work no documentary
evidence is available; or (2) the deceased is employed as a daily wage worker
earning less than the minimum wage under current labor laws. 5
Notably, this case does not fall under any of the exceptions. The deceased victim
could not be considered as a self-employed earning less than the minimum wage;
neither could he be considered employed as a daily wage worker. However, we are
inclined to award lost earnings considering that the deceased, as testified by his
widow, was the manager of Stanfilco-Dole, Phils, in Malaybalay City and was
receiving a monthly salary of P95,000.00. He was 54 years of age when gunned
down by appellant. This testimony was not objected to by appellant or questioned
during cross-examination or on appeal. Clearly, the existence of factual basis of the
award has been satisfactorily established. However, the amount of the award for
lost earnings must be modified following the formula [2/3 x 80 age] x [gross
annual income necessary expenses equivalent to 50% of the gross annual
income]. Thus: [2/3 x (80-54)] [(P95,000 x 12) 50% (P95,000 x 12)] =
P9,878,100.00.
In addition, the awards of actual damages in the amount of P25,000.00 must be
deleted for lack of proof; in lieu thereof, temperate damages in the amount of
P25,000.00 is awarded. The awards of civil indemnity in the amount of P75,000.00,

and moral damages in the amount of P75,000.00, are in line with prevailing
jurisprudence. In addition, the heirs of the victim are entitled to exemplary damages
in the amount of P30,000.00. Finally, all damages awarded shall earn interest at the
rate of 6% per annum from date of finality of this resolution until full payment.
WHEREFORE, the assailed October 13, 2011 Decision of the Court of Appeals in CAG.R. CR H.C. No. 00830-MIN finding appellant Jorie Wahiman y Rayos guilty beyond
reasonable doubt of the crime of murder is AFFIRMED with MODIFICATIONS in that
appellant is not eligible for parole; the award for lost earnings is reduced to
P9,878,100.00; the award of actual damages is deleted; in lieu thereof, appellant is
ordered to pay the heirs of the victim P25,000.00 as temperate damages; he is
likewise ordered to pay the heirs of the victim exemplary damages in the amount of
P30,000.00; and all damages awarded shall earn interest at the rate of 6% per
annum from date of finality of this resolution until full payment.
SO ORDERED
DEL CASTILLO, J.:
Sereno, C. J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Bersamin, Villarama,
Jr., Perez, Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Peralta, J., On official leave.
Leonen, J., I certify that J. Leonen left his concurring vote; see his concurring
opinion. On official leave.
Jardeleza, J., No part. Prior OSG action.
EN BANC, G.R. No. 200942, June 16, 2015, PEOPLE OF THE PHILIPPINES,
PLAINTIFF-APPELLEE, VS. JORIE WAHIMAN Y RAYOS, ACCUSED-APPELLANT.
Paragraph 1, Section 28 Of RA 7279 Allows Summary Evictions And Demolition In
Cases Where Persons Or Entities Occupy Danger Areas And When Persons Or
Entities Occupy Areas Where Government Infrastructure Projects With Available
Funding Are About to Be Implemented
July 19, 2015 by The Lawyer's Post
The Facts:

Petitioners are residents and/or members of organisations occupying parcels of lots

located at the cities of San Juan, Navotas and Quezon City, which sent them notices
of eviction and demolition pursuant to Section 28 (a) and (b) of Republic Act 7279,
which authorize evictions and demolitions without any court order when: (1)
persons or entities occupy danger areas such as esteros, railroad tracks, garbage
dumps, riverbanks, shorelines, waterways, and other public places such as
sidewalks, roads, parks, and playgrounds; and (2) persons or entities occupy areas
where government infrastructure projects with available funding are about to be
implemented.
The petitioners then filed directly with the Supreme Court a petition for certiorari,
prohibition and madams, averring that they have no plain, speedy and adequate
remedy in the ordinary course of law. They also posit that the respondents gravely
abused their discretion in implementing Section 28 (a) and (b) of RA 7279 which are
patently unconstitutional. They likewise insist that they stand to be directly injured
by the respondents threats of evictions and demolitions. In the alternative, they
contend that the transcendental public importance of the issues raised in the case
clothes them with legal standing. Section 6, Article 3 of the 1987 Constitution
expressly prohibits the impairment of liberty of abode unless there is a court order.
Moreover, Section 28 (a) and (b) of RA 7279 violate their right to adequate housing,
a universal right recognized in Article 25 of Universal Declaration of Human Rights
and Section 2 (a) of RA 7279. The petitioners further complain that the respondents
had previously conducted evictions and demolitions in a violent manner, contrary to
Section 10, Article 13 of the 1987 Constitution.
On the other hand, the respondent mayors of Navotas, San Juan and Quezon City
submitted their comment to the petitions, generally averring that the petitioners
violated the rule on hierarchy of courts; they availed of the wrong remedy when
they resorted directly to the Supreme court. The Mayor of Navotas opines that
Section 10 Article 3 of the Constitution allows evictions and demolitions to be
conducted even without a court order provided they are done in accordance with
law and in a just and humane manner. RA 7279, the law referred to by the
constitutional provision, provides for procedural due process for informal settlers
prior to evictions and demolitions. His faithful implementation of Section 28 (a) and
(b) does not equate to grave abuse of discretion; petitioners cannot invoke violation
of their liberty of abode since they have no vested right to occupy properties that
they do not own. The mayor of Quezon City, on the other hand posits that
petitioners prematurely invoked the Courts power of judicial review, and violated

the hierarchy of courts; his faithful implementation of RA 7279, an exercise of police

power, does not amount to grave abuse of discretion. The mayor of San Juan
believes that petitioners resorted to a wrong remedy since she does not exercise
judicial nor quasi-judicial power; and the petition became moot and academic with
the successful eviction of the petitioners. The DILG Secretary and the General
Manager of the National Housing Authority sided with the mayor of Navotas.
The Issue:

(1)

Whether the petition should be dismissed for serious procedural defects; and

(a) Whether the petitioners violated the principle of hierarchy of courts;

(b) Whether the petitioners correctly availed themselves of a petition for prohibition and ma

(2)

Whether Section 28 (a) and (b) of RA 7279 are violative of Sections 1 and 6, Article 3 of the
Constitution.

The Ruling:
We dismiss the petition.
The petitioners violated the principle of hierarchy of courts when they directly filed
the petition before the Court.
The petitioners have unduly disregarded the hierarchy of courts by coming directly
to the Court with their petition for prohibition and mandamus. The petitioners
appear to have forgotten that the Supreme Court is a court of last resort, not a court
of first instance. The hierarchy of courts should serve as a general determinant of
the appropriate forum for Rule 65 petitions. The concurrence of jurisdiction among
the Supreme Court, Court of Appeals and the Regional Trial Courts to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction does
not give the petitioners the unrestricted freedom of choice of forum. By directly

filing Rule 65 petitions before us, the petitioners have unduly taxed the Courts time
and attention which are better devoted to matters within our exclusive jurisdiction.
Worse, the petitioners only contributed to the overcrowding of the Courts docket.
We also wish to emphasize that the trial court is better equipped to resolve cases of
this nature since this Court is not a trier of facts and does not normally undertake an
examination of the contending parties evidence. 1
The petitioners wrongly availed themselves of a petition for prohibition and
mandamus.
We cannot also ignore the petitioners glaring error in using a petition for prohibition
and mandamus in the current case.
The petitioners seem to have forgotten that a writ of prohibition only lies against the
tribunal, corporation, board, officer or persons exercise of judicial, quasi-judicial or
ministerial functions.2 We issue a writ of prohibition to afford the aggrieved party a
relief against the respondents usurpation or grave abuse of jurisdiction or power. 3
On the other hand, a petition for mandamus is merely directed against the tribunal,
corporation, board, officer, or person who unlawfully neglects the performance of an
act which the law enjoins as a duty resulting from an office, trust or station or who
unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled.4 Thus, a writ of mandamus will only issue to compel an officer
to perform a ministerial duty. It will not control a public officers exercise of
discretion as where the law imposes upon him the duty to exercise his judgment in
reference to any manner in which he is required to act precisely because it is his
judgment that is to be exercised, not that of the court. 5
In the present case, the petitioners seek to prohibit the respondents from
implementing Section 28 (a) and (b) of RA 7279 without a prior court order of
eviction and/or demolition. In relation to this, paragraph 1, Section 28 of RA 7279
provides:
Sec. 28. Eviction and Demolition. Eviction or demolition as a practice shall be
discouraged. Eviction or demolition, however, may be allowed under the following
situations:

(a)

When persons or entities occupy danger areas such as esteros, railroad tracks, garbage dum

riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks,
playgrounds;

(b)

When government infrastructure projects with available funding are about to be implemente

(c)

When there is a court order for eviction and demolition. (emphasis and underline ours)

A reading of this provision clearly shows that the acts complained of are beyond the
scope of a petition for prohibition and mandamus. The use of the permissive word
may implies that the public respondents have discretion when their duty to
execute evictions and/or demolitions shall be performed. Where the words of a
statute are clear, plain, and free from ambiguity, it must be given its literal meaning
and applied without attempted interpretation. 6
Consequently, the time when the public respondents shall carry out evictions and/or
demolitions under Section 28 (a), (b), and (c) of RA 7279 is merely discretionary,
and not ministerial, judicial or quasi-judicial. The duty is discretionary if the law
imposes a duty upon a public officer and gives him the right to decide when the
duty shall be performed.
In contrast, a ministerial duty is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a
legal authority, without regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done.7
On the other hand, both judicial and quasi-judicial functions involve the
determination of what the law is, and what the legal rights of the contending parties
are, with respect to the matter in controversy and, on the basis thereof and the
facts obtaining, the adjudication of their respective rights. 8
The resolution of the constitutionality of Section 28 (a) and (b) of RA 7279 is not the
lis mota of the case.

Even if we treat the present petition as one for certiorari since it assails the
constitutionality of Section 28 (a) and (b) of RA 7279, the petition must necessarily
fail for failure to show the essential requisites that would warrant the Courts
exercise of judicial review. It is a rule firmly entrenched in our jurisprudence that the
courts will not determine the constitutionality of a law unless the following
requisites are present: (1) the existence of an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination; (2) the existence of
personal and substantial interest on the part of the party raising the constitutional
question; (3) recourse to judicial review is made at the earliest opportunity; and (4)
the resolution of the constitutional question must be necessary to the decision of
the case.9
Save for the petition pertaining to the City of Quezons threat of eviction and
demolition, this case no longer presents a justiciable controversy with respect to the
Mayors of Navotas and San Juan. We take note of the Comments of these Mayors
who alleged that they had already successfully evicted the concerned petitioners in
their respective cities at the time of the filing of the petition.
What further constrains this Court from touching on the issue of constitutionality is
the fact that this issue is not the lis mota of this case. Lis mota literally means the
cause of the suit or action; it is rooted in the principle of separation of powers and
is thus merely an offshoot of the presumption of validity accorded the executive and
legislative acts of our co-equal branches of the government.
This means that the petitioner who claims the unconstitutionality of a law has the
burden of showing first that the case cannot be resolved unless the disposition of
the constitutional question that he raised is unavoidable. If there is some other
ground upon which the court may rest its judgment, that course will be adopted and
the question of constitutionality should be avoided. 10 Thus, to justify the
nullification of a law, there must be a clear and unequivocal breach of the
Constitution, and not one that is doubtful, speculative or argumentative. 11
We carefully read the petitions and we conclude that they fail to compellingly show
the necessity of examining the constitutionality of Section 28 (a) and (b) of RA 7279
in the light of Sections 1 and 6, Article 3 of the 1987 Constitution. 12 In Magkalas v.
NHA, this Court had already ruled on the validity of evictions and demolitions
without any court order. In that case, we affirmed the validity of Section 2 of
Presidential Decree No. 1472 which authorizes the NHA to summarily eject all
informal settlers colonies on government resettlement projects as well as any

illegal occupant in any homelot, apartment or dwelling unit owned or administered

by the NHA. In that case, we held that Caridad Magkalas illegal possession of the
property should not hinder the NHAs development of Bagong Barrio Urban Bliss
Project. We further stated that demolitions and evictions may be validly carried out
even without a judicial order in the following instances:

(1)

when the property involved is an expropriated property xxx pursuant to Section 1 of P.D. No

(2)

when there are squatters on government resettlement projects and illegal occupants in any
apartment or dwelling unit owned or administered by the NHA pursuant to Section 2 of P.D.

(3)

when persons or entities occupy danger areas such as esteros, railroad tracks, garbage dum
riverbanks, shorelines, waterways and other public places such as sidewalks, roads, parks a
playgrounds, pursuant to Section 28(a) of R.A. No. 7279;

(4)

when government infrastructure projects with available funding are about to be implemente
Section 28(b) of R.A. No. 7279.13 (emphasis ours)

We note that Section 10, Article 13 of the 1987 Constitution provides that urban or
rural poor dwellers shall not be evicted nor their dwelling demolished, except in
accordance with law and in a just and humane manner. Paragraph 1, Section 28 of
RA 7279 allows summary evictions and demolition in cases where persons or
entities occupy danger areas and when persons or entities occupy areas where
government infrastructure projects with available funding are about to be
implemented.
To ensure that evictions and demolitions are conducted in a just and humane
manner, paragraph 2, Section 28 of RA 7279 commands the public respondents to
comply with the following prescribed procedure in executing eviction and/or
demolition orders:
In the execution of eviction or demolition orders involving underprivileged and
homeless citizens, the following shall be mandatory:

(1)

Notice upon the effected persons or entities at least thirty (30) days prior to the date of evic
demolition;

(2)

Adequate consultations on the matter of settlement with the duly designated representative
families to be resettled and the affected communities in the areas where they are to be relo

(3)

Presence of local government officials or their representatives during eviction or demolition

(4)

Proper identification of all persons taking part in the demolition;

(5)

Execution of eviction or demolition only during regular office hours from Mondays to Fridays
good weather, unless the affected families consent otherwise;

(6)

No use of heavy equipment for demolition except for structures that are permanent and of c
materials;

(7)

Proper uniforms for members of the Philippine National Police who shall occupy the first line
enforcement and observe proper disturbance control procedures; and

(8)

Adequate relocation, whether temporary or permanent: Provided, however, That in cases of

demolition pursuant to a court order involving underprivileged and homeless citizens, reloca
undertaken by the local government unit concerned and the National Housing Authority with
assistance of other government agencies within forty-five (45) days from service of notice o
judgment by the court, after which period the said order shall be executed: Provided, furthe
relocation not be possible within the said period, financial assistance in the amount equivale
prevailing minimum daily wage multiplied by sixty (60) days shall be extended to the affect
the local government unit concerned.

This Department of the Interior and Local Government and the Housing and Urban
Development Coordinating Council shall jointly promulgate the necessary rules and
regulations to carry out the above provision.
Lastly, the petitioners failed to substantiate their allegations that the public
respondents gravely abused their discretion in implementing Section 28 (a) and (b)
of RA 7279. Instead, they merely imputed jurisdictional abuse to the public
respondents through general averments in their pleading, but without any basis to
support their claim.
This is precisely the reason why we frown upon the direct filing of Rule 65 petitions
before the Court. To the point of being repetitive, we emphasize that we are not trier
of facts and this applies with greater force to Rule 65 petitions which are original
and independent actions. To justify judicial intrusion into what is fundamentally the
domain of the executive department, the petitioners must establish facts that are
necessarily linked to the jurisdictional problem they presented in this case, i.e.,
whether the public respondents exercised their power in an arbitrary and despotic
manner by reason of passion or personal hostility in implementing Section 28 (a)
and (b) of RA 7279.
Since the petitioners failed to establish that the public respondents alleged abuse
of discretion was so patent and gross as to amount to an evasion or to a unilateral
refusal to perform the duty enjoined or to act in contemplation of law, this petition
must necessarily fail.14
WHEREFORE, premises considered, we hereby DISMISS the petition for its serious
procedural defects. No costs.
SO ORDERED.
BRION, J.:
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del
Castillo, Villarama, Jr., Perez, Reyes, Perlas-Bernabe, and Leonen, JJ., concur.
Mendoza, J., on leave.

EN BANC, G.R. No. 200903, July 22, 2014, KALIPUNAN NG DAMAYANG

MAHIHIRAP, INC., REPRESENTED BY ITS VICE-PRESIDENT, CARLITO BADION,
CORAZON DE JESUS HOMEOWNERS ASSOCIATION, REPRESENTED BY ITS
PRESIDENT, ARNOLD REPIQUE, FERNANDO SEVILLA AS PRESIDENT OF
SAMAHANG PAMATA SA KAPATIRANG KRISTIYANO, ESTRELIETA BAGASBAS,
JOCY LOPEZ, ELVIRA VIDOL, AND DELIA FRAYRES, PETITIONERS, VS. JESSIE
ROBREDO, IN HIS CAPACITY AS SECRETARY, DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, HON. GUIA GOMEZ, IN HER CAPACITY AS MAYOR OF
THE CITY OF SAN JUAN, HON. HERBERT BAUTISTA, IN HIS CAPACITY AS THE
MAYOR OF QUEZON CITY, HON. JOHN REY TIANGCO, IN HIS CAPACITY AS
MAYOR OF NAVOTAS CITY, AND THE GENERAL MANAGER OF THE NATIONAL
HOUSING AUTHORITY, RESPONDENTS.

Party-List System: In Order To Maintain A Party In A Continuing Compliance Status,

The Party Must Prove Not Only Its Continued Possession Of The Requisite
Qualifications But, Equally, Must Show Its Compliance With The Basic Requirements
Of The Law
July 16, 2015 by The Lawyer's Post
The Facts:
Coconut Producers Federations Inc., (COCOFED/petitioner), a sectoral party list
whose members come from the peasant sector, manifested before the COMELEC its
intent to participate in the 2013 party-list elections, submitting the names of only
two nominees, Atty. Emerito Calderon and Atty. Domingo Espina. After the summary
hearing conducted by the COMELEC in accordance with Resolution No. 9513, the
COMELEC cancelled COCOFEDs accreditation as a party-list on several grounds, but
principally that it did not comply with Section 8 of Republic Act 7941 which require a
party to submit a list of not less than five nominees. COCOFED, along with several
other parties, questioned the cancellation of its registration before the Court; as a
result of the status quo ante-order, COCOFED was still included in the printing of
the ballot for the 2013 elections. In Atong Paglaum, Inc. Vs Comelec1, the Court
directed the COMELEC anew to determine the parties compliance with the new
parameters set forth in the ruling, among which is:
xxxx

6. National, regional, and sectoral parties or organizations shall not be disqualified if

some of their nominees are disqualified, provided that they have at least one
nominee who remains qualified.
The COMELEC then issued its resolution In the Matter of the Compliance of the
Commission on Elections En Bane with the Directives of the Supreme Court in Atong
Paglaum, et al. v. Commission on Elections COCOFED-Philippine Coconut Producers
Federation, Inc, maintaining its cancellation of COCOFEDs accreditation, holding
that the party list groups were put on notice as early as February 8, 2012 that upon
submission of their intent to participate in the 2013 elections, they should submit
the list of five nominees. The Resolution cancelling COCOFEDs accreditation
became final and executory on May 24, 2013. Thus COCOFED filed a petition for
certiorari with the Supreme Court. It asserts that its right to due process was
violated by the COMELEC because the latter did not even conduct a summary
hearing in accordance with the Paglaum ruling; it acted in the good faith belief that
its submission was sufficient for purposes of the elections and that it could still be
remedied since COCOFED could simply submit the names of its additional two
nominees. COCOFED adds that the number of nominees becomes significant only
when a party-list organization is able to attain a sufficient number of votes which
would qualify it for a seat in the House of Representatives.; The COMELEC violated
its right to equal protection of the laws since at least two other party-list groups
(ACT-CIS and MTM Phils.) which failed to submit five nominees were included in the
official list of party-list groups. On the other hand, the COMELEC argues that the
petition had become moot and academic because during the 2013 elections,
COCOFED garnered only .36% of the total number of votes cast for the party-list
elections. It merely applied the law in Section 8 in relation to Section 6 of RA 7941;
the submission of five nominees is important because the COMELEC checks a
partys compliance with the other legal requirements, namely: (i) that a person is
nominated in only one list; and (ii) that the list shall not include any candidate for
any elective office or a person who has lost his bid for an elective office in the
immediately preceding election, and, the submission of a complete list goes into
the right of the voters to know and make intelligent and informed choice.
The Issue:
Whether the petition had become moot and academic;
Whether the COMELEC gravely abused its discretion in cancelling COCOFEDs
accreditation as a part.

The Ruling:
We DISMISS the petition.
The petition is not moot
A moot and academic case is one that ceases to present a justiciable controversy
because of supervening events so that a declaration thereon would be of no
practical use or value.2
In the present case, while the COMELEC counted and tallied the votes in favor of
COCOFED showing that it failed to obtain the required number of votes,
participation in the 2013 elections was merely one of the reliefs COCOFED prayed
for. The validity of the COMELECs resolution, cancelling COCOFEDs registration,
remains a very live issue that is not dependent on the outcome of the elections.
Under Section 4 of RA No. 7941, a party-list group already registered need not
register anew for purposes of every subsequent election, but only needs to file
a manifestation of intent to participate with the COMELEC. These two acts are
different from each other.
Under Section 5 of RA No. 7941, an applicant for registration has to file with the
COMELEC, not later than ninety (90) days before the election, a verified petition
stating its desire to participate in the party-list system as a national, regional or
sectoral party or organization or a coalition of such parties or organizations.
The applicant is required to submit its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant information as
the COMELEC may require. Aside from these, the law requires the publication of the
applicants petition in at least two (2) national newspapers of general circulation.
The COMELEC then resolves the petition, determining whether the applicant has
complied with all the necessary requirements.
Under this legal reality, the fact that COCOFED did not obtain sufficient number of
votes in the elections does not affect the issue of the validity of the COMELECs
registration. A finding that the COMELEC gravely abused its discretion in cancelling
COCOFEDs registration would entitle it, if it is so minded, to participate in
subsequent elections without need of undergoing registration proceedings anew.

This brings us to the issue of whether the COMELEC indeed gravely abused its
discretion in issuing the assailed resolution. We hold that it did not.
Failure to submit the list of five nominees before the election warrants the
cancellation of its registration
The law expressly requires the submission of a list containing at least five qualified
nominees. Section 8 of RA No. 7941 reads:
Section 8. Nomination of Party-List Representatives. Each registered party,
organization or coalition shall submit to the COMELEC not later than forty-five (45)
days before the election a list of names, not less than five (5), from which party-list
representatives shall be chosen in case it obtains the required number of votes.
[emphases and underscores ours; italics supplied]
As early as February 8, 2012, the COMELEC had informed, through Resolution No.
9359,3 all registered parties who wished to participate in the May 2013 party-list
elections that they shall file with the [COMELEC] a Manifestation of Intent to
participate in the part-list election together with its list of at least five (5) nominees,
no later than May 31, 2012[.]
Under Section 6(5) of RA No. 7941, violation of or failure to comply with laws, rules
or regulations relating to elections is a ground for the cancellation of registration.
However, not every kind of violation automatically warrants the cancellation of a
party-list groups registration. Since a reading of the entire Section 6 shows that all
the grounds for cancellation actually pertain to the party itself, then the laws, rules
and regulations violated to warrant cancellation under Section 6(5) must be one
that is primarily imputable to the party itself and not one that is chiefly confined to
an individual member or its nominee.
COCOFEDs failure to submit a list of five nominees, despite ample opportunity to do
so before the elections, is a violation imputable to the party under Section 6(5) of
RA No. 7941.
First, the language of Section 8 of RA No. 7941 does not only use the word shall in
connection with the requirement of submitting a list of nominees; it uses this
mandatory term in conjunction with the number of names to be submitted that is
couched negatively,i.e., not less than five. The use of these terms together is a
plain indication of legislative intent to make the statutory requirement mandatory

for the party to undertake.4 With the date and manner of submission5 of the list
having been determined by law a condition precedent for the registration of new
party-list groups or for participation in the party-list elections in case of previously
registered party-list groups,6 and was in fact reiterated by the COMELEC through its
resolutions COCOFED cannot now claim good faith, much less dictate its own
terms of compliance.
Pursuant to the terms of Section 8 of RA No. 7941, the Court cannot leave to the
party the discretion to determine the number of nominees it would submit. A
contrary view overlooks the fact that the requirement of submission of a list of five
nominees is primarily a statutory requirement for the registration of party-list
groups and the submission of this list is part of a registered partyscontinuing
compliance with the law to maintain its registration. A party-list groups previous
registration with the COMELEC confers no vested right to the maintenance of its
registration. In order to maintain a party in a continuing compliance status, the
party must prove not only its continued possession of the requisite qualifications
but, equally, must show its compliance with the basicrequirements of the law.
Second, while COCOFEDs failure to submit a complete list of nominees may not
have been among the grounds cited by the COMELEC in earlier cancelling its
registration, this is not sufficient to support a finding of grave abuse of discretion.
Apart from the clear letter of Section 8 of RA No. 7941 and the COMELEC resolutions
issued more or less a year before the 2013 elections, COCOFEDs belated
submission of a Manifestation with Urgent Request to Admit Additional
Nominees several days after the elections betrays the emptiness of COCOFEDs
formalistic plea for prior notice.
Section 6 of RA No. 7941 requires the COMELEC to afford due notice and hearing
before refusing or cancelling the registration of a party- list group as a matter of
procedural due process. The Court would have demanded an exacting compliance
with this requirement if the registration or continuing compliance proceeding were
strictly in the nature of a judicial or quasi-judicial proceeding. 7 In several cases,
however, the Court had already ruled that the registration of party-list groups
involves the exercise of the COMELECs administrative power, particularly its power
to enforce and administer all laws related to elections. 8
While COCOFED could have complied after the elections (as it in fact did), it should
have, at the very least, submitted an explanation justifying its inability to comply
prior to the elections. However, COCOFED simply chose to ignore the law; this, to

us, is a plain disregard of the administrative requirement warranting the

cancellation of its registration.
Third, the fact that a party-list group is entitled to no more than three seats in
Congress, regardless of the number of votes it may garner, 9 does not render
Section 8 of RA No. 7941 permissive in nature.
On February 21, 2012, the COMELEC, through Resolution No. 9366, 10 again apprised
registered party-list groups that its Manifestation of Intent to Participate shall be
accompanied by a list of at least five (5) nominees. Under Section 9, Rule 5 of this
resolution, the Education and Information Department of the COMELEC shall cause
the immediate publication of this list in two national newspapers of general
circulation.
The publication of the list of nominees does not only serve as the reckoning period
of certain remedies and procedures under the resolution. 11 Most importantly, the
required publication satisfies the peoples constitutional right to information on
matters of public concern.12 The need for submission of the complete list required
by law13 becomes all the more important in a party-list election to apprise the
electorate of the individuals behind the party they are voting for. If only to give
meaning to the right of the people to elect their representatives on the basis of an
informed judgment, then the party-list group must submit a complete list of five
nominees because the identity of these five nominees carries critical bearing on the
electorates choice.14 A post-election completion of the list of nominees defeats this
constitutional purpose.
Even if a party-list group can only have a maximum of three seats, the requirement
of additional two nominees actually addresses the contingencies that may happen
during the term of these party-list representatives. Section 16 of RA No. 7941 reads:
Section 16. Vacancy. In case of vacancy in the seats reserved for party-list
representatives, the vacancy shall be automatically filled by the next representative
from the list of nominees in the order submitted to the COMELEC by the same party,
organization, or coalition, who shall serve for the unexpired term. If the list is
exhausted, the party, organization coalition concerned shall submit additional
nominees.
While the law allows the submission of additional nominees once the list is
exhausted, the exhaustion of the list presupposes prior compliance with the

requirement of Section 8 of RA No. 7941. Since the exhaustion of the list is an event
that can rarely happen under this interpretation, then the law effectively upholds
the peoples right to make informed electoral judgments. Again, it is a basic rule of
statutory construction that the provisions of the law must not be read in isolation
but as a whole, as the law must not be read in truncated parts; its provisions in
relation to the whole law and every part thereof must be considered in fixing the
meaning of any of its parts in order to produce a harmonious whole. 15
Moreover, after the submission of a list of nominees to the COMELEC, the party
itself has no discretion to change the names or to alter the order of nomination in
the list it submitted.16 While there are instances when a change of name or
alteration of the order is allowed, these circumstances focus on the nominee
himself, whether voluntary (the nominee withdraws in writing his nomination) or
involuntary (the nominee dies or becomes incapacitated). To allow COCOFED to
complete the list of its nominees beyond the deadline set by the law would allow
the party itself to do indirectly what it cannot do directly. 17
Fourth, we cannot discern any valid reason why a party-list group cannot comply
with the statutory requirement. The party-list system is a constitutional innovation
that would expand opportunities for electoral participation to those who cannot
hope to win in the legislative district elections, but who may generate votes
nationwide equivalent to what a winner in the legislative district election would
garner.18 In short, the party- list system operates on the theoretical assumption that
a party-list group has national constituency whose interests, concerns, or ideologies
call for representation in the House of Representatives. We quote with approval the
COMELECs observation:
If the party cannot even come up with a complete list of five names out of a
purported more than one million members, then it is highly doubtful that COCOFED
will meet this expectation [to contribute to the formulation and enactment of
legislation that is beneficial for the nation as a whole]; and if it cannot even name at
least three more people who belongs to, or with sufficient advocacy for, the sector
sought to be represented then as a sectoral party or organization, it has already
forsaken what it seeks to represent.19
Given this driving idea, a party is not allowed to simply refuse to submit a list
containing not less than five nominees and consider the deficiency as a waiver on
its part. Aside from colliding with the plain text of the law, this interpretation is not
in harmony with the statutory policy of enhancing the party-list-groups chances to

compete for and win seats in the legislature, and therefore does not serve as
incentive to Filipino citizens belonging to these groups to contribute to the
formulation and enactment of appropriate legislation. 20
Fifth, while under the 6th parameter in Atong Paglaum, the Court said that the
disqualification of some of the nominees shall not result in the disqualification of the
party-list group provided that they have at least one nominee who remains
qualified, the Court largely considered that
petitioners nominees who do not belong to the sectors they represent may have
been disqualified, although they may have a track record of advocacy for their
sectors. Likewise, nominees of non-sectoral parties may have been disqualified
because they do not belong to any sector. Moreover, a party may have been
disqualified because one or more of its nominees failed to qualify, even if the party
has at least one remaining qualified nominee. As discussed above, the
disqualification of petitioners, and their nominees, under such circumstances is
contrary to the 1987 Constitution and R.A. No. 7941.
In fact, almost all of the petitioners in Atong Paglaum were disqualified on the
ground that the nominees failed to qualify, as this word was interpreted by the
COMELEC.21 In other words, the Court in no way authorized a party list groups
inexcusable failure, if not outright refusal, to comply with the clear letter of the law
on the submission of at least five nominees.
In sum, all these reasons negate a finding that the COMELEC gravely abused its
discretion in cancelling COCOFEDs registration. 22
WHEREFORE, we hereby DISMISS the petition for lack of merit.
SO ORDERED.
BRION, J.:
Sereno, C.J., Carpio, Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Abad,
Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, and Leonen, JJ., concur.
Velasco, Jr., J., no part because relative is a nominee of a part list organization.

EN BANC, G.R. No. 207026, August 06, 2013, COCOFED-PHILIPPINE COCONUT

PRODUCERS FEDERATION, INC., PETITIONER, VS. COMMISSION ON ELECTIONS,
RESPONDENT.
The Close Now, Hear Later Doctrine Has Already Been Justified As A Measure For
The Protection Of The Public Interest. Swift Action Is Called For On The Part Of The
BSP When It Finds That A Bank Is In Dire Straits
July 15, 2015 by The Lawyer's Post
The Facts:
The corporate life of the Rural Bank of Faire, Incorporated, a rural banking
institution, expired on May 31, 2005. Alfredo Vivas and his principals
acquired the controlling interest in RBFI in January, 2006 and an internal
audit conducted thereon. The Bangko Sentral ng Pilipinas then issued the
Certificate of Authority to RBFI extending the corporate life of RBFI, and
approved its renaming to the Eurocredit Community Bank Inc (ECBI). The
Integrated Supervision Department of the BSP then conducted a general
audit of the bank pursuant to Section 28 of RA 7653 for the cut-off date of
December 31, 2007. InApril, 2008, examiners from the Department of
Loand and Credit cancelled the rediscounting line of the bank. Thereafter,
the Monetary Board issued Resolution No. 1255 placing ECBI under Prompt
corrective Action. (PCA). Several violations were noted by the Monetary
Board, notably, ECBIs transferring the majority shares of RBFI without
securing prior approval of the MB in violation of the Manual of Regulation
For Banks; establishment and operation of bank sub-offices without the
prior approval of the BSP; failure by the bank to aloo the BSP examiners
from examining and inspecting its books and records, in violation of Secs.
25 and 34 of RA 7653; for its failure to comply with the required
examination, the BSP imposed on ECBI a penalty and referring the matter
to the Office of the Special Investigation for the filing of appropriate legal
action. Resolution No. 823 issued by the MB approved the issuance of a
cease and desist order against ECBI enjoining it from pursuing acts and
transactions considered unsafe or unsound. The OSI also filed charges for
Estafa through Falisification of Public Documents against some of its
officials and employees. The MB also denied ECBIs appeal on its being
placed on the PCA framework; and reminded it of the submission of the
financial reports for the year 2007 and 2007. It also denied
reconsideration of Resolution No. 726 on the imposition of the fine.
Finally, the Monetary Board issued Resolution No. 276 on March 4, 2010,

placing ECBI under receivership on the basis of the recommendation of the

Office of Special Investigation which reads:
On the basis of the examination findings as of 30 September 2009 as
reported by the Integrated Supervision Department (ISD) II, in its
memorandum dated 17 February 2010, which findings showed that the
Eurocredit Community Bank, Inc. a Rural Bank (Eurocredit Bank) (a) is
unable to pay its liabilities as they become due in the ordinary course of
business; (b) has insufficient realizable assets to meet liabilities; (c)
cannot continue in business without involving probable losses to its
depositors and creditors; and (d) has willfully violated a cease and desist
order of the Monetary Board for acts or transactions which are considered
unsafe and unsound banking practices and other acts or transactions
constituting fraud or dissipation of the assets of the institution, and
considering the failure of the Board of Directors/management of
Eurocredit Bank to restore the banks financial health and viability despite
considerable time given to address the banks financial problems, and that
the bank had been accorded due process, the Board, in accordance with
Section 30 of Republic Act No. 7653 (The New Central Bank Act), approved
the recommendation of ISD II as follows:
1. To prohibit the Eurocredit Bank from doing business in the
Philippines and to place its assets and affairs under receivership;
and
2. To designate the Philippine Deposit Insurance Corporation as
Receiver of the bank.
Petitioner Alfeo Viva for himself and on behalf of the other shareholders of
ECBI filed a petition for prohibition with prayer for issuance of status quo
order or writ of preliminary injunction to present respondents for closing
Eurocredit and placing it on receivership, and that the management and
operation of ECBI be restored to its Board of Directors.
The Issue:
Whether or not the issuance of the cease and desist order was attended
by grave abuse of discretion;

Whether or not the application of Section 30 of the New Central Bank Act
was proper, instead of Section 11 and 14 of the Rural Banks Act of 1982;
Whether or not there was a diminution or invasion of the powers of the
Supreme Court in delegating to the Bangko Sentral ng Pilipinas the power
to place rural banks under receivership, thus unconstitutional for being in
violation of Section 2, Article VIII of the 1987 Constitution.
The Ruling:
The petition must fail.
Vivas Availed of the Wrong Remedy
To begin with, Vivas availed of the wrong remedy. The MB issued
Resolution No. 276, dated March 4, 2010, in the exercise of its power
under R.A. No. 7653. Under Section 30 thereof, any act of the MB placing a
bank under conservatorship, receivership or liquidation may not be
restrained or set aside except on a petition for certiorari. Pertinent
portions of R.A. 7653 read:
Section 30.
x x x x.
The actions of the Monetary Board taken under this section or under
Section 29 of this Act shall be final and executory, and may not be
restrained or set aside by the court except on petition for certiorari on the
ground that the action taken was in excess of jurisdiction or with such
grave abuse of discretion as to amount to lack or excess of jurisdiction.
The petition for certiorari may only be filed by the stockholders of record
representing the majority of the capital stock within ten (10) days from
receipt by the board of directors of the institution of the order directing
receivership, liquidation or conservatorship.
x x x x. [Emphases supplied]
Prohibition is already unavailing

Granting that a petition for prohibition is allowed, it is already an

ineffective remedy under the circumstances obtaining. Prohibition or a
writ of prohibition is that process by which a superior court prevents
inferior courts, tribunals, officers, or persons from usurping or exercising
a jurisdiction with which they have not been vested by law, and confines
them to the exercise of those powers legally conferred. Its office is to
restrain subordinate courts, tribunals or persons from exercising
jurisdiction over matters not within its cognizance or exceeding its
jurisdiction in matters of which it has cognizance.1 In our jurisdiction, the
rule on prohibition is enshrined in Section 2, Rule 65 of the Rules on Civil
Procedure, to wit:
Sec. 2. Petition for prohibition When the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasijudicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that the judgment be rendered commanding
the respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as the law
and justice require.
x x x x.
Indeed, prohibition is a preventive remedy seeking that a judgment be
rendered which would direct the defendant to desist from continuing with
the commission of an act perceived to be illegal.2 As a rule, the proper
function of a writ of prohibition is to prevent the doing of an act which is
about to be done. It is not intended to provide a remedy for acts already
accomplished.3
Though couched in imprecise terms, this petition for prohibition
apparently seeks to prevent the acts of closing of ECBI and placing it
under receivership. Resolution No. 276, however, had already been issued
by the MB and the closure of ECBI and its placement under receivership by
the PDIC were already accomplished. Apparently, the remedy of
prohibition is no longer appropriate. Settled is the rule that prohibition
does not lie to restrain an act that is already a fait accompli.4

The Petition Should Have Been Filed in the CA

Even if treated as a petition for certiorari, the petition should have been
filed with the CA. Section 4 of Rule 65 reads:
Section 4. When and where petition filed. The petition shall be filed not
later than sixty (60) days from notice of the judgment, order or resolution.
In case a motion for reconsideration or new trial is timely filed, whether
such motion is required or not, the sixty (60) day period shall be counted
from notice of the denial of said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts
or omissions of a lower court or of a corporation, board, officer or person,
in the Regional Trial Court exercising jurisdiction over the territorial area
as defined by the Supreme Court. It may also be filed in the Court of
Appeals whether or not the same is in aid of its appellate jurisdiction, or in
the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves
the acts or omissions of a quasi-judicial agency, unless otherwise provided
by law or these Rules, the petition shall be filed in and cognizable only by
the Court of Appeals. [Emphases supplied]
That the MB is a quasi-judicial agency was already settled and reiterated
in the case of Bank of Commerce v. Planters Development Bank And
Bangko Sentral Ng Pilipinas.5
Doctrine of Hierarchy of Courts
Even in the absence of such provision, the petition is also dismissible
because it simply ignored the doctrine of hierarchy of courts. True, the
Court, the CA and the RTC have original concurrent jurisdiction to issue
writs of certiorari, prohibition and mandamus. The concurrence of
jurisdiction, however, does not grant the party seeking any of the
extraordinary writs the absolute freedom to file a petition in any court of
his choice. The petitioner has not advanced any special or important
reason which would allow a direct resort to this Court. Under the Rules of
Court, a party may directly appeal to this Court only on pure questions of
law.6 In the case at bench, there are certainly factual issues as Vivas is
questioning the findings of the investigating team.

Strict observance of the policy of judicial hierarchy demands that where

the issuance of the extraordinary writs is also within the competence of
the CA or the RTC, the special action for the obtainment of such writ must
be presented to either court. As a rule, the Court will not entertain direct
resort to it unless the redress desired cannot be obtained in the
appropriate lower courts; or where exceptional and compelling
circumstances, such as cases of national interest and with serious
implications, justify the availment of the extraordinary remedy of writ of
certiorari, prohibition, or mandamus calling for the exercise of its primary
jurisdiction.7 The judicial policy must be observed to prevent an
imposition on the precious time and attention of the Court.
The MB Committed No Grave Abuse of Discretion
In any event, no grave abuse of discretion can be attributed to the MB for
the issuance of the assailed Resolution No. 276.
Vivas insists that the circumstances of the case warrant the application of
Section 11 of R.A. No. 7353, which provides:
Sec. 11. The power to supervise the operation of any rural bank by the
Monetary Board as herein indicated shall consist in placing limits to the
maximum credit allowed to any individual borrower; in prescribing the
interest rate, in determining the loan period and loan procedures, in
indicating the manner in which technical assistance shall be extended to
rural banks, in imposing a uniform accounting system and manner of
keeping the accounts and records of rural banks; in instituting periodic
surveys of loan and lending procedures, audits, test-check of cash and
other transactions of the rural banks; in conducting training courses for
personnel of rural banks; and, in general, in supervising the business
operations of the rural banks.
The Central Bank shall have the power to enforce the laws, orders,
instructions, rules and regulations promulgated by the Monetary Board,
applicable to rural banks; to require rural banks, their directors, officers
and agents to conduct and manage the affairs of the rural banks in a
lawful and orderly manner; and, upon proof that the rural bank or its
Board of Directors, or officers are conducting and managing the affairs of
the bank in a manner contrary to laws, orders, instructions, rules and

regulations promulgated by the Monetary Board or in a manner

substantially prejudicial to the interest of the Government, depositors or
creditors, to take over the management of such bank when specifically
authorized to do so by the Monetary Board after due hearing process until
a new board of directors and officers are elected and qualified without
prejudice to the prosecution of the persons responsible for such violations
under the provisions of Sections 32, 33 and 34 of Republic Act No. 265, as
amended.
x x x x.
The thrust of Vivas argument is that ECBI did not commit any financial
fraud and, hence, its placement under receivership was unwarranted and
improper. He asserts that, instead, the BSP should have taken over the
management of ECBI and extended loans to the financially distrained bank
pursuant to Sections 11 and 14 of R.A. No. 7353 because the BSPs power
is limited only to supervision and management take-over of banks, and
not receivership.
Vivas argues that implementation of the questioned resolution was
tainted with arbitrariness and bad faith, stressing that ECBI was placed
under receivership without due and prior hearing, invoking Section 11 of
R.A. No. 7353 which states that the BSP may take over the management of
a rural bank after due hearing.8 He adds that because R.A. No. 7353 is a
special law, the same should prevail over R.A. No. 7653 which is a general
law.
The Court has taken this into account, but it appears from all over the
records that ECBI was given every opportunity to be heard and improve on
its financial standing. The records disclose that BSP officials and
examiners met with the representatives of ECBI, including Vivas, and
discussed their findings.9 There were also reminders that ECBI submit its
financial audit reports for the years 2007 and 2008 with a warning that
failure to submit them and a written explanation of such omission shall
result in the imposition of a monetary penalty.10 More importantly, ECBI
was heard on its motion for reconsideration. For failure of ECBI to comply,
the MB came out with Resolution No. 1548 denying its request for
reconsideration of Resolution No. 726. Having been heard on its motion

for reconsideration, ECBI cannot claim that it was deprived of its right
under the Rural Bank Act.
Close Now, Hear Later
At any rate, if circumstances warrant it, the MB may forbid a bank from
doing business and place it under receivership without prior notice and
hearing. Section 30 of R.A. No. 7653 provides, viz:
Sec. 30. Proceedings in Receivership and Liquidation. Whenever, upon
report of the head of the supervising or examining department, the
Monetary Board finds that a bank or quasi-bank:
(a) is unable to pay its liabilities as they become due in the ordinary
course of business: Provided, That this shall not include inability to pay
caused by extraordinary demands induced by financial panic in the
banking community;
(b) has insufficient realizable assets, as determined by the Bangko
Sentral, to meet its liabilities; or
(c) cannot continue in business without involving probable losses to its
depositors or creditors; or
(d) has wilfully violated a cease and desist order under Section 37 that has
become final, involving acts or transactions which amount to fraud or a
dissipation of the assets of the institution; in which cases, the Monetary
Board may summarily and without need for prior hearing forbid the
institution from doing business in the Philippines and designate the
Philippine Deposit Insurance Corporation as receiver of the banking
institution. [Emphases supplied.]
x x x x.
Accordingly, there is no conflict which would call for the application of the
doctrine that a special law should prevail over a general law. It must be
emphasized that R.A .No. 7653 is a later law and under said act, the power
of the MB over banks, including rural banks, was increased and expanded.
The Court, in several cases, upheld the power of the MB to take over
banks without need for prior hearing. It is not necessary inasmuch as the

law entrusts to the MB the appreciation and determination of whether any

or all of the statutory grounds for the closure and receivership of the
erring bank are present. The MB, under R.A. No. 7653, has been invested
with more power of closure and placement of a bank under receivership
for insolvency or illiquidity, or because the banks continuance in business
would probably result in the loss to depositors or creditors. In the case
of Bangko Sentral Ng Pilipinas Monetary Board v. Hon. AntonioValenzuela,11 the Court reiterated the doctrine of close now, hear later,
stating that it was justified as a measure for the protection of the public
interest. Thus:
The close now, hear later doctrine has already been justified as a
measure for the protection of the public interest. Swift action is called for
on the part of the BSP when it finds that a bank is in dire straits. Unless
adequate and determined efforts are taken by the government against
distressed and mismanaged banks, public faith in the banking system is
certain to deteriorate to the prejudice of the national economy itself, not
to mention the losses suffered by the bank depositors, creditors, and
stockholders, who all deserve the protection of the
government.12 [Emphasis supplied]
In Rural Bank of Buhi, Inc. v. Court of Appeals,13 the Court also wrote that
x x x due process does not necessarily require a prior hearing; a hearing
or an opportunity to be heard may be subsequent to the closure. One can
just imagine the dire consequences of a prior hearing: bank runs would be
the order of the day, resulting in panic and hysteria. In the process,
fortunes may be wiped out and disillusionment will run the gamut of the
entire banking community.14
The doctrine is founded on practical and legal considerations to obviate
unwarranted dissipation of the banks assets and as a valid exercise of
police power to protect the depositors, creditors, stockholders, and the
general public.15 Swift, adequate and determined actions must be taken
against financially distressed and mismanaged banks by government
agencies lest the public faith in the banking system deteriorate to the
prejudice of the national economy.
Accordingly, the MB can immediately implement its resolution prohibiting
a banking institution to do business in the Philippines and, thereafter,
appoint the PDIC as receiver. The procedure for the involuntary closure of
a bank is summary and expeditious in nature. Such action of the MB shall
be final and executory, but may be later subjected to a judicial scrutiny via

a petition for certiorari to be filed by the stockholders of record of the

bank representing a majority of the capital stock. Obviously, this
procedure is designed to protect the interest of all concerned, that is, the
depositors, creditors and stockholders, the bank itself and the general
public. The protection afforded public interest warrants the exercise of a
summary closure.
In the case at bench, the ISD II submitted its memorandum, dated
February 17, 2010, containing the findings noted during the general
examination conducted on ECBI with the cut-off date of September 30,
2009. The memorandum underscored the inability of ECBI to pay its
liabilities as they would fall due in the usual course of its business, its
liabilities being in excess of the assets held. Also, it was noted that ECBIs
continued banking operation would most probably result in the incurrence
of additional losses to the prejudice of its depositors and creditors. On top
of these, it was found that ECBI had willfully violated the cease-and-desist
order of the MB issued in its June 24, 2009 Resolution, and had
disregarded the BSP rules and directives. For said reasons, the MB was
forced to issue the assailed Resolution No. 276 placing ECBI under
receivership. In addition, the MB stressed that it accorded ECBI ample
time and opportunity to address its monetary problem and to restore and
improve its financial health and viability but it failed to do so.
In light of the circumstances obtaining in this case, the application of the
corrective measures enunciated in Section 30 of R.A. No. 7653 was proper
and justified. Management take-over under Section 11 of R.A. No. 7353
was no longer feasible considering the financial quagmire that engulfed
ECBI showing serious conditions of insolvency and illiquidity. Besides,
placing ECBI under receivership would effectively put a stop to the further
draining of its assets.
No Undue Delegation of Legislative Power
Lastly, the petitioner challenges the constitutionality of Section 30 of R.A.
No. 7653, as the legislature granted the MB a broad and unrestrained
power to close and place a financially troubled bank under receivership.
He claims that the said provision was an undue delegation of legislative
power. The contention deserves scant consideration.

Preliminarily, Vivas attempt to assail the constitutionality of Section 30 of

R.A. No. 7653 constitutes collateral attack on the said provision of law.
Nothing is more settled than the rule that the constitutionality of a
statute cannot be collaterally attacked as constitutionality issues must be
pleaded directly and not collaterally. 16 A collateral attack on a presumably
valid law is not permissible. Unless a law or rule is annulled in a direct
proceeding, the legal presumption of its validity stands. 17
Be that as it may, there is no violation of the non-delegation of legislative
power. The rationale for the constitutional proscription is that legislative
discretion as to the substantive contents of the law cannot be delegated.
What can be delegated is the discretion to determine how the law may be
enforced, not what the law shall be. The ascertainment of the latter
subject is a prerogative of the legislature. This prerogative cannot be
abdicated or surrendered by the legislature to the delegate.18
There are two accepted tests to determine whether or not there is a valid
delegation of legislative power, viz, the completeness test and the
sufficient standard test. Under the first test, the law must be complete in
all its terms and conditions when it leaves the legislature such that when
it reaches the delegate the only thing he will have to do is enforce it.
Under the sufficient standard test, there must be adequate guidelines or
stations in the law to map out the boundaries of the delegates authority
and prevent the delegation from running riot. Both tests are intended to
prevent a total transference of legislative authority to the delegate, who
is not allowed to step into the shoes of the legislature and exercise a
power essentially legislative.19
In this case, under the two tests, there was no undue delegation of
legislative authority in the issuance of R.A. No. 7653. To address the
growing concerns in the banking industry, the legislature has sufficiently
empowered the MB to effectively monitor and supervise banks and
financial institutions and, if circumstances warrant, to forbid them to do
business, to take over their management or to place them under
receivership. The legislature has clearly spelled out the reasonable
parameters of the power entrusted to the MB and assigned to it only the
manner of enforcing said power. In other words, the MB was given a wide
discretion and latitude only as to how the law should be implemented in
order to attain its objective of protecting the interest of the public, the
banking industry and the economy.

WHEREFORE, the petition for prohibition is DENIED.

SO ORDERED.
MENDOZA, J.:
Velasco Jr., (Chairperson), Peralta, Abad, and Leonen, JJ., concur.
THIRD DIVISION, G.R. No. 191424, August 07, 2013, ALFEO D. VIVAS, ON HIS
BEHALF AND ON BEHALF OF THE SHAREHOLDERS OF EUROCREDIT COMMUNITY
BANK, PETITIONER, VS. THE MONETARY BOARD OF THE BANGKO SENTRAL NG
PILIPINAS AND THE PHILIPPINE DEPOSIT INSURANCE CORPORATION, RESPONDENTS.
There Is No Double Jeopardy When The Provisional Dismissal Of A Case Was Made
With The Express Consent Of The Accused
July 12, 2015 by The Lawyer's Post
The Facts:
For failure of the principal witness, PO2 Nelson Villas to attend several hearings, the
presiding judge of RTC Quezon City Branch 227, Judge Elvira Panganiban
(respondent), ordered that the case against accused Roberta Saldariega (petitioner)
for violation of Section 5 and 11 of RA 9165 (Criminal Case Nos. Q-1 1-173055 and
Q-1 1-173056) be provisionally dismissed, with the express consent of the accused.
However, on June 5, 2013, PO2 Villas moved to re-open the case, averring that his
failure to attend was due to the successive deaths of his uncle and aunt, attaching
thereto their respective death certificates. The respondent judge then granted the
motion and ordered the cases set for hearing. Roberta moved for reconsideration,
arguing that the provisional dismissal of the cases is considered an acquittal and
PO2 Villas had no personality to file the motion to re-open case. The respondent
denied her motion for reconsideration, hence, Roberta filed a petition for certiorari
under Rule 65 before the Supreme Court to assail the judges orders.
The Issues:
Whether or not PO2 Villas can file a motion to re-open a provisionally dismissed
case without the participation of the public prosecutor;

Whether or not the provisional dismissal of the cases with the consent of the
accused but predicated on failure to prosecute which violates the right of the
accused to speedy trial is equivalent to an acquittal, the reopening of which violates
her right against double jeopardy;
The Ruling:
We deny the petition.
The Court notes that the instant case suffers from procedural infirmities which this
Court cannot ignore. While this petition is to be treated as one for certiorari under
Rule 65, it is still dismissible for violation of the hierarchy of courts. Although the
Supreme Court has concurrent jurisdiction with the RTC and the CA to issue writs
of certiorari, this should not be taken as granting parties the absolute and
unrestrained freedom of choice of the court to which an application will be directed.
Direct resort to this Court is allowed only if there are special, important and
compelling reasons clearly and specifically spelled out in the petition, which are not
present in this case.1
Moreover, this being a petition on certiorari under Rule 65, the issues raised herein
should be confined solely to questions of jurisdiction. Thus, while in the course of
the discussion, it may be necessary to thresh out pertinent factual issues, the same
is limited for the purpose of resolving the issue on jurisdiction, that is, whether the
trial court committed grave abuse of discretion resulting to lack or in excess of
jurisdiction.
When a criminal case is provisionally dismissed with the express consent of the
accused, the case may be revived by the State within the periods provided under
the 2nd paragraph of Section 8, Rule 117 of the Rules of Criminal Procedure.
A case shall not be provisionally dismissed except with the express consent of the
accused and with notice to the offended party. Here, a perusal of the Order, dated
May 16, 2013, stresses in no uncertain terms that the dismissal of the case was
provisional,i.e., the case could be revived at some future time. If petitioner believed
that the case against her should be dismissed with prejudice, she should not have
agreed to a provisional dismissal. She should have moved for a dismissal with
prejudice so that the court would have no alternative but to require the prosecution
to present its evidence. There was nothing in the records showing the accuseds
opposition to the provisional dismissal nor was there any after the Order of

provisional dismissal was issued. She cannot claim now that the dismissal was with
prejudice. Thus, if a criminal case is provisionally dismissed with the express
consent of the accused, as in this case, the case may be revived by the State within
the periods provided under the 2nd paragraph of Section 8, Rule 117 of the Rules of
Criminal Procedure. There is no violation of due process as long as the revival of a
provisionally dismissed complaint was made within the time-bar provided under the
law.
Generally, the prosecutor should have been the one who filed the motion to revive
because it is the prosecutor who controls the trial. But in this particular case, the
defect, if there was any, was cured when the public prosecutor later actively
participated in the denial of the accuseds motion for reconsideration when she filed
her Comment/Objection thereto. In the Order denying the motion, the trial court
stated that in her Comment/Objection, the Public Prosecutor begged to disagree
primarily on the ground that double jeopardy has not set in, because the provisional
dismissal of the case was with the express consent of the accused.2 The court
even went further when it stated that although the Motion to Re-open the case was
filed by the witness without securing the conformity of the Public Prosecutor, in
effect, the prosecutor has conformed to the re-opening of the case because she
(the prosecutor) finds that the failure of the witness to appear on two (2) hearings
was due to the death of the father in law on March 23, 2013 and the death of his
aunt on May 12, 2013, as substantiated by the respective Certificates of Death of
the said relatives.3
Moreover, in the case at bar, it must be noted that the accused is charged with a
public crime, hence, it is a victim-less crime. Unlike in private crimes where the
participation of the private offended party is generally required for the recovery of
civil liability, in the instant case, there is no particular private offended party who
can actually file the motion to revive. Hence, in some instances, as in this case, it is
the arresting officer, PO2 Villas, who filed the motion to revive the case out of his
sense of duty as a police officer and compelled by his sense of obligation
considering that he knew his absence was the cause why the complaint was
provisionally dismissed.
We could not entirely blame PO2 Villas in filing the motion to revive since we are
aware that in drug-related cases, the arresting officers are usually required to
explain by their superiors when a case is provisionally dismissed due to their failure
to appear during trial. Thus, in order to exonerate themselves from a possible

administrative and criminal liability, the arresting officers would then opt instead to
file the motion to revive on their own.
The provisional dismissal of the case does not operate as an acquittal since its
dismissal was made with the express consent of the accused, thus, there is no
double jeopardy.
Further, the proscription against double jeopardy presupposes that an accused has
been previously charged with an offense, and the case against him is terminated
either by his acquittal or conviction, or dismissed in any other manner without his
consent. As a general rule, the following requisites must be present for double
jeopardy to attach: (1) a valid indictment, (2) before a court of competent
jurisdiction, (3) the arraignment of the accused, (4) a valid plea entered by him, and
(5) the acquittal or conviction of the accused, or the dismissal or termination of the
case against him without his express consent. However, there are two (2)
exceptions to the foregoing rule, and double jeopardy may attach even if the
dismissal of the case was with the consent of the accused: first, when there is
insufficiency of evidence to support the charge against him; and second, where
there has been an unreasonable delay in the proceedings, in violation of the
accuseds right to speedy trial.4
In the instant case, while the first four requisites are present, the last requisite is
lacking, considering that here the dismissal was merely provisional and it was done
with the express consent of the accused-petitioner. Petitioner is not in danger of
being twice put in jeopardy with the reopening of the case against her as it is clear
that the case was only provisionally dismissed by the trial court. The requirement
that the dismissal of the case must be without the consent of the accused is not
present in this case. Neither does the case fall under any of the aforementioned
exceptions because, in fact, the prosecution had failed to continue the presentation
of evidence due to the absence of the witnesses, thus, the fact of insufficiency of
evidence cannot be established. Likewise, we find no unreasonable delay in the
proceedings that would be tantamount to violation of the accuseds right to speedy
trial.
This Court has emphasized that speedy trial is a relative term and necessarily a
flexible concept. In determining whether the accuseds right to speedy trial was
violated, the delay should be considered in view of the entirety of the proceedings.
The factors to balance are the following: (a) duration of the delay; (b) reason
therefor; (c) assertion of the right or failure to assert it; and (d) prejudice caused by

such delay. In the instant case, petitioner failed to show any evidence that the
alleged delay in the trial was attended with malice or that the same was made
without good cause or justifiable motive on the part of the prosecution. Mere
mathematical reckoning of the time involved would not suffice as the realities of
everyday life must be regarded in judicial proceedings. 5
Here, the delay in the proceedings, which ran from October 25, 2012 until the
provisional dismissal of the case on May 13, 2013, is not the kind of delay
contemplated under the law as to violate the accuseds right to speedy trial. More
so, when the cause of the delay is valid, as in the instant case. Likewise, a perusal
of the Order dated May 16, 2013 would show that the order was categorical in
stating that the dismissal of the complaint was provisional with the express consent
of the accused and her counsel. The court merely stated in the Order as to what
transpired during the proceedings of the case and not that the dismissal was based
on the accuseds right to speedy trial.
While the Court recognizes the accuseds right to speedy trial and adheres to a
policy of speedy administration of justice, we cannot, however, deprive the State of
a reasonable opportunity to fairly prosecute criminals. We reiterate that unjustified
postponements which prolong the trial for an unreasonable length of time are what
offend the right of the accused to speedy trial. 6
In a petition for certiorari under Rule 65, petitioner should establish that the court
or tribunal acted in a capricious, whimsical, arbitrary or despotic manner in the
exercise of its jurisdiction as to be equivalent to lack of jurisdiction.
In view of the foregoing, we, thus, find no basis for issuing the extraordinary writs
of certiorari with injunction, as there was no showing that the alleged error in
judgment was tainted with grave abuse of discretion. Nowhere in the petition did
petitioner show that the issuance of the assailed orders was patent and gross that
would warrant striking it down through a petition for certiorari. No argument was
shown that the trial court exercised its judgment capriciously, whimsically,
arbitrarily or despotically by reason of passion and hostility.
It is well settled that a petition for certiorari against a court which has jurisdiction
over a case will prosper only if grave abuse of discretion is manifested. The burden
is on the part of the petitioner to prove not merely reversible error, but grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of the public
respondent issuing the impugned order. Mere abuse of discretion is not enough; it

must be grave. The term grave abuse of discretion is defined as a capricious and
whimsical exercise of judgment as patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, as where the
power is exercised in an arbitrary and despotic manner because of passion or
hostility.7 Certiorari will issue only to correct errors of jurisdiction, and not errors or
mistakes in the findings and conclusions of the trial court.
WHEREFORE, the petition is DENIED for lack of merit. The Orders dated June 14,
2013 and February 18, 2014 in Criminal Cases Nos. Q-1 1-173055 and Q-1 1-173056
entitled People of the Philippines v. Roberta Saldariega are AFFIRMED. Let the case
be remanded to the lower court for further proceedings with dispatch.
SO ORDERED.
PERALTA, J.:
Velasco, Jr., (Chairperson), Mendoza,* Reyes, and Leonen,** JJ., concur.
THIRD DIVISION, G.R. Nos. 211933 & 211960, April 15, 2015, ROBERTA S.
SALDARIEGA, PETITIONER, VS. HON. ELVIRA D.C. PANGANIBAN, PRESIDING
JUDGE, BRANCH 227, REGIONAL TRIAL COURT, NATIONAL CAPITAL REGION,
QUEZON CITY AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.
The Practice Of Banks Of Making Borrowers Sign Trust Receipts To Facilitate
Collection Of Loans And Place Them Under The Threats Of Criminal Prosecution
Should They Be Unable To Pay It May Be Unjust And Inequitable. If Not
Reprehensible
July 11, 2015 by The Lawyer's Post
The Facts:
Supermax, a domestic corporation engaged in the construction business, sought
several letters of credit from Metropolitan Bank and Trust Company to pay for the
delivery of several construction materials to be used in their construction business.
The bank then required Hur Tin Yang (petitioner) to sign 24 trust receipts as security
for the construction materials and to hold the proceeds of the sales in trust for
Metrobank to the extent of the amount stated in the receipts. The 24 receipts fell
due and demandable but Supermax failed to pay or deliver the goods to Metrobak
despite demand. The company sought a restructuring of the loan but it did not

materialise, hence, Metrobank filed a case for Estafa in relation to Presidential

Decree No. 115 (the Trust Receipts Law) against Hur Tin Yang. In his defense, Hur
Tin Yang admitted signing the trust receipts but averred that Metrobank knew all
along that the construction materials subject of the trust receipts were not intended
for resale but for personal use of Supermax relating to its construction business. He
signed the trust receipts when the bank demanded it as additional security for the
loans extended to Supermax. He presented a witness, Priscilla Alfonso, who
testified that the construction materials were delivered way before he signed the
trust receipts. Even so, the RTC convicted him as charged. On appeal to the CA,
the latter affirmed the RTC judgment holding that: 1) petitioner signing the trust
receipts agreement; (2) Supermax failing to pay the loan; and (3) Supermax failing
to turn over the proceeds of the sale or the goods to Metrobank upon demand..
Since the offence punished under PD 115 is a malum prohibitum, a mere failure to
deliver the proceeds of the sale or goods, if not sold, is sufficient to justify a
conviction under PD 115. Hur Tin Yang elevated the case to the SC, but the Court
initially dismissed his appeal via a Minute Resolution, hence he filed his Motion for
Reconsideration.
The Issue:
Whether or not petitioner is liable for Estafa under Art. 315, par. 1(b) of the RPC in
relation to PD 115, even if it was sufficiently proved that the entruster (Metrobank)
knew beforehand that the goods (construction materials) subject of the trust
receipts were never intended to be sold but only for use in the entrustees
construction business.
The Ruling:
The motion for reconsideration has merit.
In determining the nature of a contract, courts are not bound by the title or name
given by the parties. The decisive factor in evaluating such agreement is the
intention of the parties, as shown not necessarily by the terminology used in the
contract but by their conduct, words, actions and deeds prior to, during and
immediately after executing the agreement. As such, therefore, documentary and
parol evidence may be submitted and admitted to prove such intention. 1
In the instant case, the factual findings of the trial and appellate courts reveal that
the dealing between petitioner and Metrobank was not a trust receipt transaction

but one of simple loan. Petitioners admissionthat he signed the trust receipts on
behalf of Supermax, which failed to pay the loan or turn over the proceeds of the
sale or the goods to Metrobank upon demanddoes not conclusively prove that the
transaction was, indeed, a trust receipts transaction. In contrast to the
nomenclature of the transaction, the parties really intended a contract of loan. This
Courtin Ng v. People2 and Land Bank of the Philippines v. Perez,3 cases which are
in all four corners the same as the instant caseruled that the fact that the
entruster bank knew even before the execution of the trust receipt agreements that
the construction materials covered were never intended by the entrustee for resale
or for the manufacture of items to be sold is sufficient to prove that the transaction
was a simple loan and not a trust receipts transaction.
The petitioner was charged with Estafa committed in what is called, under PD 115, a
trust receipt transaction, which is defined as:
Section 4. What constitutes a trust receipts transaction.A trust receipt transaction,
within the meaning of this Decree, is any transaction by and between a person
referred to in this Decree as the entruster, and another person referred to in this
Decree as entrustee, whereby the entruster, who owns or holds absolute title or
security interests over certain specified goods, documents or instruments, releases
the same to the possession of the entrustee upon the latters execution and delivery
to the entruster of a signed document called a trust receipt wherein the entrustee
binds himself to hold the designated goods, documents or instruments in trust for
the entruster and to sell or otherwise dispose of the goods, documents or
instruments with the obligation to turn over to the entruster the proceeds thereof to
the extent of the amount owing to the entruster or as appears in the trust receipt or
the goods, documents or instruments themselves if they are unsold or not otherwise
disposed of, in accordance with the terms and conditions specified in the trust
receipt, or for other purposes substantially equivalent to any of the following:
1. In the case of goods or documents: (a) to sell the goods or procure their sale; or
(b) to manufacture or process the goods with the purpose of ultimate sale: Provided,
That, in the case of goods delivered under trust receipt for the purpose of
manufacturing or processing before its ultimate sale, the entruster shall retain its
title over the goods whether in its original or processed form until the entrustee has
complied full with his obligation under the trust receipt; or (c) to load, unload, ship
or transship or otherwise deal with them in a manner preliminary or necessary to
their sale; or

2. In the case of instruments: (a) to sell or procure their sale or exchange; or (b) to
deliver them to a principal; or (c) to effect the consummation of some transactions
involving delivery to a depository or register; or (d) to effect their presentation,
collection or renewal.
Simply stated, a trust receipt transaction is one where the entrustee has the
obligation to deliver to the entruster the price of the sale, or if the merchandise is
not sold, to return the merchandise to the entruster. There are, therefore, two
obligations in a trust receipt transaction: the first refers to money received under
the obligation involving the duty to turn it over (entregarla) to the owner of the
merchandise sold, while the second refers to the merchandise received under the
obligation to return it (devolvera) to the owner.4 A violation of any of these
undertakings constitutes Estafa defined under Art. 315, par. 1(b) of the RPC, as
provided in Sec. 13 of PD 115, viz:
Section 13. Penalty Clause.The failure of an entrustee to turn over the proceeds of
the sale of the goods, documents or instruments covered by a trust receipt to the
extent of the amount owing to the entruster or as appears in the trust receipt or to
return said goods, documents or instruments if they were not sold or disposed of in
accordance with the terms of the trust receipt shall constitute the crime of estafa,
punishable under the provisions of Article Three hundred fifteen, paragraph one (b)
of Act Numbered Three thousand eight hundred and fifteen, as amended, otherwise
known as the Revised Penal Code. x x x (Emphasis supplied.)
Nonetheless, when both parties enter into an agreement knowing fully well that the
return of the goods subject of the trust receipt isnot possible even without any fault
on the part of the trustee, it is not a trust receipt transaction penalized under Sec.
13 of PD 115 in relation to Art. 315, par. 1(b) of the RPC, as the only obligation
actually agreed upon by the parties would be the return of the proceeds of the sale
transaction. This transaction becomes a mere loan, where the borrower is obligated
to pay the bank the amount spent for the purchase of the goods. 5
In Ng v. People, Anthony Ng, then engaged in the business of building and
fabricating telecommunication towers, applied for a credit line of PhP 3,000,000
with Asiatrust Development Bank, Inc. Prior to the approval of the loan, Anthony Ng
informed Asiatrust that the proceeds would be used for purchasing construction
materials necessary for the completion of several steel towers he was
commissioned to build by several telecommunication companies. Asiatrust
approved the loan but required Anthony Ng to sign a trust receipt agreement. When

Anthony Ng failed to pay the loan, Asiatrust filed a criminal case for Estafa in
relation to PD 115 or the Trust Receipts Law. This Court acquitted Anthony Ng and
ruled that the Trust Receipts Law was created to to aid in financing importers and
retail dealers who do not have sufficient funds or resources to finance the
importation or purchase of merchandise, and who may not be able to acquire credit
except through utilization, as collateral, of the merchandise imported or purchased.
Since Asiatrust knew that Anthony Ng was neither an importer nor retail dealer, it
should have known that the said agreement could not possibly apply to petitioner,
viz:
The true nature of a trust receipt transaction can be found in the whereas clause
of PD 115 which states that a trust receipt is to be utilized as a convenient
business device to assist importers and merchants solve their financing problems.
Obviously, the State, in enacting the law, sought to find a way to assist importers
and merchants in their financing in order to encourage commerce in the Philippines.
[A] trust receipt is considered a security transaction intended to aid in financing
importers and retail dealers who do not have sufficient funds or resources to finance
the importation or purchase of merchandise, and who may not be able to acquire
credit except through utilization, as collateral, of the merchandise imported or
purchased. Similarly, American Jurisprudence demonstrates that trust receipt
transactions always refer to a method of financing importations or financing sales.
The principle is of course not limited in its application to financing importations,
since the principle is equally applicable to domestic transactions. Regardless of
whether the transaction is foreign or domestic, it is important to note that the
transactions discussed in relation to trust receipts mainly involved sales.
Following the precept of the law, such transactions affect situations wherein the
entruster, who owns or holds absolute title or security interests over specified
goods, documents or instruments, releases the subject goods to the possession of
the entrustee. The release of such goods to the entrustee is conditioned upon his
execution and delivery to the entruster of a trust receipt wherein the former binds
himself to hold the specific goods, documents or instruments in trust for the
entruster and to sell or otherwise dispose of the goods, documents or instruments
with the obligation to turn over to the entruster the proceeds to the extent of the
amount owing to the entruster or the goods, documents or instruments themselves
if they are unsold. x x x [T]he entruster is entitled only to the proceeds derived
from the sale of goods released under a trust receipt to the entrustee.

Considering that the goods in this case were never intended for sale but for use in
the fabrication of steel communication towers, the trial court erred in ruling that the
agreement is a trust receipt transaction.
xxxx
To emphasize, the Trust Receipts Law was created to to aid in financing importers
and retail dealers who do not have sufficient funds or resources to finance the
importation or purchase of merchandise, and who may not be able to acquire credit
except through utilization, as collateral, of the merchandise imported or purchased.
Since Asiatrust knew that petitioner was neither an importer nor retail dealer, it
should have known that the said agreement could not possibly apply to petitioner. 6
Further, in Land Bank of the Philippines v. Perez, the respondents were officers of
Asian Construction and Development Corporation (ACDC), a corporation engaged in
the construction business. On several occasions, respondents executed in favor of
Land Bank of the Philippines (LBP) trust receipts to secure the purchase of
construction materials that they will need in their construction projects. When the
trust receipts matured, ACDC failed to return to LBP the proceeds of the
construction projects or the construction materials subject of the trust receipts.
After several demands went unheeded, LBP filed a complaint for Estafa or violation
of Art. 315, par. 1(b) of the RPC, in relation to PD 115, against the respondent
officers of ACDC. This Court, like in Ng, acquitted all the respondents on the
postulate that the parties really intended a simple contract of loan and not a trust
receipts transaction, viz:
When both parties enter into an agreement knowing that the return of the goods
subject of the trust receipt is not possible even without any fault on the part of the
trustee, it is not a trust receipt transaction penalized under Section 13 of P.D. 115;
the only obligation actually agreed upon by the parties would be the return of the
proceeds of the sale transaction. This transaction becomes a mere loan, where the
borrower is obligated to pay the bank the amount spent for the purchase of the
goods.
xxxx
Thus, in concluding that the transaction was a loan and not a trust receipt, we noted
in Colinares that the industry or line of work that the borrowers were engaged in
was construction. We pointed out that the borrowers were not importers acquiring

goods for resale. Indeed, goods sold in retail are often within the custody or control
of the trustee until they are purchased. In the case of materials used in the
manufacture of finished products, these finished products if not the raw materials
or their components similarly remain in the possession of the trustee until they are
sold. But the goods and the materials that are used for a construction project are
often placed under the control and custody of the clients employing the contractor,
who can only be compelled to return the materials if they fail to pay the contractor
and often only after the requisite legal proceedings. The contractors difficulty and
uncertainty in claiming these materials (or the buildings and structures which they
become part of), as soon as the bank demands them, disqualify them from being
covered by trust receipt agreements. 7
Since the factual milieu of Ng and Land Bank of the Philippines are in all four
corners similar to the instant case, it behooves this Court, following the principle
of stare decisis,8 to rule that the transactions in the instant case are not trust
receipts transactions but contracts of simple loan. The fact that the entruster bank,
Metrobank in this case, knew even before the execution of the alleged trust receipt
agreements that the covered construction materials were never intended by the
entrustee (petitioner) for resale or for the manufacture of items to be sold would
take the transaction between petitioner and Metrobank outside the ambit of
theTrust Receipts Law.
For reasons discussed above, the subject transactions in the instant case are not
trust receipts transactions. Thus, the consolidated complaints for Estafa in relation
to PD 115 have really no leg to stand on.
The Courts ruling in Colinares v. Court of Appeals9 is very apt, thus:
The practice of banks of making borrowers sign trust receipts to facilitate collection
of loans and place them under the threats of criminal prosecution should they be
unable to pay it may be unjust and inequitable. if not reprehensible. Such
agreements are contracts of adhesion which borrowers have no option but to sign
lest their loan be disapproved. The resort to this scheme leaves poor and hapless
borrowers at the mercy of banks and is prone to misinterpretation x x x.
Unfortunately, what happened in Colinares is exactly the situation in the instant
case. This reprehensible bank practice described in Colinares should be stopped and
discouraged. For this Court to give life to the constitutional provision of nonimprisonment for nonpayment of debts,10 it is imperative that petitioner be

acquitted of the crime of Estafa under Art. 315, par. 1 (b) ofthe RPC, in relation to
PD 115.
WHEREFORE, the Resolution dated February 1, 2012, upholding theCAs Decision
dated July 28, 2010 and Resolution dated December 20, 2010 in CA-G.R. CR No.
30426, is hereby RECONSIDERED. Petitioner Hur Tin Yang is ACQUITTED of the
charge of violating Art. 315, par. 1 (b) of the RPC, in relation to the pertinent
provision of PD 115 in Criminal Case Nos. 04-223911 to 34.
SO ORDERED.
VELASCO JR., J.:
Peralta, Abad, Mendoza, and Leonen, JJ., concur.
THIRD DIVISION, G.R. No. 195117, August 14, 2013, HUR TIN YANG, PETITIONER VS.
PEOPLE OF THE PHILIPPINES, RESPONDENT.

Regulating The Expression Of Ideas Or Opinion In A Public Utility Vehicle Or Terminal,

Through The Posting Of An Election Campaign Material Thereon, Is Not A Regulation
Of The Franchise Or Permit To Operate, But A Regulation On The Very Ownership Of
The Vehicle
July 7, 2015 by The Lawyer's Post
The right to participate in electoral processes is a basic and fundamental right in
any democracy. It includes not only the right to vote, but also the right to urge
others to vote for a particular candidate. The right to express ones preference for a
candidate is likewise part of the fundamental right to free speech. Thus, any
governmental restriction on the right to convince others to vote for a candidate
carries with it a heavy presumption of invalidity.
The Facts:
Section 9 of Republic Act 9006 regulates the posting of campaign materials. On
January 25, 2013, the COMELEC promulgated Resolution No. 9615 providing for the
rules implementing Section 9 of RA 9006 in connection with the May 13, 2013
elections and succeeding elections. Section 7 of the Resolution prohibited the
posting of election propaganda outside of authorised common poster areas in public

places or in private properties without the consent of the owner thereof. Included in
the definition of Public Places was:
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs
and tricycles, whether motorized or not;
6. Within the premises of public transport terminals, such as bus terminals, airports,
seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the
revocation of the public utility franchise and will make the owner and/or operator of
the transportation service and/or terminal liable for an election offense under
Section 9 of Republic Act No. 9006 as implemented by Section 18 (n) of these Rules.
I-United Transport Koalisyon (1-UTAK) through its president, Melecio Vargas, sought
clarification on the application of Resolution No. 9615, particularly Section 7(g)
items (5) and (6), in relation to Section 7(f), vis-a-vis privately owned public utility
vehicles (PUVs) and transport terminals. According to him, the prohibition impedes
on the right to free speech of private owners of PUVs and private terminals, thus it
requested the COMELEC to reconsider the prohibition. In a Minute Resolution, the
COMELEC denied the request. According to the COMELEC, the exact purpose of the
prohibition on the public utility vehicles and public utility terminals was exactly
because they are public and can be seen by all. As franchise holders under the
control of the COMELEC during the election period, the petitioners cannot complain
that their property is subject to regulation by the State, having placed their property
for use by the general public. As the use of the property bears a social function, the
COMELEC ruled: the prohibition furthers two important and substantial
governmental interests equalizing opportunity, time, and space for all candidates,
and putting to a stop excessive campaign spending. The regulation bears a clear
and reasonable nexus with these Constitutionally- and statutorily-sanctioned
objectives, and the infringement of freedom is merely incidental and limited as to
time. The Commission has not taken away all avenues of expression available to
PUV and transport terminal owners. They may express their political preferences
elsewhere..
The petitioners thus elevated their case to the Supreme Court. They argue that the
prohibition curtails their ideas of who should be voted by the public. The petitioner
also claims that there is no substantial public interest threatened by the posting of
political advertisements on PUVs and transport terminals to warrant the prohibition

imposed by the COMELEC. Further, the petitioner posits that the ownership of the
PUVs per se, as well as the transport terminals, remains private and, hence, the
owners thereof could not be prohibited by the COMELEC from expressing their
political opinion lest their property rights be unduly intruded upon.
Further, assuming that substantial public interest exists in the said prohibition
imposed under Resolution No. 9615, the petitioner claims that the curtailment of the
right to free speech of the owners of PUVs and transport terminals is much greater
than is necessary to achieve the desired governmental purpose, i.e., ensuring
equality of opportunity to all candidates in elective office. The COMELEC on the
other hand argues that PUVs and public terminals are public places subject to its
regulation. They hold a captive audience-the commuter who have no choice but to
endure the blare of political propaganda. The Resolution is content-neutral, thus
valid and does not infringe the right to free speech. Any restriction on free speech is
merely incidental and no greater and essential to the furtherance of governmental
interest.
The Issue:
Whether or not Resolution No. 9615 is null and void.
The Ruling:
The petition is meritorious.
Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-C of
the Constitution and the provisions of R.A. No. 9006, lays down the administrative
rules relative to the COMELECs exercise of its supervisory and regulatory powers
over all franchises and permits for the operation of transportation and other public
utilities, media of communication or information, and all grants, special privileges,
or concessions granted by the Government.
Like any other administrative regulations, Resolution No. 9615, or any part thereof,
must not run counter to the Constitution. It is basic that if a law or an administrative
rule violates any norm of the Constitution, that issuance is null and void and has no
effect. The Constitution is the basic law to which all laws must conform; no act shall
be valid if it conflicts with the Constitution. 1 In this regard, an administrative
regulation, even if it purports to advance a legitimate governmental interest, may

not be permitted to run roughshod over the cherished rights of the people
enshrined in the Constitution.
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 are
prior restraints on speech.
Free speech may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without prior restraint or censorship and subsequent
punishment.2 Prior restraint refers to official governmental restrictions on the press
or other forms of expression in advance of actual publication or dissemination.
Freedom from prior restraint is largely freedom from government censorship of
publications, whatever the form of censorship, and regardless of whether it is
wielded by the executive, legislative or judicial branch of the government. 3 Any
system of prior restraints of expression comes to this Court bearing a heavy
presumption against its validity.4
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615
unduly infringe on the fundamental right of the people to freedom of speech.
Central to the prohibition is the freedom of individuals, i.e., the owners of PUVs and
private transport terminals, to express their preference, through the posting of
election campaign material in their property, and convince others to agree with
them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election
campaign material during an election period in PUVs and transport terminals carries
with it the penalty of revocation of the public utility franchise and shall make the
owner thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right to free expression of
the owners of PUVs and transport terminals. As a result of the prohibition, owners of
PUVs and transport terminals are forcefully and effectively inhibited from expressing
their preferences under the pain of indictment for an election offense and the
revocation of their franchise or permit to operate.
It is now deeply embedded in our jurisprudence that freedom of speech and of the
press enjoys a preferred status in our hierarchy of rights. The rationale is that the
preservation of other rights depends on how well we protect our freedom of speech
and of the press.5 It has been our constant holding that this preferred freedom calls

all the more for utmost respect when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of suffrage. 6
Thus, in Adiong v. COMELEC,7 the Court struck down the COMELECs prohibition
against the posting of decals and stickers on mobile places. The Court
ratiocinated that:
Significantly, the freedom of expression curtailed by the questioned prohibition is
not so much that of the candidate or the political party. The regulation strikes at the
freedom of an individual to express his preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be furnished by a candidate but
once the car owner agrees to have it placed on his private vehicle, the expression
becomes a statement by the owner, primarily his own and not of anybody else. If, in
theNational Press Club case, the Court was careful to rule out restrictions on
reporting by newspaper or radio and television stations and commentators or
columnists as long as these are not correctly paid-for advertisements or purchased
opinions with less reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by an individual person who
pastes a sticker or decal on his private property. 8 (Emphases ours)
The assailed prohibition on posting election campaign materials is an invalid
content-neutral regulation repugnant to the free speech clause.
The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No.
9615 may incidentally restrict the right to free speech of owners of PUVs and
transport terminals, the same is nevertheless constitutionally permissible since it is
a valid content-neutral regulation. The Court does not agree.
A content-neutral regulation, i.e., which is merely concerned with the incidents of
the speech, or one that merely controls the time, place or manner, and under welldefined standards,9 is constitutionally permissible, even if it restricts the right to
free speech, provided that the following requisites concur: first, the government
regulation is within the constitutional power of the Government;second, it furthers
an important or substantial governmental interest; third, the governmental interest
is unrelated to the suppression of free expression; and fourth, the incidental
restriction on freedom of expression is no greater than is essential to the
furtherance of that interest.10

Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations
since they merely control the place where election campaign materials may be
posted. However, the prohibition is still repugnant to the free speech clause as it
fails to satisfy all of the requisites for a valid content-neutral regulation.
It is conceded that Resolution No. 9615, including the herein assailed provisions,
furthers an important and substantial governmental interest, i.e., ensuring equal
opportunity, time and space among candidates aimed at the holding of free,
orderly, honest, peaceful, and credible elections. It is further conceded that the
governmental interest in imposing the said prohibition is unrelated to the
suppression of free expression. However, Section 7(g) items (5) and (6), in relation
to Section 7(f), of Resolution No. 9615, are not within the constitutionally delegated
power of the COMELEC under Section 4, Article IX-C of the Constitution. Also, there
is absolutely no necessity to restrict the right to free speech of the owners of PUVs
and transport terminals.
The COMELEC may only regulate the franchise or permit to operate and not the
ownership per se of PUVs and transport terminals
The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 is not within the COMELECs constitutionally delegated power of
supervision or regulation. It is not disputed that the COMELEC has the power to
supervise or regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation utilities during an election period. Section 4, Article IX-C
of the Constitution, thus provides:
Section 4. The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections.
Nevertheless, the constitutional grant of supervisory and regulatory powers to the
COMELEC over franchises and permits to operate, though seemingly unrestrained,

has its limits. Notwithstanding the ostensibly broad supervisory and regulatory
powers granted to the COMELEC during an election period under Section 4, Article
IX-C of the Constitution, the Court had previously set out the limitations thereon.
In Adiong, the Court, while recognizing that the COMELEC has supervisory
power vis-a-vis the conduct and manner of elections under Section 4, Article IX-C of
the Constitution, nevertheless held that such supervisory power does not extend to
the very freedom of an individual to express his preference of candidates in an
election by placing election campaign stickers on his vehicle.
In National Press Club v. COMELEC,11 while the Court upheld the constitutionality of
a prohibition on the selling or giving free of charge, except to the COMELEC, of
advertising space and commercial time during an election period, it was
emphasized that the grant of supervisory and regulatory powers to the COMELEC
under Section 4, Article IX-C of the Constitution, is limited to ensuring equal
opportunity, time, space, and the right to reply among candidates.
Further, in Social Weather Stations, Inc. v. COMELEC,12 the Court, notwithstanding
the grant of supervisory and regulatory powers to the COMELEC under Section 4,
Article IX-C of the Constitution, declared unconstitutional a regulation prohibiting the
release of election surveys prior to the election since it actually suppresses a whole
class of expression, while allowing the expression of opinion concerning the same
subject matter by newspaper columnists, radio and [television (TV)] commentators,
armchair theorists, and other opinion makers.13
In the instant case, the Court further delineates the constitutional grant of
supervisory and regulatory powers to the COMELEC during an election period. As
worded, Section 4, Article IX-C of the Constitution only grants COMELEC supervisory
and regulatory powers over the enjoyment or utilization of all franchises or permits
for the operation, inter alia, of transportation and other public utilities. The
COMELECs constitutionally delegated powers of supervision and regulation do not
extend to the ownership per se of PUVs and transport terminals, but only to the
franchise or permit to operate the same.
There is a marked difference between the franchise or permit to operate
transportation for the use of the public and the ownership per se of the vehicles
used for public transport. Thus, in Tatad v. Garcia, Jr.,14 the Court explained that:
What private respondent owns are the rail tracks, rolling stocks like the coaches, rail
stations, terminals and the power plant, not a public utility. While a franchise is

needed to operate these facilities to serve the public, they do not by themselves
constitute a public utility. What constitutes a public utility is not their ownership but
their use to serve the public x x x.
The Constitution, in no uncertain terms, requires a franchise for the operation of a
public utility. However, it does not require a franchise before one can own the
facilities needed to operate a public utility so long as it does not operate them to
serve the public.
xxxx
In law, there is a clear distinction between the operation of a public utility and the
ownership of the facilities and equipment used to serve the public.
xxxx
The right to operate a public utility may exist independently and separately from
the ownership of the facilities thereof. One can own said facilities without operating
them as a public utility, or conversely, one may operate a public utility without
owning the facilities used to serve the public. The devotion of property to serve the
public may be done by the owner or by the person in control thereof who may not
necessarily be the owner thereof.
This dichotomy between the operation of a public utility and the ownership of the
facilities used to serve the public can be very well appreciated when we consider
the transportation industry. Enfranchised airline and shipping companies may lease
their aircraft and vessels instead of owning them themselves. 15 (Emphases ours)
The franchise or permit to operate transportation utilities is a privilege granted to
certain persons to engage in the business of transporting people or goods; it does
not refer to the ownership of the vehicle per se. Ownership is a relation in private
law by virtue of which a thing pertaining to one person is completely subjected to
his will in everything not prohibited by public law or the concurrence with the rights
of another.16 Thus, the owner of a thing has the right to enjoy and dispose of a thing,
without other limitations than those established by law. 17
One such limitation established by law, as regards PUVs, is the franchise or permit
to operate. However, a franchise or permit to operate a PUV is a limitation only on
certain aspects of the ownership of the vehicle pertinent to the franchise or permit

granted, but not on the totality of the rights of the owner over the vehicle.
Otherwise stated, a restriction on the franchise or permit to operate transportation
utilities is necessarily a limitation on ownership, but a limitation on the rights of
ownership over the PUV is not necessarily a regulation on the franchise or permit to
operate the same.
A franchise or permit to operate transportation utilities pertains to considerations
affecting the operation of the PUV as such, e.g., safety of the passengers, routes or
zones of operation, maintenance of the vehicle, of reasonable fares, rates, and
other charges, or, in certain cases, nationality. 18 Thus, a government issuance,
which purports to regulate a franchise or permit to operate PUVs, must pertain to
the considerations affecting its operation as such. Otherwise, it becomes a
regulation or supervision not on the franchise or permit to operate, but on the very
ownership of the vehicle used for public transport.
The expression of ideas or opinion of an owner of a PUV, through the posting of
election campaign materials on the vehicle, does not affect considerations pertinent
to the operation of the PUV. Surely, posting a decal expressing support for a certain
candidate in an election will not in any manner affect the operation of the PUV as
such. Regulating the expression of ideas or opinion in a PUV, through the posting of
an election campaign material thereon, is not a regulation of the franchise or permit
to operate, but a regulation on the very ownership of the vehicle.
The dichotomy between the regulation of the franchise or permit to operate of a
PUV and that of the very ownership thereof is better exemplified in the case of
commercial advertisements posted on the vehicle. A prohibition on the posting of
commercial advertisements on a PUV is considered a regulation on the ownership of
the vehicle per se; the restriction on the enjoyment of the ownership of the vehicle
does not have any relation to its operation as a PUV.
On the other hand, prohibitions on the posting of commercial advertisements on
windows of buses, because it hinders police authorities from seeing whether the
passengers inside are safe, is a regulation on the franchise or permit to operate. It
has a direct relation to the operation of the vehicle as a PUV, i.e., the safety of the
passengers.
In the same manner, the COMELEC does not have the constitutional power to
regulate public transport terminals owned by private persons. The ownership of
transport terminals, even if made available for use by the public commuters,

likewise remains private. Although owners of public transport terminals may be

required by local governments to obtain permits in order to operate, the permit only
pertains to circumstances affecting the operation of the transport terminal as such.
The regulation of such permit to operate should similarly be limited to
circumstances affecting the operation of the transport terminal. A regulation of
public transport terminals based on extraneous circumstances, such as prohibiting
the posting of election campaign materials thereon, amounts to regulating the
ownership of the transport terminal and not merely the permit to operate the same.
Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the
constitutionally delegated power of the COMELEC to supervise or regulate the
franchise or permit to operate of transportation utilities. The posting of election
campaign material on vehicles used for public transport or on transport terminals is
not only a form of political expression, but also an act of ownership it has nothing
to do with the franchise or permit to operate the PUV or transport terminal.
The rulings in National Press Club and Osmena v. COMELEC19 find no application to
this case.
The COMELEC pointed out that the issue presented in the instant case is akin to the
Courts rulings in National Press Club andOsmea. It explained that in both cases,
the Court sustained Section II(b) of R.A. No. 6646 or the Electoral Reforms Law of
1997, which prohibits newspapers, radio broadcasting or TV stations, and other
mass media from selling or giving print space or airtime for campaign or other
political purposes, except to the COMELEC, during the election campaign. The
COMELEC averred that if the legislature can empower it to impose an advertising
ban on mass media, it could likewise empower it to impose a similar ban on PUVs
and transport terminals.
The Court does not agree.
The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct relation to
the enjoyment and utilization of the franchise or permit to operate of newspapers,
radio broadcasting and TV stations, and other mass media, which the COMELEC has
the power to regulate pursuant to Section 4, Article IX-C of the Constitution. The
print space or airtime is an integral part of the franchise or permit to operate of
mass media utilities. Thus, the restriction under Section ll(b) of R.A. No. 6646 is
within the confines of the constitutionally delegated power of the COMELEC under
Section 4, Article IX-C of the Constitution.

On the other hand, the prohibition on the posting of election campaign materials
under Section 7(g) items (5) and (6) of Resolution No. 9615, as already explained,
does not have any relation to the franchise or permit of PUVs and transport
terminals to operate as such and, hence, is beyond the power of the COMELEC
under Section 4, Article IX-C of the Constitution.
The restriction on free speech of owners of PUVs and transport terminals is not
necessary to further the stated governmental interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy the
fourth requisite of a valid content-neutral regulation, i.e., the incidental restriction
on freedom of expression is no greater than is essential to the furtherance of that
interest. There is absolutely no necessity to restrict the right of the owners of PUVs
and transport terminals to free speech to further the governmental interest. While
ensuring equality of time, space, and opportunity to candidates is an important and
substantial governmental interest and is essential to the conduct of an orderly
election, this lofty aim may be achieved sans any intrusion on the fundamental right
of expression.
First, while Resolution No. 9615 was promulgated by the COMELEC to implement the
provisions of R.A. No. 9006, the prohibition on posting of election campaign
materials on PUVs and transport terminals was not provided for therein.
Second, there are more than sufficient provisions in our present election laws that
would ensure equal time, space, and opportunity to candidates in elections. Section
6 of R.A. No. 9006 mandates that all registered parties and bona fide candidates
shall have equal access to media time and space and outlines the guidelines to be
observed in the implementation thereof, viz:
Section 6. Equal Access to Media Time and Space. All registered parties and bona
fide candidates shall have equal access to media time and space. The following
guidelines may be amplified on by the COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet and
one-half (1/2) page in tabloids thrice a week per newspaper, magazine or other
publications, during the campaign period.
6.2 a. Each bona fide candidate or registered political party for a nationally elective
office shall be entitled to not more than one hundred twenty (120) minutes of

television advertisement and one hundred eighty (180) minutes of radio

advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office
shall be entitled to not more than sixty (60) minutes of television advertisement and
ninety (90) minutes of radio advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to
submit to the COMELEC a copy of its broadcast logs and certificates of performance
for the review and verification of the frequency, date, time and duration of
advertisements broadcast for any candidate or political party.
6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts
for advertising, promoting or opposing any political party or the candidacy of any
person for public office within five (5) days after its signing. In every case, it shall be
signed by the donor, the candidate concerned or by the duly authorized
representative of the political party.
6.4 No franchise or permit to operate a radio or television station shall be granted
or issued, suspended or cancelled during the election period. In all instances, the
COMELEC shall supervise the use and employment of press, radio and television
facilities insofar as the placement of political advertisements is concerned to ensure
that candidates are given equal opportunities under equal circumstances to make
known their qualifications and their stand on public issues within the limits set forth
in the Omnibus Election Code and Republic Act No. 7166 on election spending.
The COMELEC shall ensure that radio or television or cable television broadcasting
entities shall not allow the scheduling of any program or permit any sponsor to
manifestly favor or oppose any candidate or political party by unduly or repeatedly
referring to or including said candidate and/or political party in such program
respecting, however, in all instances the right of said broadcast entities to air
accounts of significant news or news worthy events and views on matters of public
interest.
6.5 All members of media, television, radio or print, shall scrupulously report and
interpret the news, taking care not to suppress essential facts nor to distort the
truth by omission or improper emphasis. They shall recognize the duty to air the
other side and the duty to correct substantive errors promptly.

6.6 Any mass media columnist, commentator, announcer, reporter, on-air

correspondent or personality who is a candidate for any elective public office or is a
campaign volunteer for or employed or retained in any capacity by any candidate or
political party shall be deemed resigned, if so required by their employer, or shall
take a leave of absence from his/her work as such during the campaign period:
Provided, That any media practitioner who is an official of a political party or a
member of the campaign staff of a candidate or political party shall not use his/her
time or space to favor any candidate or political party.
6.7 No movie, cinematograph or documentary portraying the life or biography of a
candidate shall be publicly exhibited in a theater, television station or any public
forum during the campaign period.
6.8 No movie, cinematograph or documentary portrayed by an actor or media
personality who is himself a candidate shall likewise be publicly exhibited in a
theater or any public forum during the campaign period.
Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and
independent candidates to erect common poster areas and candidates to post
lawful election campaign materials in private places, with the consent of the owner
thereof, and in public places or property, which are allocated equitably and
impartially.
Further, Section 1320 of R.A. No. 716621 provides for the authorized expenses of
registered political parties and candidates for every voter; it affords candidates
equal opportunity in their election campaign by regulating the amount that should
be spent for each voter. Likewise, Section 1422 of R.A. No. 7166 requires all
candidates and treasurers of registered political parties to submit a statement of all
contributions and expenditures in connection with the election. Section 14 is a postaudit measure that aims to ensure that the candidates did not overspend in their
election campaign, thereby enforcing the grant of equal opportunity to candidates
under Section 13.
A strict implementation of the foregoing provisions of law would suffice to achieve
the governmental interest of ensuring equal time, space, and opportunity for
candidates in elections. There is thus no necessity of still curtailing the right to free
speech of the owners of PUVs and transport terminals by prohibiting them from
posting election campaign materials on their properties.

Section 7(g) items (5) and (6) of Resolution No. 9615 are not justified under the
captive-audience doctrine.
The COMELEC further points out that PUVs and transport terminals hold a captive
audience commuters who have no choice but be subjected to the blare of
political propaganda. The COMELEC further claims that while owners of privately
owned PUVs and transport terminals have a right to express their views to those
who wish to listen, they have no right to force their message upon an audience
incapable of declining to receive it.
The COMELECs claim is untenable.
The captive-audience doctrine states that when a listener cannot, as a practical
matter, escape from intrusive speech, the speech can be restricted. 23 The captiveaudience doctrine recognizes that a listener has a right not to be exposed to an
unwanted message in circumstances in which the communication cannot be
avoided.24
A regulation based on the captive-audience doctrine is in the guise of censorship,
which undertakes selectively to shield the public from some kinds of speech on the
ground that they are more offensive than others. Such selective restrictions have
been upheld only when the speaker intrudes on the privacy of the home or the
degree of captivity makes it either impossible or impractical for the unwilling viewer
or auditor to avoid exposure.25
In Consolidated Edison Co. v. Public Service Commission, 26 the Supreme Court of
the United States of America (U.S. Supreme Court) struck down the order of New
York Public Service Commission, which prohibits public utility companies from
including inserts in monthly bills discussing controversial issues of public policy. The
U.S. Supreme Court held that [t]he prohibition cannot be justified as being
necessary to avoid forcing appellants views on a captive audience, since customers
may escape exposure to objectionable material simply by throwing the bill insert
into a wastebasket.27
Similarly, in Erznoznik v. City of Jacksonville,28 the U.S. Supreme Court nullified a
city ordinance, which made it a public nuisance and a punishable offense for a
drive-in movie theater to exhibit films containing nudity, when the screen is visible
from a public street or place. The U.S. Supreme Court opined that the degree of

captivity is not so great as to make it impracticable for an unwilling viewer to avoid

exposure, thus:
The Jacksonville ordinance discriminates among movies solely on the basis of
content. Its effect is to deter drive-in theaters from showing movies containing any
nudity, however innocent or even educational. This discrimination cannot be
justified as a means of preventing significant intrusions on privacy. The ordinance
seeks only to keep these films from being seen from public streets and places where
the offended viewer readily can avert his eyes. In short, the screen of a drive-in
theater is not so obtrusive as to make it impossible for an unwilling individual to
avoid exposure to it. x x x Thus, we conclude that the limited privacy interest of
persons on the public streets cannot justify this censorship of otherwise protected
speech on the basis of its content.29 (Emphasis ours)
Thus, a government regulation based on the captive-audience doctrine may not be
justified if the supposed captive audience may avoid exposure to the otherwise
intrusive speech. The prohibition under Section 7(g) items (5) and (6) of Resolution
No. 9615 is not justified under the captive-audience doctrine; the commuters are
not forced or compelled to read the election campaign materials posted on PUVs
and transport terminals. Nor are they incapable of declining to receive the
messages contained in the posted election campaign materials since they may
simply avert their eyes if they find the same unbearably intrusive.
The COMELEC, in insisting that it has the right to restrict the posting of election
campaign materials on PUVs and transport terminals, cites Lehman v. City of Shaker
Heights,30 a case decided by the U.S. Supreme Court. In Lehman, a policy of the city
government, which prohibits political advertisements on government-run buses,
was upheld by the U.S. Supreme Court. The U.S. Supreme Court held that the
advertising space on the buses was not a public forum, pointing out that
advertisement space on government-run buses, although incidental to the
provision of public transportation, is a part of commercial venture. 31 In the same
way that other commercial ventures need not accept every proffer of advertising
from the general public, the citys transit system has the discretion on the type of
advertising that may be displayed on its vehicles.
Concurring in the judgment, Justice Douglas opined that while Lehman, a candidate
for state office who sought to avail himself of advertising space on government-run
buses, clearly has a right to express his views to those who wish to listen, he has
no right to force his message upon an audience incapable of declining to receive

it.32 Justice Douglas concluded: the right of the commuters to be free from forced
intrusions on their privacy precludes the city from transforming its vehicles of public
transportation into forums for the dissemination of ideas upon this captive
audience.33
The COMELECs reliance on Lehman is utterly misplaced.
In Lehman, the political advertisement was intended for PUVs owned by the city
government; the city government, as owner of the buses, had the right to decide
which type of advertisements would be placed on its buses. The U.S. Supreme Court
gave primacy to the city governments exercise of its managerial decision, viz:
Revenue earned from long-term commercial advertising could be jeopardized by a
requirement that short-term candidacy or issue-oriented advertisements be
displayed on car cards. Users would be subjected to the blare of political
propaganda. There could be lurking doubts about favoritism, and sticky
administrative problems might arise in parceling out limited space to eager
politicians. In these circumstances, the managerial decision to limit car card space
to innocuous and less controversial commercial and service-oriented advertising
does not rise to the dignity of First Amendment violation. Were we to hold to the
contrary, display cases in public hospitals, libraries, office buildings, military
compounds, and other public facilities immediately would become Hyde Parks open
to every would be pamphleteer and politician. This the Constitution does not
require.34 (Emphasis ours)
Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the
city government, in choosing the types of advertisements that would be placed on
its properties. In stark contrast, Section 7(g) items (5) and (6) of Resolution No.
9615 curtail the choice of the owners of PUVs and transport terminals on the
advertisements that may be posted on their properties.
Also, the city government in Lehman had the right, nay the duty, to refuse political
advertisements on their buses. Considering that what were involved were facilities
owned by the city government, impartiality, or the appearance thereof, was a
necessity. In the instant case, the ownership of PUVs and transport terminals
remains private; there exists no valid reason to suppress their political views by
proscribing the posting of election campaign materials on their properties.

Prohibiting owners of PUVs and transport terminals from posting election

campaign materials violates the equal protection clause.
Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the
free speech clause, but also of the equal protection clause. One of the basic
principles on which this government was founded is that of the equality of right,
which is embodied in Section 1, Article III of the 1987 Constitution. 35 Equal
protection requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. Similar subjects, in
other words, should not be treated differently, so as to give undue favor to some
and unjustly discriminate against others.36
The equal protection clause is aimed at all official state actions, not just those of
the legislature. Its inhibitions cover all the departments of the government including
the political and executive departments, and extend to all actions of a state denying
equal protection of the laws, through whatever agency or whatever guise is
taken.37
Nevertheless, the guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws to all citizens of the state. Equality of
operation of statutes does not mean their indiscriminate operation on persons
merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that
things, which are different in fact, be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are
different.38
In order that there can be valid classification so that a discriminatory governmental
act may pass the constitutional norm of equal protection, it is necessary that the
four requisites of valid classification be complied with, namely: (1) it must be based
upon substantial distinctions; (2) it must be germane to the purposes of the law; (3)
it must not be limited to existing conditions only; and (4) it must apply equally to all
members of the class.39
It is conceded that the classification under Section 7(g) items (5) and (6) of
Resolution No. 9615 is not limited to existing conditions and applies equally to the
members of the purported class. However, the classification remains
constitutionally impermissible since it is not based on substantial distinction and is
not germane to the purpose of the law.

A distinction exists between PUVs and transport terminals and private vehicles and
other properties in that the former, to be considered as such, needs to secure from
the government either a franchise or a permit to operate. Nevertheless, as pointed
out earlier, the prohibition imposed under Section 7(g) items (5) and (6) of
Resolution No. 9615 regulates the ownership per se of the PUV and transport
terminals; the prohibition does not in any manner affect the franchise or permit to
operate of the PUV and transport terminals.
As regards ownership, there is no substantial distinction between owners of PUVs
and transport terminals and owners of private vehicles and other properties. As
already explained, the ownership of PUVs and transport terminals, though made
available for use by the public, remains private. If owners of private vehicles and
other properties are allowed to express their political ideas and opinion by posting
election campaign materials on their properties, there is no cogent reason to deny
the same preferred right to owners of PUVs and transport terminals. In terms of
ownership, the distinction between owners of PUVs and transport terminals and
owners of private vehicles and properties is merely superficial. Superficial
differences do not make for a valid classification. 40
The fact that PUVs and transport terminals are made available for use by the public
is likewise not substantial justification to set them apart from private vehicles and
other properties. Admittedly, any election campaign material that would be posted
on PUVs and transport terminals would be seen by many people. However, election
campaign materials posted on private vehicles and other places frequented by the
public, e.g., commercial establishments, would also be seen by many people. Thus,
there is no reason to single out owners of PUVs and transport terminals in the
prohibition against posting of election campaign materials.
Further, classifying owners of PUVs and transport terminals apart from owners of
private vehicles and other properties bears no relation to the stated purpose of
Section 7(g) items (5) and (6) of Resolution No. 9615, i.e., to provide equal time,
space and opportunity to candidates in elections. To stress, PUVs and transport
terminals are private properties. Indeed, the nexus between the restriction on the
freedom of expression of owners of PUVs and transport terminals and the
governments interest in ensuring equal time, space, and opportunity for candidates
in elections was not established by the COMELEC.
In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615 violate the free speech clause; they are content-neutral regulations, which are

not within the constitutional power of the COMELEC issue and are not necessary to
further the objective of ensuring equal time, space and opportunity to the
candidates. They are not only repugnant to the free speech clause, but are also
violative of the equal protection clause, as there is
no substantial distinction between owners of PUVs and transport terminals and
owners of private vehicles and other properties.
On a final note, it bears stressing that the freedom to advertise ones political
candidacy is clearly a significant part of our freedom of expression. A restriction on
this freedom without rhyme or reason is a violation of the most valuable feature of
the democratic way of life.41
WHEREFORE, in light of the foregoing disquisitions, the instant petition is
hereby GRANTED. Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 issued by the Commission on Elections are hereby
declared NULL and VOID for being repugnant to Sections 1 and 4, Article III of the
1987 Constitution.
SO ORDERED.
REYES, J.:
Sereno, C.J., Carpio, Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza, PerlasBernabe, and Leonen, JJ., concur.
Velasco, Jr., and Jardeleza, JJ., no part.
Leonardo-De Castro, and Villarama, Jr., JJ., on official leave.
EN BANC, G.R. No. 206020, April 14, 2015, 1-UNITED TRANSPORT KOALISYON (1UTAK), PETITIONER, VS. COMMISSION ON ELECTIONS, RESPONDENT.
The Regulation Of Election Surveys Effects The Constitutional Policy, Articulated In
Article II, Section 26, And Reiterated And Affirmed In Article IX-C, Section 4 and
Article XIII, Section 26 of the 1987 Constitution, Of Guaranteeing Equal Access To
Opportunities For Public Service
July 6, 2015 by The Lawyer's Post
The Facts:
Social Weather Stations Inc., and Pulse Asia Inc., both polling firms,
conducted a pre-election survey for the period February 15 to 17, 2013

and published its findings. Rep, Tobias Tiangco, secretary-general of the

United Nationalist Alliance, then filed a request with the COMLEC Law
Department, requesting that it compel the companies to to comply with
the Fair Election Act or Comelec Resolution No. 9615 by requiring the
companies to publish the names or identities of the subscribers who paid
for the pre-election survey, or be held liable for an election offence.

Thus,

the Comelec En Banc after a recommendation by the Law Department,

invited the two firms for a hearing on April 16, 2013. During the hearing,
then Comelec Chairman Brillantes informed them that it was merely a
clarificatory hearing. On April 23, 2014, the Comelec issued Resolution
No. 9674, requiring SWS and Pulse Asia to publish the names of the
payers, subscribers and commissioners for its pre-election survey
conducted from February, 2013 up to the time of promulgation of the
Resolution. It also provided that henceforth all surveys conducted after
promulgation of the Resolution must be accompanied by all the
information required in Republic Act no. 9006, including the names of
commissioners, payors and subscribers; failure to comply therewith shall
be treated as an election offence. The Comelec cited as basis for
Resolution No. 9674, Article IX-C, Section 2(1) of the 1987 Constitution
and Sections 5.1 to 5.3 of Republic Act No. 9006, otherwise known as the
Fair Election Act, as implemented by COMELEC Resolution No. 9615.
SWS and Pulse Asia filed the present petition for certiorari and
prohibition, assailing the validity of Resolution No. 9764. They allege the
Resolution as having exceeded the Fair Election Act in requiring them to
submit the names of their surveys subscribers. It also violates the nonimpairment of contracts clause, and was enforced in violation of their
right to due process (as they were charged with its violation despite not
having been properly served with copies of the complaint filed against
them). They also aver that the issuance of the resolution impaired their
right to free speech.
The Issue:
Whether Resolution No. 9674 is invalid in that it requires the disclosure of
the names of subscribers of election surveys;
Whether the rights of petitioners to free speech will be curtailed by the
requirement to submit the names of their subscribers;

Whether Resolution No. 9674, insofar as it compels petitioners to submit

the names of their subscribers, violates the constitutional proscription
against the impairment of contracts (Article II, Section 10);
Whether at the time petitioners were required by COMELEC to reveal the
names of the subscribers to their election surveys, Resolution No. 9674
was already in force and effect; and
Whether COMELEC deprived petitioners of due process of law when it:
a) failed to provide them with a copy of Resolution No. 9674 and the
criminal complaint for an election offense; and
b) refused to specify the election offense under which they were being
prosecuted.
The Ruling:
We sustain the validity of Resolution No. 9674. The names of those who
commission or pay for election surveys, including subscribers of survey
firms, must be disclosed pursuant to Section 5.2(a) of the Fair Election
Act. This requirement is a valid regulation in the exercise of police power
and effects the constitutional policy of guarantee[ing] equal access to
opportunities for public service[.]1 Section 5.2(a)s requirement of
disclosing subscribers neither curtails petitioners free speech rights nor
violates the constitutional proscription against the impairment of
contracts.
However, it is evident that Resolution No. 9674 was promulgated in
violation of the period set by the Fair Election Act. Petitioners were also
not served a copy of Resolution No. 9674 with which they were asked to
comply. They were neither shown nor served copies of the criminal
Complaint subject of E.O. Case No. 13-222. Petitioners right to due
process was, thus, violated.
Petitioners assail Resolution No. 9674s requirement of submission of
names of subscribers, including those who did not commission or pay for a
specific survey or cause its publication, for being ultra vires. They
maintain that the Fair Election Act as it was written by Congress covers
only those who commission or pay for a particular election survey, and
requires disclosure of their names only when that particular survey is

published.2 From this, they add that COMELEC exceeded its authority
creating] an election offense where there was none before3 in
considering as an election offense any violation of Resolution No. 9674.
COMELEC, for its part, insists on the wide latitude of discretion 4 granted
to it in the performance of its constitutional duty to [e]nforce and
administer all laws and regulations relative to the conduct of an
election[.]5 It adds that as the specialized constitutional body charged
with the enforcement and administration of election laws, 6 its
contemporaneous construction of Section 5.2(a) of the Fair Election Act is
entitled to great weight and respect.7 Citing the supposed legislative
intent of Section 5.2 as broaden[ing] the subject of
disclosure,8 COMELEC claims that Section 5.2(a) draws no distinction
between the direct payors and the indirect payors of the survey. 9 It adds
that requiring the disclosure of survey subscribers addresses the
requirement of reporting election expenditures by candidates and political
parties, thereby helping COMELEC check compliance with this
requirement.10
Section 5.2(a) of the Fair Election Act, read in a manner consistent not
only with its text but also with the purpose for which it, along with the
Fair Election Act, was adopted, sustains COMELECs position.
Republic Act No. 9006 was adopted with the end in mind of
guarantee[ing] or ensuring] equal opportunity for public service 11 and to
this end, stipulates mechanisms for the supervision] or regulation of] the
enjoyment or utilization of all franchises or permits for the operation of
media of communication or information[.]12 Hence, its short
title: Fair Election Act.
Situated within the constitutional order, the Fair Election Act provides
means to realize the policy articulated in Article II, Section 26 of the 1987
Constitution to guarantee equal access to opportunities for public
service[.] Article II, Section 26 models an understanding of Philippine
political and electoral reality. It is not merely hortatory or a statement of
value. Among others, it sums up an aversion to the perpetuation of
political power through electoral contests skewed in favor of those with
resources to dominate the deliberative space in any media.
Apart from making real Article II, Section 26s constitutional policy, the
Fair Election Act represents the legislatures compliance with the

requirement of Article XIII, Section 1: Congress . . . give[s] highest

priority to the enactment of measures that. . . reduce . . . political
inequalities by equitably diffusing wealth and political power for the
common good.13
Moreover, the constitutional desire to guarantee equal access to
opportunities for public service14 is the same intent that animates the
Constitutions investiture in COMELEC of the power to supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of
communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary.15
Specific provisions in the Fair Election Act regulate the means through
which candidates for elective public office, as well as political parties and
groups participating in the party-list system, are able to make themselves
known to voters, the same means through which they earn votes.
Section 3 permits the use of lawful election propaganda. 16 Section 4
regulates published or printed, and broadcast election
propaganda.17 Section 6 governs access to media time and
space.18 Sections 7 and 8 provide for COMELECs competencies (i.e.,
affirmative action, and the so-called COMELEC Space and COMELEC
Time) that enable it to equalize candidates exposure to voters. 19 Section
9 regulates venues for the posting of campaign materials. 20 Section 10
provides for parties and candidates right to reply. 21 Section 11 requires
media outlets to make available the use of their facilities for election
propaganda at discounted rates.22
The Fair Election Act also governs published surveys during elections.
Section 5.1 defines election surveys-as the measurement of opinions and
perceptions of the voters as regards a candidates popularity,
qualifications, platforms or a matter of public discussion in relation to the
election, including voters preference for candidates or publicly discussed
issues during the campaign period[.] Sections 5.2 and 5.3 provide
regulations that facilitate transparency with respect to election surveys.
Section 5.423 is no longer in effect, having been declared unconstitutional
in this courts May 5, 2001 Decision in Social Weather Stations and

Kamahalan Publishing Corp. v. COMELEC.24 Section 5.525 pertains to exit

polls.
Section 5.2 enumerates the information that a person publishing an
election survey must publish along with the survey itself:
5.2 During the election period, any person, natural as well as juridical,
candidate or organization who publishes a survey must likewise publish
the following information:
1. The name of the person, candidate, party or. organization who
commissioned or paid for the survey;
2. The name of the person, polling firm or survey organization who
conducted the survey;
3. The period during which the survey was conducted, the methodology
used, including the number of individual respondents and the areas
from which they were selected, and the specific questions asked;
4. The margin of error of the survey;
5. For each question for which the margin of error is greater than that
reported under paragraph (d), the margin of error for that question;
and
6. A mailing address and telephone number, indicating it as an address
or telephone number at which the sponsor can be contacted to
obtain a written report regarding the survey in accordance with
Subsection 5.3. (Emphasis supplied)
Section 5.3 facilitates the inspection, copying, and verification not only of
an election survey but also of the raw data used as bases for its
conclusions:
5.3 The survey together with raw data gathered to support its conclusions
shall be available for inspection, copying and verification by the COMELEC
or by a registered political party or a bona fide candidate, or by any
COMELEC-accredited citizens arm. A reasonable fee sufficient to cover the
costs of inspection, copying and verification may be charged.

As with all the other provisions of the Fair Election Act, Section 5 is a
means to guarantee equal access to the deliberative forums essential to
win an elective public office. Any reading of Section 5 and of its individual
components, such as Section 5.2(a), cannot be divorced from this purpose.
The inclusion of election surveys in the list of items regulated by the Fair
Election Act is a recognition that election surveys are not a mere
descriptive aggregation of data. Publishing surveys are a means to shape
the preference of voters, inform the strategy of campaign machineries,
and ultimately, affect the outcome of elections. Election surveys have a
similar nature as election propaganda. They are expensive, normally paid
for by those interested in the outcome of elections, and have tremendous
consequences on election results.
II
Views vary on the precise extent to which surveys or polls shape voter
preferences, if at all.
Election surveys have been critiqued for amplifying the notion of an
election as a horse race26 and for reducing elections to the lowest
common denominator of percentage points or a candidates erstwhile
share in the vote market rather than focusing on issues, principles,
programs, and platforms.
Several possible, albeit conflicting, effects of surveys on voter behavior
have been postulated:
First, there is the bandwagon effect where electors rally to support the
candidate leading in the polls.27 This assumes that knowledge of a
popular tide will likely change voting intentions in [favor] of the
frontrunner, that many electors feel more comfortable supporting a
popular choice or that people accept the perceived collective wisdom of
others as being enough reason for supporting a candidate.28
Second, there is the underdog effect where electors rally to support the
candidate trailing in the polls.29 This shift can be motivated by sympathy
for the perceived underdog.30

Third, there is the motivating effect where individuals who had not
intended to vote are persuaded to do so,31 having been alerted to the
fact of an elections imminence32
Fourth, there is also the demotivating effect where voters abstain from
voting out of certainty that their candidate or party will win[.]
Fifth, there are reports of a behavior known as strategic voting where
voting is influenced by the chances of winning[.] 33
Lastly, there is also the theory of a free-will effect where voters cast their
ballots to prove the polls wrong[.]34
Election surveys published during election periods create the politics of
expectations.35 Voters act in accordance with what is perceived to be an
existing or emerging state of affairs with respect to how candidates are
faring.
Of the six (6) effects, the bandwagon effect has a particular resonance and
has been of concern. Surveys, or opinion polls, by directly influencing
individual-level support . . . , can be self-fulfilling prophecies and produce
opinion cascades.36 [A] polls prediction may come to pass not only
because it measures public opinion but also because it may influence
public opinion.37
The bandwagon effect is of particular concern because of the observed
human tendency to conform. Three (3) mechanisms through which survey
results may induce conformity have been posited:
(1) normative social influence, or peoples desire to adopt the majority
position in order to feel liked and accepted or believe they are on the
winning team;
(2) informational social influence, or people learning from the wisdom of
crowds via social proof because they believe that others interpretation
of an ambiguous situation is more accurate . . . and will help [them]
choose an appropriate course of action; and
(3) people resolving cognitive dissonance by switching to the side they
infer is going to win based on the poll.38
Likewise, it has been argued that the bandwagon effect is but the obverse
of the so-called false-consensus effect or false-consensus bias:

The bandwagon effect, a form of conformity, is the mirror image of the

false consensus effect, where people misperceive that their own behaviors
and attitudes are more popular than they actually are. In the political
domain, one mechanism underlying the false consensus effect is wishful
thinking people gaining utility from thinking their candidate is ahead or
their opinions are popular.39
The bandwagon effect induced by election surveys assumes even greater
significance in considering the health of a democracy.
Integral to our appreciation of democracy is the recognition that
democracy is fundamentally deliberative. It is rooted in the exchange and
dialogue of ideas. Accordingly, free expression, not least of all from the
minority and from those who do not conform, i.e., those who dissent and
criticize, is indispensable:
Proponents of the political theory on deliberative democracy submit
that substantial, open, [and] ethical dialogue is a critical, and indeed
defining, feature of a good polity. This theory may be considered broad,
but it definitely includes [a] collective decision making with the
participation of all who will be affected by the decision. It anchors on the
principle that the cornerstone of every democracy is that sovereignty
resides in the people. To ensure order in running the states affairs,
sovereign powers were delegated and individuals would be elected or
nominated in key government positions to represent the people. On this
note, the theory on deliberative democracy may evolve to the right of the
people to make government accountable. Necessarily, this includes the
right of the people to criticize acts made pursuant to governmental
functions.
Speech that promotes dialogue on public affairs, or airs out grievances
and political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies.

In this jurisdiction, this court held that [t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs. This court has, thus, adopted the principle that debate on public
issues should be uninhibited, robust, and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials. 40
However, conformity pressures can suppress minority opinion.41 The
bandwagon effect conjures images of an impregnable majority, thereby
tending to push farther toward the peripheries those who are already
marginalized. Worse, the bandwagon effect foments the illusion of a
homogenous monolith denying the very existence of those in the minority.
This undermines the normative conceptions of democracy42 substituting
the democratic dialogue with acquiescence to perceived or projected
orthodoxy.
Surveys, far from being a passive snapshot of many viewpoints held by a
segment of the population at a given time, 43 can warp existing public
opinion and can mould public opinion. They are constitutive. Published
election surveys offer valuable insight into public opinion not just because
they represent it but more so because they also tend to make it.
Appreciating this tendency to both entrench and marginalize is of acute
relevance in the context of Philippine political reality. This is the same
reality that our policymakers, primarily the framers of the Constitution,
have seen fit to address.
III
The constitutional dictum to guarantee equal access to opportunities for
public service44 and (even more specifically and explicitly) to prohibit
political dynasties45 does not exist in a vacuum.
Politics in the Philippines has been criticized as a lucrative means of selfaggrandizement.46 Ours is an exclusive system that perpetuates power
and provides sanctuary to those who have already secured their place.
Traditional Filipino politics connotes elite families that, with the state, are
engaged in a reciprocal relationship that constantly defines and
redefines both.47 As recounted by Alfred McCoy, this reciprocal
relationship, typified by rent-seeking (i.e., taking advantage of their
access to state privileges to expand proprietary wealth48 ), is a vicious
cycle propagated for as long as the Philippines has been a republic: The
emergence of the Republic as a weak postcolonial state augmented the

power of rent-seeking political families a development that further

weakened the states own resources.49
The Philippines, as it emerged in the wake of Ferdinand Marcos
presidency and the adoption of the 1987 Constitution, saw the
celebritification50 ] of political office. On the legislature and studying
emerging contrasts in the composition of its two chambers the Senate
and the House of Representatives it has been noted:
The old political families, however are not as strong in the Senate as they
are in the House. This could be read, if not as a total repudiation by voters
of family power, then at least as an attempt by them to tap other sources
of national leadership. Celebrities and military and police officers have
emerged as alternatives to traditional politicians. It could be that these
new men and women have captured the popular imagination or that they
are more in tune with the public pulse. But their emergence could very
well be seen as an indication of the paucity of choices: Political parties, for
one, have not succeeded in proffering a wider range of options to an
electorate weary of trapos.51
This celebritification nurtures misleading notions of an enhanced or
healthier democracy, one that opens avenues to a crop of political leaders
not belonging to oligarchic families. Viewed critically however, this is
nothing more than a pipe dream. New elites now share the political stage
with the old. The tension between two contrary tendencies actually serves
to preserve the status quo of elitism an expanded elitism perhaps, but
elitism no less. To evoke a truism, the more things change, the more they
stay the same:
But the celebritification of the Senate can also be interpreted as the
democratization of an exclusive body once reserved only for the very rich,
the politically experienced, and the intellectually brilliant. In a sense, the
bar of entry has been lowered, and anyone with national renown can
contest a seat in a chamber once famous for sharp debates and
polysyllabic peroration.
The main criterion for a Senate seat is now name recall. This is where
celebrities have the edge even over older political families with bankable
names. . . .
....

The diminishing clout of old families in the Senateand their continued

dominance in the Houseshows the push and pull of two contrary
tendencies. The first tendency is toward the new: The importance of name
recall in national elections taking place in a media-inundated environment
makes it easier for movie and media personalities, and harder for old-style
politicians, to be elected. The second tendency is veering toward the old:
At the district level, trapo-style patronage and machine politics remain
deeply entrenched, giving political families the edge in elections. 52
Thus, where once there was elitism solely along lines of kinship Alfred
McCoys so-called anarchy of families now there is also elitism
demarcated by name recall, populist projection, and media exposure,
arguably, an anarchy of celebrities.
Certainly, it is not the business of this court to engage in its own
determination of the wisdom of policy. Nevertheless, having to grapple
with the tasks of adjudication and interpretation, it has become necessary
to bring to light the intent that underlies the disputed statutory provision,
as well as the constitutional regime and social context, in which this
provision is situated.
To reiterate, the inclusion of published election surveys in a statute that
regulates election propaganda and other means through which candidates
may shape voter preferences is itself telling of the recognition that
published election surveys, too, may influence voter preferences. This
inclusion is similarly telling of a recognition that, left unregulated,
election surveys can undermine the purposes of ensuring fair elections.
These recognitions are embedded in the Fair Election Act; they are not
judicial constructs. In adjudicating with these as bases, this court is
merely adhering to the legislative imperative.
IV
It is necessary that the Fair Election Act be appreciated for what it is: a
mechanism for ensuring equality. The Fair Election Act is a means to effect
the necessary condition to a genuine democratic dialogue, to realizing a
deliberative democracy. The concept of this necessary condition was
previously considered by this court in Diocese of Bacolod v. COMELEC:53

In his seminal work, Repressive Tolerance, philosopher and social theorist

Herbert Marcuse recognized how institutionalized inequality exists as a
background limitation, rendering freedoms exercised within such
limitation as merely protecting] the already established machinery of
discrimination. In his view, any improvement in the normal course of
events within an unequal society, without subversion, only strengthens
existing interests of those in power and control.
In other words, abstract guarantees of fundamental rights like freedom of
expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his
words:
Liberty is selfi-determination, autonomythis is almost a tautology, but a
tautology which results from a whole series of synthetic judgments. It
stipulates the ability to determine ones own life: to be able to determine
what to do and what not to do, what to suffer and what not. But the
subject of this autonomy is never the contingent, private individual as
that which he actually is or happens to be; it is rather the individual as a
human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual
liberty and the other is not that of finding a compromise between
competitors, or between freedom and law, between general and individual
interest, common and private welfare in an established society, but of
creating the society in which man is no longer enslaved by institutions
which vitiate self-determination from the beginning. In other words,
freedom is still to be created even for the freest of the existing societies.
Marcuse suggests that the democratic argument with all opinions
presented to and deliberated by the people implies a necessary
condition, namely, that the people must be capable of deliberating and
choosing on the basis of knowledge, that they must have access to
authentic information, and that, on this basis, their evaluation must be
the result of autonomous thought. He submits that [different opinions
and philosophies can no longer compete peacefully for adherence and
persuasion on rational grounds: the marketplace of ideas is organized
and delimited by those who determine the national and the individual
interest.

A slant toward left manifests from his belief that there is a natural right
of resistance for oppressed and overpowered minorities to use extralegal
means if the legal ones have proved to be inadequate. Marcuse, thus,
stands for an equality that breaks away and transcends from established
hierarchies, power structures, and indoctrinations. The tolerance of
libertarian society he refers to as repressive tolerance.54
What is involved here is petitioners freedom of speech and of expression,
that is, to publish their findings. More specifically, what is involved here is
their right to political speech, that which refers to speech both intended
and received as a contribution to public deliberation about some issue,
foster[ing] informed and civic-minded deliberation.[55
The nature of the speech involved, as well as the Fair Election Acts
purpose of ensuring political equality, calls into operation the equalitybased approach to weighing liberty to express vis-a-vis equality of
opportunities. As explained in Diocese of Bacolod:56
In an equality-based approach, politically disadvantaged speech prevails
over regulation[,] but regulation promoting political equality prevails over
speech. This view allows the government leeway to redistribute or
equalize speaking power, such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within
societys ideological ladder. This view acknowledges that there are
dominant political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the messages of
others. This is especially true in a developing or emerging economy that is
part of the majoritarian world like ours.
...
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to
relate. On the other hand, a complete guarantee must also take into
consideration the effects it will have in a deliberative democracy. Skewed
distribution of resources as well as the cultural hegemony of the majority
may have the effect of drowning out the speech and the messages of
those in the minority. In a sense, social inequality does have its effect on
the exercise and effect of the guarantee of free speech. Those who have
more will have better access to media that reaches a wider audience than

those who have less. Those who espouse the more popular ideas will have
better reception than the subversive and the dissenters of society. To be
really heard and understood, the marginalized view normally undergoes
its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and
the content of his or her expression. This view, thus, restricts laws or
regulation that allows public officials to make judgments of the value of
such viewpoint or message content. This should still be the principal
approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral
campaigns.57
The required judicial temperament in appraising speech in the context of
electoral campaigns which is principally designed to endorse a candidate,
both by candidates and / or political parties, on the one hand, and private
citizens, on the other, has thus been articulated:
Thus clearly, regulation of speech in the context of electoral campaigns
made by candidates or the members of their political parties or their
political parties may be regulated as to time, place, and manner. This is
the effect of our rulings in Osmea v. COMELEC and National Press Club v.
COMELEC.
Regulation of speech in the context of electoral campaigns made by
persons who are not candidates or who do not speak as members of a
political party which are, taken as a whole, principally advocacies of a
social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private
citizen which will not amount to an election paraphernalia to be validly
regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it

reaches into speech of persons who are not candidates or who do not
speak as members of a political party if they are not candidates, only if
what is regulated is declarative speech that, taken as a whole, has for its
principal object the endorsement of a candidate only. The regulation (a)
should be provided by law, (b) reasonable, (c) narrowly tailored to meet
the objective of enhancing the opportunity of all candidates to be heard
and considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The
regulation must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be prohibited or
censored on the basis of its content. For this purpose, it will not matter
whether the speech is made with or on private property.[58 [Emphasis in
the original]
V
Concededly, what is involved here is not election propaganda per se.
Election surveys, on their face, do not state or allude to preferred
candidates. As a means, election surveys are ambivalent. To an
academician, they are an aggrupation of data. To a journalist, they are
matters for reportage. To a historian, they form part of a chronicle.
Election surveys thus become unambiguous only when viewed in relation
to the end for which they are employed. To those whose end is to get a
candidate elected, election surveys, when limited to their own private
consumption, are a means to formulate strategy. When published,
however, the tendency to shape voter preferences comes into play. In this
respect, published election surveys partake of the nature of election
propaganda. It is then declarative speech in the context of an electoral
campaign properly subject to regulation. Hence, Section 5.2 of the Fair
Election Acts regulation of published surveys.
We thus proceed to evaluate Resolution No. 9674s requirement of
disclosing the names of subscribers to election surveys in light of the
requisites for valid regulation of declarative speech by private entities in
the context of an election campaign:
First, the text of Section 5.2(a) of the Fair Election Act supports the
inclusion of subscribers among those persons who paid for the

survey[.][59 Thus, Resolution No. 9674 is a regulation finding basis in

statute.
COMELEC correctly points out that in Section 5.2(a) of the Fair Election
Act, those who commissioned and those who paid for the published
survey are separated by the disjunctive term or.60[ This disassociates
those who commissioned from those who paid for and identifies them
as alternatives to each other.61 Section 5.2(a) thus requires the disclosure
of two (2) classes of persons: [first,] those who commissioned or
sponsored the survey; and [second,] those who paid for the survey. 62
The second class makes no distinction between those who pay for a
specific survey and those who pay for election surveys in general. Indeed,
subscribers do not escape the burden of paying for the component articles
comprising a subscription. They may pay for them in aggregate, but they
pay for them just the same. From the text of Section 5.2(a), the legislative
intent or regulatory concern is clear: those who have financed, one way
or another, the [published] survey63 must be disclosed.
Second, not only an important or substantial state interest but even a
compelling one reasonably grounds Resolution No. 9674s inclusion of
subscribers to election surveys. Thus, regardless of whether an
intermediate or a strict standard is used, Resolution No. 9674 passes
scrutiny.
It is settled that constitutionally declared principles are a compelling state
interest:
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that the welfare of children and
the States mandate to protect and care for them, as parens patriae,
constitute a substantial and compelling government interest in
regulating . . . utterances in TV broadcast.
Here, we have established that the regulation of election surveys effects
the constitutional policy, articulated in Article II, Section 26, and
reiterated and affirmed in Article IX-C, Section 4 and Article XIII, Section
26 of the 1987 Constitution, of guarantee[ing] equal access to
opportunities for public service[.]
Resolution No. 9674 addresses the reality that an election survey is
formative as it is descriptive. It can be a means to shape the preference of
voters and, thus, the outcome of elections. In the hands of those whose

end is to get a candidate elected, it is a means for such end and partakes
of the nature of election propaganda. Accordingly, the imperative of fair
elections impels their regulation.
Lastly, Resolution No. 9674 is narrowly tailored to meet the objective of
enhancing the opportunity of all candidates to be heard and considering
the primacy of the guarantee of free expression and is demonstrably
the least restrictive means to achieve that object.64
While it does regulate expression (i.e., petitioners publication of election
surveys), it does not go so far as to suppress desired expression. There is
neither prohibition nor censorship specifically aimed at election surveys.
The freedom to publish election surveys remains. All Resolution No. 9674
does is articulate a regulation as regards the manner of publication, that
is, that the disclosure of those who commissioned and/or paid for,
including those subscribed to, published election surveys must be made.
VI
Petitioners harp on what they claim to be Section 5.2(a)s plain meaning
and assert that there is no room to entertain COMELECs construction of
Section 5.2(a).65
It has been said that [a] cardinal rule in statutory construction is that
when the law is clear and free from any doubt or ambiguity, there is no
room for construction or interpretation. There is only room for
application.66
Clarifications, however, are in order.
First, verba legis or the so-called plain-meaning rule applies only when the
law is completely clear, such that there is absolutely no room for
interpretation. Its application is premised on a situation where the words
of the legislature are clear that its intention, insofar as the facts of a case
demand from the point of view of a contemporary interpretative
community, is neither vague nor ambiguous. This is a matter of judicial
appreciation. It cannot apply merely on a partys contention of supposed
clarity and lack of room for interpretation.
This is descriptive of the situation here.

Interestingly, both COMELEC and petitioners appeal to what they

(respectively) construe to be plainly evident from Section 5.2(a)s text: on
the part of COMELEC, that the use of the words paid for evinces no
distinction between direct purchasers and those who purchase via
subscription schemes; and, on the part of petitioners, that Section 5.2(a)s
desistance from actually using the word subscriber means that
subscribers are beyond its contemplation.67 The variance in the parties
positions, considering that they are both banking on what they claim to be
the Fair Election Acts plain meaning, is the best evidence of an extant
ambiguity.
Second, statutory construction cannot lend itself to pedantic rigor that
foments absurdity. The dangers of inordinate insistence on literal
interpretation are commonsensical and need not be belabored. These
dangers are by no means endemic to legal interpretation. Even in
everyday conversations, misplaced literal interpretations are fodder for
humor. A fixation on technical rules of grammar is no less innocuous. A
pompously doctrinaire approach to text can stifle, rather than facilitate,
the legislative wisdom that unbridled textualism purports to bolster. 68
Third, the assumption that there is, in all cases, a universal plain language
is erroneous. In reality, universality and uniformity of meaning is a rarity.
A contrary belief wrongly assumes that language is static.
The more appropriate and more effective approach is, thus, holistic rather
than parochial: to consider context and the interplay of the historical, the
contemporary, and even the envisioned. Judicial interpretation entails the
convergence of social realities and social ideals. The latter are meant to
be effected by the legal apparatus, chief of which is the bedrock of the
prevailing legal order: the Constitution. Indeed, the word in the vernacular
that describes the Constitution saligan demonstrates this imperative
of constitutional primacy.
Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation.
Here, we consider not an abstruse provision but a stipulation that is part
of the whole, i.e., the statute of which it is a part, that is aimed at
realizing the ideal of fair elections. We consider not a cloistered provision
but a norm that should have a present authoritative effect to achieve the
ideals of those who currently read, depend on, and demand fealty from
the Constitution.

VII
We note with favor COMELECs emphasis on the wide latitude of
discretion69 granted to it in the performance of its constitutional duty to
[e]nforce and administer all laws arid regulations relative to the conduct
of an election[.]70 But this is with the caution that it does not reach
grave abuse of discretion[.]71
Alliance for Nationalism and Democracy v. COMELEC72 had the following to
say regarding factual findings made by COMELEC, an independent
constitutional organ:
[T]he rule that factual findings of administrative bodies will not be
disturbed by courts of justice except when there is absolutely no evidence
or no substantial evidence in support of such findings should be applied
with greater force when it concerns the COMELEC, as the framers of the
Constitution intended to place the COMELECcreated and explicitly made
independent by the Constitution itselfon a level higher than statutory
administrative organs73.
Proceeding from this, we emphasize that this norm of deference applies
not only to factual findings. This applies with equal force to independent
constitutional organs general exercise of their functions. The
constitutional placing of independent constitutional organs on a plane
higher than those of administrative agencies created only by statute is not
restricted to competence in fact-finding. It extends to all purposes for
which the Constitution created them.
We reiterate, however, that our recognition of this deferential norm is
made with caution. This rule of deference does not give independent
constitutional organs, like COMELEC, license to gravely abuse their
discretion. With respect to rule-making, while the wisdom of subordinate
legislation or the rule-making power of agencies tasked with the
administration of government is acknowledged, rule-making agencies are
not given unfettered power to promulgate rules. As explained in Gerochi
v. Department of Energy,74 it is imperative that subordinate legislation
be germane to the objects and purposes of the law and that the
regulation be not in contradiction to, but in conformity with, the standards
prescribed by the law.75 A regulation that purports to effect a statute but
goes beyond the bounds of that statute is ultra vires; it is in excess of the
rule-making agencys competence. Thus, it is void and ineffectual.

This is not the case here. There is no grave abuse of discretion. Resolution
No. 9674 serves a constitutional purpose and works well within the
bounds of the Constitution and of statute.
VIII
Petitioners argue that Resolution No. 9674 constitutes a prior restraint in
that:
Resolution No. 9674 makes it an election offense for a survey firm not to
disclose the names of subscribers who have paid substantial amounts to
them, even if ihe survey portions provided to them have not been
published. 1his requirement is unduly burdensome and onerous and
constitutes a prior restraint on the right of survey firms to gather
information on public opinion and disseminate it to the citizenry.
. . . If Resolution No. 9674 is allowed to stand, survey firms will no longer
be able to operate because they will not have enough clients and will not
be financially sustainable. COMELEC will finally be able to do indirectly
what it could not do directly, which is to prohibit the conduct of election
surveys and the publication or dissemination of the results to the public. 76
Petitioners assertions are erroneous.
Chavez v. Gonzales77 explained the concept of prior restraint as follows:
Prior restraint refers to official governmental restrictions on the press or
other forms of expression in advance of actual publication or
dissemination. Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or
judicial branch of the government. Thus, it precludes governmental acts
that required approval of a proposal to publish; licensing or permits as
prerequisites to publication including the payment of license taxes for the
privilege to publish; and even injunctions against publication. Even the
closure of the business and printing offices of certain newspapers,
resulting in the discontinuation of their printing and publication, are
deemed as previous restraint or censorship. Any law or official that
requires some form of permission to be had before publication can be

made, commits an infringement of the constitutional right, and remedy

can be had at the courts.78 (Emphasis supplied, citations omitted)
The very definition of prior restraint negates petitioners assertions.
Resolution No. 9674 poses no prohibition or censorship specifically aimed
at election surveys. Apart from regulating the manner of publication,
petitioners remain free to publish election surveys. COMELEC correctly
points out that [t]he disclosure requirement kicks in only upon, not prior
to, publication.79
In any case, the requirement of disclosing subscribers is neither unduly
burdensome nor onerous. Prior to the promulgation of Resolution No.
9674, survey firms were already understood to be bound by the
requirement to disclose those who commissioned or paid for published
election surveys. Petitioners have been complying with this without
incident since the Fair Election Act was enacted in 2001. After more than a
decade of compliance, it is odd for petitioners to suddenly assail the
disclosure requirement as unduly burdensome or onerous.
Petitioners claim that [i]f Resolution No. 9674 is allowed to stand,
survey firms will no longer be able to operate because they will not have
enough clients and will not be financially sustainable80 is too speculative
and conjectural to warrant our consideration. The assumption is that
persons who want to avail of election survey results will automatically be
dissuaded from doing so when there is a requirement of submission of
their names during the campaign period. This is neither self-evident, nor a
presumption that is susceptible to judicial notice. There is no evidence to
establish a causal connection.
Petitioners free speech rights must be weighed in relation to the Fair
Election Acts purpose of ensuring political equality and, therefore, the
speech of others who want to participate unencumbered in our political
spaces. On one hand, there are petitioners right to publish and
publications which are attended by the interests of those who can employ
published data to their partisan ends. On the other, there is regulation
that may effect equality and, thus, strengthen the capacity of those on
societys margins or those who grope for resources to engage in the
democratic dialogue. The latter fosters the ideals of deliberative
democracy. It does not trump the former; rather, it provides the
environment where the survey groups free speech rights should reside.

IX
Petitioners argue that Resolution No. 9674 violates Article III, Section 10
of the 1987 Constitution.81 They claim that it unduly interferes with
[their] existing contracts . . . by forcing [them] to disclose information
that, under the contracts, is confidential or privileged.82
For its part, COMELEC argues that [t]he non-impairment clause of the
Constitution must yield to the loftier purposes sought to be achieved by
the government.83 It adds that [petitioners existing contracts with third
parties must be understood to have been made in reference to the
possible exercise of the COMELECs regulatory powers. 84
It is settled that the constitutional guaranty of non-impairment is
limited by the exercise of the police power of the State, in the interest of
public health, safety, morals and general welfare.85 It is a basic rule in
contracts that the law is deemed written into the contract between the
parties.86 The incorporation of regulations into contracts is a postulate
of the police power of the State.87
The relation of the states police power to the principle of non-impairment
of contracts was thoroughly explained in Ortigas and Co. V. Feati Bank:88
[W]hile non-impairment of contracts is constitutionally guaranteed, the
rule is not absolute, since it has to be reconciled with the legitimate
exercise of police power, i.e., the power to prescribe regulations to
promote the health, morals, peace, education, good order or safety and
general welfare of the people. Invariably described as the most
essential, insistent, and illimitable of powers and in a sense, the
greatest and most powerful attribute of government, the exercise of the
power may be judicially inquired into and corrected only if it is capricious,
whimsical, unjust or unreasonable, there having been a denial of due
process or a violation of any other applicable constitutional guarantee. As
this Court held through Justice Jose P. Bengzon in Philippine Long Distance
Company vs. City of Davao, et al. police power is elastic and must be
responsive to various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must follow
the legal progress of a democratic way of life. We were even more
emphatic in Vda. de Genuino vs. The Court of Agrarian Relations, et al,
when We declared: We do not see why public welfare when clashing with
the individual right to property should not be made to prevail through the
states exercise of its police power.89 (Citations omitted)

This case does not involve a capricious, whimsical, unjust or

unreasonable90 regulation. We have demonstrated that not only an
important or substantial state interest, but even a compelling one anchors
Resolution No. 9674s requirement of disclosing subscribers to election
surveys. It effects the constitutional policy of guarantee[ing] equal
access to opportunities for public service91 and is impelled by the
imperative of fair elections.
As a valid exercise of COMELECs regulatory powers, Resolution No. 9674
is correctly deemed written into petitioners existing contracts.
Parenthetically, the obligations of agreements manifested in the concept
of contracts are creations of law. This right to demand performance not
only involves its requisites, privileges, and regulation in the Civil Code or
special laws, but is also subject to the Constitution. The expectations
inherent in a contract may be compelling, but so are the normative
frameworks demanded by law and the provisions of the Constitution.
X
Petitioners point out that Section 13 of the Fair Election Act provides that
[r]ules and regulations promulgated by the COMELEC under and by
authority of this Section shall take effect on the seventh day after their
publication in at least two (2) daily newspapers of general circulation. In
contrast, Resolution No. 9674 provides that it shall take
effect immediately after publication.92 Thus, they assert that Resolution
No. 9674s effectivity clause is invalid. From this, they argue that
Resolution No. 9674 has not taken effect and cannot be enforced against
them or against other persons.93
COMELEC counters that Section 13 of the Fair Election Acts provision that
rules shall take effect on the seventh day after their publication applies
only to Resolution No. 9615, the Implementing Rules and Regulations (IRR)
of the Fair Election Act, and not to Resolution No. 9674, which merely
enforces Section 2694 of Resolution No. 9615.95
Noting that Resolution No. 9674 was nevertheless published in the
Philippine Daily Inquirer and the Philippine Star both on April 25, 2013,
COMELEC adds that, in any case, the lapse of the seven-day period from
the date of its publication has rendered the instant issue moot and
academic.96

It is COMELEC which is in error on this score. Section 13 of the Fair

Election Act reads:
Section 13. Authority of the COMELEC to Promulgate Rules; Election
Offenses. The COMELEC shall promulgate and furnish all political parties
and candidates and the mass media entities the rules and regulations for
the implementation of this Act, consistent with the criteria established in
Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus
Election Code (Batas Pambansa Bldg. 881).
Rules and regulations promulgated by the COMELEC under and by
authority of this Section shall take effect on the seventh day after their
publication in at least two (2) daily newspapers of general circulation.
Prior to effectivity of said rules and regulations, no political advertisement
or propaganda for or against any candidate or political party shall be
published or broadcast through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued
to implement this Act shall be an election offense punishable under the
first and second paragraphs of Section 264 of the Omnibus Election Code
(Batas Pambansa Bldg. 881). (Emphasis supplied)
Resolution No. 9615 is denominated Rules and Regulations Implementing
Republic Act No. 9006, otherwise known as the Fair Election Act, in
connection to [sic] the 13 May 2013 National and Local Elections, and
Subsequent Elections[.]
The only conceivable reason that would lead COMELEC to the conclusion
that it is only Resolution No. 9615 (and not the assailed Resolution No.
9674) that needs to comply with the requirement of Section 13 of the Fair
Election Act is Section 13s use of the phrase rules and regulations for
the implementation of this Act[.] That is, since Resolution No. 9615 is the
Resolution which, by name, is called the Rules and Regulations
Implementing Republic Act No. 9006, COMELEC seems to think that other
rules named differently need not comply.
It is an error to insist on this literal reasoning.

Section 13 applies to all rules and regulations implementing the Fair

Election Act, regardless of how they are denominated or called.
COMELECs further reasoning that what Resolution No. 9674 intends to
implement is Resolution No. 9615 and not the Fair Election Act itself is
nothing but a circuitous denial of Resolution No. 9674s true nature.
COMELECs reasoning is its own admission that the assailed Resolution
supplements what the Implementing Rules and Regulations of the Fair
Election Act provides. Ultimately, Resolution No. 9674 also implements the
Fair Election Act and must, thus, comply with the requirements of its
Section 13.
Accordingly, Resolution No. 9674 could not have become effective as soon
as it was published in the Philippine Daily Inquirer and the Philippine Star
on April 25, 2013. Taking into consideration the seven-day period required
by Section 13, the soonest that it could have come into effect was on May
2, 2013.
This notwithstanding, petitioners were not bound to comply with the
requirement to submit within three (3) days from receipt of this
Resolution the names of all commissioners and payors of surveys
published from February 12, 2013 to the date of the promulgation of this
Resolution[.]97 As shall be discussed, COMELECs (continuing) failure to
serve copies of Resolution No. 9674 on petitioners prevented this threeday period from even commencing.
XI
Petitioners point out that they were never served copies of Resolution No.
9674. Thus, they claim that this Resolutions self-stated three-day period
within which they must comply has not begun to run and that COMELECs
insistence on their compliance violates their right to due process. They
add that COMELEC has also failed to provide them with copies of the
criminal complaint subject of E.O. Case No. 13-222 for which the Subpoena
dated July 1, 2013 was issued against them.
COMELEC, however, insists that [petitioners were given fair notice of the
Resolution98 in that:
[t]he-Notice dated 08 May 2013 sent to and received by petitioners not
only makes reference to the Resolution by its number and title but also

indicates its date of promulgation, the two newspapers of general

circulation in which it was published, it date of publication, and, more
important [sic], reproduces in full its dispositive portion[.] 99
COMELEC adds that, in any case, petitioners were able to secure a
certified true copy of the [assailed] Resolution.100 On the filing of a
criminal complaint, COMELEC asserts that attached to the Subpoena
served on petitioners was a copy of Resolution No. 13-0739 of the
COMELEC En Bane which provides a verbatim reproduction of the
Memorandum of the Director of the Law Department detailing petitioners
failure to comply with the assailed Resolution and of the Memorandum of
Commissioner [Christian Robert S.] Lim submitting the matter for the
appropriate action of the COMELEC en bane.101
COMELEC relies on infirm reasoning and reveals how, in criminally
charging petitioners, it acted arbitrarily, whimsically, and capriciously, and
violated petitioners right to due process.
By its own reasoning, COMELEC admits that petitioners were never
actually served copies of Resolution No. 9674 after it was promulgated on
April 23, 2013. It insists, however, that this flaw has been remedied by
service to petitioners of the May 8, 2013 Notice which reproduced
Resolution No. 9674s dispositive portion.
Dismembering an official issuance by producing only a portion of it (even
if the reproduced portion is the most significant, i.e., dispositive, portion)
is not the same as serving on the concerned parties a copy of the official
issuance itself. Petitioners may have been informed of what the
dispositive portion stated, but it remains that they were never notified
and served copies of the assailed Resolution itself. In Resolution No.
9674s own words, compliance was expected within three (3) days from
receipt of this Resolution[,]102 not of its partial, dismembered,
reproduction.
Not having been served with copies of Resolution No. 9674 itself,
petitioners are right in construing the three-day period for compliance as
not having begun to run. From this, it follows that no violation of the
requirement to submit within three (3) days from receipt of this
Resolution the names of all commissioners and payors of surveys
published from February 12, 2013 to the date of the promulgation of this
Resolution[.]103 could have been committed. Thus, there was no basis for

considering petitioners to have committed an election offense arising from

this alleged violation.
It is of no consequence that the May 8, 2013 Notice warned petitioners
that failure to comply with it shall constitute an election offense
punishable under the first and second paragraphs of Section 264 of the
Omnibus Election Code.104 It is true that the Omnibus Election Code has
been in force and effect long before Resolution No. 9674 was
promulgated; nevertheless, the supposed violation of the Omnibus
Election Code rests on petitioners alleged non-compliance with Resolution
No. 9674. This is a matter which, as we have demonstrated, is baseless,
the three-day period for compliance not having even commenced.
It is similarly inconsequential that petitioners were subsequently able to
obtain certified true copies of Resolution No. 9674. Petitioners own
diligence in complying with the formal requirements of Rule 65 petitions
filed before this court cannot possibly be the cure for COMELECs inaction.
These certified true copies were secured precisely to enable petitioners to
assail COMELECs actions, not to validate them. It would be misguided to
subscribe to COMELECs suggestion that petitioners diligence should be
their own undoing. To accede to this would be to effectively intimidate
parties with legitimate grievances against government actions from taking
the necessary steps to comply with (formal) requisites for judicial
remedies and, ultimately, prevent them from protecting their rights.
COMELECs error is compounded by its failure to provide petitioners with
copies of the criminal complaint subject of E.O. Case No. 13-222. COMELEC
has neither alleged nor proven that it has done so. Per its own allegations,
all it did was serve petitioners with the May 8, 2013 Notice and the July 1,
2013 Subpoena.
These facts considered, it was not only grave error, but grave abuse of
discretion, for COMELEC to pursue unfounded criminal charges against
petitioners. In so doing, COMELEC violated petitioners right to due
process.
WHEREFORE, the Petition is PARTIALLY GRANTED in that COMELEC
Resolution No. 9674 is upheld, and respondent Commission on Elections
is ENJOINED from prosecuting petitioners Social Weather Stations, Inc. and
Pulse Asia, Inc. for their supposed violation of COMELEC Resolution No.

9674 in respect of their non-submission of the names of all commissioners

and payors, including subscribers, of surveys published during the
campaign period for the 2013 elections.
SO ORDERED.
LEONEN, J.:
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta,
Bersamin, Del Castillo, Perez, Mendoza, Reyes, andLeonen, JJ., concur.
Villarama, Jr., J., on official leave.
Perlas-Bernabe, J., on leave.
Jardeleza, J., no part, prior action as SolGen.
EN BANC, G.R. No. 208062, April 07, 2015, SOCIAL WEATHER STATIONS, INC.
AND PULSE ASIA, INC., PETITIONERS, VS. COMMISSION ON ELECTIONS,
RESPONDENT.
For The Purpose Of Determining Whether Judges Are Worthy Of Promotion To The
Next Level Court, It Would Be Premature Or Difficult To Assess Their Merit If They
Have Had Less Than One Year Of Service On The Bench...
July 4, 2015 by The Lawyer's Post
The Facts:
Judge Ferdinand Rivera Villanueva was appointed as MCTC Presiding Judge on
September 18, 2012. On September 27, 2013 he applied for the vacant position of
Presiding Judge in the Regional Trial Courts of Tagum City (Branch 31), Davao City
(Br. 13) and Prosperidad, Agusan del Sur (Br. 6). By letter of December 18, 2013,
the Judicial and Bar Councils Office of Recruitment, Selection and Nomination
informed him that his name was not included in the list of candidates for the said
stations. He moved to reconsider via electronic mail (e-mail), protesting the
exclusion of his name, as well as the inclusion of applicants who did not pass the
pre-judicature program. The JBC Executive Officer, again informed him by letter
that his protest and reconsideration was duly noted by the JBC; the reason his name
was not included was due to the JBCs long-standing policy of opening the chance

for promotion to second-level courts to other incumbent judges who have served in
their current position for at least five years; since the petitioner had been only a
judge for one year, he was not included in the list. Thus, Judge Rivera filed a
petition for certiorari and prohibition, mandamus and declaratory relief before the
Supreme Court. He asserts that the Constitution had already prescribed the
qualifications of an RTC judge to which the JBC could add no more. The policy
violates the equal protection and due process clause of the Constitution, as well as
its Social Justice and Human Rights for Equal Opportunity Employment. The
provision of RA 8557 particularly Section 10 thereof on pre-judicature program
should be mandatory, not merely directory; and that he has all the qualifications of
an RTC judge. In their Comment. The JBC and Office of the Solicitor General aver
that petitioner resorted to a wrong remedy to stop the JPC from performing its
principal functions under the Constitution as it was not performing a judicial or
quasi-judicial function; there was no violation of the equal protection and due
process clause; mandamus and declaratory relief also does not lie as there was no
clear legal right of the petitioner violated.
The Issue:
Whether the JBC policy of requiring five years service as first level judges before
they could be considered for promotion as second-level judges is constitutional.
The Ruling:
Procedural Issues:
Before resolving the substantive issues, the Court considers it necessary to first
determine whether or not the action for certiorari, prohibition and mandamus, and
declaratory relief commenced by the petitioner was proper.
One. The remedies of certiorari and prohibition are tenable. The present Rules of
Court uses two special civil actions for determining and correcting grave abuse of
discretion amounting to lack or excess of jurisdiction. These are the special civil
actions for certiorari and prohibition, and both are governed by Rule 65. 1 As
discussed in the case of Maria Carolina P. Araullo, etc., et al. v. Benigno Simeon C.
Aquino III, etc., et al.,2 this Court explained that:
With respect to the Court, however, the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may

be issued to correct errors of jurisdiction committed not only by a tribunal,

corporation, board or officer exercising judicial, quasi-judicial or ministerial functions
but also to set right, undo and restrain any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or instrumentality of the
Government, even if the latter does not exercise judicial, quasi-judicial or ministerial
functions. This application is expressly authorized by the text of the second
paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of legislative
and executive officials.3 (Citation omitted)
In this case, it is clear that the JBC does not fall within the scope of a tribunal, board,
or officer exercising judicial or quasi-judicial functions. In the process of selecting
and screening applicants, the JBC neither acted in any judicial or quasi-judicial
capacity nor assumed unto itself any performance of judicial or quasi-judicial
prerogative. However, since the formulation of guidelines and criteria, including the
policy that the petitioner now assails, is necessary and incidental to the exercise of
the JBCs constitutional mandate, a determination must be made on whether the JBC
has acted with grave abuse of discretion amounting to lack or excess of jurisdiction
in issuing and enforcing the said policy.
Besides, the Court can appropriately take cognizance of this case by virtue of the
Courts power of supervision over the JBC. Jurisprudence provides that the power of
supervision is the power of oversight, or the authority to see that subordinate
officers perform their duties. It ensures that the laws and the rules governing the
conduct of a government entity are observed and complied with. Supervising
officials see to it that rules are followed, but they themselves do not lay down such
rules, nor do they have the discretion to modify or replace them. If the rules are not
observed, they may order the work done or redone, but only to conform to such
rules. They may not prescribe their own manner of execution of the act. They have
no discretion on this matter except to see to it that the rules are followed. 4
Following this definition, the supervisory authority of the Court over the JBC is to see
to it that the JBC complies with its own rules and procedures. Thus, when the
policies of the JBC are being attacked, then the Court, through its supervisory
authority over the JBC, has the duty to inquire about the matter and ensure that the
JBC complies with its own rules.

Two. The remedy of mandamus cannot be availed of by the petitioner in assailing

JBCs policy. The petitioner insisted that mandamus is proper because his right was
violated when he was not included in the list of candidates for the RTC courts he
applied for. He said that his non-inclusion in the list of candidates for these stations
has caused him direct injury.
It is essential to the issuance of a writ of mandamus that the applicant should have
a clear legal right to the thing demanded and it must be the imperative duty of the
respondent to perform the act required.5 The petitioner bears the burden to show
that there is such a clear legal right to the performance of the act, and a
corresponding compelling duty on the part of the respondent to perform the act.
The remedy of mandamus, as an extraordinary writ, lies only to compel an officer to
perform a ministerial duty, not a discretionary one. 6 Clearly, the use of discretion
and the performance of a ministerial act are mutually exclusive.
The writ of mandamus does not issue to control or review the exercise of discretion
or to compel a course of conduct, which, it quickly seems to us, was what the
petitioner would have the JBC do in his favor. The function of the JBC to select and
recommend nominees for vacant judicial positions is discretionary, not ministerial.
Moreso, the petitioner cannot claim any legal right to be included in the list of
nominees for judicial vacancies. Possession of the constitutional and statutory
qualifications for appointment to the judiciary may not be used to legally demand
that ones name be included in the list of candidates for a judicial vacancy. Ones
inclusion in the list of the candidates depends on the discretion of the JBC, thus:
The fact that an individual possesses the constitutional and statutory qualifications
for appointment to the Judiciary does not create an entitlement or expectation that
his or her name be included in the list of candidates for a judicial vacancy. By
submitting an application or accepting a recommendation, one submits to the
authority of the JBC to subject the former to the search, screening, and selection
process, and to use its discretion in deciding whether or not one should be included
in the list. Indeed, assuming that if one has the legal right to be included in the list
of candidates simply because he or she possesses the constitutional and statutory
qualifications, then the application process would then be reduced to a mere
mechanical function of the JBC; and the search, screening, and selection process
would not only be unnecessary, but also improper. However, this is clearly not the
constitutional intent. Ones inclusion in the list of candidates is subject to the
discretion of the JBC over the selection of nominees for a particular judicial

post. Such candidates inclusion is not, therefore, a legally demandable right, but
simply a privilege the conferment of which is subject to the JBCs sound discretion.
Moreover, petitioner is essentially seeking a promotional appointment, that is, a
promotion from a first-level court to a second level court. There is no law, however,
that grants him the right to a promotion to second-level courts. 7 (Emphasis in the
original)
Clearly, to be included as an applicant to second-level judge is not properly
compellable by mandamus inasmuch as it involves the exercise of sound discretion
by the JBC.
Three. The petition for declaratory relief is improper. An action for declaratory relief
should be filed by a person interested under a deed, a will, a contract or other
written instrument, and whose rights are affected by a statute, an executive order,
a regulation or an ordinance. The relief sought under this remedy includes the
interpretation and determination of the validity of the written instrument and the
judicial declaration of the parties rights or duties thereunder. 8 [T]he purpose of
the action is to secure an authoritative statement of the rights and obligations of
the parties under a statute, deed, contract, etc., for their guidance in its
enforcement or compliance and not to settle issues arising from its alleged
breach.9
In this case, the petition for declaratory relief did not involve an unsound policy.
Rather, the petition specifically sought a judicial declaration that the petitioner has
the right to be included in the list of applicants although he failed to meet JBCs fiveyear requirement policy. Again, the Court reiterates that no person possesses a
legal right under the Constitution to be included in the list of nominees for vacant
judicial positions. The opportunity of appointment to judicial office is a mere
privilege, and not a judicially enforceable right that may be properly claimed by any
person. The inclusion in the list of candidates, which is one of the incidents of such
appointment, is not a right either. Thus, the petitioner cannot claim any right that
could have been affected by the assailed policy.
Furthermore, the instant petition must necessarily fail because this Court does not
have original jurisdiction over a petition for declaratory relief even if only questions
of law are involved.10 The special civil action of declaratory relief falls under the
exclusive jurisdiction of the appropriate RTC pursuant to Section 19 11 of Batas
Pambansa Blg. 129, as amended by R.A.No. 769112.

Therefore, by virtue of the Courts supervisory duty over the JBC and in the exercise
of its expanded judicial power, the Court assumes jurisdiction over the present
petition. But in any event, even if the Court will set aside procedural infirmities, the
instant petition should still be dismissed.
Substantive Issues
As an offspring of the 1987 Constitution, the JBC is mandated to recommend
appointees to the judiciary and only those nominated by the JBC in a list officially
transmitted to the President may be appointed by the latter as justice or judge in
the judiciary. Thus, the JBC is burdened with a great responsibility that is imbued
with public interest as it determines the men and women who will sit on the judicial
bench. While the 1987 Constitution has provided the qualifications of members of
the judiciary, this does not preclude the JBC from having its own set of rules and
procedures and providing policies to effectively ensure its mandate.
The functions of searching, screening, and selecting are necessary and incidental to
the JBCs principal function of choosing and recommending nominees for vacancies
in the judiciary for appointment by the President. However, the Constitution did not
lay down in precise terms the process that the JBC shall follow in determining
applicants qualifications. In carrying out its main function, the JBC has the authority
to set the standards/criteria in choosing its nominees for every vacancy in the
judiciary, subject only to the minimum qualifications required by the Constitution
and law for every position. The search for these long held qualities necessarily
requires a degree of flexibility in order to determine who is most fit among the
applicants. Thus, the JBC has sufficient but not unbridled license to act in performing
its duties.
JBCs ultimate goal is to recommend nominees and not simply to fill up judicial
vacancies in order to promote an effective and efficient administration of justice.
Given this pragmatic situation, the JBC had to establish a set of uniform criteria in
order to ascertain whether an applicant meets the minimum constitutional
qualifications and possesses the qualities expected of him and his office. Thus, the
adoption of the five-year requirement policy applied by JBC to the petitioners case
is necessary and incidental to the function conferred by the Constitution to the JBC.
Equal Protection

There is no question that JBC employs standards to have a rational basis to screen
applicants who cannot be all accommodated and appointed to a vacancy in the
judiciary, to determine who is best qualified among the applicants, and not to
discriminate against any particular individual or class.
The equal protection clause of the Constitution does not require the universal
application of the laws to all persons or things without distinction; what it requires is
simply equality among equals as determined according to a valid classification.
Hence, the Court has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, the classification stands as long as it bears a rational
relationship to some legitimate government end. 13
The equal protection clause, therefore, does not preclude classification of
individuals who may be accorded different treatment under the law as long as the
classification is reasonable and not arbitrary. 14 The mere fact that the legislative
classification may result in actual inequality is not violative of the right to equal
protection, for every classification of persons or things for regulation by law
produces inequality in some degree, but the law is not thereby rendered invalid. 15
That is the situation here. In issuing the assailed policy, the JBC merely exercised its
discretion in accordance with the constitutional requirement and its rules that a
member of the Judiciary must be of proven competence, integrity, probity and
independence.16 To ensure the fulfillment of these standards in every member of
the Judiciary, the JBC has been tasked to screen aspiring judges and justices, among
others, making certain that the nominees submitted to the President are all
qualified and suitably best for appointment. In this way, the appointing process
itself is shielded from the possibility of extending judicial appointment to the
undeserving and mediocre and, more importantly, to the ineligible or
disqualified.17
Consideration of experience by JBC as one factor in choosing recommended
appointees does not constitute a violation of the equal protection clause. The JBC
does not discriminate when it employs number of years of service to screen and
differentiate applicants from the competition. The number of years of service
provides a relevant basis to determine proven competence which may be measured
by experience, among other factors. The difference in treatment between lower
court judges who have served at least five years and those who have served less
than five years, on the other hand, was rationalized by JBC as follows:

Formulating policies which streamline the selection process falls squarely under the
purview of the JBC. No other constitutional body is bestowed with the mandate and
competency to set criteria for applicants that refer to the more general categories
of probity, integrity and independence.
The assailed criterion or consideration for promotion to a second-level court, which
is five years experience as judge of a first-level court, is a direct adherence to the
qualities prescribed by the Constitution. Placing a premium on many years of
judicial experience, the JBC is merely applying one of the stringent constitutional
standards requiring that a member of the judiciary be of proven competence. In
determining competence, the JBC considers, among other
qualifications, experience and performance.
Based on the JBCs collective judgment, those who have been judges of first-level
courts for five (5) years are better qualified for promotion to second-level courts. It
deems length of experience as a judge as indicative of conversance with the law
and court procedure. Five years is considered as a sufficient span of time for one to
acquire professional skills for the next level court, declog the dockets, put in place
improved procedures and an efficient case management system, adjust to the work
environment, and gain extensive experience in the judicial process.
A five-year stint in the Judiciary can also provide evidence of the integrity,
probity, and independence of judges seeking promotion. To merit JBCs nomination
for their promotion, they must have had a record of, and reputation for, honesty,
integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral and
ethical standards. Likewise, their decisions must be reflective of the soundness of
their judgment, courage, rectitude, cold neutrality and strength of character.
Hence, for the purpose of determining whether judges are worthy of promotion to
the next level court, it would be premature or difficult to assess their merit if they
have had less than one year of service on the bench. 18 (Citations omitted and
emphasis in the original)
At any rate, five years of service as a lower court judge is not the only factor that
determines the selection of candidates for RTC judge to be appointed by the
President. Persons with this qualification are neither automatically selected nor do
they automatically become nominees. The applicants are chosen based on an array
of factors and are evaluated based on their individual merits. Thus, it cannot be said
that the questioned policy was arbitrary, capricious, or made without any basis.

Clearly, the classification created by the challenged policy satisfies the rational
basis test. The foregoing shows that substantial distinctions do exist between lower
court judges with five year experience and those with less than five years of
experience, like the petitioner, and the classification enshrined in the assailed policy
is reasonable and relevant to its legitimate purpose. The Court, thus, rules that the
questioned policy does not infringe on the equal protection clause as it is based on
reasonable classification intended to gauge the proven competence of the
applicants. Therefore, the said policy is valid and constitutional.
Due Process
The petitioner averred that the assailed policy violates procedural due process for
lack of publication and non-submission to the University of the Philippines Law
Center Office of the National Administrative Register (ONAR). The petitioner said
that the assailed policy will affect all applying judges, thus, the said policy should
have been published.
Contrary to the petitioners contention, the assailed JBC policy need not be filed in
the ONAR because the publication requirement in the ONAR is confined to issuances
of administrative agencies under the Executive branch of the government. 19 Since
the JBC is a body under the supervision of the Supreme Court, 20 it is not covered by
the publication requirements of the Administrative Code.
Nevertheless, the assailed JBC policy requiring five years of service as judges of
first-level courts before they can qualify as applicants to second-level courts should
have been published. As a general rule, publication is indispensable in order that all
statutes, including administrative rules that are intended to enforce or implement
existing laws, attain binding force and effect. There are, however, several
exceptions to the requirement of publication, such as interpretative regulations and
those merely internal in nature, which regulate only the personnel of the
administrative agency and not the public. Neither is publication required of the socalled letters of instructions issued by administrative superiors concerning the rules
or guidelines to be followed by their subordinates in the performance of their
duties.21
Here, the assailed JBC policy does not fall within the administrative rules and
regulations exempted from the publication requirement. The assailed policy involves
a qualification standard by which the JBC shall determine proven competence of an
applicant. It is not an internal regulation, because if it were, it would regulate and

affect only the members of the JBC and their staff. Notably, the selection process
involves a call to lawyers who meet the qualifications in the Constitution and are
willing to serve in the Judiciary to apply to these vacant positions. Thus, it is but a
natural consequence thereof that potential applicants be informed of the
requirements to the judicial positions, so that they would be able to prepare for and
comply with them.
The Court also noted the fact that in JBC-009, otherwise known as the Rules of the
Judicial and Bar Council, the JBC had put its criteria in writing and listed the
guidelines in determining competence, independence, integrity and probity. Section
1, Paragraph 1 of Rule 9 expressly provides that applicants for the Court of Appeals
and the Sandiganbayan, should, as a general rule, have at least five years of
experience as an RTC judge, thus:
RULE 9 SPECIAL GUIDELINES FOR NOMINATION TO A VACANCY IN THE COURT OF
APPEALS AND SANDIGANBAYAN
Section 1. Additional criteria for nomination to the Court of Appeals and the
Sandiganbayan. In addition to the foregoing guidelines the Council should consider
the following in evaluating the merits of applicants for a vacancy in the Court of
Appeals andSandiganbayan:
1. As a general rule, he must have at least five years of experience as a judge of
Regional Trial Court, except when he has in his favor outstanding credentials, as
evidenced by, inter alia, impressive scholastic or educational record and
performance in the Bar examinations, excellent reputation for honesty, integrity,
probity and independence of mind; at least very satisfactory performance rating for
three (3) years preceding the filing of his application for nomination; and excellent
potentials for appellate judgeship.
x x x x (Emphasis ours)
The express declaration of these guidelines in JBC-009, which have been duly
published on the website of the JBC and in a newspaper of general circulation
suggests that the JBC is aware that these are not mere internal rules, but are rules
implementing the Constitution that should be published. Thus, if the JBC were sominded to add special guidelines for determining competence of applicants for RTC
judges, then it could and should have amended its rules and published the same.

This, the JBC did not do as JBC-009 and its amendatory rule do not have special
guidelines for applicants to the RTC.
Moreover, jurisprudence has held that rules implementing a statute should be
published. Thus, by analogy, publication is also required for the five-year
requirement because it seeks to implement a constitutional provision requiring
proven competence from members of the judiciary.
Nonetheless, the JBCs failure to publish the assailed policy has not prejudiced the
petitioners private interest. At the risk of being repetitive, the petitioner has no
legal right to be included in the list of nominees for judicial vacancies since the
possession of the constitutional and statutory qualifications for appointment to the
Judiciary may not be used to legally demand that ones name be included in the list
of candidates for a judicial vacancy. Ones inclusion in the shortlist is strictly within
the discretion of the JBC.22
As to the issue that the JBC failed or refused to implement the completion of the
prejudicature program as a requirement for appointment or promotion in the
judiciary under R.A. No. 8557, this ground of the petition, being unsubstantiated,
was unfounded. Clearly, it cannot be said that JBC unlawfully neglects the
performance of a duty enjoined by law.
Finally, the petitioner argued but failed to establish that the assailed policy violates
the constitutional provision under social justice and human rights for equal
opportunity of employment. The OSG explained:
[T]he questioned policy does not violate equality of employment opportunities. The
constitutional provision does not call for appointment to the Judiciary of all who
might, for any number of reasons, wish to apply. As with all professions, it is
regulated by the State. The office of a judge is no ordinary office. It is imbued with
public interest and is central in the administration of justice x x x. Applicants who
meet the constitutional and legal qualifications must vie and withstand the
competition and rigorous screening and selection process. They must submit
themselves to the selection criteria, processes and discretion of respondent JBC,
which has the constitutional mandate of screening and selecting candidates whose
names will be in the list to be submitted to the President. So long as a fair
opportunity is available for all applicants who are evaluated on the basis of their
individual merits and abilities, the questioned policy cannot be struck down as
unconstitutional.23 (Citations omitted)

From the foregoing, it is apparent that the petitioner has not established a clear
legal right to justify the issuance of a preliminary injunction. The petitioner has
merely filed an application with the JBC for the position of RTC judge, and he has no
clear legal right to be nominated for that office nor to be selected and included in
the list to be submitted to the President which is subject to the discretion of the JBC.
The JBC has the power to determine who shall be recommended to the judicial post.
To be included in the list of applicants is a privilege as one can only be chosen under
existing criteria imposed by the JBC itself. As such, prospective applicants, including
the petitioner, cannot claim any demandable right to take part in it if they fail to
meet these criteria. Hence, in the absence of a clear legal right, the issuance of an
injunctive writ is not justified.
As the constitutional body granted with the power of searching for, screening, and
selecting applicants relative to recommending appointees to the Judiciary, the JBC
has the authority to determine how best to perform such constitutional mandate.
Pursuant to this authority, the JBC issues various policies setting forth the guidelines
to be observed in the evaluation of applicants, and formulates rules and guidelines
in order to ensure that the rules are updated to respond to existing circumstances.
Its discretion is freed from legislative, executive or judicial intervention to ensure
that the JBC is shielded from any outside pressure and improper influence. Limiting
qualified applicants in this case to those judges with five years of experience was an
exercise of discretion by the JBC. The potential applicants, however, should have
been informed of the requirements to the judicial positions, so that they could
properly prepare for and comply with them. Hence, unless there are good and
compelling reasons to do so, the Court will refrain from interfering with the exercise
of JBCs powers, and will respect the initiative and independence inherent in the
latter.
WHEREFORE, premises considered, the petition is DISMISSED. The Court,
however, DIRECTS that the Judicial and Bar Council comply with the publication
requirement of (1) the assailed policy requiring five years of experience as judges of
first-level courts before they can qualify as applicant to the Regional Trial Court, and
(2) other special guidelines that the Judicial and Bar Council is or will be
implementing.
SO ORDERED.
REYES, J.:

Sereno, C. J., no part.

Carpio, Velasco, Jr., Bersamin, Del Castillo, Perez, and Mendoza, JJ., concur.
Leonardo-De Castro, J., I concur and also join the concurring opinion of Justice Brion.
Brion, J., see concurring opinion.
Peralta, J., I join the opinion of J. Brion.
Villarama, Jr., J., on official leave.
Perlas-Bernabe, J., on leave.
Leonen, J., see separate concurring opinion.
Jardeleza, J., no part.
EN BANC, G.R. No. 211833, April 07, 2015, FERDINAND R. VILLANUEVA, PRESIDING
JUDGE, MCTC, COMPOSTELA-NEW BATAAN, COMPOSTELA VALLEY PROVINCE,
PETITIONER, VS. JUDICIAL AND BAR COUNCIL, RESPONDENT.
Joseph Estrada Disqualification Case: The Power Of The President To Grant Pardon
Cannot Be Limited By Legislative Action
July 2, 2015 by The Lawyer's Post
The Facts:
Former president Joseph Estrada was convicted by the Sandiganbayan for the crime
of plunder on September 12, 2007. On October 25, 2007, however, then President
Gloria Macapagal Arroyo extended executive clemency by way of pardon to Estrada,
the text of which reads:
MALACAAN PALACE
MANILA
By the President of the Philippines
PARDON

WHEREAS, this Administration has a policy of releasing inmates who have reached
the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half
years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency toJOSEPH EJERCITO ESTRADA,
convicted by the Sandiganbayan of Plunder and imposed a penalty of Reclusion
Perpetua. He is hereby restored to his civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in force and in full, including
all writs and processes issued by the Sandiganbayan in pursuance hereof, except
for the bank account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall
take effect.
Given under my hand at the City of Manila, this 25th Day of October, in the year
of Our Lord, two thousand and seven.
Gloria M. Arroyo (sgd.)
When Joseph Estada ran for president in 2010, several petitions were filed against
his candidacy before the Commission on Elections. All cases were dismissed by the
COMELEC, the latter ruling that Estrada is qualified to run for president because a)
the Consittutional proscription for reelection to the presidency applies only to a
sitting president, and b) Joseph Estrada was restored to his full civil and political
rights by virtue of the pardon extended to him by President Arroyo. Only the case of
Evilio Pormento reached the Supreme Court but it was dismissed due to mootness
as Estrada only placed second in the 2010 presidential elections.
In the 2013 elections, Estrada filed his certificate of candidacy for mayor of the city
of Manila on October 2, 2012. Hence, Atty Alicia Risos-Vidal filed a Petition for
Disqualification against Estrada, averring that Section 40 of the Local Government
Code in relation to Section 12 of the Omnibus Election Code disqualifies him as a

candidate and points out that that the pardon granted to former President Estrada
was conditional as evidenced by the latters express acceptance thereof. The
acceptance, she claims, is an indication of the conditional nature of the pardon,
with the condition being embodied in the third Whereas Clause of the pardon,i.e.,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office. She explains that the aforementioned commitment was
what impelled former President Arroyo to pardon former President Estrada, without
it, the clemency would not have been extended. And any breach thereof, that is,
when former President Estrada filed his Certificate of Candidacy for President and
Mayor of the City of Manila, he breached the condition of the pardon; hence, he
ought to be recommitted to prison to serve the unexpired portion of his sentence x
x x and disqualifies him as a candidate for the mayoralty [position] of Manila..
Even so, the reason Estrada was disqualified was by virtue of Section 40 of the LGC
in relation to Section 12, OEC. Plunder being an offence punishable by
imprisonment of more than one year and an offence involving moral turpitude, thus
Estrada is disqualified to run for public office. The pardon extended to Estrada,
according to her, was merely conditional, not absolute, in accordance with Section
36 and 41 of the Revised Penal Code., It is not enough that a pardon makes a
general statement that such pardon carries with it the restoration of civil and
political rights. By virtue of Articles 36 and 41, a pardon restoring civil and political
rights without categorically making mention what specific civil and political rights
are restored shall not work to restore the right to hold public office, or the right of
suffrage; nor shall it remit the accessory penalties of civil interdiction and perpetual
absolute disqualification for the principal penalties of reclusion
perpetua and reclusion temporal. In other words, she considers the above
constraints as mandatory requirements that shun a general or implied restoration of
civil and political rights in pardons.
The Comelec ruled against her, invoking its previous decisions in the earlier cases
against Estrada, that he is qualified to run for public office and the pardon extended
to him was absolute, not conditional.
Risos-Vidal elevated the case to the Supreme Court.
The Issue:
Whether or not Joseph Estrada is qualified to run and be elected to public office
despite his conviction for the crime of plunder as a result of the plunder given to
him by President Arroyo.

The Ruling:
Though raising five seemingly separate issues for resolution, the petition filed by
Risos-Vidal actually presents only one essential question for resolution by the Court,
that is, whether or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that former President Estrada is
qualified to vote and be voted for in public office as a result of the pardon granted
to him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out that the pardon
granted to former President Estrada was conditional as evidenced by the latters
express acceptance thereof. The acceptance, she claims, is an indication of the
conditional nature of the pardon, with the condition being embodied in the
third Whereas Clause of the pardon, i.e., WHEREAS, Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or office. She explains
that the aforementioned commitment was what impelled former President Arroyo to
pardon former President Estrada, without it, the clemency would not have been
extended. And any breach thereof, that is, when former President Estrada filed his
Certificate of Candidacy for President and Mayor of the City of Manila, he breached
the condition of the pardon; hence, he ought to be recommitted to prison to serve
the unexpired portion of his sentence x x x and disqualifies him as a candidate for
the mayoralty [position] of Manila.1
Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former
President Estrada must be disqualified from running for and holding public elective
office is actually the proscription found in Section 40 of the LGC, in relation to
Section 12 of the OEC. She argues that the crime of plunder is both an offense
punishable by imprisonment of one year or more and involving moral turpitude;
such that former President Estrada must be disqualified to run for and hold public
elective office.
Even with the pardon granted to former President Estrada, however, Risos-Vidal
insists that the same did not operate to make available to former President Estrada
the exception provided under Section 12 of the OEC, the pardon being merely
conditional and not absolute or plenary.
Moreover, Risos-Vidal puts a premium on the ostensible requirements provided
under Articles 36 and 41 of the Revised Penal Code, to wit:

ART. 36. Pardon; its effects. A pardon shall not work the restoration of the right to
hold public office, or the right of suffrage,unless such rights be expressly restored
by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity
imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal Their accessory penalties.
The penalties of reclusion perpetua andreclusion temporal shall carry with them
that of civil interdiction for life or during the period of the sentence as the case may
be, and that of perpetual absolute disqualification which the offender shall
suffer even though pardoned as to the principal penalty, unless the same shall have
been expressly remitted in the pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is not enough that a
pardon makes a general statement that such pardon carries with it the restoration
of civil and political rights. By virtue of Articles 36 and 41, a pardon restoring civil
and political rights without categorically making mention what specific civil and
political rights are restored shall not work to restore the right to hold public office,
or the right of suffrage; nor shall it remit the accessory penalties of civil interdiction
and perpetual absolute disqualification for the principal penalties of reclusion
perpetua and reclusion temporal.2 In other words, she considers the above
constraints as mandatory requirements that shun a general or implied restoration of
civil and political rights in pardons.
Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and
Florentino P. Feliciano in Monsanto v. Factoran, Jr.3 to endorse her position that
[t]he restoration of the right to hold public office to one who has lost such right by
reason of conviction in a criminal case, but subsequently pardoned, cannot be left to
inference, no matter how intensely arguable, but must be stated in express, explicit,
positive and specific language.
Applying Monsanto to former President Estradas case, Risos-Vidal reckons that
such express restoration is further demanded by the existence of the condition in
the [third] [W]hereas [C]lause of the pardon x x x indubitably indicating that the
privilege to hold public office was not restored to him. 4

On the other hand, the Office of the Solicitor General (OSG) for public respondent
COMELEC, maintains that the issue of whether or not the pardon extended to
[former President Estrada] restored his right to run for public office had already
been passed upon by public respondent COMELEC way back in 2010 via its rulings
in SPA Nos. 09-024, 09-028 and 09-104, there is no cogent reason for it to reverse
its standing pronouncement and declare [former President Estrada] disqualified to
run and be voted as mayor of the City of Manila in the absence of any new
argument that would warrant its reversal. To be sure, public respondent COMELEC
correctly exercised its discretion in taking judicial cognizance of the aforesaid
rulings which are known to it and which can be verified from its own records, in
accordance with Section 2, Rule 129 of the Rules of Court on the courts
discretionary power to take judicial notice of matters which are of public knowledge,
or are capable of unquestionable demonstration, or ought to be known to them
because of their judicial functions. 5
Further, the OSG contends that [w]hile at first glance, it is apparent that [former
President Estradas] conviction for plunder disqualifies him from running as mayor
of Manila under Section 40 of the [LGC], the subsequent grant of pardon to him,
however, effectively restored his right to run for any public office. 6 The restoration
of his right to run for any public office is the exception to the prohibition under
Section 40 of the LGC, as provided under Section 12 of the OEC. As to the seeming
requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the express
restoration/remission of a particular right to be stated in the pardon, the OSG
asserts that an airtight and rigid interpretation of Article 36 and Article 41 of the
[RPC] x x x would be stretching too much the clear and plain meaning of the
aforesaid provisions.7 Lastly, taking into consideration the third Whereas Clause of
the pardon granted to former President Estrada, the OSG supports the position that
it is not an integral part of the decree of the pardon and cannot therefore serve to
restrict its effectivity.8
Thus, the OSG concludes that the COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions.9
For his part, former President Estrada presents the following significant arguments
to defend his stay in office: that the factual findings of public respondent
COMELEC, the Constitutional body mandated to administer and enforce all laws
relative to the conduct of the elections, [relative to the absoluteness of the pardon,

the effects thereof, and the eligibility of former President Estrada to seek public
elective office] are binding [and conclusive] on this Honorable Supreme Court; that
he was granted an absolute pardon and thereby restored to his full civil and
political rights, including the right to seek public elective office such as the mayoral
(sic) position in the City of Manila; that the majority decision in the case
of Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr., which was erroneously cited
by both Vidal and Lim as authority for their respective claims, x x x reveal that there
was no discussion whatsoever in the ratio decidendi of the Monsanto case as to the
alleged necessity for an expressed restoration of the right to hold public office in
the pardon as a legal pre-requisite to remove the subject perpetual special
disqualification; that moreover, the principal question raised in
this Monsanto case is whether or not a public officer, who has been granted an
absolute pardon by the Chief Executive, is entitled to reinstatement to her former
position without need of a new appointment; that his expressed acceptance [of
the pardon] is not proof that the pardon extended to [him] is conditional and not
absolute; that this case is a mere rehash of the cases filed against him during his
candidacy for President back in 2009-2010; that Articles 36 and 41 of the Revised
Penal Code cannot abridge or diminish the pardoning power of the President
expressly granted by the Constitution; that the text of the pardon granted to him
substantially, if not fully, complied with the requirement posed by Article 36 of the
Revised Penal Code as it was categorically stated in the said document that he was
restored to his civil and political rights; that since pardon is an act of grace, it
must be construed favorably in favor of the grantee; 10 and that his disqualification
will result in massive disenfranchisement of the hundreds of thousands of Manileos
who voted for him.11
The Courts Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that fully restored all his
civil and political rights, which naturally includes the right to seek public elective
office, the focal point of this controversy. The wording of the pardon extended to
former President Estrada is complete, unambiguous, and unqualified. It is likewise
unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable,
objective, and constitutional interpretation of the language of the pardon is that the
same in fact conforms to Articles 36 and 41 of the Revised Penal Code.

Recall that the petition for disqualification filed by Risos-Vidal against former
President Estrada, docketed as SPA No. 13-211 (DC), was anchored on Section 40 of
the LGC, in relation to Section 12 of the OEC, that is, having been convicted of a
crime punishable by imprisonment of one year or more, and involving moral
turpitude, former President Estrada must be disqualified to run for and hold public
elective office notwithstanding the fact that he is a grantee of a pardon that
includes a statement expressing [h]e is hereby restored to his civil and political
rights.
Risos-Vidal theorizes that former President Estrada is disqualified from running for
Mayor of Manila in the May 13, 2013 Elections, and remains disqualified to hold any
local elective post despite the presidential pardon extended to him in 2007 by
former President Arroyo for the reason that it (pardon) did not expressly provide for
the remission of the penalty of perpetual absolute disqualification, particularly the
restoration of his (former President Estrada) right to vote and be voted upon for
public office. She invokes Articles 36 and 41 of the Revised Penal Code as the
foundations of her theory.
It is insisted that, since a textual examination of the pardon given to and accepted
by former President Estrada does not actually specify which political right is
restored, it could be inferred that former President Arroyo did not deliberately intend
to restore former President Estradas rights of suffrage and to hold public office, or
to otherwise remit the penalty of perpetual absolute disqualification. Even if her
intention was the contrary, the same cannot be upheld based on the pardons text.
The pardoning power of the President cannot be limited by legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article
IX-C, provides that the President of the Philippines possesses the power to grant
pardons, along with other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of
all the Members of the Congress.
xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of

election laws, rules, and regulations shall be granted by the President without the
favorable recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that the only instances in
which the President may not extend pardon remain to be in: (1) impeachment
cases; (2) cases that have not yet resulted in a final conviction; and (3) cases
involving violations of election laws, rules and regulations in which there was no
favorable recommendation coming from the COMELEC. Therefore, it can be argued
that any act of Congress by way of statute cannot operate to delimit the pardoning
power of the President.
In Cristobal v. Labrador12 and Pelobello v. Palatino,13 which were decided under the
1935 Constitution, wherein the provision granting pardoning power to the President
shared similar phraseology with what is found in the present 1987 Constitution, the
Court then unequivocally declared that subject to the limitations imposed by the
Constitution, the pardoning power cannot be restricted or controlled by legislative
action. The Court reiterated this pronouncement in Monsanto v. Factoran,
Jr.14 thereby establishing that, under the present Constitution, a pardon, being a
presidential prerogative, should not be circumscribed by legislative action. Thus, it
is unmistakably the long-standing position of this Court that the exercise of the
pardoning power is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided for by the
Constitution.
This doctrine of non-diminution or non-impairment of the Presidents power of
pardon by acts of Congress, specifically through legislation, was strongly adhered to
by an overwhelming majority of the framers of the 1987 Constitution when they
flatly rejected a proposal to carve out an exception from the pardoning power of the
President in the form of offenses involving graft and corruption that would be
enumerated and defined by Congress through the enactment of a law. The following
is the pertinent portion lifted from the Record of the Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an
amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:

However, the power to grant executive clemency for violations of corrupt practices
laws may be limited by legislation.
I suggest that this be deleted on the grounds that, first, violations of corrupt
practices may include a very little offense like stealing P10; second, which I think is
more important, I get the impression, rightly or wrongly, that subconsciously we are
drafting a constitution on the premise that all our future Presidents will be bad and
dishonest and, consequently, their acts will be lacking in wisdom. Therefore, this
Article seems to contribute towards the creation of an anti-President Constitution or
a President with vast responsibilities but no corresponding power except to declare
martial law. Therefore, I request that these lines be deleted.
MR. REGALADO. Madam President, may the Committee react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of Commissioner Davide
because of the fact that similar to the provisions on the Commission on Elections,
the recommendation of that Commission is required before executive clemency is
granted because violations of the election laws go into the very political life of the
country.
With respect to violations of our Corrupt Practices Law, we felt that it is also
necessary to have that subjected to the same condition because violation of our
Corrupt Practices Law may be of such magnitude as to affect the very economic
system of the country. Nevertheless, as a compromise, we provided here that it will
be the Congress that will provide for the classification as to which convictions will
still require prior recommendation; after all, the Congress could take into account
whether or not the violation of the Corrupt Practices Law is of such magnitude as to
affect the economic life of the country, if it is in the millions or billions of dollars. But
I assume the Congress in its collective wisdom will exclude those petty crimes of
corruption as not to require any further stricture on the exercise of executive
clemency because, of course, there is a whale of a difference if we consider a lowly
clerk committing malversation of government property or funds involving one
hundred pesos. But then, we also anticipate the possibility that the corrupt practice
of a public officer is of such magnitude as to have virtually drained a substantial
portion of the treasury, and then he goes through all the judicial processes and later
on, a President who may have close connections with him or out of improvident
compassion may grant clemency under such conditions. That is why we left it to

Congress to provide and make a classification based on substantial distinctions

between a minor act of corruption or an act of substantial proportions.
SR. TAN. So, why do we not just insert the word GROSS or GRAVE before the word
violations?
MR. REGALADO. We feel that Congress can make a better distinction because
GRAVE or GROSS can be misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is essentially an executive
power, and that is precisely why it is called executive clemency. In this sentence,
which the amendment seeks to delete, an exception is being made. Congress, which
is the legislative arm, is allowed to intrude into this prerogative of the
executive. Then it limits the power of Congress to subtract from this prerogative of
the President to grant executive clemency by limiting the power of Congress to only
corrupt practices laws. There are many other crimes more serious than these. Under
this amendment, Congress cannot limit the power of executive clemency in cases of
drug addiction and drug pushing which are very, very serious crimes that can
endanger the State; also, rape with murder, kidnapping and treason. Aside from the
fact that it is a derogation of the power of the President to grant executive
clemency, it is also defective in that it singles out just one kind of crime. There are
far more serious crimes which are not included.
MR. REGALADO. I will just make one observation on that. We admit that the
pardoning power is an executive power. But even in the provisions on the COMELEC,
one will notice that constitutionally, it is required that there be a favorable
recommendation by the Commission on Elections for any violation of election laws.
At any rate, Commissioner Davide, as the principal proponent of that and as a
member of the Committee, has explained in the committee meetings we had why

he sought the inclusion of this particular provision. May we call on Commissioner

Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the proposal. We have just
approved the Article on Accountability of Public Officers. Under it, it is mandated
that a public office is a public trust, and all government officers are under obligation
to observe the utmost of responsibility, integrity, loyalty and efficiency, to lead
modest lives and to act with patriotism and justice.
In all cases, therefore, which would go into the very core of the concept that a
public office is a public trust, the violation is itself a violation not only of the
economy but the moral fabric of public officials. And that is the reason we now want
that if there is any conviction for the violation of the Anti-Graft and Corrupt Practices
Act, which, in effect, is a violation of the public trust character of the public office,
no pardon shall be extended to the offender, unless some limitations are imposed.
Originally, my limitation was, it should be with the concurrence of the convicting
court, but the Committee left it entirely to the legislature to formulate the
mechanics at trying, probably, to distinguish between grave and less grave or
serious cases of violation of the Anti-Graft and Corrupt Practices Act. Perhaps this is
now the best time, since we have strengthened the Article on Accountability of
Public Officers, to accompany it with a mandate that the Presidents right to grant
executive clemency for offenders or violators of laws relating to the concept of a
public office may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is recognized.
MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.
Madam President, over and over again, we have been saying and arguing before
this Constitutional Commission that we are emasculating the powers of the
presidency, and this provision to me is another clear example of that. So, I speak

against this provision. Even the 1935 and the 1973 Constitutions do not provide for
this kind of provision.
I am supporting the amendment by deletion of Commissioner Tan.
MR. ROMULO. Commissioner Tingson would like to be recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the amendment by deletion
because I am in sympathy with the stand of Commissioner Francisco Soc Rodrigo.
I do believe and we should remember that above all the elected or appointed
officers of our Republic, the leader is the President. I believe that the country will be
as the President is, and if we systematically emasculate the power of this
presidency, the time may come when he will be also handcuffed that he will no
longer be able to act like he should be acting.
So, Madam President, I am in favor of the deletion of this particular line.
MR. ROMULO. Commissioner Colayco would like to be recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to recommend the approval of
proposals, but now I find that the proposal of Commissioner Tan is worthy of
approval of this body.
Why are we singling out this particular offense? There are other crimes which cast a
bigger blot on the moral character of the public officials.
Finally, this body should not be the first one to limit the almost absolute power of
our Chief Executive in deciding whether to pardon, to reprieve or to commute the
sentence rendered by the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?

MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will
be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been
called the Anti-Graft Court, so if this is allowed to stay, it would mean that the
Presidents power to grant pardon or reprieve will be limited to the cases decided by
the Anti-Graft Court, when as already stated, there are many provisions in the
Revised Penal Code that penalize more serious offenses.
Moreover, when there is a judgment of conviction and the case merits the
consideration of the exercise of executive clemency, usually under Article V of the
Revised Penal Code the judge will recommend such exercise of clemency. And so, I
am in favor of the amendment proposed by Commissioner Tan for the deletion of
this last sentence in Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which will again chip more powers
from the President. In case of other criminals convicted in our society, we extend
probation to them while in this case, they have already been convicted and we offer
mercy. The only way we can offer mercy to them is through this executive clemency
extended to them by the President. If we still close this avenue to them, they would
be prejudiced even worse than the murderers and the more vicious killers in our
society.I do not think they deserve this opprobrium and punishment under the new
Constitution.
I am in favor of the proposed amendment of Commissioner Tan.
MR. ROMULO. We are ready to vote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?

MR. REGALADO. The Committee, Madam President, prefers to submit this to the
floor and also because of the objection of the main proponent, Commissioner
Davide. So we feel that the Commissioners should vote on this question.
VOTING
THE PRESIDENT. As many as are in favor of the proposed amendment of
Commissioner Tan to delete the last sentence of Section 17 appearing on lines 7, 8
and 9, please raise their hand. (Several Members raised their hand.)
As many as are against, please raise their hand. (Few Members raised their hand.)
The results show 34 votes in favor and 4 votes against; the amendment is
approved.15 (Emphases supplied.)
The proper interpretation of Articles 36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the
Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon persons convicted of violating
penal statutes.
The Court cannot subscribe to Risos-Vidals interpretation that the said Articles
contain specific textual commands which must be strictly followed in order to free
the beneficiary of presidential grace from the disqualifications specifically
prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Pardon; its effects. A pardon shall not work the restoration of the right to
hold public office, or the right of suffrage,unless such rights be expressly restored
by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity
imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal Their accessory penalties.
The penalties of reclusion perpetua andreclusion temporal shall carry with them

that of civil interdiction for life or during the period of the sentence as the case may
be, and that of perpetual absolute disqualification which the offender shall
suffer even though pardoned as to the principal penalty, unless the same shall have
been expressly remitted in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as proposed by RisosVidal, is unwarranted, especially so if it will defeat or unduly restrict the power of
the President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal meaning and applied
without attempted interpretation. Verba legis non est recedendum. From the words
of a statute there should be no departure. 16 It is this Courts firm view that the
phrase in the presidential pardon at issue which declares that former President
Estrada is hereby restored to his civil and political rights substantially complies
with the requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos-Vidal that there was
no express remission and/or restoration of the rights of suffrage and/or to hold
public office in the pardon granted to former President Estrada, as required by
Articles 36 and 41 of the Revised Penal Code.
Justice Leonen posits in his Dissent that the aforementioned codal provisions must
be followed by the President, as they do not abridge or diminish the Presidents
power to extend clemency. He opines that they do not reduce the coverage of the
Presidents pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form. They only
provide a procedural prescription. They are not concerned with areas where or the
instances when the President may grant pardon; they are only concerned
with how he or she is to exercise such power so that no other governmental
instrumentality needs to intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes to include in
the pardon the restoration of the rights of suffrage and to hold public office, or the
remission of the accessory penalty of perpetual absolute disqualification, he or she
should do so expressly. Articles 36 and 41 only ask that the President state his or
her intentions clearly, directly, firmly, precisely, and unmistakably. To belabor the

point, the President retains the power to make such restoration or remission, subject
to a prescription on the manner by which he or she is to state it.17
With due respect, I disagree with the overbroad statement that Congress may
dictate as to how the President may exercise his/her power of executive clemency.
The form or manner by which the President, or Congress for that matter, should
exercise their respective Constitutional powers or prerogatives cannot be interfered
with unless it is so provided in the Constitution. This is the essence of the principle
of separation of powers deeply ingrained in our system of government which
ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally
allocated sphere.18 Moreso, this fundamental principle must be observed if noncompliance with the form imposed by one branch on a co-equal and coordinate
branch will result into the diminution of an exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in
a way that will give full effect to the executive clemency granted by the President,
instead of indulging in an overly strict interpretation that may serve to impair or
diminish the import of the pardon which emanated from the Office of the President
and duly signed by the Chief Executive himself/herself. The said codal provisions
must be construed to harmonize the power of Congress to define crimes and
prescribe the penalties for such crimes and the power of the President to grant
executive clemency. All that the said provisions impart is that the pardon of the
principal penalty does not carry with it the remission of the accessory penalties
unless the President expressly includes said accessory penalties in the pardon. It
still recognizes the Presidential prerogative to grant executive clemency and,
specifically, to decide to pardon the principal penalty while excluding its accessory
penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the
pardon so decided upon by the President on the penalties imposed in accordance
with law.
A close scrutiny of the text of the pardon extended to former President Estrada
shows that both the principal penalty of reclusion perpetua and its accessory
penalties are included in the pardon. The first sentence refers to the executive
clemency extended to former President Estrada who was convicted by the
Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter
is the principal penalty pardoned which relieved him of imprisonment. The sentence
that followed, which states that (h)e is hereby restored to his civil and political

rights, expressly remitted the accessory penalties that attached to the principal
penalty ofreclusion perpetua. Hence, even if we apply Articles 36 and 41 of the
Revised Penal Code, it is indubitable from the text of the pardon that the accessory
penalties of civil interdiction and perpetual absolute disqualification were expressly
remitted together with the principal penalty of reclusion perpetua.
In this jurisdiction, the right to seek public elective office is recognized by law as
falling under the whole gamut of civil and political rights.
Section 5 of Republic Act No. 9225,19 otherwise known as the Citizenship Retention
and Reacquisition Act of 2003, reads as follows:
Section 5. Civil and Political Rights and Liabilities. Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements
under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise
known as The Overseas Absentee Voting Act of 2003 and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities prior
to their assumption of office: Provided, That they renounce their oath of allegiance
to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with
the proper authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they
are naturalized citizens; and/or
(b) are in active service as commissioned or noncommissioned officers in the armed
forces of the country which they are naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and Political Rights, to which the
Philippines is a signatory, acknowledges the existence of said right. Article 25(b) of
the Convention states:
Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in Article 2 and without unreasonable restrictions:
xxxx
(b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing the
free expression of the will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on Elections,20 the Court unequivocally
referred to the right to seek public elective office as a political right, to wit:
Stated differently, it is an additional qualification for elective office specific only to
Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It
is the operative act that restores their right to run for public office. The petitioners
failure to comply therewith in accordance with the exact tenor of the law, rendered
ineffectual the Declaration of Renunciation of Australian Citizenship she executed
on September 18, 2006. As such, she is yet to regain her political right to seek
elective office. Unless she executes a sworn renunciation of her Australian
citizenship, she is ineligible to run for and hold any elective office in the Philippines.
(Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public elective office is
unequivocally considered as a political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the pardon granted to

him, he regained his FULL civil and political rights including the right to seek
elective office.
On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said
penal provisions; and prescribes a formal requirement that is not only unnecessary
but, if insisted upon, could be in derogation of the constitutional prohibition relative
to the principle that the exercise of presidential pardon cannot be affected by
legislative action.
Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v.
Factoran, Jr.21 to justify her argument that an absolute pardon must expressly state
that the right to hold public office has been restored, and that the penalty of
perpetual absolute disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the learned views of
Justices Teodoro R. Padilla and Florentino P. Feliciano are to be respected, they do
not form part of the controlling doctrine nor to be considered part of the law of the
land. On the contrary, a careful reading of the majority opinion in Monsanto, penned
by no less than Chief Justice Marcelo B. Fernan, reveals no statement that denotes
adherence to a stringent and overly nuanced application of Articles 36 and 41 of the
Revised Penal Code that will in effect require the President to use a statutorily
prescribed language in extending executive clemency, even if the intent of the
President can otherwise be deduced from the text or words used in the pardon.
Furthermore, as explained above, the pardon here is consistent with, and not
contrary to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section 40 of the LGC in
relation to Section 12 of the OEC was removed by his acceptance of the absolute
pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for any elective
local position. Risos-Vidal argues that former President Estrada is disqualified under
item (a), to wit:
(a) Those sentenced by final judgment for an offense involving moral turpitude or
for an offense punishable by one (1) year or more of imprisonment, within two (2)
years after serving sentence[.] (Emphasis supplied.)

Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for
an exception, to wit:
Section 12. Disqualifications. x x x unless he has been given plenary pardon or
granted amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President Estradas conviction
for plunder disqualifies him from running for the elective local position of Mayor of
the City of Manila under Section 40(a) of the LGC. However, the subsequent
absolute pardon granted to former President Estrada effectively restored his right to
seek public elective office. This is made possible by reading Section 40(a) of the
LGC in relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a) of the LGC is worded
in absolute terms, Section 12 of the OEC provides a legal escape from the
prohibition a plenary pardon or amnesty. In other words, the latter provision allows
any person who has been granted plenary pardon or amnesty after conviction by
final judgment of an offense involving moral turpitude, inter alia, to run for and hold
any public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to candidates running for
local elective positions is not unprecedented. InJalosjos, Jr. v. Commission on
Elections,22 the Court acknowledged the aforementioned provision as one of the
legal remedies that may be availed of to disqualify a candidate in a local election
filed any day after the last day for filing of certificates of candidacy, but not later
than the date of proclamation.23 The pertinent ruling in the Jalosjos case is quoted
as follows:
What is indisputably clear is that false material representation of Jalosjos is a ground
for a petition under Section 78. However, since the false material representation
arises from a crime penalized by prision mayor, a petition under Section 12 of the
Omnibus Election Code or Section 40 of the Local Government Code can also be
properly filed. The petitioner has a choice whether to anchor his petition on Section
12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local
Government Code. The law expressly provides multiple remedies and the choice of
which remedy to adopt belongs to petitioner. 24 (Emphasis supplied.)
The third preambular clause of the pardon did not operate to make the pardon
conditional.

Contrary to Risos-Vidals declaration, the third preambular clause of the pardon, i.e.,
[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office, neither makes the pardon conditional, nor militate
against the conclusion that former President Estradas rights to suffrage and to seek
public elective office have been restored. This is especially true as the pardon itself
does not explicitly impose a condition or limitation, considering the unqualified use
of the term civil and political rights as being restored.
Jurisprudence educates that a preamble is not an essential part of an act as it is an
introductory or preparatory clause that explains the reasons for the enactment,
usually introduced by the word whereas. 25 Whereas clauses do not form part of a
statute because, strictly speaking, they are not part of the operative language of
the statute.26 In this case, the whereas clause at issue is not an integral part of the
decree of the pardon, and therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the pardon.
On this matter, the Court quotes with approval a relevant excerpt of COMELEC
Commissioner Maria Gracia Padacas separate concurring opinion in the assailed
April 1, 2013 Resolution of the COMELEC in SPA No. 13-211 (DC), which captured the
essence of the legal effect of preambular paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20 January 2010 Resolution
did not conclude upon. Here, Petitioner Risos-Vidal raised the same argument with
respect to the 3rd whereas clause or preambular paragraph of the decree of
pardon. It states that Joseph Ejercito Estrada has publicly committed to no longer
seek any elective position or office. On this contention, the undersigned reiterates
the ruling of the Commission that the 3rd preambular paragraph does not have any
legal or binding effect on the absolute nature of the pardon extended by former
President Arroyo to herein Respondent.
This ruling is consistent with the traditional and customary usage of preambular
paragraphs. In the case of Echegaray v. Secretary of Justice, the Supreme Court
ruled on the legal effect of preambular paragraphs or whereas clauses on statutes.
The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is merely an
introduction to show its intent or purposes. It cannot be the origin of rights and
obligations. Where the meaning of a statute is clear and unambiguous,

the preamble can neither expand nor restrict its operation much less prevail over its
text.
If former President Arroyo intended for the pardon to be conditional on
Respondents promise never to seek a public office again, the former ought to have
explicitly stated the same in the text of the pardon itself. Since former President
Arroyo did not make this an integral part of the decree of pardon, the Commission is
constrained to rule that the 3rd preambular clause cannot be interpreted as a
condition to the pardon extended to former President Estrada. 27 (Emphasis
supplied.)
Absent any contrary evidence, former President Arroyos silence on former President
Estradas decision to run for President in the May 2010 elections against, among
others, the candidate of the political party of former President Arroyo, after the
latters receipt and acceptance of the pardon speaks volume of her intention to
restore him to his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by the President is
in issue, the Court must turn to the only evidence available to it, and that is the
pardon itself. From a detailed review of the four corners of said document, nothing
therein gives an iota of intimation that the third Whereas Clause is actually a
limitation, proviso, stipulation or condition on the grant of the pardon, such that the
breach of the mentioned commitment not to seek public office will result in a
revocation or cancellation of said pardon. To the Court, what it is simply is a
statement of fact or the prevailing situation at the time the executive clemency was
granted. It was not used as a condition to the efficacy or to delimit the scope of the
pardon.
Even if the Court were to subscribe to the view that the third Whereas Clause was
one of the reasons to grant the pardon, the pardon itself does not provide for the
attendant consequence of the breach thereof. This Court will be hard put to discern
the resultant effect of an eventual infringement. Just like it will be hard put to
determine which civil or political rights were restored if the Court were to take the
road suggested by Risos-Vidal that the statement [h]e is hereby restored to his
civil and political rights excludes the restoration of former President Estradas
rights to suffrage and to hold public office. The aforequoted text of the executive
clemency granted does not provide the Court with any guide as to how and where
to draw the line between the included and excluded political rights.

Justice Leonen emphasizes the point that the ultimate issue for resolution is not
whether the pardon is contingent on the condition that former President Estrada will
not seek another elective public office, but it actually concerns the coverage of the
pardon whether the pardon granted to former President Estrada was so expansive
as to have restored all his political rights, inclusive of the rights of suffrage and to
hold public office. Justice Leonen is of the view that the pardon in question is not
absolute nor plenary in scope despite the statement that former President Estrada
is hereby restored to his civil and political rights, that is, the foregoing statement
restored to former President Estrada all his civil and political rights except the rights
denied to him by the unremitted penalty of perpetual absolute disqualification made
up of, among others, the rights of suffrage and to hold public office. He adds that
had the President chosen to be so expansive as to include the rights of suffrage and
to hold public office, she should have been more clear on her intentions.
However, the statement [h]e is hereby restored to his civil and political rights, to
the mind of the Court, is crystal clear the pardon granted to former President
Estrada was absolute, meaning, it was not only unconditional, it was unrestricted in
scope, complete and plenary in character, as the term political rights adverted to
has a settled meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that the omission of the
qualifying word full can be construed as excluding the restoration of the rights of
suffrage and to hold public office. There appears to be no distinction as to the
coverage of the term full political rights and the term political rights used alone
without any qualification. How to ascribe to the latter term the meaning that it is
partial and not full defies ones understanding. More so, it will be extremely
difficult to identify which of the political rights are restored by the pardon, when the
text of the latter is silent on this matter. Exceptions to the grant of pardon cannot be
presumed from the absence of the qualifying word full when the pardon restored
the political rights of former President Estrada without any exclusion or
reservation.
Therefore, there can be no other conclusion but to say that the pardon granted to
former President Estrada was absolute in the absence of a clear, unequivocal and
concrete factual basis upon which to anchor or support the Presidential intent to
grant a limited pardon.

To reiterate, insofar as its coverage is concerned, the text of the pardon can
withstand close scrutiny even under the provisions of Articles 36 and 41 of the
Revised Penal Code.
The COMELEC did not commit grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the assailed Resolutions.
In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did
not commit grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions.
The Court has consistently held that a petition for certiorari against actions of the
COMELEC is confined only to instances of grave abuse of discretion amounting to
patent and substantial denial of due process, because the COMELEC is presumed to
be most competent in matters falling within its domain. 28
As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of
power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or
capricious exercise of power that amounts to an evasion or refusal to perform a
positive duty enjoined by law or to act at all in contemplation of law. For an act to
be condemned as having been done with grave abuse of discretion, such an abuse
must be patent and gross.29
The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual
or legal bases to prove that the assailed COMELEC Resolutions were issued in a
whimsical, arbitrary or capricious exercise of power that amounts to an evasion or
refusal to perform a positive duty enjoined by law or were so patent and gross as
to constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court finds it unnecessary to
separately discuss Lims petition-in-intervention, which substantially presented the
same arguments as Risos-Vidals petition.
WHEREFORE, the petition for certiorari and petition-in-intervention are DISMISSED.
The Resolution dated April 1, 2013 of the Commission on Elections, Second Division,
and the Resolution dated April 23, 2013 of the Commission on Elections, En banc,
both in SPA No. 13-211 (DC), are AFFIRMED.
SO ORDERED.

LEONARDO-DE CASTRO, J.:

Sereno, (Chief Justice), I join the dissent of J. Leonen.
Velasco, Jr., Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, Reyes, and PerlasBernabe, JJ., concur.
Carpio, J., I join the dissent of J. Leonen.
Brion, J.*, left his vote to dismiss the Rises Vidal Petition. See his Separate Opinion.
Mendoza, J., see concurring opinion.
Leonen, J., I dissent. See separate opinion.
Jardeleza, J., no part.
EN BANC, G.R. No. 206666, January 21, 2015, ATTY. ALICIA RISOS-VIDAL,
PETITIONER, ALFREDO S. LIM PETITIONER-INTERVENOR, VS. COMMISSION ON
ELECTIONS AND JOSEPH EJERCITO ESTRADA, RESPONDENTS.
There Can Be No Justiciable Controversy Involving The Constitutionality Of A
Proposed Bill. The Court Can Exercise Its Power Of Judicial Review Only After A Law
Is Enacted, Not Before
July 1, 2015 by The Lawyer's Post
The Facts:
Rolly Mijares, a Filipino citizen and a concerned taxpayer, filed a (Letter) Petition for
Mandamus with Manifestation, urging the Supreme Court to take action with respect
to the proposed bills abolishing the Judiciary Development Fund; the funds collected
from the proposed Judiciary Support Fund shall then be remitted to the national
treasury and Congress shall determine how the funds will be used. In his letterpetition, Rolly implied that certain acts of Congress and the President after the
promulgation of the Priority Development Fund case 1 and the Disbursement
Acceleration Program case2 showed a threat to judicial independence, particularly
House Bill No. 4690 filed by Rep. Rodolfo Farinas which would require the Court to
remit its Judiciary Development Fund, House Bill No. 4738 filed by Rep. Neil Tupas,
proposing to create the Judicial Support Fund, and repealing for the purpose
Presidential Decree No. 1949 which mandated the Judiciary Development Fund; and

the televised national address of President Aquino on July 14, 2014, parts of which
stated: To the honorable justices of the Supreme Court: Help us help our
countrymen. We ask that you review your decision, this time taking into
consideration the points I have raised tonight. The nation hopes for your careful
deliberation and response. And I hope that once youve examined the arguments I
will submit, regarding the law and about our economy, solidarity will ensuethus
strengthening the entire governments capability to push for the interests of the
nation. He filed the instant petition as part of his crusade to defend and uphold the
Constitution because he believes in the rule of law.
The Issue:
Whether petitioner Rolly Mijares has sufficiently shown grounds for the Court to
grant the petition and issue a writ of mandamus.
The Ruling:
This court resolves to deny the petition.
The power of judicial review, like all powers granted by the Constitution, is subject
to certain limitations. Petitioner must comply with all the requisites for judicial
review before this court may take cognizance of the case. The requisites are:

(1)there must be an actual case or controversy calling for the exercise of judicial power;

2. the person challenging the act must have the standing to question the validity of the subject a
issuance; otherwise stated, he must have a personal and substantial interest in the case such tha
sustained, or will sustain, direct injury as a result of its enforcement;

(3)the question of constitutionality must be raised at the earliest opportunity; and

(4)the issue of constitutionality must be the very lis mota of the case.3

Petitioners failure to comply with the first two requisites warrants the outright
dismissal of this petition.
I
The petition does not comply with the requisites of judicial review
No actual case or controversy
Article VIII, Section 1 of the Constitution provides that:
ARTICLE VIII
Judicial Department
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis supplied)
One of the requirements for this court to exercise its power of judicial review is the
existence of an actual controversy. This means that there must be an existing case
or controversy that is appropriate or ripe for determination, not conjectural or
anticipatory, lest the decision of the court would amount to an advisory
opinion.4 As emphasized by this court in Information Technology Foundation of the
Phils. v. Commission on Elections:5
It is well-established in this jurisdiction that . . . for a court to exercise its power of
adjudication, there must be an actual case or controversy one which involves a

conflict of legal rights, an assertion of opposite legal claims susceptible of judicial

resolution; the case must not be moot or academic or based on extra-legal or other
similar considerations not cognizable by a court of justice. . . . [C]ourts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be justiciable definite and
concrete, touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof on the other; that is, it must concern a
real and not a merely theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.6
For this court to rule on constitutional issues, there must first be a justiciable
controversy. Pleadings before this court must show a violation of an existing legal
right or a controversy that is ripe for judicial determination. In the concurring
opinion in Belgica v. Ochoa:
Basic in litigation raising constitutional issues is the requirement that there must be
an actual case or controversy. This Court cannot render an advisory opinion. We
assume that the Constitution binds all other constitutional departments,
instrumentalities, and organs. We are aware that in the exercise of their various
powers, they do interpret the text of the Constitution in the light of contemporary
needs that they should address. A policy that reduces this Court to an adviser for
official acts by the other departments that have not yet been done would
unnecessarily tax our resources. It is inconsistent with our role as final arbiter and
adjudicator and weakens the entire system of the Rule of Law. Our power of judicial
review is a duty to make a final and binding construction of law. This power should
generally be reserved when the departments have exhausted any and all acts that
would remedy any perceived violation of right. The rationale that defines the extent
of our doctrines laying down exceptions to our rules on justiciability are clear: Not
only should the pleadings show a convincing violation of a right, but the impact
should be shown to be so grave, imminent, and irreparable that any delayed
exercise of judicial review or deference would undermine fundamental principles
that should be enjoyed by the party complaining or the constituents that they
legitimately represent.7 (Emphasis supplied)
The reason for this requirement was explained in Angara v. Electoral Commission: 8

Any attempt at abstraction could only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities. Narrowed as its function is in this
manner, the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and justice
of the people as expressed through their representatives in the executive and
legislative departments of the government.9
Petitioners allegations show that he wants this court to strike down the proposed
bills abolishing the Judiciary Development Fund. This court, however, must act only
within its powers granted under the Constitution. This court is not empowered to
review proposed bills because a bill is not a law.
Montesclaros v. COMELEC10 involved the postponement of the 2002 Sangguniang
Kabataan Elections and the lowering of the age requirement in the Sangguniang
Kabataan to at least 15 but not more than 18 years of age. 11 Montesclaros and
other parties filed a petition for certiorari, prohibition, and mandamus with prayer
for the issuance of a temporary restraining order. 12 One of the reliefs prayed for
was:
a) To prevent, annul or declare unconstitutional any law, decree, Comelec
resolution/directive and other respondents issuances, orders and actions and the
like in postponing the May 6, 2002 SK elections. 13
This court held that:
. . . petitioners instituted this petition to: (1) compel public respondents to hold the
SK elections on May 6, 2002 and should it be postponed, the SK elections should be
held not later than July 15, 2002; (2) prevent public respondents from passing laws
and issuing resolutions and orders that would lower the membership age in the SK. .
..
....
Petitioners prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial review because it is not a law.

A proposed bill creates no right and imposes no duty legally enforceable by the
Court. A proposed bill, having no legal effect, violates no constitutional right or
duty. The Court has no power to declare a proposed bill constitutional or
unconstitutional because that would be in the nature of rendering an advisory
opinion on a proposed act of Congress. The power of judicial review cannot be
exercisedin vacuo. . . .
....
Thus, there can be no justiciable controversy involving the constitutionality of a
proposed bill. The Court can exercise its power of judicial review only after a law is
enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from passing
any law, or from setting into motion the legislative mill according to its internal
rules. Thus, the following acts of Congress in the exercise of its legislative powers
are not subject to judicial restraint: the filing of bills by members of Congress, the
approval of bills by each chamber of Congress, the reconciliation by the Bicameral
Committee of approved bills, and the eventual approval into law of the reconciled
bills by each chamber of Congress. Absent a clear violation of specific constitutional
limitations or of constitutional rights of private parties, the Court cannot exercise its
power of judicial review over the internal processes or procedures of Congress.
....
. . . To do so would destroy the delicate system of checks and balances finely crafted
by the Constitution for the three co-equal, coordinate and independent branches of
government.14 (Emphasis supplied, citations omitted)
Similar to Montesclaros, petitioner is asking this court to stop Congress from passing
laws that will abolish the Judiciary Development Fund. This court has explained that
the filing of bills is within the legislative power of Congress and is not subject to
judicial restraint[.]15 A proposed bill produces no legal effects until it is passed into
law. Under the Constitution, the judiciary is mandated to interpret laws. It cannot
speculate on the constitutionality or unconstitutionality of a bill that Congress may
or may not pass. It cannot rule on mere speculations or issues that are not ripe for
judicial determination.16 The petition, therefore, does not present any actual case or
controversy that is ripe for this courts determination.

Petitioner has no legal standing

Even assuming that there is an actual case or controversy that this court must
resolve, petitioner has no legal standing to question the validity of the proposed bill.
The rule on legal standing has been discussed in David v. Macapagal-Arroyo:17
Locus standi is defined as a right of appearance in a court of justice on a given
question. In private suits, standing is governed by the real-parties-in interest rule
as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended.
It provides that every action must be prosecuted or defended in the name of the
real party in interest. Accordingly, the real-party-in interest is the party who
stands to be benefited or injured by the judgment in the suit or the party entitled to
the avails of the suit. Succinctly put, the plaintiffs standing is based on his own
right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff
who asserts a public right in assailing an allegedly illegal official action, does so as
a representative of the general public. He may be a person who is affected no
differently from any other person. He could be suing as a stranger, or in the
category of a citizen, or taxpayer. In either case, he has to adequately show that
he is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of relief as
a citizen or taxpayer.
....
This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it
held that the person who impugns the validity of a statute must have a personal
and substantial interest in the case such that he has sustained, or will sustain direct
injury as a result. The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate, Manila Race Horse Trainers Association v.
De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the
Philippines v. Felix.18
Petitioner has not shown that he has sustained or will sustain a direct injury if the
proposed bill is passed into law. While his concern for judicial independence is
laudable, it does not, by itself, clothe him with the requisite standing to question the
constitutionality of a proposed bill that may only affect the judiciary.

This court, however, has occasionally relaxed the rules on standing when the issues
involved are of transcendental importance to the public. Specifically, this court
has stated that:
the rule on standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the
public interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public
interest.19
Transcendental importance is not defined in our jurisprudence, thus, in Francisco v.
House of Representatives:20
There being no doctrinal definition of transcendental importance, the following
instructive determinants formulated by former Supreme Court Justice Florentino P.
Feliciano are instructive: (1) the character of the funds or other assets involved in
the case; (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party with a more direct and specific
interest in raising the questions being raised. 21
A mere invocation of transcendental importance in the pleading is not enough for
this court to set aside procedural rules:
Whether an issue is of transcendental importance is a matter determined by this
court on a case-to-case basis. An allegation of transcendental importance must be
supported by the proper allegations.22
None of the determinants in Francisco are present in this case. The events feared by
petitioner are merely speculative and conjectural.
In addition to the determinants in Francisco, it must also be shown that there is a
clear or imminent threat to fundamental rights. In an opinion in Imbong v. Ochoa:23
The Responsible Parenthood and Reproductive Health Act of 2012 should not be
declared unconstitutional in whole or in any of its parts given the petitions filed in
this case.

None of the petitions properly present an actual case or controversy, which

deserves the exercise of our awesome power of judicial review. It is our duty not to
rule on the abstract and speculative issues barren of actual facts. These
consolidated petitions, which contain bare allegations, do not provide the proper
venue to decide on fundamental issues. The law in question is needed social
legislation.
That we rule on these special civil actions for certiorari and prohibition which
amounts to a pre-enforcement free-wheeling facial review of the statute and the
implementing rules and regulations is very bad precedent. The issues are far
from justiciable. Petitioners claim in their class suits that they entirely represent a
whole religion, the Filipino nation and, worse, all the unborn. The intervenors also
claim the same representation: Filipinos and Catholics. Many of the petitions also
sue the President of the Republic.
We should apply our rules rigorously and dismiss these cases. The transcendental
importance of the issues they want us to decide will be better served when we wait
for the proper cases with the proper parties suffering real, actual or more imminent
injury. There is no showing of an injury so great and so imminent that we cannot
wait for these cases.24 (Emphasis supplied)
The events feared by petitioner are contingent on the passing of the proposed bill in
Congress. The threat of imminent injury is not yet manifest since there is no
guarantee that the bill will even be passed into law. There is no transcendental
interest in this case to justify the relaxation of technical rules.
II
Requisites for the issuance of a writ of mandamus not shown
Rule 65, Section 3 of the 1997 Rules of Civil Procedure provides that:
Rule 65
CERTIORARI, PROHIBITION AND MANDAMUS
SEC. 3. Petition for mandamus. When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes

another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of the petitioner,
and to pay the damages sustained by the petitioner by reason of the wrongful acts
of the respondent.
The petition shall also contain a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46.
The writ of mandamus will issue when the act sought to be performed is
ministerial.25 An act is ministerial when it does not require the exercise of judgment
and the act is performed in compliance with a legal mandate. 26 In a petition for
mandamus, the burden of proof is on petitioner to show that one is entitled to the
performance of a legal right and that respondent has a corresponding duty to
perform the act.27 Mandamus will not lie to compel an official to do anything which
is not his duty to do or which it is his duty not to do, or to give to the applicant
anything to which he is not entitled by law. 28
In this case, petitioner has not shown how he is entitled to the relief prayed for.
Hence, this court cannot be compelled to exercise its power of judicial review since
there is no actual case or controversy.
Final note
The judiciary is the weakest branch of government. It is true that courts have power
to declare what law is given a set of facts, but it does not have an army to enforce
its writs. Courts do not have the power of the purse. Except for a constitutional
provision that requires that the budget of the judiciary should not go below the
appropriation for the previous year, it is beholden to the Congress depending on
how low the budget is.29
Despite being the third co-equal branch of the government, the judiciary enjoys less
than 1%30 of the total budget for the national government. Specifically, it was a
mere 0.82% in 2014,31 0.85% in 2013,32 0.83% in 2012,33 and 0.83% in 2011.34

Maintenance and Other Operating Expenses or MOOE pays for sundry matters such
as utility payments, paper, gasoline and others. 35 The MOOE granted to the lower
courts in 2014 was P1,220,905,000.00.36 While this might seem like a large amount,
the amount significantly dwindles when divided among all lower courts in the
country. Per the 2014 General Appropriations Act (GAA), the approximate monthly
MOOE for all courts are estimated as follows:

Type of Court

Number of Courts37

Estimated Monthly MOOE Pe

Regional Trial Courts

969

P46,408.67

Metropolitan Trial Courts

106

P46,071.89

Municipal Trial Courts in Cities

229

P46,206.01

Municipal Circuit Trial Courts

468

P46,305.69

Municipal Trial Courts

366

P46,423.30

Sharia District Courts

P40,696.83

Sharia Circuit Courts

51

P45,883.68

These amounts were arrived at using the following computation:

Number of Courts

MOOE

Total Number of Courts

Number of Courts

In comparison, the 2014 MOOE allocation for the House of Representatives was
P3,386,439,000.0038 or about P282.2 million per month for the maintenance and
operation of the House of Representatives compound in Batasan Hills. Even if this
amount was divided equally among the 234 legislative districts, a representatives
office space would still have a monthly MOOE allocation of approximately P1.2
million, which is significantly higher than the average P46,000.00 allocated monthly
to each trial court.
It was only in 2013 that the budget allocated to the judiciary included an item for
the construction, rehabilitation, and repair of the halls of justice in the capital outlay.
The amount allocated was P1 million.39
In 2014, there was no item for the construction, rehabilitation, and repair of the
halls of justice.40 This allocation would have been used to help fund the repair of
existing halls of justice and the construction of new halls of justice in the entire
country, including those courts destroyed by Typhoon Yolanda and the 2013
earthquake.
The entire budget for the judiciary, however, does not only come from the national
government. The Constitution grants fiscal autonomy to the judiciary to maintain its
independence.41 In Bengzon v. Drilon:42
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties.
The imposition of restrictions and constraints on the manner the independent

constitutional offices allocate and utilize the funds appropriated for their operations
is anathema to fiscal autonomy and violative not only of the express mandate of the
Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is
based.43
Courts, therefore, must also be accountable with their own budget. The Judiciary
Development Fund, used to augment the expenses of the judiciary, is regularly
accounted for by this court on a quarterly basis. The financial reports are readily
available at the Supreme Court website.44
These funds, however, are still not enough to meet the expenses of lower courts
and guarantee credible compensation for their personnel. The reality is that halls of
justice exist because we rely on the generosity of local government units that
provide additional subsidy to our judges. 45 If not, the budget for the construction,
repair, and rehabilitation of halls of justice is with the Department of Justice 46.
As a result, our fiscal autonomy and judicial independence are often undermined by
low levels of budgetary outlay, the lack of provision for maintenance and operating
expenses, and the reliance on local government units and the Department of
Justice.
Courts are not constitutionally built to do political lobbying. By constitutional
design, it is a co-equal department to the Congress and the Executive. By
temperament, our arguments are legal, not political. We are best when we lay down
all our premises in the finding of facts, interpretation of the law and understanding
of precedents. We are not trained to produce a political statement or a media
release.47
Because of the nature of courts, that is that it has to decide in favor of one party,
we may not have a political base. Certainly, we should not even consider building a
political base. All we have is an abiding faith that we should do what we could to
ensure that the Rule of Law prevails. It seems that we have no champions when it
comes to ensuring the material basis for fiscal autonomy or judicial
independence.48
For this reason, we appreciate petitioners concern for the judiciary. It is often only
through the vigilance of private citizens that issues relating to the judiciary can be
discussed in the political sphere. Unfortunately, the remedy he seeks cannot be

granted by this court. But his crusade is not a lost cause. Considering that what he
seeks to be struck down is a proposed bill, it would be better for him to air his
concerns by lobbying in Congress. There, he may discover the representatives and
senators who may have a similar enthusiastic response to truly making the needed
investments in the Rule of Law.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
LEONEN, J.:
Sereno, C.J., Carpio, Velasco, Jr., Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez,
Mendoza, Reyes, Perlas-Bernabe, andJardeleza, JJ., concur.
Leonardo-De Castro, J., concur in the ponencia, with my observation that the
reference to the dissenting opinion in Imbong v. Ochoa is obiter dictum.
Brion, J., on official leave.
EN BANC, UDK-15143, January 21, 2015, IN THE MATTER OF: SAVE THE SUPREME
COURT JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY MOVEMENT VS.
ABOLITION OF JUDICIARY DEVELOPMENT FUND (JDF) AND REDUCTION OF FISCAL
AUTONOMY.
Consent Must Be Voluntary In Order To Validate An Otherwise Illegal Search; That Is,
The Consent Must Be Unequivocal, Specific, Intelligently Given, And
Uncontaminated By Any Duress Or Coercion
June 27, 2015 by The Lawyer's Post
The Facts:
On July 15, 2004, a complaint was filed by one Bryan Resco against Danilo
Villanueva for allegedly shooting the former. After recording the incident on the
police blotter, police officers proceeded to Danilos house and invited him to the
police station. There he was subjected to a body search, where a plastic sachet
containing shabu was recovered from the left pocket of his pants. The specimen
was turned over to the police crime laboratory for examination. Danilo was then
charged with violation of Section 11, Republic Act 9165, and the corresponding
Information filed against him. In his defense, Danilo testified that at the time of the

incidence, he was at home watching TV when the police officers arrived at his house
and invited him for questioning.
After trial, the RTC convicted Danilo as charged, and sentenced him to imprisonment
of imprisonment of twelve (12) years and one (1) day as the minimum to seventeen
(17) years and eight (8) months as the maximum and to pay the fine of Three
Hundred Thousand Pesos (P300,000.00). The Court of Appeals affirmed his
conviction, hence Danilo filed the instant petition for review on certiorari to assail
his conviction. He argues that his arrest was unlawful, and the search conducted on
him does not fall within the bounds of valid warrantless searches thus the evidence
seized is inadmissible.
The Issue:
Whether or not the RTC and the CA properly convicted Danilo for violation of Section
11, RA 9165.
The Ruling:
We find the instant appeal meritorious.
Accused-appellant is estopped from questioning the legality of his arrest.
Accused-appellant was arrested without a warrant. Section 5, Rule 113 of the
Revised Rules of Criminal Procedure, lays down the basic rules on lawful warrantless
arrests either by a peace officer or a private person, as follows:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined

while his case is pending, or has escaped while being transferred from one
confinement to another.
The circumstances that transpired between accused-appellant and the arresting
officer show none of the above that would make the warrantless arrest lawful.
Nevertheless, records reveal that accused-appellant never objected to the
irregularity of his arrest before his arraignment. He pleaded not guilty upon
arraignment. He actively participated in the trial of the case. Thus, he is considered
as one who had properly and voluntarily submitted himself to the jurisdiction of the
trial court and waived his right to question the validity of his arrest. 1
The warrantless search conducted is not among those allowed by law.
A waiver of an illegal arrest, however, is not a waiver of an illegal search. 2 Records
have established that both the arrest and the search were made without a warrant.
While the accused has already waived his right to contest the legality of his arrest,
he is not deemed to have equally waived his right to contest the legality of the
search.
Jurisprudence is replete with pronouncements on when a warrantless search can be
conducted. These searches include: (1) search of a moving vehicle; (2) seizure in
plain view; (3) customs search; (4) waiver or consented search; (5) stop-and-frisk
situation; (6) search incidental to a lawful arrest and (7) exigent and emergency
circumstance.3
The search made was not among the enumerated instances. Certainly, it was not of
a moving vehicle, a customs search, or a search incidental to a lawful arrest. There
could not have been a seizure in plain view as the seized item was allegedly found
inside the left pocket of accused-appellants pants. Neither was it a stop-and-frisk
situation. While this type may seemingly fall under the consented search exception,
we reiterate that [c]onsent to a search is not to be lightly inferred, but shown by
clear and convincing evidence.4
Consent must also be voluntary in order to validate an otherwise illegal search; that
is, the consent must be unequivocal, specific, intelligently given, and
uncontaminated by any duress or coercion. 5 In this case, petitioner was merely
ordered to take out the contents of his pocket. The testimony of the police officer
on the matter is clear:

Q: And what did you do when you frisked a small plastic sachet?
A: When I felt something inside his pocket, I ordered him to bring out the thing
which I felt.
Q: And what did Danilo Villanueva do when you instructed him to bring out the
contents of his pocket?
A: He took out the contents of his pocket and I saw the plastic containing shabu. 6
The evidence obtained is not admissible.
Having been obtained through an unlawful search, the seized item is thus
inadmissible in evidence against accused-appellant. Obviously, this is an instance of
seizure of the fruit of the poisonous tree. Hence, the confiscated item is
inadmissible in evidence consonant with Article III, Section 3(2) of the 1987
Constitution: Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding. 7 Without the seized item,
therefore, the conviction of accused-appellant cannot be sustained. This being the
case, we see no more reason to discuss the alleged lapses of the officers in the
handling of the confiscated drug.
As a final word, we reiterate that [wjhile this Court appreciates and encourages the
efforts of law enforcers to uphold the law and to preserve the peace and security of
society, we nevertheless admonish them to act with deliberate care and within the
parameters set by the Constitution and the law. Truly, the end never justifies the
means.8
WHEREFORE, premises considered, the assailed Decision dated 4 May 2011 and
Resolution dated 18 October 2011 issued by the Fourteenth Division of the Court of
Appeals in CA-G.R. C.R. No. 32582 are SET ASIDE. Petitioner is hereby ACQUITTED.
SO ORDERED.
SERENO, C.J.:
*

Velasco, Jr., Leonardo-De Castro, Perez, and Perlas-Bernabe, JJ., concur.

FIRST DIVISION, G.R. No. 199042, November 17, 2014, DANILO VILLANUEVA Y
ALCARAZ, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

Properties Of Public Dominion, Being For Public Use, Are Not Subject To Levy,
Encumbrance Or Disposition Through Public Or Private Sale
June 24, 2015 by The Lawyer's Post
The Facts:
In 1979, the Bureau of Public works turned over to the National Housing Authority a
completed water works system in General Mariano Alvarez, Cavite, with the
undertaking that the same shall be turned over to a cooperative. Indeed, the NHA
turned over to San Gabriel Water Services Cooperative (now General Mariano
Alvarez Services Cooperative, GEMASCO) the water works. Due to internal conflicts
within the cooperative, the NHA entered into a Deed of Transfer and Acceptance
with the General Mariano Alvarez Water District which transferred to the latter the
operations and management of the water system in General Mariano Alvarez. To
assail the Deed of Transfer and Acceptance between the NHA and GMAWD,
GEMASCO filed a Complaint for Damages with Prayer for Preliminary Injunction and
TRO against NHA and GMAWD, which the RTC dismissed, hence GEMASCO elevated
the case to the CA. Since the CA dismissed the appeal, GEMASCO elevated the case
to the Supreme Court, where it was docketed as G.R. No 175417.
In the meantime, a complaint for illegal dismissal was filed against GEMASCO which
eventually became final and executory, GEMASCO being adjudged for illegal
dismissal. Thus the Labor Arbiter issued a Writ of Execution, pursuant to which the
Sheriff issued a Notice of Garnishment as well as Notice of Sale/Levy on Executiion
of Personal Property. To forestall the execution and levy of the property, GEMASCO
filed a petition before the CA, arguing that the properties sought to be levied in the
illegal dismissal case were the same properties subject of G.R. No. 175417. It
prayed that until a final judgment is rendered in the latter case, the LA and the
sheriff should be prohibited from auctioning the water tanks. GMAWD sided with
GEMASCO and prayed that the petition be granted, averring that its ownership of
the properties had been consistently affirmed in the lower courts. The CA however
dismissed the case, hence both GEMASCO and GMAWD elevated the case to the
Supreme Court, docketed as G.R. No. 198923.
The Issues:
In G.R. No. 175417,whether or not the Deed of Transfer and Acceptance between
NHA and GMAWD is valid.

In G.R. No. 198923, whether or not the CA erred in affirming the issuance of writ of
execution.
The Ruling:
In G.R. No. 175417, GEMASCO attacks the validity of the Deed of Transfer and
Acceptance entered into by the NHA and GMAWD. In G.R. No. 198923, on the other
hand, GMAWD contends that the CA erred in affirming the issuance of the LAs
August 17, 2007 Writ of Execution as well as its Notice of Sale/Levy on Execution
despite the pendency of G.R. No. 175417 before the Court. It argues that said
issuances will cause it great injustice because the same are against properties the
right of ownership over which has been consistently upheld in its favor. Since the
issues are substantially interrelated, the Court shall make a joint discussion.
The Disaster Recovery Project of the BPW was undertaken for the benefit of the NHA
General Mariano Alvarez resettlement area. The construction of the water system in
said area was necessitated by the need to alleviate the recurrence of problems
during the flood disaster in 1972, wherein water availability and its distribution in
relocation and resettlement areas were lacking. In 1979, the BPW Director turned
over a completed water works system in Cavite to the NHA which must, thereafter,
be turned over to a cooperative water company. Subsequently, the NHA turned
over said water system to SAGAWESECO, now GEMASCO, by virtue of a
Memorandum of Agreement providing, among others, that at the end of six (6)
months, if the cooperatives management proves unsatisfactory as evaluated by the
Bureau of Cooperative Development (BCOD)/Ministry of Local Government and
Community Development, it would again be under the direct supervision and
guidance of the NHA, in accordance with the rules and regulations of the BCOD.
When the operation and management of GEMASCO suffered conflicts, the NHA
properly intervened and took over, and subsequently, replaced GEMASCO with
GMAWD. GEMASCO failed to comply with the requirements and conditions imposed
upon it when it failed to satisfactorily manage and maintain the water works system
entrusted to it. Being the government agency with the authority to award water
system management and administration, verily, the NHA also has the power to
revoke such award and look for another qualified entity to operate the system.
GEMASCO cannot now assail the legality of the transfer of administration and
management of the water works system to GMAWD, the latter being a legitimate
and qualified water system cooperative.

Well-entrenched is the rule in our jurisprudence that administrative decisions are

entitled to great weight and respect and will not be interfered with by the courts. 1
Courts will not interfere in matters which are addressed to the sound discretion of
the government agency entrusted with regulation of activities coming under its
special and technical training and knowledge, for the exercise of administrative
discretion is a policy decision and a matter that is best discharged by the concerned
government agency and not by the courts.2 More so where, as in the present case,
the prime consideration is the interest of the public at large on the issue of basic
water need. Certainly, the Deed of Transfer and Acceptance entered into by the
NHA and GMAWD was the result of a valid exercise of the NHAs management
prerogative.
In any case, GEMASCO raises issues that are factual in nature. As a general rule,
the Courts jurisdiction in a Rule 45 petition is limited to the review of pure
questions of law. Negatively put, Rule 45 does not allow the review of questions of
fact because the Court is not a trier of facts. A question of law arises when the
doubt or difference exists as to what the law is on a certain state of facts, while a
question of fact exists when the doubt or difference arises as to the truth or falsity
of the alleged facts. The test in determining whether a question is one of law or of
fact is whether the appellate court can resolve the issue raised without reviewing or
evaluating the evidence, in which case, it is a question of law. Any question that
invites calibration of the whole evidence, as well as their relation to each other and
to the whole, is a question of fact and thus proscribed in a Rule 45 petition. 3
The CA ruled in CA-G.R. SP No. 112073 that GEMASCO failed to establish any
justification for the issuance of a writ of prohibition against the auction sale. It held
that what it sought to prevent was the sale in execution of the subject properties on
the ground of uncertain ownership that was yet to be settled by the Court. But
GEMASCO does not stand to benefit from the resolution of the case. If the Court
eventually rules in its favor, the propriety of the attachment is merely reinforced. It
cannot, therefore, properly institute a petition to enjoin the execution of the
judgment. On the other hand, the appellate court further held, if GMAWD turns out
to be victorious, it will acquire the right to take the proper course of action, being
the party that may be affected by the attachment.
It is interesting to note that the water works system in General Mariano Alvarez,
Cavite, including the three (3) water tanks subject of the assailed Writ of Execution
in G.R. No. 198923, is devoted to public use and thus, property of public dominion,

which GMAWD has the right to operate, maintain, and manage. Properties of public
dominion, being for public use, are not subject to levy, encumbrance or disposition
through public or private sale. Any encumbrance, levy on execution or auction sale
of any property of public dominion is void for being contrary to public policy.
Otherwise, essential public services would stop if properties of public dominion
would be subject to encumbrances, foreclosures and auction sale. 4 Since it is
GEMASCO which is liable for the payment of the separation pay and backwages to
its illegally dismissed employees, any contemplated sale must be confined only to
those properties absolutely owned by it and the subject water tanks must corollarily
be excluded from the same.
WHEREFORE, premises considered, the petition in G.R. No. 175417 is DENIED for
lack of merit. The Decision dated March 23, 2006 and Resolution dated September
1, 2006 of the Court of Appeals in CA-G.R. CV No. 64237 are hereby AFFIRMED. The
petition in G.R. No. 198923, however, is GRANTED. The February 17, 2011 CA
Decision and its Resolution dated August 31, 2011 in CA-G.R. SP No. 112073 are
hereby REVERSED AND SET ASIDE. The three (3) water tanks and other facilities
which may form part of the water works system in General Mariano Alvarez, Cavite
must, therefore, be EXCLUDED from the Labor Arbiters Writ of Execution and
subsequent attachment.
SO ORDERED.
PERALTA, J.:
Velasco, Jr., (Chairperson), Villarama, Jr., Reyes, and Jardeleza, JJ., concur.
THIRD DIVISION, G.R. No. 175417, February 09, 2015, GENERAL MARIANO ALVAREZ
SERVICES COOPERATIVE, INC. (GEMASCO), PETITIONER, VS. NATIONAL HOUSING
AUTHORITY (NHA) AND GENERAL MARIANO ALVAREZ WATER DISTRICT (GMAWD),
RESPONDENTS.
G.R. NO. 198923, GENERAL MARIANO ALVAREZ WATER DISTRICT (GMAWD),
PETITIONER, VS. AMINA CATANGAY, ELESITA MIRANDA, ROSITA RICARTE, ROSA
FETIZANAN, ABSALON AGA, ELPIDIO SARMIENTO, FRANCISCO RICARDE, ROMEO
CATACUTAN, RASALIO LORENZO, ARTEMIO RAFAEL, MYRN CEA, AND NORMA ESTIL;
NATIONAL HOUSING AUTHORITY (NHA) AND GENERAL MARIANO ALVAREZ SERVICES
COOPERATIVE, INC., REPRESENTED BY ERNESTO FLORES, RESPONDENTS.

The Commission On Audit (COA) Is Endowed With Latitude To Determine, Prevent,

And Disallow Irregular, Unnecessary, Excessive, Extravagant, Or Unconscionable
Expenditures Of Government Funds
June 23, 2015 by The Lawyer's Post
The Facts:
The Technical Education and Skills Development Agency, an attached agency of the
Department of Labor and Employment, relying on Administrative Order No. 430
series of 2003 issued by the DOLE, which authorised the payment of healthcare
maintenance allowance of P5,000.00 to all officials and employees of the DOLE and
its attached agencies, paid to covered employees for the year 2003 the amount of
P5,000.00 as healthcare maintenance allowance. In turn, the issuance of AO 430
was purportedly based on Civil Service Commission Memorandum Circular No. 33
series of 1997 and Section 34 of the General Provisions of the 2003 General
Appropriation Act. On post-audit, however, the COA State Auditor disallowed the
amounts paid for by TESDA to its employees, ruling that the payment of the amount
was without specific legal authority. The Officer-in-Charge of the Legal and
Adjudication Office (COA-LAO) then ruled that the payment of the amount was
without basis, the same being contrary to Republic Act 6758 (Salary
Standardiization Law), and identified the persons liable to pay for allowing the
payment of the said amounts. Despite appeal, the COA affirmed the LAO findings
hence, TESDA elevated its case to the Supreme Court. It argues that there was
sufficient legal basis for the release of the healthcare maintenance allowance of
P5,000.00 to its employees; that such payment was only in compliance with the
DOLE directive issued pursuant to MC No. 33 to afford all government employees a
health program that would include hospitalization services and/or annual mental,
medical-physical examinations; and that such payment was also based on the
authority granted by the 2003 GAA on the giving of personnel benefits to be
charged against the corresponding fund from which basic salaries were drawn. On
the other hand, the COA argues that MC No. 33 referred to the institutionalization of
a health care program in the Government, and did not suggest the payment of
direct allowances to the employees of the Government; that the TESDA should not
have relied on the provisions of the GAA because the same were not self-executory;
and that, as such, the healthcare maintenance allowance lacked statutory basis and
must be disallowed.
The Issue:

Whether or not the Commission on Audit committed grave abuse of authority in

disallowing the payment of healthcare maintenance allowance to TESDA employees,
and holding its officials and employees personally liable for the illegal disbursement.
The Ruling:
The petition has no merit.
To better appreciate the dispute between the parties, a review of the legal
antecedents is in order.
On December 18, 1997, the CSC issued Resolution No. 97-4684 to provide an
adequate policy on basic health and safety conditions of work in the Government.
The resolution relevantly provides:
NOW THEREFORE, the Commission resolved, as it hereby resolves to mandate the
following policies as a way of reinventing the workplace of public sector employees:
1. All government offices shall provide the following:

a. Health Program for Government

Employees

Health program for employees shall include any or

following:

1. Hospitalization services

2. Annual mental, medical-physical examinations

Subsequently, the CSC issued MC No. 33, which was a reiteration of Resolution No.
97-4684, concerning the policy on the working conditions at the workplace. In its
pertinent part, MC No. 33 provides thus: 1

The Civil Service Commission, in partnership and in consultation with the Council of
Personnel Officers and Human Resource Management Officers, recognizes the need
to institutionalize viable programs to improve working conditions in the government.
Pursuant to Resolution No. 97-4684 dated December 18, 1997, the CSC promulgates
and adopts the following policies:
1. All government offices shall provide the following:

a. Health Program for Government

Employees

Health program for employees shall include any or

following:

1. Hospitalization services

2. Annual mental, medical-physical examinations

On the basis of the issuances by the CSC, the DOLE issued AO No 430 to authorize
the release of the challenged healthcare maintenance allowance of P5,000.00 to all
eligible DOLE employees, including the TESDAs workforce, to wit:
In the interest of the service and in recognition of the DOLE officials and
employees efforts to further improve delivery of services to clients and of the need
to enhance the quality of their worklife, a Healthcare Maintenance Allowance of Five
Thousand Pesos (P5,000.00) is hereby authorized to all DOLE employees entitled to
such benefit pursuant to CSC Memorandum Circular No. 33, S. 1997 and Section 34
of the General Provisions of the 2003 General Appropriations Act (GAA), subject to
the following guidelines:2
In the context of the foregoing, we uphold the disallowance by the COA of the
payment of the P5,000.00 as healthcare maintenance allowance. The COA did not
act without or in excess of jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction because it properly exercised its powers and

discretion in disallowing the payment of the P5,000.00 as healthcare maintenance

allowance.
The COA is endowed with latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant, or unconscionable expenditures of
government funds. It has the power to ascertain whether public funds were utilized
for the purpose for which they had been intended by law. The Constitution has
made the COA the guardian of public funds, vesting it with broad powers over all
accounts pertaining to government revenue and expenditures and the uses of public
funds and property, including the exclusive authority to define the scope of its audit
and examination, establish the techniques and methods for such review, and
promulgate accounting and auditing rules and regulations. 3 Thus, the COA is
generally accorded complete discretion in the exercise of its constitutional duty and
responsibility to examine and audit expenditures of public funds, particularly those
which are perceptibly beyond what is sanctioned by law.
Verily, the Court has sustained the decisions of administrative authorities like the
COA as a matter of general policy, not only on the basis of the doctrine of
separation of powers but also upon the recognition that such administrative
authorities held the expertise as to the laws they are entrusted to enforce. 4 The
Court has accorded not only respect but also finality to their findings especially
when their decisions are not tainted with unfairness or arbitrariness that would
amount to grave abuse of discretion.5Only when the COA acted without or in excess
of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, may this Court entertain and grant a petition for certiorari brought to
assail its actions.6 However, we find no grave abuse of discretion on the part of the
COA in issuing the assailed decision.
MC No. 33 dealt with a health care program for government employees. A program
is ordinarily understood as a system in place that will draw the desired benefits over
a period of time. Its dictionary meaning includes a plan of procedure: a schedule or
system under which action may be taken toward a desired goal. 7 Ostensibly, MC
No. 33 did not intend the health care program to be a single activity or endowment
to achieve a fleeting goal, for it rightfully concerned the institutionalization of a
system of healthcare for government employees. A careful perusal of MC No. 33 and
its precursor reveals the unequivocal intent to afford government employees a
sustainable health care program instead of an intermittent healthcare provision. MC
No. 33 delineated the policy framework for working conditions at the workplace,

which, aside from the health care program, included adequate office ventilation and
lighting, clean and adequate restroom facilities, potable drinking water, first aid kit
and facilities, and hazard insurance. The irrefutable attributes of such framework
were perpetuity and sustainability.
The TESDA posits that giving the health care maintenance allowance of P5,000.00
was valid because MC No. 33 did not exclude other types of health-related services
that were helpful in the furtherance of the government offices health program; and
that the payment of the health care maintenance allowance was a very practical
compliance with MC No. 33 because such payment would allow a measure of
flexibility on the part of the employee to choose the physician who would undertake
the examination of the employee.
The position of the TESDA is untenable.
MC No. 33 and its precursor were worded in a plain and straightforward manner to
the effect that the (h)ealth program for employees shall include any or all of the
following: 1) Hospitalization services, and 2) Annual mental, medical-physical
examinations. Whatever latitude was afforded to a government agency extended
only to the determination of which services to include in the program, not to the
choice of an alternative to such health program or to authorizing the conversion of
the benefits into cash. The giving of health care maintenance allowance of
P5,000.00 to the TESDAs employees was not among any of the hospitalization
services or examinations listed in the circular.
The TESDA also relied on Section 34 of the GAA for 2003 (Republic Act No.
9206), viz:
Section 34. Funding of Personnel Benefits. The personnel benefits costs of
government officials and employees shall be charged against the funds from which
their compensations are paid. All authorized supplemental or additional
compensation, fringe benefits and other personal services costs of officials and
employees whose salaries are drawn from special accounts or special funds, such as
salary increases, step increment for length of service, incentive and service fees,
commutation of vacation and sick leaves, retirement and life insurance premiums,
compensation insurance premiums, health insurance premiums, Home
Development Mutual Fund (HDMF) contributions, hospitalization and medical
benefits, scholarship and educational benefits, training and seminar expenses, all
kinds of allowances, whether commutable or reimbursable, in cash or in kind, and

other personnel benefits and privileges authorized by law, including the payment of
retirement gratuities, separation pay and terminal leave benefits, shall similarly be
charged against the corresponding fund from which their basic salaries are drawn
and in no case shall such personnel benefits costs be charged against the General
Fund of the National Government. Officials and employees on detail with other
offices, including the representatives and support personnel of auditing units
assigned to serve other offices or agencies, shall be paid their salaries,
emoluments, allowances and the foregoing supplemental compensation, fringe
benefits and other personal services costs from the appropriations of their parent
agencies, and in no case shall such be charged against the appropriations of the
agencies where they are assigned or detailed, except when authorized by law. (Bold
underscoring supplied for emphasis)
The reliance is misplaced. Section 34 only reiterated the rule that the personnel
benefits costs of government officials and employees should be charged against the
funds from which their compensations are paid. The provision was neither a source
of right nor an authority to hastily fund any or all personnel benefits without the
appropriation being made by law.
It bears reminding that pursuant to Article VI Section 29 (1) of the 1987
Constitution, no money shall be paid out of the Treasury except in pursuance of an
appropriation made by law. Hence, the GAA should be purposeful, deliberate, and
precise in its contents and stipulations. Also, the COA was correct when it held that
the provisions of the GAA were not self-executory. This meant that the execution of
the GAA was still subject to a program of expenditure to be approved by the
President, and such approved program of expenditure was the basis for the release
of funds. For that matter, Section 34, Chapter 5, Book VI of the Administrative Code
(Executive Order No. 292) states that
Section 34. Program of Expenditure The Secretary of Budget shall recommend to
the President the years program of expenditure for each agency of the government
on the basis of authorized appropriations. The approved expenditure program shall
constitute the basis for fund release during the fiscal period, subject to such
policies, rules and regulations as may be approved by the President.
The rules on National Government Budgeting as prescribed by the Administrative
Code are not idle or empty exercises. The mere approval by Congress of the GAA
does not instantly make the funds available for spending by the Executive
Department. The funds authorized for disbursement under the GAA are usually still

to be collected during the fiscal year. The revenue collections of the Government,
mainly from taxes, may fall short of the approved budget, as has been the normal
occurrence almost every year.8 Hence, it is important that the release of funds be
duly authorized, identified, or sanctioned to avert putting the legitimate programs,
projects, and activities of the Government in fiscal jeopardy.
Section 5 of Presidential Decree No. 1597 (Further Rationalizing the System of
Compensation and Position Classification in the National Government) states that
the authority to approve the grant of allowances, honoraria, and other fringe
benefits to government employees, regardless of whether such endowment is
payable by their respective offices or by other agencies of the Government, is
vested in the President9. As such, the
precipitous release and payment of the healthcare maintenance allowance benefits
without any authorization from the Office of the President is without basis and
should be rightfully disallowed.
The Court agrees with the COA decision in holding that the recipients of the
healthcare maintenance allowance benefits who received the allowance of
P5,000.00 in good faith need not refund the sum received. The recipients accepted
the benefits honestly believing that they were receiving what they were entitled to
under the law. Similarly, the Court holds that the TESDA officials who granted the
allowance to the covered personnel acted in good faith in the honest belief that
there was lawful basis for such grant. In view of these considerations, the Court
declares that the disallowed benefits approved and received in good faith need not
be reimbursed to the Government. This finds support in the consistent
pronouncements of the Court, such as that issued in De Jesus v. Commission on
Audit,10 to wit:
Nevertheless, our pronouncement in Blaquera v. Alcala supports petitioners
position on the refund of the benefits they received. InBlaquera, the officials and
employees of several government departments and agencies were paid incentive
benefits which the COA disallowed on the ground that Administrative Order No. 29
dated 19 January 1993 prohibited payment of these benefits. While the Court
sustained the COA on the disallowance, it nevertheless declared that:
Considering, however, that all the parties here acted in good faith, we cannot
countenance the refund of subject incentive benefits for the year 1992, which
amounts the petitioners have already received. Indeed, no indicia of bad faith can

be detected under the attendant facts and circumstances. The officials and chiefs of
offices concerned disbursed such incentive benefits in the honest belief that the
amounts given were due to the recipients and the latter accepted the same with
gratitude, confident that they richly deserve such benefits.
This ruling in Blaquera applies to the instant case. Petitioners here received the
additional allowances and bonuses in good faith under the honest belief that LWUA
Board Resolution No. 313 authorized such payment. At the time petitioners received
the additional allowances and bonuses, the Court had not yet decided Baybay
Water District, Petitioners had no knowledge that such payment was without legal
basis. Thus, being in good faith, petitioners need not refund the allowances and
bonuses they received but disallowed by the COA.
WHEREFORE, we DISMISS the petition for certiorari; and AFFIRM Decision No. 2010039 dated March 23, 2010 of the Commission on Audit subject to
the MODIFICATION that all the officials of the petitioner who approved and all the
employees of the petitioner who received the healthcare maintenance allowance of
P5,000.00 need not refund the same.
SO ORDERED.
BERSAMIN, J.:
Sereno, C. J., Carpio, Velasco, Jr., Leonardo De Castro, Peralta, Del Castillo,
Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, Leonen, and Jardeleza, JJ.,
concur.
Brion, J., on leave.
EN BANC, G.R. No. 196418, February 10, 2015, TECHNICAL EDUCATION AND SKILLS
DEVELOPMENT AUTHORITY (TESDA), PETITIONER, VS. THE COMMISSION ON AUDIT;
CHAIRMAN REYNALDO A. VILLAR; COMMISSIONER JUANITO G. ESPINO, JR.; AND
COMMISSIONER EVELYN R. SAN BUENAVENTURA, RESPONDENTS.
Consistent With The 1987 Constitutions Declared Preference, The Taxing Powers Of
Local Government Units Must Be Resolved In Favor Of Their Local Fiscal Autonomy
June 22, 2015 by The Lawyer's Post
The Facts:

After the Sangguniang Panlalawigan of Palawan enacted Provincial Ordinance No.

332-A, Series of 1995 (providing for the revision, assessments and classification and
valuation of real properties in the province of Palawan), the then mayor of the
municipality of Narra, Palawan, Lucena Demaala, thru the municipal treasurer,
collected from owners of real properties located within its territory an annual tax as
special education fund at the rate of 0.5% of the assessed value of the property
subject to tax, pursuant to Section 48 of the said Ordinance which provided:
Section 48- Additional Levy on Real Property Tax for Special Education Fund. There
is hereby levied an annual tax at the rate of one-half percent (1/2%) of the assessed
value property tax. The proceeds thereof shall exclusively accrue to the Special
Education Fund (SEF).
On post-audit, the Audit Team Leader (Juanito Nostartis) issued Audit Observation
Memonrandum (AOM No. 03-005 where he noted supposed deficiencies in the
special education fund collected by the municipality, particularly the collection of
the special education fund at the rate of 0.5% only when Section 235 of Republic
Act 7160 fixed it at 1%. The Regional Cluster Director then issued Notice of Charge
No. 2004-04-101 in the amount of P1,125,416.56 as the deficiency and held
Demaala, the municipal treasurers and the payors liable for it. The Municipality thru
Demaala filed an appeal, with the COA Legal and Adjudication Office, holding that
their collection was made in accordance with Section 48 of the Ordinance. The
appeal was denied, and the COA itself denied Demaalas petition for review,
affirming the denial by the LAO. Demaala, by then not the municipal mayor of the
municipality anymore, filed a motion for reconsideration, but it was denied, hence
she filed a Petition for Certiorari with the Supreme Court.
The Issues:
Whether or not a municipality within the Metropolitan Manila Area, a city, or a
province may have an additional levy on real property for the special education fund
at the rate of less than 1%.
Assuming there was a deficiency, whether or not petition may be held personally
liable for the deficiency.
The Ruling:
We find for petitioner.

Setting the rate of the additional levy for the special education fund at less than 1%
is within the taxing power of local government units. It is consistent with the
guiding constitutional principle of local autonomy.
I
The power to tax is an attribute of sovereignty. It is inherent in the state.
Provinces, cities, municipalities, and barangays are mere territorial and political
subdivisions of the state. They act only as part of the sovereign. Thus, they do not
have the inherent power to tax.1 Their power to tax must be prescribed by law.
Consistent with the view that the power to tax does not inhere in local government
units, this court has held that a reserved temperament must be adhered to in
construing the extent of a local government units power to tax. As explained
in Icard v. City Council of Baguio:2
It is settled that a municipal corporation unlike a sovereign state is clothed with no
inherent power of taxation. The charter or statute must plainly show an intent to
confer that power or the municipality, cannot assume it. And the power when
granted is to be construed in strictissimi juris. Any doubt or ambiguity arising out of
the term used in granting that power must be resolved against the municipality.
Inferences, implications, deductions all these have no place in the interpretation
of the taxing power of a municipal corporation. 3 (Emphasis supplied)
Article X, Section 5 of the 1987 Constitution is the basis of the taxing power of local
government units:
Section 5. Each local government unit shall have the power to create its own
sources of revenues and to levy taxes, fees and charges subject to such guidelines
and limitations as the Congress may provide, consistent with the basic policy of
local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments. (Emphasis supplied)
The taxing power granted by constitutional fiat to local government units exists in
the wider context to ensure the autonomy of local governments. 4 As Article II,
Section 25 of the 1987 Constitution unequivocally provides:
Section 25. The State shall ensure the autonomy of local governments.

Article II, Section 25 is complemented by Article X, Section 2:

Section 2. The territorial and political subdivisions shall enjoy local autonomy.
The 1935 Constitution was entirely silent on local autonomy, albeit making a
distinction between executive departments, bureaus, and offices on the one hand,
and local governments on the other. It provided that the President had control over
the former but merely exercise[d] general supervision 5 over the latter. Article VII,
Section 10(1) of the 1935 Constitution provided:
SEC. 10. (1) The President shall have control of all the executive departments,
bureaus, or offices, exercise general supervision over all local governments as may
be provided by law, and take care that the laws be faithfully executed.
Similarly, the 1935 Constitution was silent on the taxing power of local government
units.
The 1973 Constitution provided for local autonomy. Article II, Section 10 of the 1973
Constitution read:
SEC. 10. The State shall guarantee and promote the autonomy of local government
units, especially the [barangays], to ensure their fullest development as self-reliant
communities.
Any trend in the 1973 Constitution towards greater autonomy for local government
units was aborted in 1972 when Ferdinand Marcos placed the entire country under
martial law [thereby] stunt[ing] the development of local governments by
centralizing the government in Manila.6 While local autonomy was provided for in
the 1973 Constitution, its existence was confined to principle and theory. Practice
neutered all of Article XI of the 1973 Constitution (on local government), including
Section 5 which provided for the taxing power of local government units. Article XI,
Section 5 reads:
SEC. 5. Each local government unit shall have the power to create its own sources
of revenue and to levy taxes, subject to such limitations as may be provided by law.
Article X, Section 5 of the 1987 Constitution is more emphatic in empowering local
government units in the matter of taxation compared with Article XI, Section 5 of
the 1973 Constitution. In addition to stating that local government units have the

power to tax (subject to Congressional guidelines and limitations), Article X, Section

5 of the 1987 Constitution adds the phrase consistent with the basic policy of local
autonomy. Further, it is definite with the use of funds generated by local
government units through the exercise of their taxing powers, providing that [s]uch
taxes, fees, and charges shall accrue exclusively to the local governments. 7
Apart from administrative autonomy, an equally vital facet of local governance
under the 1987 Constitution is fiscal autonomy. InPimentel v. Aguirre:8
Under existing law, local government units, in addition to having administrative
autonomy in the exercise of their functions, enjoy fiscal autonomy as well. Fiscal
autonomy means that local governments have the power to create their own
sources of revenue in addition to their equitable share in the national taxes released
by the national government, as well as the power to allocate their resources in
accordance with their own priorities. It extends to the preparation of their budgets,
and local officials in turn have to work within the constraints thereof. They are not
formulated at the national level and imposed on local governments, whether they
are relevant to local needs and resources or not. Hence, the necessity of a
balancing of viewpoints and the harmonization of proposals from both local and
national officials, who in any case are partners in the attainment of national goals. 9
II
The taxing powers of local government units must be read in relation to their power
to effect their basic autonomy.
Consistent with the 1987 Constitutions declared preference, the taxing powers of
local government units must be resolved in favor of their local fiscal autonomy.
In City Government of San Pablo v. Reyes:10
The power to tax is primarily vested in Congress. However, in our jurisdiction, it
may be exercised by local legislative bodies, no longer merely by virtue of a valid
delegation as before, but pursuant to direct authority conferred by Section 5, Article
X of the Constitution. Thus Article X, Section 5 of the Constitution reads:
Sec. 5 Each Local Government unit shall have the power to create its own sources
of revenue and to levy taxes, fees and charges subject to such guidelines and
limitations as the Congress may provide, consistent with the basic policy of local

autonomy. Such taxes, fees and charges shall accrue exclusively to the Local
Governments.
The important legal effect of Section 5 is that henceforth, in interpreting statutory
provision on municipal fiscal powers, doubts will have to be resolved in favor of
municipal corporations.11 (Emphasis supplied)
Similarly, in San Juan v. Civil Service Commission,12 this court stated:
We have to obey the clear mandate on local autonomy. Where a law is capable of
two interpretations, one in favor of centralized power in Malacaang and the other
beneficial to local autonomy, the scales must be weighed in favor of autonomy. 13
The Local Government Code was enacted pursuant to the specific mandate of
Article X, Section 3 of the 1987 Constitution14 and its requirements of
decentralization. Its provisions, including those on local taxation, must be read in
light of the jurisprudentially settled preference for local autonomy.
III
The limits on the level of additional levy for the special education fund under
Section 235 of the Local Government Code should be read as granting fiscal
flexibility to local government units.
Book II of the Local Government Code governs local taxation and fiscal matters.
Title II of Book II governs real property taxation.
Section 235 of the Local Government Code allows provinces and cities, as well as
municipalities in Metro Manila, to collect, on top of the basic annual real property
tax, an additional levy which shall exclusively accrue to the special education fund:
Section 235. Additional Levy on Real Property for the Special Education Fund. A
province or city, or a municipality within the Metropolitan Manila Area, may levy and
collect an annual tax of one percent (1%) on the assessed value of real
property which shall be in addition to the basic real property tax. The proceeds
thereof shall exclusively accrue to the Special Education Fund (SEF). (Emphasis
supplied)
The special education fund is not an original creation of the Local Government
Code. It was initially devised by Republic Act No. 5447. 15 The rate of 1% is also not

a detail that is original to the Local Government Code. As discussed in Commission

on Audit v. Province of Cebu:16
The Special Education Fund was created by virtue of R. A. No. 5447, which is [a]n
act creating a special education fund to be constituted from the proceeds of an
additional real property tax and a certain portion of the taxes on Virginia-type
cigarettes and duties on imported leaf tobacco, defining the activities to be
financed, creating school boards for the purpose, and appropriating funds
therefrom, which took effect on January 1, 1969. Pursuant thereto, P.D. No. 464,
also known as the Real Property Tax Code of the Philippines, imposed an annual tax
of 1% on real property which shall accrue to the SEF. 17 (Citations omitted)
The operative phrase in Section 235s grant to municipalities in Metro Manila, cities,
and provinces of the power to impose an additional levy for the special education
fund is prefixed with may, thus, may levy and collect an annual tax of one
percent (1%).
In Buklod nang Magbubukid sa Lupaing Ramos, Inc. v. E.M. Ramos and Sons,
Inc.18 the meaning of may was discussed as follows:
Where the provision reads may, this word shows that it is not mandatory but
discretionary. It is an auxiliary verb indicating liberty, opportunity, permission and
possibility. The use of the word may in a statute denotes that it is directory in
nature and generally permissive only.19
Respondent concedes that Section 235s grant to municipalities in Metro Manila, to
cities, and to provinces of the power to impose an additional levy for the special
education fund makes its collection optional. It is not mandatory that the levy be
imposed and collected. The controversy which the Commission on Audit created is
not whether these local government units have discretion to collect but whether
they have discretion on the rate at which they are to collect.
It is respondents position that the option granted to a local government unit is
limited to the matter of whether it shall actually collect, and that the rate at which it
shall collect (should it choose to do so) is fixed by Section 235. In contrast, it is
petitioners contention that the option given to a local government unit extends not
only to the matter of whether to collect but also to the rate at which collection is to
be made.

We sustain the position of petitioner.

Section 235s permissive language is unqualified. Moreover, there is no limiting
qualifier to the articulated rate of 1% which unequivocally indicates that any and all
special education fund collections must be at such rate.
At most, there is a seeming ambiguity in Section 235. Consistent with what has
earlier been discussed however, any such ambiguity must be read in favor of local
fiscal autonomy. As in San Juan v. Civil Service Commission20 the scales must weigh
in favor of the local government unit.
Fiscal autonomy entails the power to create . . . own sources of revenue. 21 In
turn, this power necessarily entails enabling local government units with the
capacity to create revenue sources in accordance with the realities and
contingencies present in their specific contexts. The power to create must mean
the local government units power to create what is most appropriate and optimal
for them; otherwise, they would be mere automatons that are turned on and off to
perform prearranged operations.
Devolving power but denying its necessary incidents and accessories is tantamount
to not devolving power at all. A local government unit with a more affluent
constituency may thus realize that it can levy taxes at rates greater than those
which local government units with more austere constituencies can collect. For the
latter, collecting taxes at prohibitive rates may be counterproductive. High tax
rates can be a disincentive for doing business, rendering it unattractive to
commerce and thereby stunting, rather than facilitating, their development. In this
sense, insisting on uniformity would be a disservice to certain local government
units and would ultimately undermine the aims of local autonomy and
decentralization.
IV
Of course, fiscal autonomy entails working within the constraints. 22 To echo the
language of Article X, Section 5 of the 1987 Constitution, this is to say that the
taxing power of local government units is subject to such guidelines and limitations
as the Congress may provide.23 It is the 1% as a constraint on which the
respondent Commission on Audit is insisting.

There are, in this case, three (3) considerations that illumine our task of
interpretation: (1) the text of Section 235, which, to reiterate, is cast in permissive
language; (2) the seminal purpose of fiscal autonomy; and (3) the jurisprudentially
established preference for weighing the scales in favor of autonomy of local
government units. We find it to be in keeping with harmonizing these
considerations to conclude that Section 235s specified rate of 1% is a maximum
rate rather than an immutable edict. Accordingly, it was well within the power of
the Sangguniang Panlalawigan of Palawan to enact an ordinance providing for
additional levy on real property tax for the special education fund at the rate of
0.5% rather than at 1%.
V
It was an error amounting to grave abuse of discretion for respondent to hold
petitioner personally liable for the supposed deficiency.
Having established the propriety of imposing an additional levy for the special
education fund at the rate of 0.5%, it follows that there was nothing erroneous in
the Municipality of Narras having acted pursuant to Section 48 of the Ordinance. It
could thus not be faulted for collecting from owners of real properties located within
its territory an annual tax as special education fund at the rate of 0.5% of the
assessed value subject to tax of the property. Likewise, it follows that it was an
error for respondent to hold petitioner personally liable for the supposed deficiency
in collections.
Even if a contrary ruling were to be had on the propriety of collecting at a rate less
than 1%, it would still not follow that petitioner is personally liable for deficiencies.
In its Memorandum, respondent cited the 1996 case of Salalima v. Guingona24 as a
precedent for finding local officials liable for violations that have to do with the
special education fund.
Moreover, in Decision No. 2008-087, respondent asserted that there was no cogent
reason to exclude [petitioner] from liability since her participation as one of the local
officials who implemented the collection of the reduced levy rate. . . led to the loss
on reduction [sic] of government income.25 It added that, [c]orollary thereto, the
government can also go against the officials who are responsible for the passage of
[the Ordinance],26 i.e., the members of the Sangguniang Panlalawigan of the
Province of Palawan.

Respondents reliance on Salalima and on petitioners having been incidentally the

mayor of Narra, Palawan when supposedly deficient collections were undertaken is
misguided.
Per respondents own summation of Salalima, in that case, this court:
held that the governor, vice-governor and members of the Sangguniang
Panlalawigan are collectively responsible with other provincial officials in the
administration of fiscal and financial transactions of the province pursuant to
Sections 304 and 305 of RA 7160 for denying the other beneficiaries of their share
of the SEF. These local officials cannot claim ignorance of the law as to the sharing
scheme of the real property tax and the SEF as the same is clearly provided in RA
7160.27 (Emphasis supplied)
Salalima involved several administrative Complaints filed before the Office of the
President against the elective officials of the Province of Albay. One of these OP
Case No. 5470 was a Complaint for malversation, and consistent [and] habitual
violation of pars. (c) and (d) of Section 60 of [the Local Government Code] 28 which
was filed by Tiwi, Albay Mayor Naomi Corral against Albay Governor Romeo
Salalima, Vice-Governor Danilo Azaa, and other Sangguniang Panlalawigan
members.
This Complaint was precipitated by the refusal of the provincial officials of Albay to
make available to the Municipality of Tiwi, Albay its share in the collections of the
special education fund. This was contrary to Section 272 of the Local Government
Code29which requires equal sharing between provincial and municipal school
boards. Specifically, it was found that the Sangguniang Panlalawigan passed
Ordinance No. 09-92, which declared as forfeited in favor of the Province of Albay
(and to the exclusion of the municipalities in Albay) all payments made by the
National Power Corporation to the former pursuant to a memorandum of agreement
through which the National Power Corporation settled its real property tax
obligations.
As regards the personal liability of the respondents in that case, the Office of the
President was quoted to have anchored on the following disquisition its imposition
of the penalty of suspension on the respondent provincial officials:
It cannot be denied that the Sangguniang Panlalawigan has control over the
Provinces purse as it may approve or not resolutions or ordinances generating

revenue or imposing taxes as well as appropriating and authorizing the

disbursement of funds to meet operational requirements or for the prosecution of
projects.
Being entrusted with such responsibility, the provincial governor, vice-governor and
the members of the Sangguniang Panlalawigan, must always be guided by the socalled fundamental principles enunciated under the Local Government Code[.] . . .
All the respondents could not claim ignorance of the law especially with respect to
the provisions of P.D. No. 464 that lay down the sharing scheme among local
government units concerned and the national government, for both the basic real
property tax and additional tax pertaining to the Special Education Fund. Nor can
they claim that the Province could validly forfeit the P40,724,471.74 paid by NPC
considering that the Province is only entitled to a portion thereof and that the
balance was merely being held in trust for the other beneficiaries.
As a public officer, respondent Azaa (and the other respondents as well) has a duty
to protect the interests not only of the Province but also of the municipalities of Tiwi
and Daraga and even the national government. When the passage of an illegal or
unlawful ordinance by the Sangguniang Panlalawigan is imminent, the presiding
officer has a duty to act accordingly, but actively opposing the same by temporarily
relinquishing his chair and participating in the deliberations. If his colleagues insist
on its passage, he should make known his opposition thereto by placing the same
on record. No evidence of any sort was shown in this regard by respondent Azaa.
Clearly, all the respondents have, whether by act or omission, denied the other
beneficiaries of their rightful shares in the tax delinquency payments made by the
NPC and caused the illegal forfeiture, appropriation and disbursement of funds not
belonging to the Province, through the passage and approval of Ordinance No. 0992 and Resolution Nos. 178-92 and 204-92.
The foregoing factual setting shows a wanton disregard of law on the part of the
respondents tantamount to abuse of authority. Moreover, the illegal disbursements
made can qualify as technical malversation.30
It is evident that the circumstances in Salalima are not analogous to the
circumstances pertinent to petitioner.

While Salalima involved the mishandling of proceeds which was tantamount to

abuse of authority and which can qualify as technical malversation, this case
involves the collection of the additional levy for the special education fund at a rate
which, at the time of the collection, was pursuant to an ordinance that was yet to be
invalidated.
Likewise, Salalima involved the liability of the provincial officials who were
themselves the authors of an invalid ordinance. In this case, the Municipality of
Narra as subordinate to the Province of Palawan merely enforced a provincial
ordinance. Respondent, in its own Memorandum, acknowledged that it was not
even petitioner but the municipal treasurer who actually effected the collection at a
supposedly erroneous rate.31
Also, Salalima entailed the imposition of the administrative penalty of suspension.
In this case, respondent is not concerned with the imposition of administrative
penalties but insists that petitioner must herself (jointly and severally with the other
persons named) pay for the deficiency in collections.
We find it improper to hold petitioner personally liable for the uncollected amount
on account of the sheer happenstance that she was the mayor of Narra, Palawan,
when the Ordinance was enforced.
VI
The actions of the officials of the Municipality of Narra are consistent with the rule
that ordinances are presumed valid. In finding liability, respondent suggests that
officers of the Municipality should not comply with an ordinance duly passed by the
Sangguniang Panlalawigan.
It is true that petitioner, as the local chief executive, was charged with fidelity to our
laws. However, it would be grossly unfair to sustain respondents position. It
implacably dwells on supposed non-compliance with Section 235 but turns a blind
eye on the context which precipitated the collection made by the Municipality of
Narra at the reduced rate of 0.5%.
The mayors actions were done pursuant to an ordinance which, at the time of the
collection, was yet to be invalidated.

It is basic that laws and local ordinances are presumed to be valid unless and until
the courts declare the contrary in clear and unequivocal terms. 32 Thus, the
concerned officials of the Municipality of Narra, Palawan must be deemed to have
conducted themselves in good faith and with regularity when they acted pursuant
to Chapter 5, Section 48 of Provincial Ordinance No. 332-A, Series of 1995, and
collected the additional levy for the special education fund at the rate of 0.5%.
Accordingly, it was improper for respondent to attribute personal liability to
petitioner and to require her to personally answer to the deficiency in special
education fund collections.
WHEREFORE, the Petition is GRANTED. Decision No. 2008-087 dated September 22,
2008 and Decision No. 2011-083 dated November 16, 2011 of respondent
Commission on Audit are ANNULLED and SET ASIDE.
SO ORDERED.
LEONEN, J.:
Sereno, C.J. Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del
Castillo, Villarama, Jr., Perez, Mendoza, Reyes,and Perlas-Bernabe, JJ., concur.
Brion, J., on leave.
Jardeleza, J., on official leave.
EN BANC, G.R. No. 199752, February 17, 2015, LUCENA D. DEMAALA, PETITIONER,
VS. COMMISSION ON AUDIT, REPRESENTED BY ITS CHAIRPERSON COMMISSIONER
MA. GRACIA M. PULIDO TAN, RESPONDENT.
It Is The Inter-Agency Council-Tobacco And Not The Department Of Health Which Has
The Primary Jurisdiction To Regulate Sales Promotion Activities For Tobacco Products
Under Republic Act 9211
June 21, 2015 by The Lawyer's Post
The Facts:
Philip Morris Philippines Manufacturing Inc., thru its advertising agency,
filed an application for sales promotion under Article 166 of Republic Act
7394 before the BFAD, now FAD for its Gear Up promo. Fifteen days
having lapsed without any action taken on its application, the company
inquired about its status but was verbally informed of a Memorandum
issued by the DOH prohibiting the tobacco companies from conducting any

tobacco promotional activities in the country. The companys advertising

arm thus requested that any formal action thereof be made in writing.
Subsequently, the company thru another advertising agency applied for
sales promotion permit for its Golden Stick promo.

The BFAD refused

outright its application pursuant to a directive of the BFAD Director that

all permit applications for promotional activities of tobacco companies will
no longer be accepted. On January 15, 2009, the BFAD through Director
Barbara Guttierez informed PMPI that its application for Gear Up promo
was denied upon instruction of DOH Undersecretary for Standards and
Regulations that all promotions, advertisements and/or sponsorships of
tobacco products are already prohibited under Republic Act 9211, as of
July 1, 2008. Thus, PMPI filed an administrative appeal before the DOH
Secretary, arguing that under RA 9211, promotion is not prohibited but
merely restricted; while there are specific provisions banning
advertisements and sponsorships, none could be found
banning promotion. Since the BFAD had been granting such applications
prior to January 5, 2009, it had acquired a vested right to the granting of
such sales promotional permit.
The DOH Secretary thru a Consolidated Decision denied the appeal.
Ruling that the issuance of permits was never a ministerial duty of the
BFAD, it was discretionary on the part of the BFAD to grant or deny any
application for the permit, hence PMPI could not have acquired a vested
right to the grant of the promotional permit. Since the intent of RA 9211
was to completely ban advertisements promotions and sponsorships,
promotion being an inherent part of both advertising and sponsorships
should be included in the prohibition. RA 9211 should not be interpreted
in such a way that it will be rendered meaningless and ridiculous. Further,
the country is obligated to observe the provisions of the Framework
Convention on Tobacco Control (FCTC), an international treaty to which it
is a party.
On appeal to the CA, however, the latter set aside the DOH Consolidated
Decision. While advertising and sponsorships were completely banned by
RA 9211, the same does not hold true for promotion. Further the DOH is
without authority to enforce the provisions of RA 9211, since it is the
Inter-Agency CommitteeTobacco (IAC-Tobacco) created under Section 29
of the law which has the exclusive power and function to administer and

implement the provisions of [RA 9211] x x x. Section 166 of RA 7394

under which authority the PMPI sought sales promotional permit was
already repealed by Section 39 of RA 9211.
The DOH elevated the case to the Supreme Court to assail the CA ruling.
The Issue:
(a) whether or not the CA erred in finding that the authority of the DOH,
through the BFAD, to regulate tobacco sales promotions under Article 116
in relation to Article 109 of RA 7394 had already been impliedly repealed
by RA 9211, which created the IAC-Tobacco and granted upon it the
exclusive authority to administer and implement the provisions thereof;
and
(b) whether or not the CA erred in ascribing grave abuse of discretion
upon the DOH when the latter held that RA 9211 has also completely
prohibited tobacco promotions as of July 1, 2008.
The Ruling:
The petition is bereft of merit.
At the core of the present controversy are the pertinent provisions of RA
7394, i.e., Article 116 in relation to Article 109, to wit:
Article 116. Permit to Conduct Promotion. No person shall conduct any
sales campaigns, including beauty contest, national in character,
sponsored and promoted by manufacturing enterprises without first
securing a permit from the concerned department at least thirty (30)
calendar days prior to the commencement thereof. Unless an objection or
denial is received within fifteen (15) days from filing of the application,
the same shall be deemed approved and the promotion campaign or
activity may be conducted: Provided, That any sales promotion campaign
using medical prescriptions or any part thereof or attachment thereto for
raffles or a promise of reward shall not be allowed, nor a permit be issued
therefor. (Emphasis supplied)
Article 109. Implementing Agency. The Department of Trade and Industry
shall enforce the provisions of this Chapter and its implementing rules and
regulations: Provided, That with respect to food, drugs, cosmetics,

devices, and hazardous substances, it shall be enforced by the

Department of Health. (Emphasis and underscoring supplied)
The DOH derives its authority to rule upon applications for sales
promotion permits from the above-cited provisions. On the other hand,
Section 29 of RA 9211 creating the IAC-Tobacco provides:
Section 29. Implementing Agency. An Inter-Agency Committee-Tobacco
(IAC-Tobacco), which shall have the exclusive power and function to
administer and implement the provisions of this Act, is hereby created.
The IAC-Tobacco shall be chaired by the Secretary of the Department of
Trade and Industry (DTI) with the Secretary of the Department of Health
(DOH) as Vice Chairperson. The IAC-Tobacco shall have the following as
members:
1. Secretary of the Department of Agriculture (DA);
2. Secretary of the Department of Justice (DOJ);
3. Secretary of the Department of Finance (DOF);
4. Secretary of the Department of Environment and Natural Resources
(DENR);
5. Secretary of the Department of Science and Technology (DOST);
6. Secretary of the Department of Education (DepEd);
7. Administrator of the National Tobacco Administration (NTA);
8. A representative from the Tobacco Industry to be nominated by the
legitimate and recognized associations of the industry; and
9. A representative from a nongovernment organization (NGO) involved
in public health promotion nominated by DOH in consultation with
the concerned NGOs[.]

The Department Secretaries may designate their Undersecretaries as their

authorized representative to the IAC. (Emphasis and underscoring
supplied)
It is the CAs pronouncement that the creation of the IAC-Tobacco
effectively and impliedly repealed1 the above-quoted provisions of RA
7394, thereby removing the authority of the DOH to rule upon applications
for sales promotional permits filed by tobacco companies such as those
filed by PMPMI subject of this case.
On the other hand, while the DOH and the BFAD concede that the creation
of the IAC-Tobacco expressly grants upon the IAC-Tobacco the exclusive
power and function to administer and implement its provisions, they
nevertheless maintain that RA 9211 did not remove their authority under
RA 7394 to regulate tobacco sales promotions.2 They point out that this
much can be deduced from the lack of provisions in RA 9211 and its
implementing rules laying down the procedure for the processing of
applications for tobacco sales promotions permit.3 As such, the DOH,
through the BFAD, retains the authority to rule on PMPMIs promotional
permit applications.
The Court agrees with the CA.
After a meticulous examination of the above-quoted pertinent provisions
of RA 7394 and RA 9211, the Court finds that the latter lawimpliedly
repealed the relevant provisions of the former with respect to the
authority of the DOH to regulate tobacco sales promotions.
At this point, the Court notes that both laws separately treat promotion
as one of the activities related to tobacco: RA 7394 definessales
promotion under Article 4 (bm), while RA 9211 speaks of promotion or
tobacco promotion under Section 4 (l).
Sales promotion is defined in Article 4 (bm) of RA 7394, to wit:
Article 4. Definition of Terms. For purposes of this Act, the term:
xxxx
bm) Sales Promotion means techniques intended for broad consumer
participation which contain promises of gain such as prizes, in cash or in

kind, as reward for the purchase of a product, security, service or winning

in contest, game, tournament and other similar competitions
which involve determination of winner/s and which utilize mass media or
other widespread media of information. It also means techniques purely
intended to increase the sales, patronage and/or goodwill of a
product. (Emphases and underscoring supplied)
Identifying its Gear Up Promo and Golden Stick Promo to be activities that
fall under sales promotion as contemplated in the said provision, PMPMI
filed its permit applications under Article 116 of RA 7394 before the BFAD.
Meanwhile, Section 4 (l) of RA 9211 defines promotion as follows:
Section 4. Definition of Terms. As used in this Act:
xxxx
l. Promotion refers to an event or activity organized by or on behalf of
a tobacco manufacturer, distributor or retailer with the aim of promoting a
brand of tobacco product, which event or activity would not occur but for
the support given to it by or on behalf of the tobacco manufacturer,
distributor or retailer. It may also refer to the display of a tobacco product
or manufacturers name, trademark, logo, etc. on non-tobacco products.
This includes the paid use of tobacco products bearing the brand names,
trademarks, logos, etc. in movies, television and other forms of
entertainment. For the purpose of this Act, promotion shall be understood
as tobacco promotion[.] (Emphases and underscoring supplied)
As adverted to elsewhere, the IAC-Tobacco shall have the exclusive power
and function to administer and implement the provisions of RA 9211,
which includes the conduct of regulating promotion.
The Court has judiciously scrutinized the above definitions and finds that
there is no substantial difference between the activities that would fall
under the purview of sales promotion in RA 7394, as well as those under
promotion in RA 9211, as would warrant a delineation in the authority
to regulate its conduct. In fact, the techniques, activities, and methods
mentioned in the definition of sales promotion can be subsumed under
the more comprehensive and broad scope of promotion.

In order to fully understand the depth and scope of these marketing

activities, the Court finds it necessary to go beyond the ambit of the
definitions provided in our laws.
Outside RA 7394, sales promotion refers to activities which make use of
media and non-media marketing communication for a pre-determined,
limited time to increase consumer demand, stimulate market demand or
improve product availability,4 to provide added value or incentives to
consumers, wholesalers, retailers, or other organizational customers to
stimulate immediate sales and product interest, trial, or
purchase.

Examples of devices used in sales promotion are contests,

coupons, freebies, point-of-purchase displays, premiums, raffle prizes,

product samples, sweepstakes, and rebates. 6
On the other hand, promotion is a term frequently used in marketing
which pertains to raising customer awareness of a product or brand,
generating sales, and creating brand loyalty7 which utilize the following
subcategories: personal selling, advertising,sales promotion, direct
marketing, and publicity.8 The three basic objectives of promotion are: (1)
to present information to consumers as well as others; (2) to increase
demand; and (3) to differentiate a product.9 Promotion can be done
through various methods, e.g., internet advertisements, special events,
endorsements, incentives in the purchase of a product like discounts (i.e.,
coupons), free items, or contests.10
Consequently, if sales promotion is considered as one of the
subcategories of promotion, it is clear, therefore, that promotion
necessarily incorporates the activities that fall under sales promotion.
Considering that the common and fundamental purpose of these
marketing strategies is to raise customer awareness in order to increase
consumer demand or sales, drawing a demarcation line between
promotion and sales promotion as two distinct and separate activities
would be unnecessarily stretching their meanings and, accordingly, sow
more confusion. Moreover, the techniques, methods, and devices through
which sales promotion are usually accomplished can likewise be
considered as activities relating to promotion, like raffle contests, which
necessarily require prizes and drawing of winners, discounts, and
freebies.

Concomitantly, while the Court acknowledges the attempt of the

Department of Justice (DOJ), through its DOJ Opinion No. 29, series of
2004,11 (DOJ Opinion) to reconcile and harmonize the apparently
conflicting provisions of RA 7394 and RA 9211 in this respect, to the
Courts mind, it is more logical to conclude that sales promotion and
promotion are actually one and the same. The DOJ, in fact, referred 12 to
product promotion in RA 9211 as promotion per se which, therefore,
can be taken to mean an all-encompassing activity or marketing strategy
which may reasonably and logically include sales promotion. Besides,
the DOJ Opinion is merely persuasive and not necessarily controlling.
Furthermore, the declared policy of RA 9211 where promotion is defined
includes the institution of a balanced policy whereby theuse, sale and
advertisements of tobacco products shall be regulated in order to promote
a healthful environment and protect the citizens from the hazards of
tobacco smoke x x x. Hence, if the IAC-Tobacco was created and
expressly given the exclusive authority to implement the provisions of RA
9211 in accordance with the foregoing State policy, it signifies that it shall
also take charge of the regulation of the use, sale, distribution, and
advertisements of tobacco products, as well as all forms of promotion
which essentially includes sales promotion. Therefore, with this
regulatory power conferred upon the IAC-Tobacco by RA 9211, the DOH
and the BFAD have been effectively and impliedly divested of any
authority to act upon applications for tobacco sales promotional permit,
including PMPMIs.
Finally, it must be stressed that RA 9211 is a special legislation which
exclusively deals with the subject of tobacco products and related
activities. On the other hand, RA 7394 is broader and more general in
scope, and treats of the general welfare and interests of consumers vis-vis proper conduct for business and industry. As such, lex specialis
derogat generali. General legislation must give way to special legislation
on the same subject, and generally is so interpreted as to embrace only
cases in which the special provisions are not applicable. In other words,
where two statutes are of equal theoretical application to a particular
case, the one specially designed therefore should prevail. 13
In fine, the Court agrees with the CA that it is the IAC-Tobacco and not the
DOH which has the primary jurisdiction to regulate sales promotion
activities as explained in the foregoing discussion. As such, the DOHs
ruling, including its construction of RA 9211 (i.e., that

it completely banned tobacco advertisements, promotions, and

sponsorships, as promotion is inherent in both advertising and
sponsorship), are declared null and void, which, as a necessary
consequence, precludes the Court from further delving on the same. As it
stands, the present applications filed by PMPMI are thus remanded to the
IAC-Tobacco for its appropriate action. Notably, in the proper exercise of
its rule-making authority, nothing precludes the IAC-Tobacco from
designating any of its pilot agencies (which, for instance, may even be the
DOH14 to perform its multifarious functions under RA 9211.
WHEREFORE, the petition is DENIED. The Decision dated August 26, 2011
and the Resolution dated August 3, 2012 of the Court of Appeals in CAG.R. SP No. 109493 are hereby AFFIRMED with the MODIFICATION in that
the present permit applications filed by respondent Philip Morris
Philippines Manufacturing, Inc. for its tobacco sales promotions are
hereby REMANDED to the Inter-Agency Committee-Tobacco for appropriate
action.
SO ORDERED.
PERLAS-BERNABE, J.:
Sereno, C.J., (Chairperson), Leonardo-De Castro, Bersamin, and Perez, JJ.,
concur.
FIRST DIVISION, G.R. No. 202943, March 25, 2015, THE DEPARTMENT OF
HEALTH, REPRESENTED BY SECRETARY ENRIQUE T. ONA, AND THE FOOD AND DRUG
ADMINISTRATION (FORMERLY THE BUREAU OF FOOD AND DRUGS), REPRESENTED
BY ASSISTANT SECRETARY OF HEALTH NICOLAS B. LUTERO III, OFFICER-IN-CHARGE,
PETITIONERS, VS. PHILIP MORRIS PHILIPPINES MANUFACTURING, INC., RESPONDENT.
When More Than 30 Days Have Elapsed From The Time An Ordinance Was
Submitted To The Sangguniang Panlalawigan For Review By The Latter, It Should Be
Deemed Approved And Valid Pursuant To Section 56 (d) Of The Local Government
Code
June 19, 2015 by The Lawyer's Post
The Facts:

Peoples Eco-Tourism and Livelihood foundation Inc. (PETAL), an NGO engaged in the
protection and conservation of ecology, tourism, and livelihood, and founded by
petitioner Ramonito Acaac built some cottages made of indigenous materials and a
seminar cottage on Capayas Island, Lopez Jaena municipality which it rented out to
the public. On April 11 and May 20, 2002, however, Mayor Melquiades Azcuna and
Building Official Marietes Bantos issued Notices of Illegal Construction against PETAL
and the petitioners allegedly for failure to apply for a building permit prior to the
construction of the cottages. PETAL refused to comply, hence the respondents
issued Third and Final Notices of Illegal Construction. On July 8, 2002, the
Sangguniang Bayan adopted Municipal Ordinance No. 02 Series of 2002, prohibiting
the entry of any entity, organisation, association or corporation, and the
construction of structures, permanent or temporary on the premises of Capayas
Island, except if authorised by the government. Azcuna approved the ordinance,
hence it was forwarded to the Sangguniang Panlalawigan which conducted public
hearings on the matter. Notices were also posted at Capayas Island prohibiting the
ingress and egress thereto. A Notice of Voluntary Demoliton was served on PETAL
forts is alleged numerous violations of the ordinance. Thus, PETAL and the
individual petitioners filed an action for the issuance of a preliminary injunction and
damages against the respondents, claiming tat stye hav prior physical possession of
the property. Morevoer, Municipal Ordinance No, 02 Series of 2002 was void since it
was adopted without a prior public consultation, not published in a newspaper of
general publication in the provide as required under RA 7160, and it was not
approved by the Sangguniang Panlalawigan. On the other hand, the respondents
averred that the petitioners have no cause of action against them, Capayas Island
not being owned by them since it is a timberland property belonging to the public
domain. The ordinance was deemed approved by operation of law for failure of the
SP to act on it within 30 days; and they have complied with the publication and
posting requirements.
After trial, the RTC rendered judgment in favour of the petitioners. It ruled that the
ordinance was not approved by the SP; neither was it published in a newspaper of
general publication as required and/or posted; the authority and control over the
timberland belong to the national government through the DENR. It therefore
enjoined the respondents to desist from closing Capayas Island.
The Court of Appeals, however reversed the RTC ruling. The ordinance was deemed
approved by the SP upon failure of the latter to act on it within 30 days; under
Section 447 of the Local Government Code, the municipality of Lopez Jaena was

clothed with sufficient power to pass and adopt the ordinance, thus it is not only the
DENR that could administer the sanctuaries. It also grave credence to the claim by
the municipality that it conducted public consultations before passing the
municipality as well as complied with the publication and posting requirement.
The petitioners interposed their appeal to the Supreme Court.
The Issue:
Whether or not the ordinance in question was valid.
The Ruling:
The petition lacks merit.
Section 56 of the LGC provides:
SEC. 56. Review of Component City and Municipal Ordinances or Resolutions by the
Sangguniang Panlalawigan. (a) Within three (3) days after approval, the secretary
to the Sangguniang Panlungsod or Sangguniang Bayan shall forward to the
Sangguniang Panlalawigan for review, copies of approved ordinances and the
resolutions approving the local development plans and public investment programs
formulated by the local development councils.
(b) Within thirty (30) days after receipt of copies of such ordinances and resolutions,
the Sangguniang Panlalawigan shall examine the documents or transmit them to
the provincial attorney, or if there be none, to the provincial prosecutor for prompt
examination. The provincial attorney or provincial prosecutor shall, within a period
of ten (10) days from receipt of the documents, inform the Sangguniang
Panlalawigan in writing his comments or recommendations, which may be
considered by the Sangguniang Panlalawigan in making its decision.
(c) If the Sangguniang Panlalawigan finds that such an ordinance or resolution is
beyond the power conferred upon the Sangguniang Panlungsod or Sangguniang
Bayan concerned, it shall declare such ordinance or resolution invalid in whole or in
part. The Sangguniang Panlalawigan shall enter its action in the minutes and shall
advise the corresponding city or municipal authorities of the action it has taken.

(d) If no action has been taken by the Sangguniang Panlalawigan within thirty (30)
days after submission of such an ordinance or resolution, the same shall be
presumed consistent with law and therefore valid.
In this case, petitioners maintain that the subject ordinance cannot be deemed
approved through the mere passage of time considering that the same is still
pending with the Committee on Fisheries and Aquatic Resources of the SP. 1 It,
however, bears to note that more than 30 days have already elapsed from the time
the said ordinance was submitted to the latter for review by the SB; 2 hence, it
should be deemed approved and valid pursuant to Section 56 (d) above. As properly
observed by the CA:
Par. (d) should be read in conjunction with par. (c), in order to arrive at the meaning
of the disputed word, action. It is clear, based on the foregoing provision, that the
action that must be entered in the minutes of the sangguniang panlalawigan is the
declaration of the sangguniang panlalawigan that the ordinance is invalid in whole
or in part. x x x.
This construction would be more in consonance with the rule of statutory
construction that the parts of a statute must be read together in such a manner as
to give effect to all of them and that such parts shall not be construed as
contradicting each other. x x x laws are given a reasonable construction such that
apparently conflicting provisions are allowed to stand and given effect by
reconciling them, reference being had to the moving spirit behind the enactment of
the statute.3
Neither can the Court give credence to petitioners contentions that the subject
ordinance was not published nor posted in accordance with the provisions of the
LGC.4 It is noteworthy that petitioners own evidence reveals that a public hearing 5
was conducted prior to the promulgation of the subject ordinance. Moreover, other
than their bare allegations, petitioners failed to present any evidence to show that
no publication or posting of the subject ordinance was made. In contrast, Azcuna
had testified that they have complied with the publication and posting
requirements.6 While it is true that he likewise failed to submit any other evidence
thereon, still, in accordance with the presumption of validity in favor of an
ordinance, its constitutionality or legality should be upheld in the absence of any
controverting evidence that the procedure prescribed by law was not observed in its
enactment. Likewise, petitioners had the burden of proving their own allegation,
which they, however, failed to do. In the similar case ofFiguerres v.

CA,7 citing United States v. Cristobal,8 the Court upheld the presumptive validity of
the ordinance therein despite the lack of controverting evidence on the part of the
local government to show that public hearings were conducted in light of: (a) the
oppositors equal lack of controverting evidence to demonstrate the local
governments non-compliance with the said public hearing; and (b) the fact that the
local governments non-compliance was a negative allegation essential to the
oppositors cause of action:
However, it is noteworthy that apart from her bare assertions, petitioner Figuerres
has not presented any evidence to show that no public hearings were conducted
prior to the enactment of the ordinances in question. On the other hand, the
Municipality of Mandaluyong claims that public hearings were indeed conducted
before the subject ordinances were adopted, although it likewise failed to submit
any evidence to establish this allegation. However, in accordance with the
presumption of validity in favor of an ordinance, their constitutionality or legality
should be upheld in the absence of evidence showing that the procedure prescribed
by law was not observed in their enactment. In an analogous case, United States v.
Cristobal, it was alleged that the ordinance making it a crime for anyone to obstruct
waterways had not been submitted by the provincial board as required by 22322233 of the Administrative Code. In rejecting this contention, the Court held:
From the judgment of the Court of First Instance the defendant appealed to this
court upon the theory that the ordinance in question was adopted without authority
on the part of the municipality and was therefore unconstitutional. The appellant
argues that there was no proof adduced during the trial of the cause showing that
said ordinance had been approved by the provincial board. Considering the
provisions of law that it is the duty of the provincial board to approve or disapprove
ordinances adopted by the municipal councils of the different municipalities, we will
assume, in the absence of proof to the contrary, that the law has been complied
with. We have a right to assume that officials have done that which the law requires
them to do, in the absence of positive proof to the contrary.
Furthermore, the lack of a public hearing is a negative allegation essential to
petitioners cause of action in the present case. Hence, as petitioner is the party
asserting it, she has the burden of proof. Since petitioner failed to rebut the
presumption of validity in favor of the subject ordinances and to discharge the
burden of proving that no public hearings were conducted prior to the enactment

thereof, we are constrained to uphold their constitutionality or legality. 9 (Emphases

supplied, citation omitted)
All told, the Court finds no reversible error committed by the CA in upholding the
validity of the subject ordinance.
In any event, petitioners have not shown any valid title 10 to the property in dispute
to be entitled to its possession. Besides, the RTCs order directing the removal of the
structures built by petitioners on Capayas Island without building permits was not
appealed. As such, the same should now be deemed as final and conclusive upon
them.
WHEREFORE, the petition is DENIED. The Decision dated September 30, 2008 and
Resolution dated March 9, 2009 of the Court of Appeals in CA-G.R. CV No. 00284MIN are hereby AFFIRMED.
SO ORDERED.
PERLAS-BERNABE, J.:
Carpio, (Chairperson), Brion, Del Castillo, and Perez, JJ., concur.
SECOND DIVISION, G.R. No. 187378, September 30, 2013, RAMONITO O. ACAAC,
PETAL FOUNDATION, INC., APOLINARIO M. ELORDE, HECTOR ACAAC, AND ROMEO
BULAWIN, PETITIONERS, VS. MELQUIADES D. AZCUNA, JR., IN HIS CAPACITY AS
MAYOR, AND MARIETES B. BONALOS, IN HER CAPACITY AS MUNICIPAL ENGINEER
AND BUILDING OFFICIAL-DESIGNATE, BOTH OF LOPEZ JAENA MUNICIPALITY, MISAMIS
OCCIDENTAL, RESPONDENTS.
One Who Asserts The Invalidity Of A Law Has To Prove That There Is A Clear,
Unmistakable, And Unequivocal Breach Of The Constitution; Otherwise, The Petition
Must Fail
June 18, 2015 by The Lawyer's Post
The Facts:
In this petition for certiorari and prohibition, petitioner Henry Giron seeks to declare
as unconstitutional Section 12 and Section 14 of Republic Act No. 9006, the Fair
Election Act. He argues that both sections violate Section 26 (1) of the 1987
Constitution which requires that Every bill passed by the Congress shall embrace

only one subject which shall be expressed in the title thereof.; The provisions are
unrelated to the main subject of the Fair Election Act which is the lifting of the
political ad ban. Section 12 deals with the treatment of votes cast for substituted
candidates after the official ballots have been printed, while Section 14 repeals
Section 67 of BP 881, which considers the ipso facto resignation of elective officials
after they filed their certificates of candidacy to a post other than the one they are
currently holding. Petitioners-in-intervention Almario Franciso, Federico Jong and
Ricardo Baes join him in the petition, while Jose Melo, opposes the petition and
argues that the issue had been settled by the Court in Farinas vs. Executive
Secretary.1
The Issue:
Whether or not Sections 12 and 14 of the Fair Election Act should be declared
unconstitutional.
The Ruling:
It is a well-settled rule that courts are to adopt a liberal interpretation in favor of the
constitutionality of a legislation,2 as Congress is deemed to have enacted a valid,
sensible, and just law.3 Because of this strong presumption, the one who asserts the
invalidity of a law has to prove that there is a clear, unmistakable, and unequivocal
breach of the Constitution; otherwise, the petition must fail. 4
After a thorough review of the arguments raised, we find that petitioner and
petitioners-in-intervention were unable to present a compelling reason that would
surpass the strong presumption of validity and constitutionality in favor of the Fair
Election Act. They have not put forward any gripping justification to reverse our
ruling in Farias, in which we have already ruled that the title and the objectives of
R.A. 9006 are comprehensive enough to include subjects other than the lifting of the
ban on the use of media for election propaganda. Below is a reproduction of our
exhaustive exposition on the matter in the 10 December 2003 En BancDecision:5
At the core of the controversy is Section 14, the repealing clause of Rep. Act No.
9006, which provides:
[SECTION 14. Repealing Clause. ] Sections 67 and 85 of the Omnibus Election
Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646
are hereby repealed. As a consequence, the first proviso in the third paragraph of

Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential
decrees, executive orders, rules and regulations, or any part thereof inconsistent
with the provisions of this Act are hereby repealed or modified or amended
accordingly.
The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier,
reads:
[SECTION 67]. Candidates holding elective office. Any elective official, whether
national or local, running for any office other than the one which he is holding in a
permanent capacity, except for President and Vice-President, shall be
considered ipso factoresigned from his office upon the filing of his certificate of
candidacy.
xxxx
The proscription [under Section 26(1), Article VI of the Constitution] is aimed against
the evils of the so-called omnibus bills and log-rolling legislation as well as
surreptitious and/or unconsidered encroaches. The provision merely calls for all
parts of an act relating to its subject finding expression in its title.
To determine whether there has been compliance with the constitutional
requirement that the subject of an act shall be expressed in its title, the Court laid
down the rule that
Constitutional provisions relating to the subject matter and titles of statutes should
not be so narrowly construed as to cripple or impede the power of legislation. The
requirement that the subject of an act shall be expressed in its title should receive a
reasonable and not a technical construction. It is sufficient if the title be
comprehensive enough reasonably to include the general object which a statute
seeks to effect, without expressing each and every end and means necessary or
convenient for the accomplishing of that object. Mere details need not be set forth.
The title need not be an abstract or index of the Act.
The title of Rep. Act No. 9006 reads: An Act to Enhance the Holding of Free, Orderly,
Honest, Peaceful and Credible Elections through Fair Election Practices. Section 2 of
the law provides not only the declaration of principles but also the objectives
thereof:

Sec. 2. Declaration of Principles. The State shall, during the election period,
supervise or regulate the enjoyment or utilization of all franchises or permits for the
operation of media of communication or information to guarantee or ensure equal
opportunity for public service, including access to media time and space, and the
equitable right to reply, for public information campaigns and fora among
candidates and assure free, orderly, honest, peaceful and credible elections.
The State shall ensure that bona fide candidates for any public office shall be free
from any form of harassment and discrimination.
The Court is convinced that the title and the objectives of Rep. Act No. 9006 are
comprehensive enough to include the repeal of Section 67 of the Omnibus Election
Code within its contemplation. To require that the said repeal of Section 67 of the
Code be expressed in the title is to insist that the title be a complete index of its
content.
The purported dissimilarity of Section 67 of the Omnibus Election Code, which
imposes a limitation on elective officials who run for an office other than the one
they are holding, to the other provisions of Rep. Act No. 9006, which deal with the
lifting of the ban on the use of media for election propaganda, does not violate the
one subject-one title rule. This Court has held that an act having a single general
subject, indicated in the title, may contain any number of provisions, no matter how
diverse they may be, so long as they are not inconsistent with or foreign to the
general subject, and may be considered in furtherance of such subject by providing
for the method and means of carrying out the general subject.
xxxx
Moreover, the avowed purpose of the constitutional directive that the subject of a
bill should be embraced in its title is to apprise the legislators of the purposes, the
nature and scope of its provisions, and prevent the enactment into law of matters
which have not received the notice, action and study of the legislators and the
public. In this case, it cannot be claimed that the legislators were not apprised of
the repeal of Section 67 of the Omnibus Election Code as the same was amply and
comprehensively deliberated upon by the members of the House. (Emphases
supplied and citations omitted)
The reasoning behind Farias similarly applies to the claim of unconstitutionality
with respect to Section 12 of the Fair Election Act. The questioned provision reads:

SECTION 12. Substitution of Candidates. In case of valid substitutions after the

official ballots have been printed, the votes cast for the substituted candidates shall
be considered as stray votes but shall not invalidate the whole ballot. For this
purpose, the official ballots shall provide spaces where the voters may write the
name of the substitute candidates if they are voting for the latter:Provided,
however, That if the substitute candidate is of the same family name, this provision
shall not apply.
To give a contextual background, we observe that Congress consciously looked for a
more generic title in order to express the thrust of the law. Below is an excerpt from
the Bicameral Conference Committee deliberations: 6
CHAIRMAN SYJUCO. x x x x. First of all, we will need to answer when we get back to
our own chamber what it is that there seems to be a rider here that does not seem
to be pertinent or relevant to thegermane to the spirit. And in fact that title and
the purpose for this very Act -It is an Act to enhance the holding of free, orderly,
honest, peaceful, and credible elections through fair election practices.
It is the opinion of many of us in the House that this should be the subject of
another legislation rather than a rider kuno on legislation that isthat refers
totally to a different subject matter. So thats one. x x x x
CHAIRMAN SYJUCO. Okay. May we jump a little ahead of ourselves, no. But I think
its necessary to get a little ahead so that we can be enlightened as to how this will
fit, these particular things will fit into the whole pie, no. So, what sort of title then
would emanate so as to accommodate a subject matter which under the present
title or the proposed titles or the title from the House or the title from the Senate
would seem to be more appropriately the subject of another legislation?
May I draw on the experience of the Chairman for this, please?
CHAIRMAN ROCO. Yes. We really studied that very carefully and we weighed, and
thats why we recommended as a last thing was fair election practices, and we
combed in fact the laws. It becomes fair election practices. We went through all the
different laws pa kung meron pa kaming maii-spot na unfairness para ipapasok pa,
pero wala na eh. The unfairness were in the opportunity lang to run and then youre
disqualified when you run for something else. Ngayon we restrict it only for
President and Vice President. You forfeitits the reverse really of the present law. x
x x x.

CHAIRMAN SYJUCO. Okay. So do you believe, Mr. Chairman, that we can find an
appropriate title for this so that it will not stick out like a sword and seem to be
inappropriate as part of the whole body?
CHAIRMAN ROCO. Will you feel comfortable with fair election practices? Baka okey
na because its really fair na. x x x x.
CHAIRMAN SYJUCO. So if the scope can be widened so as to cover this as well, then
it should be all right.
SEN. LEGARDA-LEVISTE. Yes, Mr. Chairman. I just wanted to clarify. So all were
looking for now is appropriate title to make it broader so that it would cover this
provision. Is that correct?
CHAIRMAN SYJUCO. Were looking for an appropriate coverage which will result in
the nomenclature.
SEN. LEGARDA-LEVISTE. Because I really do not believe that it is out-of-place. I think
that even with the term FAIR ELECTION PRACTICE it really covers it. Because as
expressed by Sen. Roco, those conditions stated earlier seemed unfair and it is an
election practice and therefore, I think Im very comfortable with the title FAIR
ELECTION PRACTICE so that we can get over with these things so that we dont
come back again until we find the title. I mean its one provision which I think is fair
for everybody. It may seem like a limitation but this limitation actually provides for
fairness in election practices as the title implies. x x x x.
CHAIRPERSON MARCOS. Mr. Chairman, may I just make the observation
that although it is true that the bulk of provisions deals with the area of propaganda
and political advertising, the complete title is actually one that indulge full
coverage. It says, An Act to enhance the holding of free, orderly, honest, etcetera
elections through fair election practices. But as we said we will put that aside to
discuss later on.
Secondly, I think the declaration of principles contained in Section 2, paragraph 2, is
perfectly adequate and that it says that it shall ensure candidates for public office
that be free from any form of harassment and discrimination. Surely, this provision
in Section 67 of the old Election Code of the existing Omnibus Election Code is a
form of harassment or discrimination. And so I think that in the effort at leveling the
playing field, we can cover this and it should not be considered a rider. x x x x.

CHAIRMAN ROCO. Yeah, I think what is on the table is that we are not disputing this
but we are looking for a title that is more generic so that then we have less x x x of
an objection on constitutionality. I think thats the theory. So, there is acceptance of
this. Maybe we should not call it nga limitation on elected officials. Maybe we should
say, special provision on elected officials. So, how is that? Now, also, then we say
On the short title of the Act, we say (unfinished) x x x x.
CHAIRMAN ROCO. Its done. So, okay na iyun. The title will be Fair Election Act. The
rest are wala nang problema, ano? Wala na. Wala na. (Italics and boldface supplied)
What the above discussion tells us is that Congress did not limit the law to the lifting
of the political ad ban. After combing through various laws, they found other
election practices that they considered inequitable. Some of these practices
included the appreciation of the votes cast in case of a late substitution of
candidates and the ipso facto resignation of certain elective officials upon the filing
of their certificates of candidacy. Thus, to level the playing field, Congress
fashioned a law that would address what they determined were unfair election
practices; hence, the birth of the Fair Election Act.
After a careful analysis of the foregoing, we find that the assailed Section 12
(Substitution of Candidates) and Section 14 (Repealing Clause) are indeed germane
to the subject expressed in the title of R.A. 9006: An Act to Enhance the Holding of
Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election
Practices. The title was worded broadly enough to include the measures embodied
in the assailed sections. Consequently, we dismiss the Petition and the petitions-inintervention for failure to establish a clear breach of the Constitution.
On a final note, we observe that petitioner and petitioners-in-intervention raise
various arguments that we deem are matters of policy. Whether or not those
ratiocinations are valid, we reiterate that the power of this Court is limited to the
interpretation of the law. Judicial power does not include the determination of the
wisdom, fairness, soundness, or expediency of a statute. Otherwise, the Court may
be accused of engaging in judicial legislation. As it is Congress that is empowered
by the Constitution to determine state policies and to enact laws, we feel that
petitioners reasoning would be best addressed by the legislature.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.

SERENO, J.:
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro,Peralta, Bersamin, Del Castillo,
Abad, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, and Leonen, JJ., concur.
Brion, J., on wellness leave.
EN BANC, G.R. No. 188179, January 22, 2013 , HENRY R. GIRON, PETITIONER, VS.
COMMISSION ON ELECTIONS, RESPONDENT,
ALMARIO E. FRANCISCO, FEDERICO S. JONG JR., AND RICARDO L. BAES JR.,
PETITIONERS-IN-INTERVENTION.
In Instances Where Personal Liability On The Part Of Local Government Officials Is
Sought, They May Properly Secure The Services Of Private Counsel
June 17, 2015 by The Lawyer's Post
The Facts:
Engr. Cecilia Alayan, appointed as Municipal Government Department Head on
temporary status in Gainza, Camarines Sur, sought to change her appointment from
temporary to permanent. The CSC Field Office denied it, but the CSC Regional
Office approved her application. She reported for work and sought recognition of
her appointment and entitlement to emoluments, but Mayor Romeo Gontang
refused it, hence, she filed a petition for mandamus before the RTC of Naga City
(Special Civil Action No. 2002-0019), which the latter denied, averring that the
petition was prematurely filed as the CSC Regional Office order had yet to attain
finality due to the pending appeal with the Civil Service Commission. On appeal to
the Court of Appeals, the latter reversed the RTC decision. The judgment became
final on August 10, 2007. Before the promulgation of the CA Decision, however, the
CSC set aside the CSC Regional Office order, holding that there was no permanent
appointment as there was no concurrence by the Sanggunian. Engr. Alayan
appealed the CSC decision to the CA, but the same was denied and became final on
August 6, 2006.
On March17, 2008, Alayan moved for issuance of writ of execution of the CA
decision in Special Civil Action No. 2002-0019, complaining that there was
unsatisfied judgment award (P837,022.50) representing her unpaid salaries from
May 8, 2003 to October 6, 2006 when her appeal of the CSC Resolutions were

pending. Mayor Gontang opposed the motion, averring that the municipality paid
her the net sum of P391,040.60 which amount represent benefits for the period
August 12, 3001 to May 7, 2003 when the CSC FO approved her request and before
the CSC denied her permanent appointment.
The RTC ruled in favour of Alayan, holding that the CSC resolution became final and
executory only on October 6, 2006 when no appeal was taken therefrom.
Dissatisfied, Mayor Gontang filed a petition for certiorari with the CA thru Attorneys
Joselito Fandino and Voltaire Saulon, his retained counsel since the start of the
litigation. The CA however, dismissed the petition for lack of authority of the
attorneys to represent the petitioner. Hence, Mayor Gontang elevated the case to
the Supreme Court.
The Issue:
Whether or not the petition was properly dismissed by the CA due to lack of
authority by Atty. Saulon to represent the municipality.
The Ruling:
The petition is meritorious.
The present case stemmed from Special Civil Action No. 2002-0019 for mandamus
and damages.1 The damages sought therein could have resulted in personal
liability, hence, petitioner cannot be deemed to have been improperly represented
by private counsel.2 In Alinsug v. RTC Br. 58, San Carlos City, Negros
Occidental,3 the Court ruled that in instances like the present case where personal
liability on the part of local government officials is sought, they may properly secure
the services of private counsel, explaining:
It can happen that a government official, ostensibly acting in his official capacity
and sued in that capacity, is later held to have exceeded his authority. On the one
hand, his defense would have then been underwritten by the peoples money which
ordinarily should have been his personal expense. On the other hand, personal
liability can attach to him without, however, his having had the benefit of assistance
of a counsel of his own choice. In Correa v. CFI, the Court held that in the discharge
of governmental functions, municipal corporations are responsible for the acts of its
officers, except if and when, and only to the extent that, they have acted by
authority of the law, and in conformity with the requirements thereof.

In such instance, this Court has sanctioned the representation by private counsel. In
one case, We held that where rigid adherence to the law on representation of local
officials in court actions could deprive a party of his right to redress for a valid
grievance, the hiring of a private counsel would be proper. And in Albuera v.
Torres, this Court also said that a provincial governor sued in his official capacity
may engage the services of private counsel when the complaint contains other
allegations and a prayer for moral damages, which, if due from the defendants,
must be satisfied by them in their private capacity. 4 (Citations omitted)
Consequently Attys. Fandio and Saulon had the authority to represent petitioner at
the initial stages of the litigation and this authority continued even up to his
appeal5 and the filing of the petition for certiorari with the CA respecting the
execution of the RTC judgment.6 It was therefore an error for the CA to have
dismissed the said petition for certiorari on the ground of unauthorized
representation.
WHEREFORE, the petition is GRANTED. The assailed May 26, 2009 and March 22,
2010 Resolutions of the Court of Appeals (CA) inCA G.R. SP No. 107366 are
hereby SET ASIDE. The case is REMANDED to the CA for further proceedings.
SO ORDERED.
PERLAS-BERNABE, J.:
Carpio, (Chairperson), Del Castillo, Perez, and Leonen, JJ.,* concur.
SECOND DIVISION, G.R. No. 191691, January 16, 2013, ROMEO A. GONTANG, IN HIS
OFFICIAL CAPACITY AS MAYOR OF GAINZA, CAMARINES SUR, VS. PETITIONER, ENGR.
CECILIA ALAYAN, RESPONDENT.
The Bureau Of Customs Has No Power To Require The Accreditation Or Licensing Of
Customs Brokers Before They Can Practice Their Profession At The BOC
June 14, 2015 by The Lawyer's Post
The Facts:
Airlift Asia Customs Brokerage and Allan Benedicto filed an action for declaratory
relief before the RTC of Manila to declare as issued without authority and
contravenes Republic Act 9280 (The Customs Broker Act of 2004), Customs

Administrative Order 3-2006 (CAO 3-2006), which requires the accreditation of

customs brokers who intend to practice their profession before the Bureau of
Customs, hence violates their right to practice the customs broker profession. After
hearing, the RTC ruled in their favour and declared CAO 3-206 null and void, ruling
that the BOC Commissioner had no authority to issue rules governing the practice of
the customs broker profession, which power, initially lodged with the Commissioner
of the Civil Service, was transferred to the Professional Regulatory Board for
Customs Broker under the Professional Regulatory Commission upon the passage of
RA 9280. The required accreditation amounted to a licensing requirement
prohibited under Section 19 of the law, which allowed customs brokers issues with
certificates of registration by the PRBCB to practice the profession in collection
district without need of securing another license from the BOC. The Court of
Appeals, however, reversed the RTC ruling, holding that CAO 3-2006 was issued to
ensure efficient customs administration and collection of taxes and duties. The
accreditation requirement has a reasonable connection to the BOCs aim to ensure
accountability and integrity in the transactions involving customs duties and taxes,
hence valid. The petitioners thus filed a petition for review on certiorari with the
Supreme Court.
The Issue:
Whether or not CAO 3-2006 is valid.
The Ruling:
The Court finds the petition meritorious.
RA No. 9280 expressly repealed Sections 3401 to 3409 of the TCCP and transferred
the supervision and regulation of the customs brokerage profession from the Board
of Examiners to the PRBCB.
Prior to the passage of RA 9280, the TCCP (specifically, Sections 3401 to 3409
thereof) governed the entry, regulation, and supervision of the customs broker
profession.
Sections 3401 and 3402 of the TCCP required all applicants for customs brokers
certificates to pass a written examination given by the Board of Examiners for
Customs Brokers1 under the supervision of the Civil Service Commission (CSC). 2 The
Board of Examiners was composed of the BOC Commissioner as ex-officio chairman,

the Tariff Commissioner, and three other members appointed by the President. 3 An
examinee who passes the exam would be issued a certificate as customs broker
signed by the members of the Board of Examiners and the Civil Service
Commissioner. If the certified customs broker would like to establish a customs
brokerage business in any port in the Philippines, he/she must secure an annual
license from the Collector of Customs of the port concerned. 4
A complaint for suspension or revocation of the custom brokers certificate is filed
with the Board of Examiners, which conducts the investigation and submits its
findings and recommendations with the Civil Service Commissioner who makes the
final decision. If the charge involves smuggling, the BOC Commissioner may
likewise revoke his/her license.5
Considering the BOC Commissioners functions as ex-officio Chairman of the Board
of Examiners, the TCCP has effectively allowed him to exercise control over the
customs broker profession. The enactment of RA 9280, however, brought about
significant changes.
Section 39 of RA 9280 expressly repealed the TCCP provisions (Section 3401 to
3409) on the customs brokers profession. Section 39 of RA 9280 further declared
that all lawsand parts thereof which are inconsistent with [RA 9280] are
[deemed] modified, suspended, or repealed accordingly.
In lieu of the Board of Examiners, RA 9280 created the PRBCB 6 whose members are
appointed by the President from a list of recommendees submitted by the PRC
which has supervisory and administrative control over the PRBCB. Significantly, RA
9280 excluded the BOC Commissioner as member of the PRBCB. The exclusion of
the BOC Commissioner as a member of the PRBCB evinces the legislative intent to
remove any power he previously exercised over custom brokers, and to transfer the
supervision, control and regulation of this profession to the PRBCB. This intent is
likewise apparent from a reading of the powers granted to the PRBCB:
Section 7. Powers and Functions of the Board. x x x
(b) Supervise and regulate the licensure, registration, and practice of customs
brokers profession;
xxxx

(e) Register successful examinees in the licensure examination and issue the
corresponding Certificate of Registration and Professional Identification Card;
xxxx
(g) Look into the conditions affecting the practice of customs brokerage, adopt
measures for the enhancement of the profession and the maintenance of high
professional, technical, and ethical standards, and conduct ocular inspection of
places where customs brokers practice their profession; [emphasis supplied]
By conferring these powers on the PRBCB, the declared policy of RA 9280 to
professionalize the practice of the customs broker profession is executed and
fulfilled.7
The assailed CA decision, however, declared that the passage of RA 9280 did not
divest the BOC Commissioner of his authority over customs brokers. The BOC
Commissioner retains the general power to regulate the activities of licensed
customs brokers insofar as the enforcement of tariff laws and prevention of
smuggling and other illegal schemes to defraud the government of lawful
revenues.8 It adds that [t]o strip the BOC [Commissioner] of any disciplinary and
supervisory authority over license customs brokers would not only cripple the
[BOCs] intensified drive to combat smuggling and derail the all-out programto
increase collection targets.9
Although we cannot deny that the BOC Commissioner has the mandate to enforce
tariff laws and prevent smuggling, these powers do not necessarily include the
power to regulate and supervise the customs broker profession through the
issuance of CAO 3-2006.
The BOC Commissioners power under Section 608 of the TCCP is a general grant of
power to promulgate rules and regulations necessary to enforce the provisions of
the TCCP. Under the rules of statutory construction, this general rule-making power
gives way to the specific grant of power to promulgate rules and regulations on the
practice of customs brokers profession to the CSC Commissioner under Section
3409 of the TCCP.10 Indeed, in the exercise of this specific power, the Board of
Examiners (of which the BOC Commissioner serves as ex-officio chairman) was to
perform only a recommendatory role. With the repeal of Section 3409 of the TCCP
by RA 9280, this specific rule-making power was transferred to the PRBCB to

complement its supervisory and regulatory powers over customs brokers. Section
37 of RA 9280 provides:
SEC. 37. Implementing Rules and Regulations. The [PRBCB], subject to the
approval by the Commission, in coordination with the accredited professional
organization, shall issue and promulgate the rules and regulations, including the
Code of Ethics for customs broker profession needed to implement the provision of
this Act.
The BOC, like the Bureau of Internal Revenue (BIR), performs a critical role in
government revenue collection. The integrity and efficiency of transactions before
both these agencies is important, and all persons dealing with them must strictly
adhere to their respective rules and regulations. The similarity in the functions and
concerns of the BOC and the BIR, however, does not support a grant of power to
accredit customs brokers to the BOC Commissioner. Unlike the BOC Commissioner
whose power over customs brokers was at the very least implied and indirect,
the BIR Commissioner was given express and specific powers to accredit and
register tax agents under Section 6(G) of the National Internal Revenue Code
(NIRC):
SEC. 6. Power of the Commissioner to Make assessments and Prescribe additional
Requirements for Tax Administration and Enforcement. x x x
(G) Authority to Accredit and Register Tax Agents. The Commissioner shall accredit
and register, based on their professional competence, integrity and moral fitness,
individuals and general professional partnerships and their representatives who
prepare and file tax returns, statements, reports, protests, and other papers with or
who appear before, the Bureau for taxpayers. x x x
CAO 3-2006 amounts to a licensing requirement that restricts the practice of
profession of customs brokers and isprohibited by RA 9280
Attempts to uphold the validity of CAO 3-2006 were made by arguing that CAO 32006 intends to regulate only the practice before the BOC, which is claimed to be
one aspect of the multi-faceted brokerage profession. The accreditation
requirement being limited only to a particular facet of the practice of the profession,
CAO 3-2006 purportedly does not preclude licensed customs brokers from pursuing
other areas of practice even without having been accredited by the BOC.

We find this view misplaced for several reasons.

The practice of customs brokers admittedly involves a variety of activities as
enumerated in Section 6 of RA 9280:
SEC. 6. Scope of the Practice of Customs Brokers. Customs Broker Profession
involves services consisting of consultation, preparation of customs requisite
document for imports and exports, declaration of customs duties and taxes,
preparation signing, filing, lodging and processing of import and export entries;
representing importers and exporters before any government agency and private
entities in cases related to valuation and classification of imported articles and
rendering of other professional services in matters relating to customs and tariff
laws its procedures and practices.
A customs brokers and shall be considered in the practices of the profession if the
nature and character of his/her employment in private enterprises requires
professional knowledge in the field of customs and tariff administration. He/She is
also deemed in the practice of custom Broker profession if he/she teaches customs
and tariff administration subjects in any university, college or school duly
recognized by the government.
Notably, with the exception of consulting with clients, and teaching tariff and
customs administration, most of the above-enumerated activities involve dealing
with the BOC. In other words, a large part of a custom brokers work involves
practice before the BOC, and CAO 3-2006 practically compels all customs brokers
already certified by the PRC to comply with the accreditation requirement for them
to practice their profession. This is contrary to the terms of Section 19 of RA 9280,
which provides that a customs broker shall be allowed to practice the profession in
any collection district without the need of securing another license from the [BOC].
We are unconvinced by the BOC Commissioners claim that CAO 3-2006s
accreditation requirement is not a form of license. A license is a permission to do a
particular thing, to exercise a certain privilege or to carry on a particular business or
to pursue a certain occupation.11 Since it is only by complying with CAO 3-2006
that a customs broker can practice his profession before the BOC, the accreditation
takes the form of a licensing requirement proscribed by the law. It amounts to an
additional burden on PRC-certified customs brokers and curtails their right to
practice their profession. Under RA 9280, a successful examinee of the customs
brokers examinations acquires a Certificate of Registration, which entitles him to

practice the profession as a customs broker with all the benefits and privileges
appurtenant thereto.12
Moreover, a reading of CAO 3-2006 does not appear to be restricted only to
practice before the BOC. Pars. 1 and 2, Part IV of CAO 3-2006 requires custom
brokers to maintain complete records covering their professional practice. Par. 11,
Part IV of the same issuance governs the custom brokers role in advising clients.
Although it may be argued that these duties/activities have reasonable connection
with practice before the BOC as to be within the scope of CAO 3-2006, this
reasoning only reinforces the position that the practice by the customs broker of his
profession is mainly tied with practice before the BOC.
WHEREFORE, we hereby GRANT the petition. The assailed Decision dated February
28, 2008 and Resolution dated May 27, 2009 of the Court of Appeals in CA-G.R. CV
No. 88291 are REVERSED and SET ASIDE, and the Decision dated September 6,
2006 of the Regional Trial Court of Manila, Branch 8, in Civil Case No. 06-115029
is REINSTATED. No costs.
SO ORDERED.
BRION, J.:
Carpio, (Chairperson), Del Castillo, Perez, and Perlas-Bernabe, JJ., concur.
SECOND DIVISION, G.R. No. 183664, July 28, 2014, AIRLIFT ASIA CUSTOMS
BROKERAGE, INC. AND ALLAN G. BENEDICTO, PETITIONERS, VS. COURT OF
APPEALS, COMMISSIONER OF THE BUREAU OF CUSTOMS, AND THE SECRETARY OF
FINANCE RESPONDENTS.
The Bureau Of Customs Has No Power To Require The Accreditation Or Licensing Of
Customs Brokers Before They Can Practice Their Profession At The BOC
June 14, 2015 by The Lawyer's Post
The Facts:
Airlift Asia Customs Brokerage and Allan Benedicto filed an action for declaratory
relief before the RTC of Manila to declare as issued without authority and
contravenes Republic Act 9280 (The Customs Broker Act of 2004), Customs
Administrative Order 3-2006 (CAO 3-2006), which requires the accreditation of
customs brokers who intend to practice their profession before the Bureau of

Customs, hence violates their right to practice the customs broker profession. After
hearing, the RTC ruled in their favour and declared CAO 3-206 null and void, ruling
that the BOC Commissioner had no authority to issue rules governing the practice of
the customs broker profession, which power, initially lodged with the Commissioner
of the Civil Service, was transferred to the Professional Regulatory Board for
Customs Broker under the Professional Regulatory Commission upon the passage of
RA 9280. The required accreditation amounted to a licensing requirement
prohibited under Section 19 of the law, which allowed customs brokers issues with
certificates of registration by the PRBCB to practice the profession in collection
district without need of securing another license from the BOC. The Court of
Appeals, however, reversed the RTC ruling, holding that CAO 3-2006 was issued to
ensure efficient customs administration and collection of taxes and duties. The
accreditation requirement has a reasonable connection to the BOCs aim to ensure
accountability and integrity in the transactions involving customs duties and taxes,
hence valid. The petitioners thus filed a petition for review on certiorari with the
Supreme Court.
The Issue:
Whether or not CAO 3-2006 is valid.
The Ruling:
The Court finds the petition meritorious.
RA No. 9280 expressly repealed Sections 3401 to 3409 of the TCCP and transferred
the supervision and regulation of the customs brokerage profession from the Board
of Examiners to the PRBCB.
Prior to the passage of RA 9280, the TCCP (specifically, Sections 3401 to 3409
thereof) governed the entry, regulation, and supervision of the customs broker
profession.
Sections 3401 and 3402 of the TCCP required all applicants for customs brokers
certificates to pass a written examination given by the Board of Examiners for
Customs Brokers1 under the supervision of the Civil Service Commission (CSC). 2 The
Board of Examiners was composed of the BOC Commissioner as ex-officio chairman,
the Tariff Commissioner, and three other members appointed by the President. 3 An
examinee who passes the exam would be issued a certificate as customs broker

signed by the members of the Board of Examiners and the Civil Service
Commissioner. If the certified customs broker would like to establish a customs
brokerage business in any port in the Philippines, he/she must secure an annual
license from the Collector of Customs of the port concerned. 4
A complaint for suspension or revocation of the custom brokers certificate is filed
with the Board of Examiners, which conducts the investigation and submits its
findings and recommendations with the Civil Service Commissioner who makes the
final decision. If the charge involves smuggling, the BOC Commissioner may
likewise revoke his/her license.5
Considering the BOC Commissioners functions as ex-officio Chairman of the Board
of Examiners, the TCCP has effectively allowed him to exercise control over the
customs broker profession. The enactment of RA 9280, however, brought about
significant changes.
Section 39 of RA 9280 expressly repealed the TCCP provisions (Section 3401 to
3409) on the customs brokers profession. Section 39 of RA 9280 further declared
that all lawsand parts thereof which are inconsistent with [RA 9280] are
[deemed] modified, suspended, or repealed accordingly.
In lieu of the Board of Examiners, RA 9280 created the PRBCB 6 whose members are
appointed by the President from a list of recommendees submitted by the PRC
which has supervisory and administrative control over the PRBCB. Significantly, RA
9280 excluded the BOC Commissioner as member of the PRBCB. The exclusion of
the BOC Commissioner as a member of the PRBCB evinces the legislative intent to
remove any power he previously exercised over custom brokers, and to transfer the
supervision, control and regulation of this profession to the PRBCB. This intent is
likewise apparent from a reading of the powers granted to the PRBCB:
Section 7. Powers and Functions of the Board. x x x
(b) Supervise and regulate the licensure, registration, and practice of customs
brokers profession;
xxxx
(e) Register successful examinees in the licensure examination and issue the
corresponding Certificate of Registration and Professional Identification Card;

xxxx
(g) Look into the conditions affecting the practice of customs brokerage, adopt
measures for the enhancement of the profession and the maintenance of high
professional, technical, and ethical standards, and conduct ocular inspection of
places where customs brokers practice their profession; [emphasis supplied]
By conferring these powers on the PRBCB, the declared policy of RA 9280 to
professionalize the practice of the customs broker profession is executed and
fulfilled.7
The assailed CA decision, however, declared that the passage of RA 9280 did not
divest the BOC Commissioner of his authority over customs brokers. The BOC
Commissioner retains the general power to regulate the activities of licensed
customs brokers insofar as the enforcement of tariff laws and prevention of
smuggling and other illegal schemes to defraud the government of lawful
revenues.8 It adds that [t]o strip the BOC [Commissioner] of any disciplinary and
supervisory authority over license customs brokers would not only cripple the
[BOCs] intensified drive to combat smuggling and derail the all-out programto
increase collection targets.9
Although we cannot deny that the BOC Commissioner has the mandate to enforce
tariff laws and prevent smuggling, these powers do not necessarily include the
power to regulate and supervise the customs broker profession through the
issuance of CAO 3-2006.
The BOC Commissioners power under Section 608 of the TCCP is a general grant of
power to promulgate rules and regulations necessary to enforce the provisions of
the TCCP. Under the rules of statutory construction, this general rule-making power
gives way to the specific grant of power to promulgate rules and regulations on the
practice of customs brokers profession to the CSC Commissioner under Section
3409 of the TCCP.10 Indeed, in the exercise of this specific power, the Board of
Examiners (of which the BOC Commissioner serves as ex-officio chairman) was to
perform only a recommendatory role. With the repeal of Section 3409 of the TCCP
by RA 9280, this specific rule-making power was transferred to the PRBCB to
complement its supervisory and regulatory powers over customs brokers. Section
37 of RA 9280 provides:

SEC. 37. Implementing Rules and Regulations. The [PRBCB], subject to the
approval by the Commission, in coordination with the accredited professional
organization, shall issue and promulgate the rules and regulations, including the
Code of Ethics for customs broker profession needed to implement the provision of
this Act.
The BOC, like the Bureau of Internal Revenue (BIR), performs a critical role in
government revenue collection. The integrity and efficiency of transactions before
both these agencies is important, and all persons dealing with them must strictly
adhere to their respective rules and regulations. The similarity in the functions and
concerns of the BOC and the BIR, however, does not support a grant of power to
accredit customs brokers to the BOC Commissioner. Unlike the BOC Commissioner
whose power over customs brokers was at the very least implied and indirect,
the BIR Commissioner was given express and specific powers to accredit and
register tax agents under Section 6(G) of the National Internal Revenue Code
(NIRC):
SEC. 6. Power of the Commissioner to Make assessments and Prescribe additional
Requirements for Tax Administration and Enforcement. x x x
(G) Authority to Accredit and Register Tax Agents. The Commissioner shall accredit
and register, based on their professional competence, integrity and moral fitness,
individuals and general professional partnerships and their representatives who
prepare and file tax returns, statements, reports, protests, and other papers with or
who appear before, the Bureau for taxpayers. x x x
CAO 3-2006 amounts to a licensing requirement that restricts the practice of
profession of customs brokers and isprohibited by RA 9280
Attempts to uphold the validity of CAO 3-2006 were made by arguing that CAO 32006 intends to regulate only the practice before the BOC, which is claimed to be
one aspect of the multi-faceted brokerage profession. The accreditation
requirement being limited only to a particular facet of the practice of the profession,
CAO 3-2006 purportedly does not preclude licensed customs brokers from pursuing
other areas of practice even without having been accredited by the BOC.
We find this view misplaced for several reasons.

The practice of customs brokers admittedly involves a variety of activities as

enumerated in Section 6 of RA 9280:
SEC. 6. Scope of the Practice of Customs Brokers. Customs Broker Profession
involves services consisting of consultation, preparation of customs requisite
document for imports and exports, declaration of customs duties and taxes,
preparation signing, filing, lodging and processing of import and export entries;
representing importers and exporters before any government agency and private
entities in cases related to valuation and classification of imported articles and
rendering of other professional services in matters relating to customs and tariff
laws its procedures and practices.
A customs brokers and shall be considered in the practices of the profession if the
nature and character of his/her employment in private enterprises requires
professional knowledge in the field of customs and tariff administration. He/She is
also deemed in the practice of custom Broker profession if he/she teaches customs
and tariff administration subjects in any university, college or school duly
recognized by the government.
Notably, with the exception of consulting with clients, and teaching tariff and
customs administration, most of the above-enumerated activities involve dealing
with the BOC. In other words, a large part of a custom brokers work involves
practice before the BOC, and CAO 3-2006 practically compels all customs brokers
already certified by the PRC to comply with the accreditation requirement for them
to practice their profession. This is contrary to the terms of Section 19 of RA 9280,
which provides that a customs broker shall be allowed to practice the profession in
any collection district without the need of securing another license from the [BOC].
We are unconvinced by the BOC Commissioners claim that CAO 3-2006s
accreditation requirement is not a form of license. A license is a permission to do a
particular thing, to exercise a certain privilege or to carry on a particular business or
to pursue a certain occupation.11 Since it is only by complying with CAO 3-2006
that a customs broker can practice his profession before the BOC, the accreditation
takes the form of a licensing requirement proscribed by the law. It amounts to an
additional burden on PRC-certified customs brokers and curtails their right to
practice their profession. Under RA 9280, a successful examinee of the customs
brokers examinations acquires a Certificate of Registration, which entitles him to
practice the profession as a customs broker with all the benefits and privileges
appurtenant thereto.12

Moreover, a reading of CAO 3-2006 does not appear to be restricted only to

practice before the BOC. Pars. 1 and 2, Part IV of CAO 3-2006 requires custom
brokers to maintain complete records covering their professional practice. Par. 11,
Part IV of the same issuance governs the custom brokers role in advising clients.
Although it may be argued that these duties/activities have reasonable connection
with practice before the BOC as to be within the scope of CAO 3-2006, this
reasoning only reinforces the position that the practice by the customs broker of his
profession is mainly tied with practice before the BOC.
WHEREFORE, we hereby GRANT the petition. The assailed Decision dated February
28, 2008 and Resolution dated May 27, 2009 of the Court of Appeals in CA-G.R. CV
No. 88291 are REVERSED and SET ASIDE, and the Decision dated September 6,
2006 of the Regional Trial Court of Manila, Branch 8, in Civil Case No. 06-115029
is REINSTATED. No costs.
SO ORDERED.
BRION, J.:
Carpio, (Chairperson), Del Castillo, Perez, and Perlas-Bernabe, JJ., concur.
SECOND DIVISION, G.R. No. 183664, July 28, 2014, AIRLIFT ASIA CUSTOMS
BROKERAGE, INC. AND ALLAN G. BENEDICTO, PETITIONERS, VS. COURT OF
APPEALS, COMMISSIONER OF THE BUREAU OF CUSTOMS, AND THE SECRETARY OF
FINANCE RESPONDENTS.
Jurisprudence Tells Us That The Essence Of Due Process In An Administrative
Proceedings Is The Chance To Explain Ones Side, Or Seek A Reconsideration Of The
Action Or Ruling Complained Of.
June 10, 2015 by The Lawyer's Post
The Facts:
On September 18, 2013, a meeting was held at the Commission on Human Rights
(CHR) to discuss the complaints of several CHR employees against Commissioner
Cecilia Rachel (Quisumbing) amogh which are: seriously maltreating and inflicting
upon them mental abuse through her unreasonable behavior and demands on how
they should work in or out of the office; (2) taking a cut from some of her
employees salaries to form an office fund under her sole control; (3) repeatedly
misplacing and taking no action on official documents requiring her action; (4)

forging another commissioners signature; (5) hiring employees who do not come to
work; and (6) contracting consultancy work for another government agency. Present
during the meeting were Commissioners Etta Rosalse, Ma. Victoria Cardona, and
Norberto dela Cruz. Commissioner Quisumbing was on sick leave while
Commissioner Mamauag was on official business. On the basis of these complaints
and affidavits, the Commissioners present issued a Resolution and a Show Cause
order requesting Comm. Quisumbing to submit within 5 days a written explanation
why she should not be held administratively liable for any administrative liability,
and to transmit her explanation to the Office of the Ombudsman. The Show Cause
order contained allegations of civil service violations such as dishonesty,
oppression, grave abuse of authority and conduct prejudicial to the best interest of
the service, and was served on Commissioner Quisumbings office on September
19, 2013. Commissioner Mamauag later issued a memorandum stating his
concurrence to the show cause order. Chairperson Rosales also transmitted letters
to the Office of the President and the Office of the Ombudsman the serious
allegations against Quisumbing, with a request for the Office of the Ombudsman to
conduct appropriate investigation. Quisumbing then filed with the CHR Secretariat
a Motion to Dismiss the Show Cause order, assailing its validity because it denied
her due process. Without waiting for the resolution of her motion to dismiss,
Quisumbing filed a petition for certiorari and prohibition before the Supreme Court,
imputing upon the respondents as having acted without jurisdiction in ordering her
to show cause why she should not be held liable under the Show Cause Order, and
for transmitting copies of the letter to the Office of the President and the Office of
the Ombudsman. She argues that CHR Chairperson Rosales could not issue the
Show Cause order alone as the CHR is a collegial body and the act of a single
member, without the participation of the other members, could not be the act of the
collegial body itself. The Office of the Solicitor General, representing the CHR,
argues that Quisumbing erred when she filed the petition for certiorari and
prohibition as the writ is available only when any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without or in excess or
its jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction. Since the respondents, acting in their official capacities as Chairperson
and Members of the CHR, were not engaged in judicial or quasi-judicial functions
when they issued the assailed Show Cause Order, the petition for certiorari should
be dismissed for being an improper remedy.
The Issue:

Whether or not a petition for certiorari is the proper remedy to assail the issuance
by CHR Chairperson Rosales of the Show Cause order.
The Courts ruling:
We dismiss the petition.
We stress, at the outset, that the subsequent referral of the case to the Office of the
Ombudsman for appropriate prosecutorial action rendered the issues raised in the
present petition moot and academic insofar as the CHR is concerned.
Records disclose that the CHR, through Chairperson Rosales and Commissioners
Dela Cruz and Mamauag, issued an Order stating that it could no longer act on the
petitioners Motion to Dismiss since the case had been forwarded to the Office of
the Ombudsman. Thus, no practical relief can be granted to the petitioner by
resolving the present petition since the proceedings before the CHR the initiation
of an investigation through the issuance of the assailed Show Cause Order had
been terminated.
The petition likewise fails for plain lack of merit. The OSG correctly argued that the
respondents, in their official capacities as Chairperson and Members of the CHR, did
not engage in judicial or quasi-judicial functions; they did not adjudicate the rights
and obligations of the contending parties but simply undertook to initiate the
investigation of the allegations against the petitioner. The inquiry was not a quasijudicial proceeding, where offenses were charged, parties were heard and penalties
were imposed. It was at most, an exercise of fact-finding investigation, which is
entirely distinct and different from the concept of adjudication 1. The power to
initiate an investigation and to refer the matter to the Office of the Ombudsman is
within the power of the CHR as an entity with its own distinct personality and is
recognized by no less than the Constitution 2. Thus, the CHR did not commit any
grave abuse of discretion in its actions.
The petition also fails with respect to the petitioners claim of denial of due process.
There can be no denial of due process where a party was afforded an opportunity to
present his case.3 In the present case, the petitioner was given ample opportunity
to air her side on the allegations against her after being sufficiently apprised of the
allegations against her; she was afforded the chance to submit her written
explanation. Unfortunately, the petitioner failed to avail of that right, and chose to

directly seek the intervention of this Court. These circumstances, by themselves,

point the prematurity of the petition.
Jurisprudence tells us that the essence of due process in administrative proceedings
is the chance to explain ones side, or seek a reconsideration of the action or ruling
complained of. As long as the parties are given the opportunity to be heard before
any definitive action is taken, the demands of due process are sufficiently met. 4
In sum, we find that the petition for certiorari and prohibition should be dismissed
for mootness and for lack of merit.
WHEREFORE, premises considered, we hereby DISMISS the petition
for certiorari and prohibition.
SO ORDERED.
BRION, J.:
Carpio, (Chairperson), Del Castillo, Mendoza, and Leonen, JJ., concur.
SECOND DIVISION, G.R. No. 209283, March 11, 2015, CECILIA RACHEL V.
QUISUMBING, PETITIONER, VS. LORETTA ANN P. ROSALES, MA. VICTORIA V.
CARDONA AND NORBERTO DELA CRUZ, IN THEIR CAPACITIES AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE COMMISSION ON HUMAN RIGHTS, RESPONDENTS.
The Phrase Dependent Parents Under Art. 167(j) Of The Labor Code Should,
Include All Parents, Whether Legitimate Or Illegitimate And Whether By Nature Or
By Adoption
June 4, 2015 by The Lawyer's Post

The Facts:
John (Colcol), a seafarer, unmarried and childless, and enrolled under the
governments Employees Compensation Program (ECP), died in an
accident while onboard a vessel in Brazil on June 2, 2008. Hence, his
biological mother, Bernardina (Bartolome), filed a claim for death benefits
under Presidential Decree 626 with the Social Security System La Union
Office. The latter, however, denied her claim for death benefits, averring
that she is no longer considered as the parent of John because he was
legally adopted by Cornelio Colcol. Bernardina filed an appeal with the
Employees Compensation Commission, which also denied the appeal. In
denying the appeal, the SSS and the ECC reasoned out that Bernardina s
denial was by reason of her not being the primary beneficiary, since John
and Elizabeth, his sister, were adopted by Cronelio, their great
grandfather, in S.P. Case No. 8220-XII of the Laoag City RTC. Thus, it is
Cornelio who is the primary beneficiary. Even assuming that Cornelio
died, as in fact he did, in 1987, three years after the decree of adoption
was issued, Bernardina would still not qualify as secondary beneficiary.
Bernardina is not the dependent parent provided for by law under
Article 167 (j) of PD 626, as the term connotes the legitimate parents of
the covered member, as provided for by Rule XV, Section 1 (c) (1) of the
Amended Rules on Employees Compensation. The adoption of John by
Cornelio Colcol divested Bernardina of her status as the legitimate parent,
the ECC ratiocinated.
Bernardine thus filed a petition under Rule 43 before the Supreme Court,
to assail the ECC decision.
The Issue:
May the biological parents of the adopted child be considered as
secondary beneficiaries thus entitling them to claim benefits for covered
membes under PD 626?
The Courts ruling:
The petition is meritorious.
The ECCs factual findings are not consistent with the evidence on record

To recall, one of the primary reasons why the ECC denied petitioners
claim for death benefits is that even though she is Johns biological
mother, it was allegedly not proven that his adoptive parent, Cornelio, was
no longer alive. As intimated by the ECC:
Moreover, there had been no allegation in the records as to whether the
legally adoptive parent, Mr. Colcol, is dead, which would immediately
qualify the appellant [petitioner] for Social Security benefits. Hence,
absent such proof of death of the adoptive father, this Commission will
presume him to be alive and well, and as such, is the one entitled to claim
the benefit being the primary beneficiary of the deaceased. Thus,
assuming that appellant is indeed a qualified beneficiary under the Social
Security law, in view of her status as other beneficiary, she cannot claim
the benefit legally provided by law to the primary beneficiary, in this case
the adoptive father since he is still alive.
We disagree with the factual finding of the ECC on this point.
Generally, findings of fact by administrative agencies are generally
accorded great respect, if not finality, by the courts by reason of the
special knowledge and expertise of said administrative agencies over
matters falling under their jurisdiction.1 However, in the extant case, the
ECC had overlooked a crucial piece of evidence offered by the petitionerCornelios death certificate2.
Based on Cornelios death certificate, it appears that Johns adoptive
father died on October 26, 1987,3 or only less than three (3) years since
the decree of adoption on February 4, 1985, which attained finality. 4 As
such, it was error for the ECC to have ruled that it was not duly proven
that the adoptive parent, Cornelio, has already passed away.
The rule limiting death benefits claims to the legitimate parents is
contrary to law
This brings us to the question of whether or not petitioner is entitled to
the death benefits claim in view of Johns work-related demise. The
pertinent provision, in this regard, is Article 167 (j) of the Labor Code, as
amended, which reads:

ART. 167. Definition of terms. As used in this Title unless the context
indicates otherwise:
xxxx
(j) Beneficiaries means the dependent spouse until he remarries and
dependent children, who are the primary beneficiaries. In their
absence, the dependent parents and subject to the restrictions imposed
on dependent children, the illegitimate children and legitimate
descendants who are the secondary beneficiaries; Provided, that the
dependent acknowledged natural child shall be considered as a primary
beneficiary when there are no other dependent children who are qualified
and eligible for monthly income benefit. (Emphasis supplied)
Concurrently, pursuant to the succeeding Article 177(c) supervising the
ECC [T]o approve rules and regulations governing the processing of
claims and the settlement of disputes arising therefrom as prescribed by
the System, the ECC has issued the Amended Rules on Employees
Compensation, interpreting the above-cited provision as follows:
RULE XV BENEFICIARIES
SECTION 1. Definition, (a) Beneficiaries shall be either primary or
secondary, and determined at the time of employees death.
(b) The following beneficiaries shall be considered primary:
(1) The legitimate spouse living with the employee at the time of the
employees death until he remarries; and

(2) Legitimate, legitimated, legally adopted or acknowledged natural

children, who are unmarried not gainfully employed, not over 21 years of
age, or over 21 years of age provided that he is incapacitated and
incapable of self support due to physical or mental defect which is
congenital or acquired during minority; Provided, further, that a
dependent acknowledged natural child shall be considered as a primary
beneficiary only when there are no other dependent children who are
qualified and eligible for monthly income benefit; provided finally, that if
there are two or more acknowledged natural children, they shall be
counted from the youngest and without substitution, but not exceeding
five.
(c) The following beneficiaries shall be considered secondary:
(1) The legitimate parents wholly dependent upon the employee for
regular support;
(2) The legitimate descendants and illegitimate children who are
unmarried, not gainfully employed, and not over 21 years of age, or over
21 years of age provided that he is incapacitated and incapable of self
support due to physical or mental defect which is congenital or acquired
during minority. (Emphasis supplied)
Guilty of reiteration, the ECC denied petitioners claim on the ground that
she is no longer the deceaseds legitimate parent, as required by the
implementing rules. As held by the ECC, the adoption decree severed the
relation between John and petitioner, effectively divesting her of the
status of a legitimate parent, and, consequently, that of being a
secondary beneficiary.
We disagree.
Rule XV, Sec. l(c)(l) of the Amended Rules on Employees
Compensation deviates from the clear language of Art. 167 (j) of the Labor
Code, as amended

Examining the Amended Rules on Employees Compensation in light of the

Labor Code, as amended, it is at once apparent that the ECC indulged in
an unauthorized administrative legislation. In net effect, the ECC read into
Art. 167 of the Code an interpretation not contemplated by the provision.
Pertinent in elucidating on this point is Article 7 of the Civil Code of the
Philippines, which reads:
Article 7. Laws are repealed only by subsequent ones, and their violation
or non-observance shall not be excused by disuse, or custom or practice
to the contrary.
When the courts declared a law to be inconsistent with the Constitution,
the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid
only when they are not contrary to the laws or the Constitution. (Emphasis
supplied)
As applied, this Court held in Commissioner of Internal Revenue v. Fortune
Tobacco Corporation5 that:
As we have previously declared, rule-making power must be confined to
details for regulating the mode or proceedings in order to carry into effect
the law as it has been enacted, and it cannot be extended to amend or
expand the statutory requirements or to embrace matters not covered by
the statute. Administrative regulations must always be in harmony with
the provisions of the law because any resulting discrepancy between the
two will always be resolved in favor of the basic law. (Emphasis supplied)
Guided by this doctrine, We find that Rule XV of the Amended Rules on
Employees Compensation is patently a wayward restriction of and a
substantial deviation from Article 167 (j) of the Labor Code when it
interpreted the phrase dependent parents to refer to legitimate
parents.
It bears stressing that a similar issue in statutory construction was
resolved by this Court in Diaz v. Intermediate Appellate Court6 in this wise:
It is Our shared view that the word relatives should be construed in its
general acceptation. Amicus curiae Prof. Ruben Balane has this to say:

The term relatives, although used many times in the Code, is not defined
by it. In accordance therefore with the canons of statutory interpretation,
it should be understood to have a general and inclusive scope, inasmuch
as the term is a general one. Generalia verba sunt generaliter
intelligenda. That the law does not make a distinction prevents us from
making one: Ubi lex non distinguit, nee nos distinguera debemus. xxx
According to Prof. Balane, to interpret the term relatives in Article 992 in
a more restrictive sense than it is used and intended is not warranted by
any rule of interpretation. Besides, he further states that when the law
intends to use the term in a more restrictive sense, it qualifies the term
with the word collateral, as in Articles 1003 and 1009 of the New Civil
Code.
Thus, the word relatives is a general term and when used in a statute it
embraces not only collateral relatives but also all the kindred of the
person spoken of, unless the context indicates that it was used in a more
restrictive or limited sense which as already discussed earlier, is not so
in the case at bar. (Emphasis supplied)
In the same vein, the term parents in the phrase dependent parents
in the afore-quoted Article 167 (j) of the Labor Code is used and ought to
be taken in its general sense and cannot be unduly limited to legitimate
parents as what the ECC did. The phrase dependent parents should,
therefore, include all parents, whether legitimate or illegitimate and
whether by nature or by adoption. When the law does not distinguish, one
should not distinguish. Plainly, dependent parents are parents, whether
legitimate or illegitimate, biological or by adoption, who are in need of
support or assistance.

Moreover, the same Article 167 (j), as couched, clearly shows that
Congress did not intend to limit the phrase dependent parents to solely
legitimate parents. At the risk of being repetitive, Article 167 provides
that in their absence, the dependent parents and subject to the
restrictions imposed on dependent children, the illegitimate children and
legitimate descendants who are secondary beneficiaries. Had the
lawmakers contemplated dependent parents to mean legitimate
parents, then it would have simply said descendants and not legitimate
descendants. The manner by which the provision in question was crafted
undeniably show that the phrase dependent parents was intended to
cover all parents legitimate, illegitimate or parents by nature or
adoption.
Rule XV, Section l(c)(l) of the Amended Rules on Employees Compensation
is in contravention of the equal protection clause
To insist that the ECC validly interpreted the Labor Code provision is an
affront to the Constitutional guarantee of equal protection under the laws
for the rule, as worded, prevents the parents of an illegitimate child from
claiming benefits under Art. 167 (j) of the Labor Code, as amended by PD
626. To Our mind, such postulation cannot be countenanced.
As jurisprudence elucidates, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed. It requires public bodies
and institutions to treat similarly situated individuals in a similar
manner7. In other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a
legitimate governmental objective.8

The concept of equal protection, however, does not require the universal
application of the laws to all persons or things without distinction. What it
simply requires is equality among equals as determined according to a
valid classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass the test
of reasonableness. The test has four requisites: (1) The classification rests
on substantial distinctions; (2) It is germane to the purpose of the law; (3)
It is not limited to existing conditions only; and (4) It applies equally to all
members of the same class. Superficial differences do not make for a
valid classification.9
In the instant case, there is no compelling reasonable basis to
discriminate against illegitimate parents. Simply put, the above-cited rule
promulgated by the ECC that limits the claim of benefits to the legitimate
parents miserably failed the test of reasonableness since the
classification is not germane to the law being implemented. We see no
pressing government concern or interest that requires protection so as to
warrant balancing the rights of unmarried parents on one hand and the
rationale behind the law on the other. On the contrary, the SSS can better
fulfill its mandate, and the policy of PD 626 that employees and their
dependents may promptly secure adequate benefits in the event of workconnected disability or death -will be better served if Article 167 (j) of the
Labor Code is not so narrowly interpreted.
There being no justification for limiting secondary parent beneficiaries to
the legitimate ones, there can be no other course of action to take other
than to strike down as unconstitutional the phrase illegitimate as
appearing in Rule XV, Section l(c)(l) of the Amended Rules on Employees
Compensation.
Petitioner qualifies as Johns dependent parent
In attempting to cure the glaring constitutional violation of the adverted
rule, the ECC extended illegitimate parents an opportunity to file claims
for and receive death benefits by equating dependency and legitimacy to
the exercise of parental authority. Thus, as insinuated by the ECC in its
assailed Decision, had petitioner not given up John for adoption, she could
have still claimed death benefits under the law.

To begin with, nowhere in the law nor in the rules does it say that
legitimate parents pertain to those who exercise parental authority
over the employee enrolled under the ECP. It was only in the assailed
Decision wherein such qualification was made. In addition,
assuming arguendo that the ECC did not overstep its boundaries in
limiting the adverted Labor Code provision to the deceaseds legitimate
parents, and that the commission properly equated legitimacy to parental
authority, petitioner can still qualify as Johns secondary beneficiary.
True, when Cornelio, in 1985, adopted John, then about two (2) years old,
petitioners parental authority over John was severed. However, lest it be
overlooked, one key detail the ECC missed, aside from Cornelios death,
was that when the adoptive parent died less than three (3) years after the
adoption decree, John was still a minor, at about four (4) years of age.
Johns minority at the time of his adopters death is a significant factor in
the case at bar. Under such circumstance, parental authority should be
deemed to have reverted in favor of the biological parents. Otherwise,
taking into account Our consistent ruling that adoption is a personal
relationship and that there are no collateral relatives by virtue of
adoption,10 who was then left to care for the minor adopted child if the
adopter passed away?
To be sure, reversion of parental authority and legal custody in favor of
the biological parents is not a novel concept. Section 20 of Republic Act
No. 855211 (RA 8552), otherwise known as the Domestic Adoption Act,
provides:
Section 20. Effects of Rescission. If the petition [for rescission of
adoption] is granted, the parental authority of the adoptees biological
parent(s), if known, or the legal custody of the Department shall be
restored if the adoptee is still a minor or incapacitated. The reciprocal
rights and obligations of the adopter(s) and the adoptee to each other
shall be extinguished, (emphasis added)

The provision adverted to is applicable herein by analogy insofar as the

restoration of custody is concerned. The manner herein of terminating the
adopters parental authority, unlike the grounds for rescission, 12 justifies
the retention of vested rights and obligations between the adopter and
the adoptee, while the consequent restoration of parental authority in
favor of the biological parents, simultaneously, ensures that the adoptee,
who is still a minor, is not left to fend for himself at such a tender age.
To emphasize, We can only apply the rule by analogy, especially since RA
8552 was enacted after Cornelios death. Truth be told, there is a lacuna
in the law as to which provision shall govern contingencies in all fours
with the factual milieu of the instant petition. Nevertheless, We are
guided by the catena of cases and the state policies behind RA
855213 wherein the paramount consideration is the best interest of the
child, which We invoke to justify this disposition. It is, after all, for the
best interest of the child that someone will remain charged for his welfare
and upbringing should his or her adopter fail or is rendered incapacitated
to perform his duties as a parent at a time the adoptee is still in his
formative years, and, to Our mind, in the absence or, as in this case, death
of the adopter, no one else could reasonably be expected to perform the
role of a parent other than the adoptees biological one.
Moreover, this ruling finds support on the fact that even though parental
authority is severed by virtue of adoption, the ties between the adoptee
and the biological parents are not entirely eliminated. To demonstrate,
the biological parents, in some instances, are able to inherit from the
adopted, as can be gleaned from Art. 190 of the Family Code:
Art. 190. Legal or intestate succession to the estate of the adopted shall
be governed by the following rules:
xxx
(2) When the parents, legitimate or illegitimate, or the legitimate
ascendants of the adopted concur with the adopter, they shall divide the
entire estate, one-half to be inherited by the parents or ascendants and
the other half, by the adopters;
xxx

(6) When only collateral blood relatives of the adopted survive, then the
ordinary rules of legal or intestate succession shall apply.
Similarly, at the time of Cornelio Colcols death, which was prior to the
effectivity of the Family Code, the governing provision is Art. 984 of the
New Civil Code, which provides:
Art. 984. In case of the death of an adopted child, leaving no children or
descendants, his parents and relatives by consanguinity and not by
adoption, shall be his legal heirs.
From the foregoing, it is apparent that the biological parents retain their
rights of succession to the estate of their child who was the subject of
adoption. While the benefits arising from the death of an SSS covered
employee do not form part of the estate of the adopted child, the
pertinent provision on legal or intestate succession at least reveals the
policy on the rights of the biological parents and those by adoption vis-avis the right to receive benefits from the adopted.
In the same way that certain rights still attach by virtue of the blood
relation, so too should certain obligations, which, We rule, include the
exercise of parental authority, in the event of the untimely passing of
their minor offsprings adoptive parent. We cannot leave undetermined
the fate of a minor child whose second chance at a better life under the
care of the adoptive parents was snatched from him by deaths cruel
grasp. Otherwise, the adopted childs quality of life might have been
better off not being adopted at all if he would only find himself orphaned
in the end. Thus, We hold that Cornelios death at the time of Johns
minority resulted in the restoration of petitioners parental authority over
the adopted child.
On top of this restoration of parental authority, the fact of petitioners
dependence on John can be established from the documentary evidence
submitted to the ECC. As it appears in the records, petitioner, prior to
Johns adoption, was a housekeeper. Her late husband died in 1984,
leaving her to care for their seven (7) children. But since she was unable
to give a bright future to her growing children as a housekeeper, she
consented to Cornelios adoption of John and Elizabeth in 1985.

Following Cornelios death in 1987, so records reveal, both petitioner and

John repeatedly reported Brgy. Capurictan, Solsona, Ilocos Norte as
their residence. In fact, this very address was used in Johns Death
Certificate14 executed in Brazil, and in the Report of Personal Injury or
Loss of Life accomplished by the; master of the vessel boarded by John.
Likewise, this is Johns known address as per the ECCs assailed
Decision.15 Similarly, this same address was used by petitioner in filing
her claim before the SSS La Union branch and, thereafter, in her appeal
with the ECC. Hence, it can be assumed that aside from having been
restored parental authority over John, petitioner indeed actually execised
the same, and that they lived together under one roof.
Moreover, John, in his SSS application,16 named petitioner as one of his
beneficiaries for his benefits under RA 8282, otherwise known as the
Social Security Law. While RA 8282 does not cover compensation for
work-related deaths or injury and expressly allows the designation of
beneficiaries who are not related by blood to the member unlike in PD
626, Johns deliberate act of indicating petitioner as his beneficiary at
least evinces that he, in a way, considered petitioner as his dependent.
Consequently, the confluence of circumstances from Cornelios death
during Johns minority, the restoration of petitioners parental authority,
the documents showing singularity of address, and Johns clear intention
to designate petitioner as a beneficiary effectively made petitioner, to
Our mind, entitled to death benefit claims as a secondary beneficiary
under PD 626 as a dependent parent.
All told, the Decision of the ECC dated March 17, 2010 is bereft of legal
basis. Cornelios adoption of John, without more, does not deprive
petitioner of the right to receive the benefits stemming from Johns death
as a dependent parent given Cornelios untimely demise during Johns
minority. Since the parent by adoption already died, then the death
benefits under the Employees Compensation Program shall accrue solely
to herein petitioner, Johns sole remaining beneficiary.
WHEREFORE, the petition is hereby GRANTED. The March 17, 2010
Decision of the Employees Compensation Commission, in ECC Case No.
SL-18483-0218-10, is REVERSED and SET ASIDE. The ECC is hereby
directed to release the benefits due to a secondary beneficiary of the
deceased covered employee John Colcol to petitioner Bernardina P.
Bartolome.

No costs.
SO ORDERED.
VELASCO JR., J.:
Villarama, Jr., Reyes, Perlas Bernabe,* and Jardeleza, JJ., concur.
THIRD DIVISION, G.R. No. 192531, November 12, 2014, BERNARDINA P.
BARTOLOME, PETITIONER, VS. SOCIAL SECURITY SYSTEM AND SCANMAR MARITIME
SERVICES, INC., RESPONDENTS.
The Comelec Should Also Balance Its Duty To Ensure That The Electoral Process Is
Clean, Honest, Orderly, And Peaceful With The Right Of A Candidate To Explain His
Or Her Bona Fide Intention To Run For Public Office Before He Or She Is Declared A
Nuisance Candidate
May 27, 2015 by The Lawyer's Post
The Facts:
Joseph (Timbol) filed his Certificate of Candidacy for member of the Sangguniang
Panglunsod on October 5, 2012. On January 17, 2013, he received a notice from the
election officer (Dinah Valencia) for him to appear before her office for a clarificatory
hearing on his certificate of candidacy. During the hearing, Joseph, assisted by
counsel, argued that he was not a nuisance candidate, alleging that in the 2010
elections, he ranked 8th among all the candidates for the sangguniang panglunsod,
and he had sufficient resources to sustain his campaign. While his name already
appeared in the list of nuisance candidates in the Comelec website, the panel
assured him that his certificate of candidacy would be given due course and his
name deleted in the list of nuisance candidates. Indeed, the election officer thru a
Memorandum dated January 17, 2013 recommended that Josephs COC be given
due course. Despite the recommendation, his name was not deleted from the list,
and since the printing of ballots for the automated election will be held on February
4, 2013, he filed before the COMELEC on February 2, 2013 a petition praying that
his name be included in the certified list of candidtaes. By a Minute Resolution
issued on February 5, 2013, , the COMELEC denied his petition, averring that it
became moot and academic with the beginning of the printing of ballots.
Aggrieved, Josph field a petition for certiorari before the Supreme Court, arguing
that the COMELEC committed grave abuse of discretion when it declared him a

nuisance candidate, even before the hearing officer conducted the clarificatory
hearing on his certificate of candidacy. In its comment, the Comelec argued that
the petition had become moot and academic with the conduct of the 2013
elections. Even assuming it is not yet moot and academic, the Comelec did not
deprive him of due process as he was given the opportunity to be heard during the
clarificatory hearing. The Supreme Court ordered Joseph to file his Reply, and
subsequently his counsel but both failed, hence the court submitted the case for
decision even without the Reply.
The Issue:
1. Whether the case is moot and academic.
2. Whether the Comelec gravely abused its discretion in denying due course to the
certificate of candidacy of Joseph.
The Courts ruling:
We deny the Petition.
I
This case is moot and academic.
A case is moot and academic if it ceases to present a justiciable controversy
because of supervening events so that a declaration thereon would be of no
practical use or value.1 When a case is moot and academic, this court generally
declines jurisdiction over it.2
There are recognized exceptions to this rule. This court has taken cognizance of
moot and academic cases when:
(1) there was a grave violation of the Constitution; (2) the case involved a situation
of exceptional character and was of paramount public interest; (3) the issues raised
required the formulation of controlling principles to guide the Bench, the Bar and
the public; and (4) the case was capable of repetition yet evading review. (Citation
omitted)
We may no longer act on petitioners prayer that his name be included in the
certified list of candidates and be printed on the ballots as a candidate for Member

of the Sangguniang Panlungsod. Petitioner filed with this court his Petition for
Certiorari on March 15, 2013, 39 days after respondent began printing the ballots on
February 4, 2013. Also, the May 13, 2013 elections had been concluded, with the
winners already proclaimed.
That this case is moot and academic, however, does not preclude us from setting
forth controlling and authoritative doctrines 3 to be observed by respondent
in motu proprio denying due course to or cancelling certificates of candidacy of
alleged nuisance candidates. This motu proprio authority is always subject to the
alleged nuisance candidates opportunity to be heard 4 an essential element of
procedural due process.5
II
Respondents power to motu proprio deny due course to a certificate of candidacy
is subject to the candidates opportunity to be heard.
Under Article II, Section 26 of the Constitution, [t]he State shall guarantee equal
access to opportunities for public service[.] This, however, does not guarantee a
constitutional right to run for or hold public office[.] 6 To run for public office is a
mere privilege subject to limitations imposed by law. 7 Among these limitations is
the prohibition on nuisance candidates.
Nuisance candidates are persons who file their certificates of candidacy to put the
election process in mockery or disrepute or to cause confusion among the voters by
the similarity of the names of the registered candidates or by other circumstances
or acts which clearly demonstrate that the candidate has no bona fide intention to
run for the office for which the certificate of candidacy has been filed and thus
prevent a faithful determination of the true will of the electorate. 8 In Pamatong v.
Commission on Elections,9 this court explained why nuisance candidates are
prohibited from running for public office:
. . . The State has a compelling interest to ensure that its electoral exercises are
rational, objective, and orderly. Towards this end, the State takes into account the
practical considerations in conducting elections. Inevitably, the greater the number
of candidates, the greater the opportunities for logistical confusion, not to mention
the increased allocation of time and resources in preparation for the election. These
practical difficulties should, of course, never exempt the State from the conduct of a
mandated electoral exercise. At the same time, remedial actions should be available

to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a

disorderly election is not merely a textbook example of inefficiency, but a rot that
erodes faith in our democratic institutions. . . .
. . . The organization of an election with bona fide candidates standing is onerous
enough. To add into the mix candidates with no serious intentions or capabilities to
run a viable campaign would actually impair the electoral process. This is not to
mention the candidacies which are palpably ridiculous so as to constitute a onenote joke. The poll body would be bogged by irrelevant minutiae covering every
step of the electoral process, most probably posed at the instance of these nuisance
candidates. It would be a senseless sacrifice on the part of the State. 10
To minimize the logistical confusion caused by nuisance candidates, their
certificates of candidacy may be denied due course or cancelled by respondent.
This denial or cancellation may be motu proprio or upon a verified petition of an
interested party,11 subject to an opportunity to be heard.12
The opportunity to be heard is a chance to explain ones side or an opportunity to
seek a reconsideration of the action or ruling complained of. 13 In election cases,
due process requirements are satisfied when the parties are afforded fair and
reasonable opportunity to explain their side of the controversy at hand. 14
In Cipriano v. Commission on Elections,15 this court explained:
[T]he determination whether a candidate is eligible for the position he is seeking
involves a determination of fact where both parties must be allowed to adduce
evidence in support of their contentions. Because the resolution of such fact may
result to a deprivation of ones right to run for public office, or, as in this case, ones
right to hold public office, it is only proper and fair that the candidate concerned be
notified of the proceedings against him and that he be given the opportunity to
refute the allegations against him. It should be stressed that it is not sufficient, as
the COMELEC claims, that the candidate be notified of the Commissions inquiry into
the veracity of the contents of his certificate of candidacy, but he must also be
allowed to present his own evidence to prove that he possesses the qualifications
for the office he seeks.16
Respondent commits grave abuse of discretion if it denies due course to or cancels
a certificate of candidacy without affording the candidate an opportunity to be
heard17.

Respondent declared petitioner a nuisance candidate without giving him a chance

to explain his bona fide intention to run for office. Respondent had already issued
Resolution No. 9610 on January 11, 2013 when petitioner appeared before Election
Officer Valencia in a clarificatory hearing on January 17, 2013. This was an
ineffective opportunity to be heard.
That petitioner was able to file a Petition for inclusion in the certified list of
candidates did not cure the defect in the issuance of Resolution No. 9610. First, he
would not have to file the Petition had been given an opportunity to be heard in the
first place. Second, in the Minute Resolution dated February 5, 2013, respondent
denied petitioners Petition on the sole ground that the printing of ballots had
already begun on February 4, 2013.
We understand the insurmountable and tremendous operational constraints and
costs implications18 of reprinting ballots had respondent ordered the inclusion of
petitioners name in the certified list if candidates. The ballots already printed
would have to be recalled, leading to the waste of the ballots previously printed. It
should be noted that these ballots are special as the have the capability of being
optically scanned by Precinct Count Optical Scan machines. Reprinting another
batch of ballots would, indeed, be costly.
Still, automation is not the end-all and be-all of an electoral process. 19 Respondent
should also balance its duty to ensure that the electoral process is clean, honest,
orderly, and peaceful20 with the right of a candidate to explain his or her bona
fide intention to run for public office before he or she is declared a nuisance
candidate.
III
Counsel for petitioner must be fined for failure to comply with the Show
Cause Resolution dated September 2, 2014.
Atty. Aspiras, counsel for petitioner, failed to obtain the injunctive reliefs prayed for
in time for the May 13, 2013 elections. However, this was no reason for him to defy
our orders to file a reply on behalf of his client. for such contumacious acts, he
should be ordered to show cause why he should not be proceeded with
administratively.
WHEREFORE, this Petition for Certiorari is DENIED for being moot and academic.

Moreover, Atty. Jose Ventura Aspiras is ORDERED to show cause within a nonextendible period of ten (10) days from receipt of this Resolution why he should not
be the subject of administrative actions for his contumacious attitude towards
repeated orders of this court, specifically, for his failure to comply with the
Resolutions dated August 6, 2013 and September 2, 2013. The action against Atty.
Jose Ventura Aspiras will be docketed as a new and separate administrative case.
Let a copy of this decision be given to the Office of the Bar Confidant for the
initiation of the proper disciplinary action against Atty. Jose Ventura Aspiras.
SO ORDERED.
EN BANC, G.R. No. 206004, February 24, 2015, JOSEPH B. TIMBOL, PETITIONER, VS.
COMMISSION ON ELECTIONS, RESPONDENT.
LEONEN, J.:
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del
Castillo, Villarama, Jr., Perez, Mendoza, Reyes,and Perlas-Bernabe, JJ., concur.
Brion, J., on leave,
According To Article 48 Of The Revised Penal Code, The Penalty For A Complex
Crime Is That Corresponding To The Most Serious Crime, The Same To Be Applied In
Its Maximum Period. Otherwise, The Penalty Will Be Void And Ineffectual, And Will
Not Attain finality
May 23, 2015 by The Lawyer's Post
The Facts:
Amparo (Matuguina) and Milagrosa (Cornejo) were depositors in the Malibay branch
of the BPI Family Savings Bank, where Marieta (De Castro) was employed as a bank
teller. In separate occasions in October and November, 1993, Amparo and
Milagrosa left their respective passbooks with Marieta upon Marietas instruction.
With respect to Amparo, she had to return three times to get her passport, as
Marieta told her she left her passbook at home, and reported the incident to the
branch manager, Cynthia Zialcita. The latter examined Amparos account and
found three withdrawal slips containing signatures different from Amparos, with a
total withdrawal of P65,000.00. Cynthia then instructed her assistant, Benjamin to
visit Amparo and confirm the withdrawals, which was disavowed by Amparo. A

confrontation between Amparo and Marieta in the presence of the branch manager
led to Marieta admitting the the passbook was with her and kept in her house. The
teller who posted and released the withdrawal, Janet, pointed to Marieta as the
person who gave her the withdrawal slip with Marietas initials on it attesting to her
having verified the signature of the depositor. On Milagrosa s account, she told the
branch manager that she left her passbook with Marieta, but when she retrieved it
the latter averred that she left it at home. It appeared that Marieta also made an
unauthorised withdrawal of P2,000.00 from her account. Cynthia reported the
matter to the bank authorities, and Marieta wrote down her confession admitting
the infractions. The bank paid Amparo the P65, 000.00 while Marieta paid
Milagrosa the P2,000.00. During trial, Milagrosa admitted signing the withdrawal
slips, the confession letter, and the answers to the banks questions during the
administrative investigation.
After trial, the RTC convicted her as charged, imposing upon her the following
penalties as follows:

(a)

In Criminal Case No. 94-5524, involving the withdrawal of P20,000.00 from the account of M
indeterminate sentence of two years, 11 months and 10 days of prison correccional, as min
years, eight months and 20 days of prision mayor, as maximum, and to pay BPI Family P20,
costs of suit;

(b)

In Criminal Case No. 94-5525, involving the withdrawal of P2,000.00 from Cornejos account
indeterminate sentence of three months of arresto mayor, as minimum, to one year and eig
of prision correccional, as maximum, and to pay BPI Family P2,000.00 and the costs of suit;

(c)

In Criminal Case No. 94-5526, involving the withdrawal of P10,000.00 from the account of M
indeterminate sentence of four months and 20 days of arresto mayor, as minimum, to two y
months and 10 days of prision correccional, as maximum, and to pay BPI Family P10,000.00
of suit; and

(d)

In Criminal Case No. 94-5527, involving the withdrawal of P35,000 from Matuguinas accoun
indeterminate sentence of two years, 11 months and 10 days of prision correccional, as min
years of prision mayor, as maximum, and to pay BPI Family P35,000.00 and the costs of suit

In her appeal to the CA and the Supreme Court, she argues that her conviction was null and
was never assisted by counsel during the investigation and the evidence against her was ob
violation of her right to self-incrimination, thus the fruit of a poisonous tree and inadmissible

The Issue:

Whether or not Marietas right against self-incrimination was violated, rendering her
conviction null and void.
The Courts ruling:
The appeal lacks merit.
We first note that the petitioner has accepted the findings of fact about the
transactions that gave rise to the accusations in court against her for four counts
of estafa through falsification of a commercial document. She raised no challenges
against such findings of fact here and in the CA, being content with limiting herself
to the supposed denial of her rights to due process and to counsel, and to the
inadmissibility of the evidence presented against her. In the CA, her main objection
focused on the denial of her right against self-incrimination and to counsel, which
denial resulted, according to her, in the invalidation of the evidence of her guilt.
Debunking the petitioners challenges, the CA stressed that the rights against selfincrimination and to counsel guaranteed under the Constitution applied only during
the custodial interrogation of a suspect. In her case, she was not subjected to any
investigation by the police or other law enforcement agents. Instead, she underwent
an administrative investigation as an employee of the BPI Family Savings Bank, the
investigation being conducted by her superiors. She was not coerced to give
evidence against herself, or to admit to any crime, but she simply broke down bank
when depositors Matuguina and Cornejo confronted her about her crimes. We quote
with approval the relevant portions of the decision of the CA, viz:
The accused comes to Us on appeal to nullify her conviction on the ground that the
evidence presented against her was obtained in violation of her constitutional right
against self-incrimination. She also contends that her rights to due process and

counsel were infringed. Without referring to its name, she enlists one of the most
famous metaphors of constitutional law to demonize and exclude what she believes
were evidence obtained against her by illegal or unconstitutional means evidence
constituting the fruit of the poisonous tree. We hold, however, that in the particular
setting in which she was investigated, the revered constitutional rights of an
accused to counsel and against self-incrimination are not apposite.
The reason is elementary. These cherished rights are peculiarly rights in the context
of an official proceeding for the investigation and prosecution for crime. The right
against self-incrimination, when applied to a criminal trial, is contained in this terse
injunction no person shall be compelled to be a witness against himself. In other
words, he may not be required to take the witness stand. He can sit mute
throughout the proceedings. His right to counsel is expressed in the same laconic
style: he shall enjoy the right to be heard by himself and counsel. This means
inversely that the criminal prosecution cannot proceed without having a counsel by
his side. These are the traditional rights of the accused in a criminal case. They
exist and may be invoked when he faces a formal indictment and trial for a criminal
offense. But since Miranda vs Arizona 384 US 436, the law has come to recognize
that an accused needs the same protections even before he is brought to trial.
They arise at the very inception of the criminal process when a person is taken
into custody to answer to a criminal offense. For what a person says or does during
custodial investigation will eventually be used as evidence against him at the trial
and, more often than not, will be the lynchpin of his eventual conviction. His trial
becomes a parody if he cannot enjoy from the start the right against selfincrimination and to counsel. This is the logic behind what we now call as
the Miranda doctrine.
The US Supreme Court in Miranda spells out in precise words the occasion for the
exercise of the new right and the protections that it calls for. The occasion is when
an individual is subjected to police interrogation while in custody at the station or
otherwise deprived of his freedom in a significant way. It is when custodial
investigation is underway that the certain procedural safeguards takes over the
person must be warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning.

We must, therefore, be careful to note what the Miranda doctrine does not say. It
was never intended to hamper the traditional law-enforcement function to
investigate crime involving persons not under restraint. The general questioning of
citizens in the fact-finding process, as the US Supreme Court recognizes, which is
not preceded by any restraint on the freedom of the person investigated, is not
affected by the holding, since the compelling atmosphere inherent in in-custody
interrogation is not present.
The holding in Miranda is explicitly considered the source of a provision in our 1987
bill of rights that any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel, a provision identical in language and spirit to
the earlier Section 20, Article IV of the 1973 Constitution. People vs. Caguioa 95
SCRA 2. As we can see, they speak of the companion rights of a person under
investigation to remain silent and to counsel, to ensure which the fruit of the
poisonous tree doctrine had also to be institutionalized by declaring that any
confession or admission obtained in violation of these rights is inadmissible. But to
what extent must the rights to remain silent and to counsel be enforced in an
investigation for the commission of an offense? The answer has been settled by
rulings of our Supreme Court in Caguoia and in the much later case of Navallo vs
Sandiganbayan 234 SCRA 175 incorporating in toto the Miranda doctrine into the
above-cited provisions of our bill of rights. Thus, the right to remain silent and to
counsel can be invoked only in the context in which the Miranda doctrine applies
when the official proceeding is conducted under the coercive atmosphere of a
custodial interrogation. There are no cases extending them to a non-coercive
setting. In Navallo, the Supreme Court said very clearly that the rights are
invocable only when the accused is under custodial investigation. A person
undergoing a normal audit examination is not under custodial investigation and,
hence, the audit examiner may not be considered the law enforcement officer
contemplated by the rule.
By a fair analogy, the accused in the case before us may not be said to be under
custodial investigation. She was not even being investigated by any police or law
enforcement officer. She was under administrative investigation by her superiors in
a private firm and in purely voluntary manner. She was not restrained of her
freedom in any manner. She was free to stay or go. There was no evidence that she
was forced or pressured to say anything. It was an act of conscience that compelled
her to speak, a true mental and moral catharsis that religion and psychology

recognize to have salutary effects on the soul. In this setting, the invocation of the
right to remain silent or to counsel is simply irrelevant.
The accused makes a final argument against her conviction by contending that she
did not get effective legal representation from her former counsel who was already
old and feeble when the case was being heard. In fact, the records show, her
counsel died during the pendency of the case, an octogenarian at that. One can
truly make a case from ones lack of a competent and independent counsel, but we
are not prepared to say that the accused was so poorly represented that it affected
her fundamental right to due process. Except for the several postponements
incurred by her counsel, there is really no showing that he committed any serious
blunder during the trial. We have read the transcripts of the trial and failed to get
this impression. The evidence against the accused was simply too overwhelming.
We may take note that once, the trial court admonished the accused to replace her
counsel due to his absences, but she did not. She must live by that.1
Considering that the foregoing explanation by the CA was justly supported by the
records, and that her investigation as a bank employee by her employer did not
come under the coverage of the Constitutionally-protected right against selfincrimination, right to counsel and right to due process, we find no reversible error
committed by the CA in affirming the conviction of the petitioner by the RTC.
The guilt of the petitioner for four counts of estafa through falsification of a
commercial document was established beyond reasonable doubt. As a bank teller,
she took advantage of the bank depositors who had trusted in her enough to leave
their passbooks with her upon her instruction. Without their knowledge, however,
she filled out withdrawal slips that she signed, and misrepresented to her fellow
bank employees that the signatures had been verified in due course. Her
misrepresentation to her co-employees enabled her to receive the amounts stated
in the withdrawal slips. She thereby committed two crimes, namely: estafa, by
defrauding BPI Family Savings, her employer, in the various sums withdrawn from
the bank accounts of Matuguina and Cornejo; and falsification of a commercial
document, by forging the signatures of Matuguina and Cornejo in the withdrawal
slips to make it appear that the depositor concerned had signed the respective slips
in order to enable her to withdraw the amounts. Such offenses were complex
crimes, because the estafa would not have been consummated without the
falsification of the withdrawal slips.
Nonetheless, there is a need to clarify the penalties imposable.

According to Article 48 of the Revised Penal Code2, the penalty for a complex crime
is that corresponding to the most serious crime, the same to be applied in its
maximum period. Otherwise, the penalty will be void and ineffectual, and will not
attain finality.
In the four criminal cases involved in this appeal, the falsification of commercial
documents is punished with prision correccional in its medium and maximum
periods (i.e., two years, four months and one day to six years) and a fine of
P5,000.003. In contrast, the estafa is punished according to the value of the
defraudation, as follows: with the penalty of prision correccional in its maximum
period to prision mayor in its minimum period (i.e., four years, two months and one
day to eight years) if the amount of the fraud is over P12,000.00 but does not
exceed P22,000.00, and if such amount exceeds P22,000.00, the penalty is imposed
in the maximum period, adding one year for each additional P10,000.00, but the
total shall not exceed 20 years, in which case the penalty shall be termed prision
mayor or reclusion temporal, as the case may be, in connection with the accessory
penalties that may be imposed and for the purpose of the other provisions of the
Revised Penal Code; with the penalty of prision correccional in its minimum and
medium periods (i.e., six months and one day to four years and two months) if the
amount of the fraud is over P6,000.00 but does not exceed P12,000.00; with the
penalty of arresto mayor in its maximum period to prision correccional in its
minimum period (i.e., four months and one day to two years and four months) if the
amount of the fraud is over P200.00 but does not exceed P6,000.00; and with the
penalty of arresto mayor in its medium and maximum periods (i.e., two months and
one day to six months) if the amount of the fraud does not exceed P200.00. 4
In Criminal Case No. 94-5524, estafa was the graver felony because the amount of
the fraud was P20,000.00; hence, the penalty for estafa is to be imposed in its
maximum period. However, the RTC and the CA fixed the indeterminate sentence of
two years, 11 months and 10 days of prison correccional, as minimum, to six years,
eight months and 20 days of prision mayor, as maximum. Such maximum of the
indeterminate penalty was short by one day, the maximum period of the penalty
being six years, eight months and 21 days to eight years. Thus, the indeterminate
sentence is corrected to three years of prison correccional, as minimum, to six
years, eight months and 21 days of prision mayor, as maximum.
In Criminal Case No. 94-5525, involving P2,000.00, the estafa is punished with four
months and one day of arresto mayor in its maximum period to two years and four

months of prision correccional in its minimum period. The falsification of commercial

document is penalized with prision correccional in its medium and maximum
periods (i.e., two years, four months and one day to six years) and a fine of
P5,000.00. The latter offense is the graver felony, and its penalty is to be imposed
in the maximum period, which is from four years, nine months and 11 days to six
years plus fine of P5,000.00. The penalty next lower in degree isarresto mayor in its
maximum period to prision correccional in its minimum period (i.e., four months and
one day to two years and four months). Thus, the indeterminate sentence of three
months of arresto mayor, as minimum, to one year and eight months ofprision
correccional, as maximum that both the RTC and the CA fixed was erroneous. We
rectify the error by prescribing in lieu thereof the indeterminate sentence of two
years of prision correccional, as minimum, to four years, nine months and 11 days
ofprision correccional plus fine of P5,000.00, as maximum.
In Criminal Case No. 94-5526, involving P10,000.00, the RTC and the CA imposed
the indeterminate sentence of four months and 20 days of arresto mayor, as
minimum, to two years, 11 months and 10 days of prision correccional, as
maximum. However, the penalty for the falsification of commercial documents is
higher than that for the estafa. To accord with Article 48 of the Revised Penal Code,
the penalty for falsification of commercial documents (i.e., prision correccional in its
medium and maximum periods and a fine of P5,000.00) should be imposed in the
maximum period. Accordingly, we revise the indeterminate sentence so that its
minimum is two years and four months of prision correccional, and its maximum is
five years of prision correccional plus fine of P5,000.00.
In Criminal Case No. 94-5527, where the amount of the fraud was P35,000.00, the
penalty for estafa (i.e., prision correccional in its maximum period to prision
mayor in its minimum period, or four years, two months and one day to eight years)
is higher than that for falsification of commercial documents. The indeterminate
sentence of two years, 11 months and 10 days of prision correccional, as minimum,
to eight years of prision mayor, as maximum, was prescribed. Considering that the
maximum period ranged from six years, eight months and 21 days to eight years,
the CA should have clarified whether or not the maximum of eight years of prision
mayor already included the incremental penalty of one year for every P10,000.00 in
excess of P22,000.00. Absent the clarification, we can presume that the incremental
penalty was not yet included. Thus, in order to make the penalty clear and specific,
the indeterminate sentence is hereby fixed at four years of prision correccional, as
minimum, to six years, eight months and 21 days ofprision mayor, as maximum,

plus one year incremental penalty. In other words, the maximum of the
indeterminate sentence is seven years, eight months and 21 days of prision mayor.
The CA deleted the order for the restitution of the P2,000.00 involved in Criminal
Case No. 94-5525 on the ground that such amount had already been paid to the
complainant, Milagrosa Cornejo. There being no issue as to this, the Court affirms
the deletion.
The Court adds that the petitioner is liable to BPI Family for interest of 6% per
annum on the remaining unpaid sums reckoned from the finality of this judgment.
This liability for interest is only fair and just.

(1)

In Criminal Case No. 94-5524, the petitioner shall suffer the indeterminate penalty of three
<I>prison correccional, as minimum, to six years, eight months and 21 days of prision may
maximum;

(2)

In Criminal Case No. 94-5525, the petitioner shall suffer the indeterminate penalty of two ye
<I>prision correccional, as minimum, to four years, nine months and 11 days of prision cor
plus fine of P5,000.00, as maximum;

(3)

In Criminal Case No. 94-5526, the petitioner shall suffer the indeterminate penalty of two ye
months of prision correccional, as the minimum, to five years of prision correccional</I> plu
P5,000.00, as the maximum; and

(4)

In Criminal Case No. 94-5527, the petitioner shall suffer the indeterminate penalty of four y
<I>prision correccional, as minimum, to seven years, eight months and 21 days of prision m
maximum.

WHEREFORE, the Court AFFIRMS the decision promulgated by the Court of Appeals
on August 18, 2005, subject to the followingMODIFICATIONS, to wit:
The Court ORDERS the petitioner to pay to BPI Family Saving Bank interest of
6% per annum on the aggregate amount of P65,000.00 to be reckoned from the
finality of this judgment until full payment.

The petitioner shall pay the costs of suit.

SO ORDERED.
FIRST DIVISION, G.R. No. 171672, February 02, 2015, MARIETA DE CASTRO,
PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
BERSAMIN, J.:
PD 1818 Proscribes The Issuance Of A Writ Of Preliminary Injunction In Any Case
Involving An Infrastructure Project Of The Government
May 5, 2015 by The Lawyer's Post
The Facts:
Hermano Oil Manufacturing (Hermano), by letter, requested the Toll Regulatory
Board that it be given an easement of right of way to access the NLEX, since it was
deprived of its enjoyment of its property when it was barred from entry and exit to
the North Luzon Expressway by the access fence that bounded its property located
near the Sta. Rita exit of NLEX. The TRB however denied the request, averring that
it is a violation of Section 7.0 of the Limited Access Highway Act (Republic Act
2000) and may have detrimental effects on the scheduled rehabilitation and
improvement of the NLEX. Hermano thus filed a complaint for specific performance
with prayer for TRO against TRB, Engr. Jaime Dumlao, the TRB Executive Director,
the Philippine National Construction Corporation, and the Department of Public
Works and Highways, alleging that it was totally deprived of its enjoyment of its
property by preventing ingress and egress to it, and the only access being the road
network in front of its property; that it was denied equal protection of the law
because other properties adjacent to it had access to the NLEX; and it was deprived
of its property without due process and just compensation. The Office of the
Solicitor General, appearing for the TRB, filed a Motion to Dismiss, alleging that it is
a suit against the State, and the proper remedy was to file a petition for certiorari of
the denial by the TRB not a complaint for specific performance.
The RTC granted the motion to dismiss and dismissed the case, holding that the suit
is in the nature of a suit against the State although the defendants were being sued
in their personal capacities, since it would entail appropriation from the State if and
when they were held liable for damages. The RTC also had no jurisdiction over the

case in view of PD 1818 and RA 8975 which prohibits courts from issuing injections
and TROs in infrastructure projects of the government.
On appeal to the CA, the latter affirmed the dismissal of the case by the RTC, ruling
that the relief sought by Hermano in its complaint is in violation of the law (RA
2000); when it bought the land, the NLEX was already in existence, as such, an
easement of right of way cannot be granted if the isolation was brought about by
the owner; as to non-suability, while the PNCC was sued along with other
governments agencies, it is performing a governmental function, which is the
maintenance of highways; while it put forward cases arguing that government
agencies may be sued for performing non-government functions, still it did not
indicate reasons why the NLEX should not be considered a governmental function.
Hermano appealed to the Supreme Court via petition for review on certiorari.
The Issue/s:
1. Whether or not Hermano was deprived of due process and equal protection of the
laws when it was denied access to the NLEX.
2. Whether or not it is bound by its predecessors in interest thus cannot demand
easement of right of way.
3. Whether or not the suit is against the State.
The Courts ruling:
We concur with both lower courts.
In our view, the TRB, Dumlao and the DPWH correctly invoked the doctrine of
sovereign immunity in their favor. The TRB and the DPWH performed purely or
essentially government or public functions. As such, they were invested with the
inherent power of sovereignty. Being unincorporated agencies or entities of the
National Government, they could not be sued as such. On his part, Dumlao was
acting as the agent of the TRB in respect of the matter concerned.
In Air Transportation Office v. Ramos,1 we expounded on the doctrine of sovereign
immunity in the following manner:

An unincorporated government agency without any separate juridical personality of

its own enjoys immunity from suit because it is invested with an inherent power of
sovereignty. Accordingly, a claim for damages against the agency cannot prosper;
otherwise, the doctrine of sovereign immunity is violated. However, the need to
distinguish between an unincorporated government agency performing
governmental function and one performing proprietary functions has arisen. The
immunity has been upheld in favor of the former because its function is
governmental or incidental to such function; it has not been upheld in favor of the
latter whose function was not in pursuit of a necessary function of government but
was essentially a business.
Nonetheless, the petitioner properly argued that the PNCC, being a private business
entity, was not immune from suit. The PNCC was incorporated in 1966 under its
original name of Construction Development Corporation of the Philippines (CDCP)
for a term of fifty years pursuant to the Corporation Code. 2 In 1983, the CDCP
changed its corporate name to the PNCC to reflect the extent of the Governments
equity investment in the company, a situation that came about after the
government financial institutions converted their loans into equity following the
CDCPs inability to pay the loans. 3 Hence, the Government owned 90.3% of the
equity of the PNCC, and only 9.70% of the PNCCs voting equity remained under
private ownership.4 Although the majority or controlling shares of the PNCC
belonged to the Government, the PNCC was essentially a private corporation due to
its having been created in accordance with the Corporation Code, the general
corporation statute.5 More specifically, the PNCC was an acquired asset corporation
under Administrative Order No. 59, and was subject to the regulation and
jurisdiction of the Securities and Exchange Commission. 6 Consequently, the
doctrine of sovereign immunity had no application to the PNCC.
The foregoing conclusion as to the PNCC notwithstanding, the Court affirms the
dismissal of the complaint due to lack of jurisdiction and due to lack of cause of
action.
It appears that the petitioners complaint principally sought to restrain the
respondents from implementing an access fence on its property, and to direct them
to grant it a right of way to the NLEX. Clearly, the reliefs being sought by the
petitioner were beyond the jurisdiction of the RTC because no court except the
Supreme Court could issue an injunction against an infrastructure project of the
Government. This is because Presidential Decree No. 1818, issued on January 16,

1981, prohibited judges from issuing restraining orders against government

infrastructure projects, stating in its sole provision: No court in the Philippines shall
have jurisdiction to issue any restraining order, preliminary injunction or preliminary
order, preliminary mandatory injunction in any case, dispute or controversy
involving an infrastructure project. Presidential Decree No. 1818 was amended by
Republic Act No. 8975,7 approved on November 7, 2000, whose pertinent parts
provide:
Section 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary
Injunctions and Preliminary Mandatory Injunctions.- No court, except the Supreme
Court, shall issue any temporary restraining order, preliminary injunction or
preliminary mandatory injunction against the government, or any of its subdivisions,
officials or any person or entity, whether public or private, acting under the
governments direction, to restrain, prohibit or compel the following acts:
(a) Acquisition, clearance and development of the right-of-way and/or site or
location of any national government project;
(b) Bidding or awarding of contract/project of the national government as defined
under Section 2 hereof;
(c) Commencement, prosecution, execution, implementation, operation of any such
contract or project;
(d) Termination or rescission of any such contract/project; and
(e) The undertaking or authorization of any other lawful activity necessary for such
contract/project.
This prohibition shall apply in all cases, disputes or controversies instituted by a
private party, including but not limited to cases filed by bidders or those claiming to
have rights through such bidders involving such contract/project. This prohibition
shall not apply when the matter is of extreme urgency involving a constitutional
issue, such that unless a temporary restraining order is issued, grave injustice and
irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed
by the court, which bond shall accrue in favor of the government if the court should
finally decide that the applicant was not entitled to the relief sought.

If after due hearing the court finds that the award of the contract is null and void,
the court may, if appropriate under the circumstances, award the contract to the
qualified and winning bidder or order a rebidding of the same, without prejudice to
any liability that the guilty party may incur under existing laws.
Section 4. Nullity of Writs and Orders.- Any temporary restraining order, preliminary
injunction or preliminary mandatory injunction issued in violation of Section 3 hereof
is void and of no force and effect.
Section 5. Designation of Regional Trial Courts.- The Supreme Court may designate
regional trial courts to act as commissioners with the sole function of receiving facts
of the case involving acquisition, clearance and development of right-of-way for
government infrastructure projects. The designated regional trial court shall within
thirty (30) days from the date of receipt of the referral, forward its findings of facts
to the Supreme Court for appropriate action. x x x
As to what was embraced by the term infrastructure project as used in Presidential
Decree No. 1818, the Court has ruled inFrancisco, Jr. v. UEM-MARA Philippines
Corporation8:
PD 1818 proscribes the issuance of a writ of preliminary injunction in any case
involving an infrastructure project of the government. The aim of the prohibition, as
expressed in its second whereas clause, is to prevent delay in the implementation
or execution of government infrastructure projects (particularly through the use of
provisional remedies) to the detriment of the greater good since it disrupts the
pursuit of essential government projects and frustrates the economic development
effort of the nation.
Petitioner argues that the collection of toll fees is not an infrastructure project of the
government. He cites the definition of infrastructure projects we used in Republic
v. Silerio:
The term infrastructure projects means construction, improvement and
rehabilitation of roads, and bridges, railways, airports, seaports, communication
facilities, irrigation, flood control and drainage, water supply and sewage systems,
shore protection, power facilities, national buildings, school buildings, hospital
buildings, and other related construction projects that form part of the government
capital investment.

xxxx
The definition of infrastructure projects specifically includes the improvement and
rehabilitation of roads and not just its construction. Accordingly, even if the Coastal
Road was merely upgraded and not constructed from scratch, it is still covered by
the definition. Moreover, PD 1818 itself states that any person, entity or
governmental official cannot be prohibited from continuing the execution or
implementation of such project or pursuing any lawful activity necessary for such
execution or implementation. Undeniably, the collection of toll fees is part of the
execution or implementation of the MCTEP as agreed upon in the TOA. The TOA is
valid since it has not been nullified. Thus it is a legitimate source of rights and
obligations. It has the force and effect of law between the contracting parties and is
entitled to recognition by this Court. The MCTEP is an infrastructure project of the
government forming part of the government capital investment considering that
under the TOA, the government owns the expressways comprising the project.
(Emphasis supplied.)
There can be no question that the respondents maintenance of safety measures,
including the establishment of the access fence along the NLEX, was a component
of the continuous improvement and development of the NLEX. Consequently, the
lower courts could not validly restrain the implementation of the access fence by
granting the petitioner its right of way without exceeding its jurisdiction.
Nor did the establishment of the access fence violate the petitioners constitutional
and legal rights.
It is relevant to mention that the access fence was put up pursuant to Republic Act
No. 2000 (Limited Access Highway Act), the enforcement of which was under the
authority of the DOTC. Clarifying the DOTCs jurisdiction under this law in Mirasol v.
Department of Public Works and Highways,9 the Court has said
RA 2000, otherwise known as the Limited Access Highway Act, was approved on 22
June 1957. Section 4 of RA 2000 provides that [t]he Department of Public Works
and Communications is authorized to do so design any limited access facility and to
so regulate, restrict, or prohibit access as to best serve the traffic for which such
facility is intended. The RTC construed this authorization to regulate, restrict, or
prohibit access to limited access facilities to apply to the Department of Public
Works and Highways (DPWH).

The RTCs ruling is based on a wrong premise. The RTC assumed that the DPWH
derived its authority from its predecessor, the Department of Public Works and
Communications, which is expressly authorized to regulate, restrict, or prohibit
access to limited access facilities under Section 4 of RA 2000. However, such
assumption fails to consider the evolution of the Department of Public Works and
Communications.
xxxx
Upon the ratification of the 1987 Constitution in February 1987, the former Ministry
of Public Works and Highways became theDepartment of Public Works and
Highways (DPWH) and the former Ministry of Transportation and Communications
became theDepartment of Transportation and Communications (DOTC).
DPWH issued DO 74 and DO 215 declaring certain expressways as limited access
facilities on 5 April 1993 and 25 June 1998, respectively. Later, the TRB, under the
DPWH, issued the Revised Rules and Regulations on Limited Access Facilities.
However, on 23 July 1979, long before these department orders and regulations
were issued, the Ministry of Public Works, Transportation and Communications was
divided into two agencies the Ministry of Public Works and the Ministry of
Transportation and Communications by virtue of EO 546. The question is, which of
these two agencies is now authorized to regulate, restrict, or prohibit access to
limited access facilities?
Under Section 1 of EO 546, the Ministry of Public Works (now DPWH) assumed
the public works functions of the Ministry of Public Works, Transportation and
Communications. On the other hand, among the functions of the Ministry of
Transportation and Communications (now Department of Transportation and
Communications [DOTC]) were to (1) formulate and recommend national policies
and guidelines for the preparation and implementation of an integrated and
comprehensive transportation and communications systems at the national,
regional, and local levels; and (2) regulate, whenever necessary, activities relative
to transportation and communications and prescribe and collect fees in the exercise
of such power. Clearly, under EO 546, it is the DOTC, not the DPWH, which has
authority to regulate, restrict, or prohibit access to limited access facilities.
Even under Executive Order No. 125 (EO 125) and Executive Order No. 125-A (EO
125-A), which further reorganized the DOTC, the authority to administer and enforce
all laws, rules and regulations relative to transportation is clearly with the DOTC.

Thus, DO 74 and DO 215 are void because the DPWH has no authority to declare
certain expressways as limited access facilities. Under the law, it is the DOTC which
is authorized to administer and enforce all laws, rules and regulations in the field of
transportation and to regulate related activities. (Emphasis supplied.)
Moreover, the putting up of the access fence on the petitioners property was in the
valid exercise of police power, assailable only upon proof that such putting up
unduly violated constitutional limitations like due process and equal protection of
the law.10 InMirasol v. Department of Public Works and Highways, the Court has
further noted that:
A toll way is not an ordinary road. As a facility designed to promote the fastest
access to certain destinations, its use, operation, and maintenance require close
regulation. Public interest and safety require the imposition of certain restrictions on
toll ways that do not apply to ordinary roads. As a special kind of road, it is but
reasonable that not all forms of transport could use it. 11
Clearly, therefore, the access fence was a reasonable restriction on the petitioners
property given the location thereof at the right side of Sta. Rita Exit of the NLEX.
Although some adjacent properties were accorded unrestricted access to the
expressway, there was a valid and reasonable classification for doing so because
their owners provided ancillary services to motorists using the NLEX, like gasoline
service stations and food stores12. A classification based on practical convenience
and common knowledge is not unconstitutional simply because it may lack purely
theoretical or scientific uniformity13.
Lastly, the limited access imposed on the petitioners property did not partake of a
compensable taking due to the exercise of the power of eminent domain. There is
no question that the property was not taken and devoted for public use. Instead, the
property was subjected to a certain restraint, i.e. the access fence, in order to
secure the general safety and welfare of the motorists using the NLEX. There being
a clear and valid exercise of police power, the petitioner was certainly not entitled
to any just compensation.14
WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the
decision promulgated on October 27, 2004; and ORDERS the petitioner to pay the
costs of suit.
SO ORDERED.

FIRST DIVISION, G.R. No. 167290, November 26, 2014, HERMANO OIL
MANUFACTURING & SUGAR CORPORATION, PETITIONER, VS. TOLL REGULATORY
BOARD, ENGR. JAIME S. DUMLAO, JR., PHILIPPINE NATIONAL CONSTRUCTION
CORPORATION (PNCC) AND DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS
(DPWH), RESPONDENTS.

When An Accused Appeals

From The Sentence Of The
Trial Court, He Or She Waives
The Constitutional Safeguard
Against Double Jeopardy And
Throws The Whole Case Open
To The Review Of The
Appellate Court, Which Is Then
Called Upon To Render Such
Judgment As Law And Justice
Dictate
May 5, 2015 by The Lawyer's Post

The Facts:
Baleriano (Limbag), the private complainant, testified that in the evening of May
14, 1989, he was roused from sleep in his house when accused Edigardo
(Gercohe), Roberto (Garde) and Generoso (Marfil), who entered his house
without a warrant by destroying the main door thereof, mauled him and struck
him with a Garand rifle. They were looking for firearms but instead found and
took away his air gun. Thus, he filed a complaint for Violation of Domicile and

Less Serious Physical Injuries against the accused. In their defense, the accused
denied liability, insisting they were home the night of May 14, 1989. The night
before, however, they admitted conducting a roving foot patrol due to rampant
cattle rustling in the area.
After trial, the trial court found the accused guilty for Less Serious Physical
Injuries, but acquitted them of the charge of violation of domicile, holding that
the prosecution failed to prove that the accused were public officers, which is an
element of the crime of violation of domicile. Their admission that they were
civilian volunteer organisations (CVO) members t is not enough to prove that
they were public officers.
On appeal to the Court of Appeals for their conviction on Less Serious Physical
Injuries, however, the appellate court set aside the trial court decision. It
acquitted them of Less Serious Physical Injuries, but convicted them of Violation
of Domicile, considering their judicial admissions that they were barangay tanod
and members of the CAFGU. Their motion for reconsideration denied, they
elevated their case to the Supreme Court.
The Issue/s:
1. Whether or not they may still be convicted for Violation of Domicile
considering that they merely appealed their conviction for Less Serious Physical
Injuries, without violating their right against double jeopardy and to due process,
since they they focused their arguments in their appeal for their conviction of
Less Serious Physical Injuries.
The Courts ruling:
We deny.
An appeal in a criminal case opens the entire case for review on any question
including one not raised by the parties.1 When an accused appeals from the
sentence of the trial court, he or she waives the constitutional safeguard against
double jeopardy and throws the whole case open to the review of the appellate
court, which is then called upon to render such judgment as law and justice
dictate.2 An appeal confers upon the appellate court jurisdiction to examine the
records, revise the judgment appealed from, increase (or reduce) the penalty,
and cite the proper provision of the penal law. 3 The appellate court may, and

generally does, look into the entire records to ensure that no fact of weight or
substance has been overlooked, misapprehended, or misapplied by the trial
court.4
Thus, when petitioners appealed the trial courts judgment of conviction for Less
Serious Physical Injuries, they are deemed to have abandoned their right to
invoke the prohibition on double jeopardy since it becomes the duty of the
appellate court to correct errors as may be found in the assailed judgment.
Petitioners could not have been placed twice in jeopardy when the CA set aside
the ruling of the RTC by finding them guilty of Violation of Domicile as charged in
the Information instead of Less Serious Physical Injuries.
The Court adopts the findings of fact and conclusions of law of the CA. In their
testimony before the open court as well as in the pleadings they filed, neither
Geroche denied that he was a barangay captain nor Garde and Marfil refuted
that they were CAFGU members. In holding such positions, they are considered
as public officers/employees.5
As to the penalty imposed by the CA, however, We modify the same. Under
Article 128 of the RPC, the penalty shall be prision correccional in its medium
and maximum periods (two [2] years, four [4] months and one [1] day to six [6]
years) if Violation of Domicile be committed at nighttime or if any papers or
effects not constituting evidence of a crime be not returned immediately after
the search made by the offender. In this case, petitioners barged in the house of
Baleriano while they were sleeping at night and, in addition, they took away with
them his airgun.
In imposing a prison sentence for an offense punished by the RPC, the
Indeterminate Sentence Law6 requires courts to impose upon the accused an
indeterminate sentence. The maximum term of the prison sentence shall be that
which, in view of the attending circumstances, could be properly imposed under
the rules of the said Code. Yet the penalty prescribed by Article 128 of the RPC is
composed of only two, not three, periods. In which case, Article 65 of the same
Code requires the division into three equal portions the time included in the
penalty, forming one period of each of the three portions. Applying the
provision, the minimum, medium and maximum periods of the penalty
prescribed by Article 128 are:
Minimum 2 years, 4 months and 1 day to 3 years, 6 months and 20 days

Medium 3 years, 6 months and 21 days to 4 years, 9 months and 10 days

Maximum 4 years, 9 months and 11 days to 6 years
Thus, applying in this case, the maximum term should be within the medium
period or from 3 years, 6 months and 21 days to 4 years, 9 months and 10 days,
in light of the provisions of Article 64 of the Revised Penal Code that if there are
no other mitigating or aggravating circumstances attending the commission of
the crime, the penalty shall be imposed in its medium period.
On the other hand, the minimum term shall be within the range of the penalty
next lower to that prescribed by the RPC for the crime. The penalty next lower to
that prescribed by Article 128 is arresto mayor in its maximum period to prision
correccional in its minimum period (or 4 months and 1 day to 2 years and 4
months).
The foregoing considered, in view of the attending circumstances in this case,
the Court hereby sentences the petitioners to suffer the indeterminate penalty
from two (2) years and four (4) months of prision correccional, as minimum, to
four (4) years, nine (9) months and ten (10) days of prision correccional, as
maximum.
WHEREFORE, the Court AFFIRMS the Decision dated November 18, 2005 and
Resolution dated June 19, 2007 of the Court of Appeals in CA- G.R. CR No. 26418
finding petitioners Edigardo Geroche, Roberto Garde and Generoso Marfil alias
Tapol guilty beyond reasonable doubt of Violation of Domicile, penalized under
Article 128 of the Revised Penal Code, with theMODIFICATION that the penalty
that should be imposed is an indeterminate sentence from two (2) years and
four (4) months ofprision correccional, as minimum, to four (4) years, nine (9)
months and ten (10) days of prision correccional, as maximum.
SO ORDERED.

THIRD DIVISION, G.R. No. 179080, November 26,

2014, EDIGARDO GEROCHE, ROBERTO GARDE AND
GENEROSO MARFIL ALIAS TAPOL, PETITIONERS, VS. PEOPLE
OF THE PHILIPPINES, RESPONDENT.

Where A Filipino Citizen Sells

Land To An Alien Who Later
Sells The Land To A Filipino,
The Invalidity Of The First
Transfer Is Corrected By The
Subsequent Sale To A Citizen
May 2, 2015 by The Lawyer's Post

The Facts:
Lee Liong, a Chinese citizen, bought Lot 398 from the Dinglasans in 1936. When
Lee died in 1944 without will, he was succeeded by his sons Lee Bing Hoo and
Lee Bun Ting, who extrajudicially settled the estate among themselves and
partitioned Lot 398. When the brothers died, Lot 398 was transferred by
succession to their respective wives, Elizabeth and Pacita Yu-Lee. In the 1956
case of Dinglasan vs. Lee Bun Ting1, the Court held that the sellers (Dinglasan)
cannot invalidate the sale of land (Lot 398) to the buyers who are Chinese
citizen on the ground of in pare delicto; in the latter case of Lee Bun Ting vs
Judge Aligaen2, the Court again dismissed the case on the ground of res judicata,
being a mere relitigation of the Dinglasan case.
On January 26, 1995, the Office of the Solicitor General filed a Complaint for
Reversion of Lot 398, praying that the sale of Lot 398 to Lee Liong be set aside
for being null and void, and for Lot 398 to be reverted to the public domain for
State disposal in accordance with law. In their answer, Elizabeth and Pacita
invoked the affirmative defense of prescription; Lee a buyer in good faith and for
value, and that they were qualified to own by succession Lot 398, being Filipino
citizens.
The RTC ruled in favour of the OSG and declared the sale of Lot 398 to Lee Liong
as null and void. His being a purchaser I good fait and for value did not cure the
nullity of the sale, and prescription does not run against the State.

The Court of Appeals however reversed the RTC. It ruled that the transfer of the
land to Elizabeth and Pacita who are both Filipino citizens may no longer be
impugned even though the initial sale was void, considering that the objective of
the constitutional proscription against alien ownership of lands, that is to keep
our lands in Filipino hands, has been achieved.
The OSG elevated its case to the Supreme Court. It argues that since the
acquisition of Lot 398 was null and void, it did not form part of estate of Lee
Liong, and thus cannot be transmitted by succession to his heirs and eventually
to Elizabeth and Pacita.
The Courts ruling:
The petition is without merit.
Petitioner argues that since the sale of Lot No. 398 to Lee Liong was void, Lot
No. 398 never became part of the deceased Lee Liongs estate. Hence, Lot No.
398 could not be transmitted by succession to Lee Liongs surviving heirs and
eventually to private respondents.
We do not subscribe to petitioners position. The circumstances of this case are
similar to the case of De Castro v. Teng Queen Tan,3 wherein a residential lot was
sold to a Chinese citizen. Upon the death of the alien vendee, his heirs entered
into an extrajudicial settlement of the estate of the deceased and the subject
land was transferred to a son who was a naturalized Filipino. Subsequently, the
vendor of the lot filed a suit for annulment of sale for alleged violation of the
Constitution prohibiting the sale of land to aliens. Independently of the doctrine
of in pari delicto, the Court sustained the sale, holding that while the vendee
was an alien at the time of the sale, the land has since become the property of a
naturalized Filipino citizen who is constitutionally qualified to own land.
Similarly, in this case, upon the death of the original vendee who was a Chinese
citizen, his widow and two sons extrajudicially settled his estate, including Lot
No. 398. When the two sons died, Lot No. 398 was transferred by succession to
their respective spouses, herein private respondents who are Filipino citizens.
We now discuss whether reversion proceedings is still viable considering that Lot
No. 398 has already been transfered to Filipino citizens. In the reconstitution
case of Lee v. Republic of the Philippines4 involving Lot No. 398, this Court

explained that the OSG may initiate an action for reversion or escheat of lands
which were sold to aliens disqualified from acquiring lands under the
Constitution. However, in the case of Lot No. 398, the fact that it was already
transferred to Filipinos militates against escheat proceedings, thus:
Although ownership of the land cannot revert to the original sellers, because of
the doctrine of pari delicto, the Solicitor General may initiate an action for
reversion or escheat of the land to the State, subject to other defenses, as
hereafter set forth.
In this case, subsequent circumstances militate against escheat proceedings
because the land is now in the hands of Filipinos. The original vendee, Lee Liong,
has since died and the land has been inherited by his heirs and subsequently
their heirs, petitioners herein [Elizabeth Lee and Pacita Yu Lee]. Petitioners are
Filipino citizens, a fact the Solicitor General does not dispute.
The constitutional proscription on alien ownership of lands of the public or
private domain was intended to protect lands from falling in the hands of nonFilipinos. In this case, however, there would be no more public policy violated
since the land is in the hands of Filipinos qualified to acquire and own such land.
If land is invalidly transferred to an alien who subsequently becomes a citizen
or transfers it to a citizen, the flaw in the original transaction is considered cured
and the title of the transferee is rendered valid. Thus, the subsequent transfer
of the property to qualified Filipinos may no longer be impugned on the basis of
invalidity of the initial transfer. The objective of the constitutional provision to
keep our lands in Filipino hands has been achieved. 5 (Emphasis supplied)
In this case, the reversion proceedings was initiated only after almost 40 years
from the promulgation of the case of Dinglasan v. Lee Bun Ting,6 where the
Court held that the sale of Lot No. 398 was null and void for violating the
constitutional prohibition on the sale of land to an alien. If petitioner had
commenced reversion proceedings when Lot No. 398 was still in the hands of
the original vendee who was an alien disqualified to hold title thereto, then
reversion of the land to the State would undoubtedly be allowed. However, this
is not the case here. When petitioner instituted the action for reversion of title in
1995, Lot No. 398 had already been transferred by succession to private
respondents who are Filipino citizens.

Since Lot No. 398 has already been transferred to Filipino citizens, the flaw in
the original transaction is considered cured.7 As held in Chavez v. Public Estates
Authority:8
Thus, the Court has ruled consistently that W.
Similarly, where the alien who buys the land subsequently acquires Philippine
citizenship, the sale was validated since the purpose of the constitutional ban to
limit land ownership to Filipinos has been achieved. In short, the law disregards
the constitutional disqualification of the buyer to hold land if the land is
subsequently transferred to a qualified party, or the buyer himself becomes a
qualified party.9 (Emphasis supplied)
Clearly, since Lot No. 398 has already been transferred to private respondents
who are Filipino citizens, the prior invalid sale to Lee Liong can no longer be
assailed. Hence, reversion proceedings will no longer prosper since the land is
now in the hands of Filipino citizens.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 12 July 2002
and the Resolution dated 9 May 2003 of the Court of Appeals in CA-G.R. CV No.
53890.
SO ORDERED.

FIRST DIVISION, G.R. No. 158230, July 16, 2008, REPUBLIC OF

THE PHILIPPINES, represented by the DIRECTOR OF
LANDS, Petitioner, vs. REGISTER OF DEEDS OF ROXAS CITY,
ELIZABETH LEE, and PACITA YU-LEE, Respondents.

Filipino Citizenship Is
Predicated Upon Oneness With
The Filipino People
May 1, 2015 by The Lawyer's Post

The Facts:

On October 13, 2004, Dennis (Go), a Chinese citizen born to the spouses Felix
and Emma Go, both Chinese nationals, filed a petition for naturalisation with the
RTC of Manila, alleging that he is a resident of Oroquieta St., in Sta. Cruz, Manila,
and has all the qualifications and none of the disqualifications for naturalisation.
During the hearing he presented as witnesses Dr. Joseph Anlacan, Dr. Edward
Tordesillas, Silvino Ong, Teresita, and Juan Go. Dr. Anlacan testified that Dennis
had no psychiatric abnormality; Dr. Toredesillas claimed that Denniss medical
results were normal; Silvino, on the other hand testified that being their
neighbour in Sto. Cristo Street, he knew Dennis since childhood, through
association with the family in times of celebration. Teresita alleged that he knew
Dennis since birth, being the son of her brother-in-law. Juan attested that he
knew Dennis personally and executed an Affidavit of Support in his favour.
The Office of the Solicitor General posed no objection to the relevancy of the
document, and requested that the case be submitted for resolution based on
Denniss evidence. Later, the OSG moved for reopening of the trial, based on an
NBI report that Dennis failed to comply with the laws on naturalisation, to which
Dennis objected, averring that he had been issued an NBI clearance and he was
not the same Dennis Go alluded to in the NBI Investigation Report. The RTC
admitted the evidence in question, but denied OSGs motion to re-open trial. It
granted Denniss petition for naturalisation. The OSG, on the other hand, moved
for reconsideration and re-opening of the trial, this time submitting a
Background Investigation Report by the Bureau of Immigration stating that
Denniss parents were still Chinese nationals; his aunt refused to grant them an
interview and arrogantly treated them, and his retail business should be
subjected to review for tax deficiencies. When the RTC denied its motion for
reconsideration, the OSG appealed to the Court of Appeals, alleging that Dennis
failed to prove that he had all the qualifications for naturalisation; that his
character witnesses were credible; that his witnesses were not able to prove his
qualification for grant of citizenship; and that failure to state all his previous
residences was fatal to his petition. Dennis opposed the appeal, averring that
the OSG had all the time to contest his evidence, yet failed to do the same
during trial, and in fact resorting to piece-meal presentation of evidence. The
citizenship of his parents had nothing to do with his petition.
The Court of Appeals reversed the RTC ruling, holding that Dennis failed to prove
that his witnesses were credible. He was not able to prove that the persons he
presented in court had good standing in the community, known to be honest

and upright, reputed to be trustworthy and reliable, and that their word could be
taken at face value, as a good warranty of his worthiness.
Dennis elevated the ruling of the CA to the Supreme Court.
The Courts ruling:
Citizenship is personal and more or less permanent membership in a political
community. It denotes possession within that particular political community of
full civil and political rights subject to special disqualifications. Reciprocally, it
imposes the duty of allegiance to the political community 1. The core of
citizenship is the capacity to enjoy political rights, that is, the right to participate
in government principally through the right to vote, the right to hold public office
and the right to petition the government for redress of grievance 2.
No less than the 1987 Constitution enumerates who are Filipino citizens 3. Among
those listed are citizens by naturalization, which refers to the legal act of
adopting an alien and clothing him with the privilege of a native-born citizen.
Under the present laws, the process of naturalization can be judicial or
administrative. Judicially, C.A. No. 473 provides that after hearing the petition
for citizenship and receipt of evidence showing that the petitioner has all the
qualifications and none of the disqualifications required by law, the competent
court may order the issuance of the proper naturalization certificate and the
registration thereof in the proper civil registry. On the other hand, Republic Act
(R.A.) No. 9139 provides that aliens born and residing in the Philippines may be
granted Philippine citizenship by administrative proceeding by filing a petition
for citizenship with the Special Committee, which, in view of the facts before it,
may approve the petition and issue a certificate of naturalization 4. In both cases,
the petitioner shall take an oath of allegiance to the Philippines as a sovereign
nation.
It is a well-entrenched rule that Philippine citizenship should not easily be given
away. All those seeking to acquire it must prove, to the satisfaction of the Court,
that they have complied with all the requirements of the law 5. The reason for
this requirement is simple. Citizenship involves political status; hence, every
person must be proud of his citizenship and should cherish it. Verily, a
naturalization case is not an ordinary judicial contest, to be decided in favor of
the party whose claim is supported by the preponderance of the evidence.
Naturalization is not a right, but one of privilege of the most discriminating, as

well as delicate and exacting nature, affecting, as it does, public interest of the
highest order, and which may be enjoyed only under the precise conditions
prescribed by law therefor6.
Jurisprudence dictates that in judicial naturalization, the application must show
substantial and formal compliance with C.A. No. 473. In other words, an
applicant must comply with the jurisdictional requirements, establish his or her
possession of the qualifications and none of the disqualifications enumerated
under the law, and present at least two (2) character witnesses to support his
allegations7. In Ong v. Republic of the Philippines8, the Court listed the
requirements for character witnesses, namely:
1. That they are citizens of the Philippines;
2. That they are credible persons;
3. That they personally know the petitioner;
4. That they personally know him to be a resident of the Philippines for the
period of time required by law;
5. That they personally know him to be a person of good repute;
6. That they personally know him to be morally irreproachable;
7. That he has, in their opinion, all the qualifications necessary to become a
citizen of the Philippines; and
8. That he is not in any way disqualified under the provisions of the
Naturalization Law.
In vouching for the good moral character of the applicant for citizenship, a
witness, for purposes of naturalization, must be a credible person as he
becomes an insurer of the character of the candidate 9. The Court, in Ong,
explained:
a credible person is, to our mind, not only an individual who has not been
previously convicted of a crime; who is not a police character and has no police
record; who has not perjured in the past; or whose affidavit or testimony is not
incredible. What must be credible is not the declaration made, but the person

making it. This implies that such person must have a good standing in the
community; that he is known to be honest and upright; that he is reputed to be
trustworthy and reliable; and that his word may be taken on its face value, as a
good warranty of the worthiness of the petitioner.
In consonance with the above dictum, in Lim Ching Tian v. Republic10, the Court
explained that the law requires that a vouching witness should have actually
known an applicant for whom he testified for the requisite period prescribed
therein to give him the necessary competence to act as such. The reason behind
this requirement is that a vouching witness is in a way an insurer of the
character of petitioner because on his testimony the court is of necessity
compelled to rely in deciding the merits of his petition. It is, therefore,
imperative that he be competent and reliable. And he is only competent to
testify on his conduct, character and moral fitness if he has had the opportunity
to observe him personally, if not intimately, during the period he has allegedly
known him. The law, in effect, requires that the character witnesses be not
mere ordinary acquaintances of the applicant, but possessed of such intimate
knowledge of the latter as to be competent to testify of their personal
knowledge; and that they have each one of the requisite qualifications and none
of the statutory disqualifications.
In this case, the OSG mainly harps on the petitioners failure to prove that his
witnesses are credible.
The Court agrees.
The records of the case show that the joint affidavits executed by petitioners
witnesses did not establish their own qualification to stand as such in a
naturalization proceeding. In turn, petitioner did not present evidence proving
that the persons he presented were credible. In the words of the CA, he did not
prove that his witnesses had good standing in the community, known to be
honest and upright, reputed to be trustworthy and reliable, and that their word
may be taken at face value, as a good warranty of the worthiness of
petitioner.11
While there is no showing that petitioners witnesses were of doubtful moral
inclinations, there was likewise no indication that they were persons whose
qualifications were at par with the requirements of the law on naturalization.
Simply put, no evidence was ever proffered to prove the witnesses good

standing in the community, honesty, moral uprightness, and most importantly,

reliability. As a consequence, their statements about the petitioner do not
possess the measure of credibility demanded of in naturalization cases. This
lack of credibility on the part of the witnesses, unfortunately, weakens or
renders futile petitioners claim of worthiness. An applicant for Philippine
citizenship would carefully testify as to his qualifications, placing emphasis on
his good traits and character. This is expected of a person who longs to gain
benefits and advantages that Philippine citizenship bestows. Therefore, a serious
assessment of an applicants witnesses, both as to the credibility of their person
and their very testimony, is an essential facet of naturalization proceedings that
may not be brushed aside.
Further, petitioners witnesses only averred general statements without
specifying acts or events that would exhibit petitioners traits worthy of the
grant of Philippine citizenship. For instance, a statement in their affidavits as to
petitioners adherence to the principles underlying the Philippine Constitution is
not evidence, per se, of petitioners agreement and zeal to Philippine ideals.
These appear to be empty declarations if not coming from credible witnesses.
It bears stressing that the CA was correct in finding that the testimonies of
petitioners witnesses only proved that he mingled socially with Filipinos. While
almost all of the witnesses testified that they knew petitioner since birth and
that they had interacted with petitioners family in times of celebration, this did
not satisfy the other requirements set by law, that is, a genuine desire to learn
and embrace the Filipino ideals and traditions. Besides, both the NBI and BOI
reports cast doubt on petitioners alleged social interaction with Filipinos. The
background checks done on petitioner yielded negative results due to the
uncooperative behavior of the members of his household. In fact, petitioner
himself disobliged when asked for an interview by BOI agents.
To the Court, this is a display of insincerity to embrace Filipino customs,
traditions and ideals. This leads to the inescapable conclusion that petitioner
failed to prove that he has all the qualifications entitling him to the grant of
Philippine citizenship. Filipino citizenship is predicated upon oneness with the
Filipino people. It is indispensable that an applicant for naturalization shows his
identification with the Philippines as a country deserving of his wholehearted
allegiance. Until there is a positive and unequivocal showing that this is so in the

case of petitioner, the Court must selfishly decline to confer Philippine

citizenship on one who remains an alien in principles and sentiment.
Finally, it is noteworthy that the OSG was correct in arguing that petitioners
failure to state his former residence in the petition was fatal to his application
for naturalization. Indeed, this omission had deprived the trial court of
jurisdiction to hear and decide the case. Differently stated, the inclusion of
present and former places of residence in the petition is a jurisdictional
requirement, without which the petition suffers from a fatal and congenital
defect which cannot be cured by evidence on the omitted matter at the trial 12.
Here, a character witness had unwittingly revealed that he and petitioner were
neighbors in Sto. Cristo Street before the latters family transferred to their
declared residential address in Oroquieta Street. This proves that petitioners
former residence was excluded in his allegations contained in the published
petition. In effect, there was an unpardonable lapse committed in the course of
petitioners compliance to the jurisdictional requirements set be law, rendering
the trial courts decision, not only as erroneous, but void.
WHEREFORE, the petition is DENIED. The January 18, 2012 Decision and the July
23, 2012 Resolution of the Court of Appeals in CA-G.R. CV No. 95120
are AFFIRMED. As stated in the decision of the Court of Appeals, the dismissal is
without prejudice.
SO ORDERED.

THIRD DIVISION, G.R. No. 202809, July 02, 2014, DENNIS L.

GO, PETITIONER, VS. REPUBLIC OF THE PHILIPPINES,
RESPONDENT.

For A Comment To Be
Considered As Contempt Of
Court It Must Really Appear
That Such Does Impede,

Interfere With And Embarrass

The Administration Of Justice
April 14, 2015 by The Lawyer's Post

The Facts:
Monique is the mother of Anton Cu-Unjieng, who, along with Brian Anthony
Dulay and Francis Xavier Manzano, were killed in Pasig City in an alleged shootout with a police team led bu Supt. Hansel Marantan. A case for Homicide was
filed against the police officers before the Pasig City Regional Trial Court.
Monique, along with her lawyer, Atty. Jose Manuel Diokno, filed a petition before
the Supreme Court in G. R No. 199462, to question the downgrading of the
charge from Murder to Homicide. On January 6, 2013, Supt. Marantan, leading a
police-military team, killed thirteen men in BGy. Lumutan, Atimonan, Quezon, in
what became known as the Atimonan Massacre. On January 29, 2013, Atty.
Diokno, Monique, and a certain Ernesto Manzano organised and conducted a
televised/radio broadcasted press conference, During the press conference, the
three made references to the delay in the resolution of G.R. 199642 and recalled
the previous incident where their loved ones were killed by the same Supt.
Marantan. Because of this, Supt. Marantan, attaching the transcript of the
interviews, filed a petition to cite in contempt Atty. Diokno and Monique. He
allege that the two violated the sub judice rule by by making malicious
comments about the inaction of the Court in G.R. No. 199462, as well as tended
to influence the proceedings in the criminal case in Pasig City RTC by
prematurely concluding that he and his co-accused were guilty of murder. The
press conference was organised for the sole purpose of influencing the decision
of the Court in the petition before it and the criminal case in Pasig City. On the
other hand, Atty. Diokno and Monique argue otherwise, holding that their
statements were legitimate expressions of their desires, hopes and opinions
which were taken out of context and did not actually impede, obstruct or
degrade the administration of justice in a concrete way; that no criminal intent
was shown as the utterances were not on their face actionable being a fair
comment of a matter of public interest and concern; and that this petition is
intended to stifle legitimate speech.
The Courts ruling:

The sub judice rule restricts comments and disclosures pertaining to the judicial
proceedings in order to avoid prejudging the issue, influencing the court, or
obstructing the administration of justice. A violation of this rule may render one
liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court[1],
which reads:
Section 3. Indirect contempt to be punished after charge and hearing. x x x a
person guilty of any of the following acts may be punished for indirect contempt:
xxx
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice[.]
The proceedings for punishment of indirect contempt are criminal in nature[2].
This form of contempt is conduct that is directed against the dignity and
authority of the court or a judge acting judicially; it is an act obstructing the
administration of justice which tends to bring the court into disrepute or
disrespect. Intent is a necessary element in criminal contempt, and no one can
be punished for a criminal contempt unless the evidence makes it clear that he
intended to commit it[3]
For a comment to be considered as contempt of court it must really appear
that such does impede, interfere with and embarrass the administration of
justice[4]. What is, thus, sought to be protected is the all-important duty of the
court to administer justice in the decision of a pending case[5]. The specific
rationale for the sub judice rule is that courts, in the decision of issues of fact
and law should be immune from every extraneous influence; that facts should
be decided upon evidence produced in court; and that the determination of such
facts should be uninfluenced by bias, prejudice or sympathies[6].
The power of contempt is inherent in all courts in order to allow them to conduct
their business unhampered by publications and comments which tend to impair
the impartiality of their decisions or otherwise obstruct the administration of
justice. As important as the maintenance of freedom of speech, is the
maintenance of the independence of the Judiciary. The clear and present
danger rule may serve as an aid in determining the proper constitutional
boundary between these two rights[7].

The clear and present danger rule means that the evil consequence of the
comment must be extremely serious and the degree of imminence extremely
high before an utterance can be punished. There must exist a clear and present
danger that the utterance will harm the administration of justice. Freedom of
speech should not be impaired through the exercise of the power of contempt of
court unless there is no doubt that the utterances in question make a serious
and imminent threat to the administration of justice. It must constitute an
imminent, not merely a likely, threat[8].
The contemptuous statements made by the respondents allegedly relate to the
merits of the case, particularly the guilt of petitioner, and the conduct of the
Court as to its failure to decide G.R. No. 199462.
As to the merits, the comments seem to be what the respondents claim to be an
expression of their opinion that their loved ones were murdered byMarantan.
This is merely a reiteration of their position in G.R. No. 199462, which precisely
calls the Court to upgrade the charges from homicide to murder. The Court
detects no malice on the face of the said statements. The mere restatement of
their argument in their petition cannot actually, or does not even tend to,
influence the Court.
As to the conduct of the Court, a review of the respondents comments reveals
that they were simply stating that it had not yet resolved their petition. There
was no complaint, express or implied, that an inordinate amount of time had
passed since the petition was filed without any action from the Court. There
appears no attack or insult on the dignity of the Court either.
A public utterance or publication is not to be denied the constitutional
protection of freedom of speech and press merely because it concerns a judicial
proceeding still pending in the courts, upon the theory that in such a case, it
must necessarily tend to obstruct the orderly and fair administration of
justice[9]. By no stretch of the imagination could the respondents comments
pose a serious and imminent threat to the administration of justice. No criminal
intent to impede, obstruct, or degrade the administration of justice can be
inferred from the comments of the respondents.
Freedom of public comment should, in borderline instances, weigh heavily
against a possible tendency to influence pending cases[10]. The power to
punish for contempt, being drastic and extraordinary in its nature, should not be

resorted to unless necessary in the interest of justice[11]. In the present case,

such necessity is wanting.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

THIRD DIVISION, G.R. No. 205956, February 12, 2014, P/SUPT.

HANSEL M. MARANTAN, PETITIONER, VS. ATTY. JOSE MANUEL
DIOKNO AND MONIQUE CU-UNJIENG LAO, RESPONDENTS.

Solicitation For Religious

Purposes May Be Subject To
Proper Regulation by The State
In The Exercise Of Police
Power (1994).
April 7, 2015 by The Lawyer's Post

A group of senior citizens comprising the Samahan ng Katandaan ng Nayon ng

Tikay launched a fund drive for the purpose of renovating the chapel of Barrio
Tikay, Malolos, Bulacan, led by Martin, the chairman, approached Judge
Adoracion Angeles, a resident of the place and asked for a contribution of
P1,500.00. The latter filed a complaint against them for soliciting without a
permit from the Department of Social Welfare and Development in violation of
Presidential Decree 1564, before the MTC of Malolos Bulacan. After trial, the
court convicted them and sentenced them to a fine of P200.00 but with a
recommendation that they be pardoned on the basis that they acted in good
faith and they would not have been criminally liable were it not for the existence
of PD 1564. Only Martin appealed to the Regional Trial Court. The latter court
however, affirmed the findings of the MTC, increased the fine to P1,000.00 and
sentenced him to imprisonment of six months in view of the alleged perversity

of the act committed by the accused. Thus Martin elevated the case to the
Supreme Court. He argues that PD 1564 does not apply to solicitations for
religious purposes, as it was not expressly included in the provisions of the
statute; penal laws should be strictly construed in favour of the accused; and, to
penalise solicitations for religious purposes would be constitute a violation of
freedom of religion guaranteed by the Constitution.
The Courts ruling:
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 Department of Social Services and Development, the Regional
Director or his duly authorized representative may, in his discretion, issue a
permanent or temporary permit or disapprove the application. In the interest of
the public, he may in his discretion renew or revoke any permit issued under Act
4075.
The main issue to be resolved here is whether the phrase charitable purposes
should be construed in its broadest sense so as to include a religious purpose.
We hold in the negative.
I. Indeed, it is an elementary rule of statutory construction that the express
mention of one person, thing, act, or consequence excludes all others. This rule
is expressed in the familiar maxim expressio unius est exclusio alterius. Where
a statute, by its terms, is expressly limited to certain matters, it may not, by
interpretation or construction, be extended to others. The rule proceeds from
the premise that the legislature would not have made specified enumerations in
a statute had the intention been not to restrict its meaning and to confine its
terms to those expressly mentioned[1].
It will be observed that the 1987 Constitution, as well as several other statutes,
treat the words charitable and religious separately and independently of
each other. Thus, the word charitable is only one of three descriptive words

used in Section 28 (3), Article VI of the Constitution which provides that

charitable institutions, churches and personages . . ., and all lands, buildings,
and improvements, actually, directly, and exclusively used for religious,
charitable, or educational purposes shall be exempt from taxation. There are
certain provisions in statutes wherein these two terms are likewise dissociated
and individually mentioned, as for instance, Sections 26 (e) (corporations
exempt from income tax) and 28 (8) (E) (exclusions from gross income) of the
National Internal Revenue Code; Section 88 (purposes for the organization of
non-stock corporations) of the Corporation Code; and Section 234 (b)
(exemptions from real property tax) of the Local Government Code.
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.
All contributions designed to promote the work of the church are charitable in
nature, since religious activities depend for their support on voluntary
contributions[2]. 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[3]. 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[4].
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 deemed
to include religious purposes[5]. A gift for religious purposes was considered
as a bequest for charitable use as regards exemption from inheritance tax[6].
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 paid 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.
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. Hence, in the
interpretation of a penal statute, the tendency is to subject it to careful scrutiny
and to construe it with such strictness as to safeguard the rights of the accused.
If the statute is ambiguous and admits of two reasonable but contradictory
constructions, that which operates in favor of a party accused under its
provisions is to be preferred. The principle is that acts in and of themselves
innocent and lawful cannot be held to be criminal unless there is a clear and
unequivocal expression of the legislative intent to make them such. Whatever is
not plainly within the provisions of a penal statute should be regarded as
without its intendment[7].
The purpose of strict construction is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of
forbidden acts[8]. The word charitable is a matter of description rather than of
precise definition, and each case involving a determination of that which is
charitable must be decided on its own particular facts and circumstances[9]. The
law does not operate in vacuo nor should its applicability be determined by
circumstances in the abstract.

Furthermore, in the provisions of the Constitution and the statutes mentioned

above, the enumerations therein given which include the words charitable and
religious 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[10]. 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.
II. Petitioner next avers that solicitations for religious purposes cannot be
penalized under the law for, otherwise, it will constitute an abridgment or
restriction on the free exercise clause guaranteed under the Constitution.
It may be conceded that the construction of a church is a social concern of the
people and, consequently, solicitations appurtenant thereto would necessarily
involve public welfare. Prefatorily, it is not implausible that the regulatory
powers of the State may, to a certain degree, extend to solicitations of this
nature. Considering, however, that such an activity is within the cloak of the free
exercise clause under the right to freedom of religion guaranteed by the
Constitution, it becomes imperative to delve into the efficaciousness of a
statutory grant of the power to regulate the exercise of this constitutional right
and the allowable restrictions which may possibly be imposed thereon.
The constitutional inhibition of legislation on the subject of religion has a double
aspect. On the one hand, it forestalls compulsion by law of the acceptance of
any creed or the practice of any form of worship. Freedom of conscience and
freedom to adhere to such religious organization or form of worship as the
individual may choose cannot be restricted by law. On the other hand, it
safeguards the free exercise of the chosen form of religion. Thus, the
constitution embraces two concepts, that is, 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[11].
Whence, even the exercise of religion may be regulated, at some slight
inconvenience, in order that the State may protect its citizens from injury.
Without doubt, a State may protect its citizens from fraudulent solicitation by
requiring a stranger in the community, before permitting him publicly to solicit
funds for any purpose, to establish his identity and his authority to act for the
cause which he purports to represent.
The State is likewise free to regulate the time and manner of solicitation
generally, in the interest of public safety, peace, comfort, or convenience[12].
It does not follow, therefore, from the constitutional guaranties of the free
exercise of religion that everything which may be so called can be tolerated[13].
It has been said that a law advancing a legitimate governmental interest is not
necessarily invalid as one interfering with the free exercise of religion merely
because it also incidentally has a detrimental effect on the adherents of one or
more religion[14]. Thus, the general regulation, in the public interest, of
solicitation, which does not involve any religious test and does not unreasonably
obstruct or delay the collection of funds, is not open to any constitutional
objection, even though the collection be for a religious purpose. Such regulation
would not constitute a prohibited previous restraint on the free exercise of
religion or interpose an inadmissible obstacle to its exercise[15].
Even with numerous regulative laws in existence, it is surprising how many
operations are carried on by persons and associations who, secreting their
activities under the guise of benevolent purposes, succeed in cheating and
defrauding a generous public. It is in fact amazing how profitable the fraudulent
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[16]. 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[17]. Some regulation of
public solicitation is, therefore, in the public interest[18].
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
perversity of petitioners act which thereby caused damage to the complainant.
It must be here emphasized that the trial court, in the dispositive portion of its
decision, even recommended executive clemency in favor of petitioner and the
other accused after finding that the latter acted in good faith in making the
solicitation from the complainant, an observation with which we fully agree.
After all, mistake upon a doubtful and difficult question of law can be the basis
of good faith, especially for a layman.
There is likewise nothing in the findings of respondent judge which would
indicate, impliedly or otherwise, that petitioner and his co-accused acted
abusively or malevolently. This could be reflective upon her objectivity,
considering that the complainant 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[19], should be vigilant against any
attempt to subvert its independence, and must resist any pressure from
whatever source[20].
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE,
and petitioner Martin Centeno is ACQUITTED of the offense charged, with costs
de oficio.
SO ORDERED.

SECOND DIVISION, G.R. No. 113092 September 1, 1994,

MARTIN CENTENO, petitioner, vs. HON. VICTORIA VILLALON-

PORNILLOS, Presiding Judge of the Regional Trial Court of

Malolos, Bulacan, Branch 10, and THE PEOPLE OF THE
PHILIPPINES, respondents.

Writ Of Amparo: Procedural

Rules Are Meant To Assist The
Parties And Courts Efficiently
Deal With The Substantive
Issues Pertaining To A Case.
When It Is The Judge Himself
Who Disregards The Rules Of
Procedure, Delay And
Confusion Result
March 30, 2015 by The Lawyer's Post

The Facts:
On February 17, 2012, Atty. Magtanggol Gatdula filed a Petition for Issuance of a
Writ of Amparo before the RTC of Manila against Secretary Leila De Lima, NBI
Director Nonnatus Rojas, and NBI Deputy Director Reynaldo Esmeralda to order
them to cease and desist from framing him up for the alleged fake ambush
incident by filing bogus charges of frustrated murder against him. Because
Judge Silvino Pampilo required them to file an Answer instead of issuing a writ of
amparo, De Lima, et al.manifested that a Return is required, not an Answer, in
Amparo cases. By order, Judge Silvino ruled that since no writ was issued, an
Answer is the appropriate pleading, noting that the Rules apply suppletorily in
Amparo cases. He opined that the Rules on Summary Procedure apply, thus
required an Answer. Even without a Return or Answer, he proceeded to hear the

main case, and required the parties to submit memoranda instead of an answer
in view of the fact that period to file De Lima et. Als answer had not yet expired.
He then rendered a Decision on March 20, 2012 granting the Writ of Amparo
and granted the reliefs prayed for such as temporary protection, production and
inspection orders. The production and inspection orders were in relation to the
evidence and reports involving an on-going investigation of the attempted
assassination of Deputy Director Esmeralda. Their motion for reconsideration
denied, De Lima, et. Al filed the instant Petition For Review on Certiorari under
Rule 45, in accordance with Section 19 of the Rule on the Writ of Amparo.
The Courts ruling:
It is the Courts view that the Decision dated 20 March 2012 granting the writ
of Amparo is not the judgment or final order contemplated under this rule.
Hence, a Petition for Review under Rule 45 may not yet be the proper remedy at
this time.
The RTC and the Parties must understand the nature of the remedy of Amparo to
put its procedures in the proper context.
The remedy of the Writ of Amparo is an equitable and extraordinary remedy to
safeguard the right of the people to life,[1] and security[2] as enshrined in the
1987 Constitution[3]. The Rule on the Writ of Amparo was issued as an exercise
of the Supreme Courts power to promulgate rules concerning the protection and
enforcement of constitutional rights[4]. It aims to address concerns such as,
among others, extrajudicial killings and enforced disappearances[5].
Due to the delicate and urgent nature of these controversies, the procedure was
devised to afford swift but decisive relief[6]. It is initiated through a
petition[7] to be filed in a Regional Trial Court, Sandiganbayan, the Court of
Appeals, or the Supreme Court[8]. The judge or justice then makes an
immediate evaluation[9] of the facts as alleged in the petition and the
affidavits submitted with the attendant circumstances detailed[10]. After
evaluation, the judge has the option to issue the Writ of Amparo[11] or
immediately dismiss the case. Dismissal is proper if the petition and the
supporting affidavits do not show that the petitioners right to life, liberty or
security is under threat or the acts complained of are not unlawful. On the other
hand, the issuance of the writ itself sets in motion presumptive judicial
protection for the petitioner. The court compels the respondents to appear

before a court of law to show whether the grounds for more permanent
protection and interim reliefs are necessary.
The respondents are required to file a Return[12] after the issuance of the writ
through the clerk of court. The Return serves as the responsive pleading to the
petition[13]. Unlike an Answer, the Return has other purposes aside from
identifying the issues in the case. Respondents are also required to detail the
actions they had taken to determine the fate or whereabouts of the aggrieved
party.
If the respondents are public officials or employees, they are also required to
state the actions they had taken to: (i) verify the identity of the aggrieved party;
(ii) recover and preserve evidence related to the death or disappearance of the
person identified in the petition; (iii) identify witnesses and obtain statements
concerning the death or disappearance; (iv) determine the cause, manner,
location, and time of death or disappearance as well as any pattern or practice
that may have brought about the death or disappearance; and (vi) bring the
suspected offenders before a competent court[14]. Clearly these matters are
important to the judge so that s/he can calibrate the means and methods that
will be required to further the protections, if any, that will be due to the
petitioner.
There will be a summary hearing[15] only after the Return is filed to determine
the merits of the petition and whether interim reliefs are warranted. If the
Return is not filed, the hearing will be done ex parte[16].
After the hearing, the court will render the judgment within ten (10) days from
the time the petition is submitted for decision[17].
If the allegations are proven with substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be proper and appropriate[18]. The
judgment should contain measures which the judge views as essential for the
continued protection of the petitioner in the Amparo case. These measures must
be detailed enough so that the judge may be able to verify and monitor the
actions taken by the respondents. It is this judgment that could be subject to
appeal to the Supreme Court via Rule 45[19]. After the measures have served
their purpose, the judgment will be satisfied. In Amparo cases, this is when the
threats to the petitioners life, liberty and security cease to exist as evaluated by
the court that renders the judgment. Parenthetically, the case may also be

terminated through consolidation should a subsequent case be filed either

criminal or civil[20] Until the full satisfaction of the judgment, the extraordinary
remedy of Amparo allows vigilant judicial monitoring to ensure the protection of
constitutional rights.
The Decision dated 20 March 2012 assailed by the petitioners could not be the
judgment or final order that is appealable under Section 19 of the Rule on the
Writ of Amparo. This is clear from the tenor of the dispositive portion of the
Decision, to wit:
The Branch Clerk of Court of Court [sic] is hereby DIRECTED to issue the Writ of
Amparo.
Likewise, the Branch Clerk of Court is hereby DIRECTED to effect the service of
the Writ of Amparo in an expeditious manner upon all concerned, and for this
purpose may call upon the assistance of any military or civilian agency of the
government.
This Decision pertained to the issuance of the writ under Section 6 of the Rule
on the Writ of Amparo, not the judgment under Section 18. The Decision is
thus an interlocutory order, as suggested by the fact that temporary protection,
production and inspection orders were given together with the decision. The
temporary protection, production and inspection orders are interim reliefs that
may be granted by the court upon filing of the petition but before final judgment
is rendered[21].
The confusion of the parties arose due to the procedural irregularities in the RTC.
First, the insistence on filing of an Answer was inappropriate. It is the Return that
serves as the responsive pleading for petitions for the issuance of Writs of
Amparo. The requirement to file an Answer is contrary to the intention of the
Court to provide a speedy remedy to those whose right to life, liberty and
security are violated or are threatened to be violated. In utter disregard of the
Rule on the Writ of Amparo, Judge Pampilo insisted on issuing summons and
requiring an Answer.
Judge Pampilos basis for requiring an Answer was mentioned in his Order dated
2 March 2012:

Under Section 25 of the same rule [on the Writ of Amparo], the Rules of Court
shall apply suppletorily insofar as it is not inconsistent with the said rule.
Considering the summary nature of the petition, Section 5 of the Revised Rules
of Summary Procedure shall apply.
Section 5. Answer Within ten (10) days from service of summons, the
defendant shall file his Answer to the complaint and serve a copy thereof on the
plaintiff. x x x
WHEREFORE, based on the foregoing, the respondents are required to file their
Answer ten (days) from receipt of this Order[22].
The 1991 Revised Rules of Summary Procedure is a special rule that the Court
has devised for the following circumstances:
SECTION 1. Scope. This rule shall govern the summary procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial
Courts, and the Municipal Circuit Trial Courts in the following cases falling within
their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, x x x. (2) All other cases,
except probate proceedings, where the total amount of the plaintiffs claim does
not exceed x x x.
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment not exceeding six months, or a fine not exceeding one
thousand pesos (P1,000.00), or both, x x x.
xxxx

It is clear from this rule that this type of summary procedure only applies to
MTC/MTCC/MCTCs. It is mind-boggling how this rule could possibly apply to
proceedings in an RTC. Aside from that, this Court limited the application of
summary procedure to certain civil and criminal cases. A writ of Amparo is a
special proceeding. It is a remedy by which a party seeks to establish a status, a
right or particular fact[23]. It is not a civil nor a criminal action, hence, the
application of the Revised Rule on Summary Procedure is seriously misplaced.
The second irregularity was the holding of a hearing on the main case prior to
the issuance of the writ and the filing of a Return. Without a Return, the issues
could not have been properly joined.
Worse, is the trial courts third irregularity: it required a memorandum in lieu of a
responsive pleading (Answer) of De Lima, et al.
The Return in Amparo cases allows the respondents to frame the issues subject
to a hearing. Hence, it should be done prior to the hearing, not after. A
memorandum, on the other hand, is a synthesis of the claims of the party
litigants and is a final pleading usually required before the case is submitted for
decision. One cannot substitute for the other since these submissions have
different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under the Rule on the
Writ of Amparo[24].
The fourth irregularity was in the Decision dated 20 March 2012 itself. In the
body of its decision, the RTC stated:
Accordingly this court GRANTS the privilege of the writ and the interim reliefs
prayed for by the petitioner. (Emphasis supplied).
This gives the impression that the decision was the judgment since the
phraseology is similar to Section 18 of the Rule on the Writ of Amparo:
SEC. 18. Judgment. The court shall render judgment within ten (10) days
from the time the petition is submitted for decision. If the allegations in the
petition are proven by substantial evidence, the court shall grant the privilege of
the writ and such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied. (Emphasis supplied).

The privilege of the Writ of Amparo should be distinguished from the actual
order called the Writ of Amparo. The privilege includes availment of the entire
procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo. After
examining the petition and its attached affidavits, the Return and the evidence
presented in the summary hearing, the judgment should detail the required acts
from the respondents that will mitigate, if not totally eradicate, the violation of
or the threat to the petitioners life, liberty or security.
A judgment which simply grants the privilege of the writ cannot be executed.
It is tantamount to a failure of the judge to intervene and grant judicial succor to
the petitioner. Petitions filed to avail of the privilege of the Writ of Amparo arise
out of very real and concrete circumstances. Judicial responses cannot be as
tragically symbolic or ritualistic as granting the privilege of the Writ of
Amparo.
The procedural irregularities in the RTC affected the mode of appeal that
petitioners used in elevating the matter to this Court.
It is the responsibility of counsels for the parties to raise issues using the proper
procedure at the right time. Procedural rules are meant to assist the parties and
courts efficiently deal with the substantive issues pertaining to a case. When it is
the judge himself who disregards the rules of procedure, delay and confusion
result.
The Petition for Review is not the proper remedy to assail the interlocutory order
denominated as Decision dated 20 March 2012. A Petition for Certiorari, on the
other hand, is prohibited[25]. Simply dismissing the present petition, however,
will cause grave injustice to the parties involved. It undermines the salutary
purposes for which the Rule on the Writ of Amparo were promulgated.
In many instances, the Court adopted a policy of liberally construing its rules in
order to promote a just, speedy and inexpensive disposition of every action and
proceeding[26]. The rules can be suspended on the following grounds: (1)
matters of life, liberty, honor or property, (2) the existence of special or
compelling circumstances, (3) the merits of the case, (4) a cause not entirely
attributable to the fault or negligence of the party favored by the suspension of
the rules, (5) a lack of any showing that the review sought is merely frivolous
and dilatory, and (6) the other party will not be unjustly prejudiced thereby[27]

WHEREFORE, in the interest of justice, as a prophylactic to the irregularities

committed by the trial court judge, and by virtue of its powers under Article VIII,
Section 5 (5) of the Constitution, the Court RESOLVES to:
(1) NULLIFY all orders that are subject of this Resolution issued by Judge Silvino
T. Pampilo, Jr. after respondent Gatdula filed the Petition for the Issuance of a
Writ of Amparo;
(2) DIRECT Judge Pampilo to determine within forty-eight (48) hours from his
receipt of this Resolution whether the issuance of the Writ of Amparo is proper
on the basis of the petition and its attached affidavits.
The Clerk of Court is DIRECTED to cause the personal service of this Resolution
on Judge Silvino T. Pampilo, Jr. of Branch 26 of the Regional Trial Court of Manila
for his proper guidance together with a WARNING that further deviation or
improvisation from the procedure set in A.M. No. 07-9-12-SC shall be meted with
severe consequences.
SO ORDERED.

EN BANC, G.R. No. 204528, February 19, 2013, SECRETARY

LEILA M. DE LIMA, DIRECTOR NONNATUS R. ROJAS AND
DEPUTY DIRECTOR REYNALDO 0. ESMERALDA, PETITIONERS,
VS. MAGTANGGOL B. GATDULA, RESPONDENT.

The Holding Of A Tax Sale

Without The Requisite Notice
Is A Violation Of The
Delinquent Taxpayers Right To
Substantial Due Process
March 14, 2015 by The Lawyer's Post

Corporate Strategies Development Corp. (CSDC) is the owner of a parcel of land

in Makati City covered by TCT No. 125211 and by Tax Declaration Nos.
F00401455 and F00401456. For failure to pay real property taxes for the period
1994 to 2006, the City Treasurer of Makati City subjected the property to levy
under Sec. 258[1] of the Local Government Code, and a public auction sale
conducted during which Nelson (Agojo) turned out to be the highest bidder. With
the issuance of the Final Deed of Conveyance to Nelson after the one year
redemption period, Nelson filed a petition for issuance of a new certificate of
title before the RTC. CSDC filed its Comment, alleging that the notices were sent
to CSDCs old office address; and the sale violated the procedural requirement
under the Local Government Code, such as: failure of the City Treasure to exert
steps to send the warrant at the address where the property was located; failure
to serve the warrant on the occupant of the property itself; the Registry of
Deeds, and the City Assessor prior to the auction sale; and gross inadequacy of
the bid price in relation to the total value of the property (5% only). After trial,
the RTC denied the petition for issuance of new title, and ordered the payment
of the amount deposited by CSDC to cover the purchase price and
improvements made by Nelson on the property. Nelson appealed the ruling to
the Court of Appeals, which at first affirmed the ruling of the RTC, but on motion
for reconsideration, reversed itself and ruled in favour of Nelson. It ruled that the
auction sale was valid based on the presumption of regularity in the
performance of duty enjoyed by the City Treasurer.
Aggrieved, CSDC filed the instant petition for review with the Supreme Court.
Citing the case of Spouses Sarmiento vs. CA, et.al. It argues that there can be no
presumption of regularity in administrative actions where it results in
deprivation of a taxpayers property through a tax sale. Nelsons reliance on
presumption of regularity of duty showed the lack of compliance with the
procedural requirements of a tax sale in the case, specifically the burden to
show that proper notices were made to the them or to the Registry of Deeds and
the City Assessor. On the other hand, Nelson alleges that the petition filed by
CSDC should be expunged because it did not comply with Bar Matter No. 1922,
since it did not include counsels for CSDs proof of compliance with MCLE fourth
period compliance. Further, CSDC failed to overcome the presumption of
regularity in favour of the City Treasurer which made the tax sale valid.
The Supreme Court:

The Court grants the petition.

Under Section 75 of Presidential Decree (P.D.) No. 1529, otherwise known as the
Property Registration Decree[2], the registered owner is given the right to
pursue legal and equitable remedies to impeach or annul the proceedings for
the issuance of new certificates of title upon the expiration of the redemption
period. In this case, petitioners opposed the issuance of a new certificate of title
in favor of the respondent on the ground that the auction sale was null and void.
It was submitted that the auction sale was made without affording the
petitioners due process of law attributable to the following errors:
(a) the failure of the City Treasurer to exert further steps to send the warrant at
the address where the property itself was located;
(b) the failure to serve the warrant on the occupant of the property as mandated
by Section 258 of the LGC;
(c) the failure to serve the copies of the warrant of levy upon the Register of
Deeds and the City Assessor of Makati prior to the auction sale following the said
provision in relation to Section 260 of the LGC;
(d) the failure to annotate the notice of levy on the title of the property prior to
the conduct of the auction sale on May 24, 2006; and
(e) the gross inadequacy of the bid price for the property considering that it only
represented five (5) percent of the value of the property in the total amount of
P35,000,000.00 based on the zonal valuation.
Because of these alleged defects, petitioners assailed the auction sale for being
defective pursuant to the provisions of the LGC.
Respondent is of the view that the auction sale enjoys the presumption of
regularity. The CA agreed with him when it reversed the RTC ruling holding the
auction sale as invalid.
The Court, however, does not.
In Spouses Sarmiento v. CA[3], this Court reiterated the rule that there could be
no presumption of the regularity of any administrative action which resulted in
depriving a taxpayer of his property through a tax sale. This is an exception to

the rule that administrative proceedings are presumed to be regular. This has
been the rule since the 1908 case of Valencia v. Jimenez and Fuster[4] where
this Court held:
The American law does not create a presumption of the regularity of any
administrative action which results in depriving a citizen or taxpayer of his
property, but, on the contrary, the due process of law to be followed in tax
proceedings must be established by proof and the general rule is that the
purchaser of a tax title is bound to take upon himself the burden of showing the
regularity of all proceedings leading up to the sale. The difficulty of supplying
such proof has frequently lead to efforts on the part of legislatures to avoid it by
providing by statute that a tax deed shall be deemed either conclusive or
presumptive proof of such regularity.
Those statutes attributing to it a conclusive effect have been held invalid as
operating to deprive the owner of his property without due process of law. But
those creating a presumption only have been sustained as affecting a rule of
evidence, changing nothing but the burden of proof. (Turpin v. Lemon, 187 U.S.,
51.)
The tax law applicable to Manila does not attempt to give any special probative
effect to the deed of the assessor and collector, and therefore leaves the
purchaser to establish the regularity of all vital steps in the assessment and
sale. (Emphasis supplied)
In 1915, the Court reiterated this doctrine in Camo v. Boyco[5]. It was written
therein that no presumption of the regularity existed in any administrative
action which resulted in depriving a citizen or taxpayer of his property. It further
stated that on the contrary, the due process of law to be followed in tax
proceedings must be established by proof and the general rule was that the
purchaser of a tax title was bound to take upon himself the burden of showing
the regularity of all proceedings leading up to the sale.
And in the 2003 case of Requiron v. Sinaban[6], this Court likewise pronounced
that it was incumbent upon the buyer at an auction sale to prove the regularity
of all proceedings leading to the sale for the buyer could not rely on the
presumption of regularity accorded to ordinary administrative proceedings.

The above jurisprudential tenor clearly demonstrates that the burden to prove
compliance with the validity of the proceedings leading up to the tax
delinquency sale is incumbent upon the buyer or the winning bidder, which, in
this case, is the respondent. This is premised on the rule that a sale of land for
tax delinquency is in derogation of property and due process rights of the
registered owner. In order to be valid, the steps required by law must be strictly
followed[7]. The burden to show that such steps were taken lies on the person
claiming its validity, for the Court cannot allow mere presumption of regularity
to take precedence over the right of a property owner to due process accorded
no less than by the Constitution.
It is, thus, necessary to determine whether respondent has fulfilled his burden of
proving compliance with the requirements for a valid tax delinquency sale.
Under Section 254 of the LGC, it is required that the notice of delinquency must
be posted at the main hall and in a publicly accessible and conspicuous place in
each barangay of the local government unit concerned. It shall also be published
once a week for two (2) consecutive weeks, in a newspaper of general
circulation in the province, city, or municipality.
Section 258 of the LGC further requires that should the treasurer issue a warrant
of levy, the same shall be mailed to or served upon the delinquent owner of the
real property or person having legal interest therein, or in case he is out of the
country or cannot be located, the administrator or occupant of the property. At
the same time, the written notice of the levy with the attached warrant shall be
mailed to or served upon the assessor and the Registrar of Deeds of the
province, city or municipality within the Metropolitan Manila Area where the
property is located, who shall annotate the levy on the tax declaration and
certificate of title of the property, respectively.
Section 260 of the LGC also mandates that within thirty (30) days after service
of the warrant of levy, the local treasurer shall proceed to publicly advertise for
sale or auction the property or a usable portion thereof as may be necessary to
satisfy the tax delinquency and expenses of sale. Such advertisement shall be
effected by posting a notice at the main entrance of the provincial, city or
municipal building, and in a publicly accessible and conspicuous place in the
barangay where the real property is located, and by publication once a week for
two (2) weeks in a newspaper of general circulation in the province, city or
municipality where the property is located.

Respondent utterly failed to show compliance with the aforestated

requirements. First, no evidence was adduced to prove that the notice of levy
was ever received by the CSDC. There was no proof either that such notice was
served on the occupant of the property. It is essential that there be an actual
notice to the delinquent taxpayer, otherwise, the sale is null and void although
preceded by proper advertisement or publication. This proceeds from the
principle of administrative proceedings for the sale of private lands for nonpayment of taxes being in personam[8].
Second, the notice of tax delinquency was not proven to have been posted at
the Makati City Hall and in Barangay Dasmarias, Makati City, where the
property is located. It was not proven either that the required advertisements
were effected in accordance with law. In fact, the RTC stated that:
[E]xcept for the certification issued by the City Administrator and the
attachment described in the preceding paragraph, no other proof was adduced
to prove compliance with the other requirements of Section 254. Specifically,
petitioner failed to establish that the City Treasurer actually caused a Notice of
Deliquency posted in a publicly accessible and conspicuous place in Barangay
Dasmarias, Cypress St. where the property is located. Petitioner is (sic) likewise
failed to present proof that the Notice of Deliquency was published once a week
for two (2) consecutive weeks in a newspaper of general circulation in the city.
The pleadings with Annexes/Attachments do not support the conclusion that the
notice of tax delinquency was published in a newspaper of general circulation
once a week for two (2) consecutive weeks without the Affidavit of Publication of
the newspapers publisher and the presentation of the issues of the newspaper
where the notice of delinquency is published. Likewise, the pleadings with
attachment/annexes do not support the conclusion that the City Treasurer of
Makati, her deputy or any authorized officer of the city cause (sic) the notice of
delinquency posted in the barangay where the property is located. To be precise,
the petitioner failed to show the requirements under Sec. 254 (Notice of
Deliquency in the payment of real property tax) have been fully complied
with[9].
Having established the lack of proof of receipt of the notice of levy by CSDC or
by the occupant of the subject property, and of the fact of publication, there is
clearly reason to doubt the validity of the proceedings leading to the tax
delinquency sale made in favor of the respondent. Verily, the inescapable fact
that can be derived from all these is respondents inability to prove that he

derived his right over the property from a valid proceeding pursuant to the
requirements of the LGC.
In reversing itself, the CA took respondents side without recognizing the strict
rules on tax delinquency sales. It also erred in relying on Bank of the Philippines
Islands v. Evangeline L. Puzon[10] for the Court finds it inapplicable with the
issue at hand. Although the Court has applied the presumption of regularity in
that case, there were other pieces of evidence which showed compliance with
the requirements of a valid foreclosure sale. In ruling that there was indeed
compliance, the Court said as follows:
Besides, even if the notices of sale were not posted in public places, this does
render the foreclosure sale invalid. As held in Development Bank of the
Philippines v. Aguirre, the failure to post a notice is not a ground for invalidating
the sale as long as the notice is duly published in a newspaper of general
circulation. Thus, publication of the notice of sale is sufficient compliance with
the statutory requirement on notice-posting.
xxx xxx xxx
To prove compliance with the requisites for valid publication of the notice of
sale, Citytrust offered the following evidence: (1) Notice of Sheriffs Sale, stating
its publication at The Guardian newspaper on 1, 8, and 15 February 1992; (2)
Copies of The Guardian newspaper, for the issues dated 1-7 February 1992, 814 February 1992, and 15-21 February 1992,[ where the Notice of Sheriffs Sale
was published; and (3) Affidavit of Publication by the General Manager of The
Guardian newspaper stating that The Guardian is a weekly newspaper,
published and circulated in the Philippines and that the foreclosure sale was
published in The Guardian on 1, 8, and 15 February 1992. Moreover, in its
motion for reconsideration filed with the Court of Appeals, Citytrust attached a
Certification issued on 25 April 2003 by the Office of the Clerk of Court of the
Regional Trial Court of Quezon City, attesting and confirming the qualification of
The Guardian newspaper to publish the Notice of Sheriffs Sale[11]. (citations
omitted)
In comparison, respondent here merely attached the following in his petition: (1)
sheriffs return about the service of the order issued by the RTC on February 13,
2008 upon the Register of Deeds, the LRA and the petitioner marked as Exhibit
A, (2) the certificate of posting of the court order and the petition in three

conspicuous public places in Makati City marked as Exhibit B, (3) the order
issued by the RTC on February 13, 2008 marked as Exhibit C, (4) the certified
copy of the TCT No. 125211 marked as Exhibit E, (5) the Final Deed of
Conveyance marked as Exhibit F, (6) the warrant of levy on the property marked
as Exhibit G, and (7) the Certificate of Sale issued by the City Treasurer of Makati
marked as Exhibit H[12].
A cursory reading of the above-cited documents showed that these patently
failed to prove the crucial requirements for a valid tax sale. The fact that
publication was effected was not clear and thus cannot be presumed. Also,
compliance with the other requirements was not proved, specifically the receipt
of the notice of levy by CSDC. In BPI, this was not the case. Besides, BPI did not
deal with a tax delinquency sale, hence inapplicable.
Moreover, respondents failures are highlighted by his vigorous reliance that it is
the petitioners who should prove the invalidity of the administrative
proceedings. He merely stated in his Comment that the burden was placed on
the petitioners; that indeed it was petitioners who failed to adduce any evidence
to support the claim that no notice of tax delinquency and warrant of levy were
received by CSDC; that petitioners should be blamed for not receiving the notice
for they should have informed the Register of Deeds, the City of Makati, and the
SEC of the change of business address; and that the notice of warrant was
served on the City Assessor and Register of Deeds, the fact of which could have
been verified by petitioners themselves had they done so by proceeding to the
Office of the City Treasurer of Makati. He made these statements without
adducing proof to support his claim that faithful compliance with all the
requirements of the LGC was made. Respondent could have provided
documentary proof to establish that he derived his right from a proceeding that
did not violate the petitioners right to due process. Yet, he chose to rely on the
presumption of regularity, which is not even applicable here. Indeed, respondent
failed to exercise prudence in directing his affairs.
Respondent must be reminded that the requirements for a tax delinquency sale
under the LGC are mandatory. Strict adherence to the statutes governing tax
sales is imperative not only for the protection of the taxpayers, but also to allay
any possible suspicion of collusion between the buyer and the public officials
called upon to enforce the laws. Particularly, the notice of sale to the delinquent
land owners and to the public in general is an essential and indispensable

requirement of law, the non-fulfilment of which vitiates the sale[13]. Thus, the
holding of a tax sale despite the absence of the requisite notice, as in this case,
is tantamount to a violation of the delinquent taxpayers substantial right to due
process[14].
For the foregoing reasons, the Court has no recourse but to agree with the RTC
ruling, which was even affirmed by the CA in its original decision. Undeniably,
there was insufficiency of evidence to prove compliance with the LGC
requirements for a valid tax delinquency sale. As such, the Court finds no need
to delve on the other issues raised in this petition.
Finally, as to the issue of petitioners counsels compliance with the MCLE
Certifications, the Court notes that the required MCLE Certificates, showing
fulfilment of the requirements for the fourth compliance period, have been
submitted. This renders the issue moot. Suffice it to state that the Court cannot
look with favor on a course of action which would place the administration of
justice in a straightjacket, for then the result would be a poor kind of justice if
there would be justice at all. Verily, judicial orders are issued to be obeyed,
nonetheless a non-compliance is to be dealt with as the circumstances attending
the case may warrant. What should guide judicial action is the principle that a
party-litigant is to be given the fullest opportunity to establish the merits of his
complaint of defense rather than for him to lose life, liberty, honor or property
on technicalities[15].
WHEREFORE, the petition is GRANTED. The March 18, 2013 Amended Decision
of the Court of Appeals and its August 15, 2013 Resolution are hereby
REVERSED and SET ASIDE. The January 15, 2010 Decision of the Regional Trial
Court of Makati City, Branch 150, dismissing the petition for the issuance of a
new certificate of title for lack of merit, is hereby AFFIRMED and REINSTATED.

SECOND DIVISION, G.R. No. 208740, November 19, 2014,

CORPORATE STRATEGIES DEVELOPMENT CORP., AND RAFAEL
R. PRIETO, PETITIONERS, VS. NORMAN A. AGOJO,
RESPONDENT.

The Constitutional Prohibition

Against Warrantless Searches
And Seizures Admits Of
Certain Exceptions, One Of
Which Is Seizure Of Evidence
In Plain View
March 14, 2015 by The Lawyer's Post

Based on information received that a stockpile of lumber products were in the

vicinity of Ma. Mimies house, Eufemio, Chief of the Forest Protection Unit of the
DENR together with some forest rangers, went to Ma. Mimies house, and found
thereat and near the shoreline, 24 pieces of magsihagon lumber. Unable to
present any receipt for the lumber products, Eufemio ordered the confiscation of
the lumber, seeking the assistance of some police officers. A Seizure Receipt
and a Statement showing the amount of P9,040.00 as value of the lumber were
issued to Ma. Mimie. She was charged with violation of Section 78 of P.D. 705 as
amended by E.O. 277. In her defense, she presented as witness Lolita, who
admitted that the lumber were owned by Ma. Mimie, but was bought from
Pengavitor Enterprises. The receipt, however, did not tally with the forest
products confiscated. The RTC convicted her as charged, and sentenced her to
imprisonment of six years and one day of prision mayor as minimum, to 11
years, 6 months and 21 days of reclusion temporal as maximum. Ma. Mimie
appealed her conviction to the Court of Appeals, but the latter dismissed her
appeal for failure to furnish the Office of the Secretary General with a copy of
her appellants brief. She thus filed a petition for review on certiorari to the
Supreme Court, seeking to reverse her conviction, positing as grounds the
following issues: the dismissal of the appeal was not proper; she cannot be
convicted for violation of PD 705 since the lumber products were confiscated
without warrant, thus should not be admitted in evidence against her; and, she
bought the lumber from legitimate sources.

The Supreme Court:

The Court has constantly pronounced that [t]he rules of procedure ought not
to be applied in a very rigid, technical sense, for they have been adopted to help
secure not override substantial justice. For this reason, courts must proceed
with caution so as not to deprive a party of statutory appeal; rather, they must
ensure that all litigants are granted the amplest opportunity for the proper and
just ventilation of their causes, free from the constraint of technicalities[1].
It is clear that without at all touching on the substantive aspects of the
petitioners cause, the appellate court opted not to decide the case on the
merits. The subject of the appeal was the decision of the RTC convicting the
petitioner of violation of the Forestry Code and sentencing her to suffer an
imprisonment of no less than six (6) years to eleven (11) years.
In this case, there is nothing in the record that shows any deliberate intent on
the part of the petitioner to subvert and delay the final disposition of the case. In
fact, when the petitioner learned that her appeal was dismissed by the CA for
failure to serve a copy of her Appellants Brief to the OSG, she immediately
confronted her previous counsel who denied having filed such brief. As the
petitioner was very much worried of being incarcerated, she asked her previous
counsel to withdraw from the case. Thus, the petitioner submits that the outright
denial of her appeal is due to the incompetence and ignorance of her former
counsel who even lied about the fact that he has indeed filed an Appellants
Brief.
As a general rule, the inadvertence of counsel cannot be considered as an
adequate excuse as to call for the appellate courts indulgence except: (a)
where the reckless or gross negligence of counsel deprives the client of due
process of law; (b) when application of the rule will result in outright deprivation
of the clients liberty or property; or (c) where the interests of justice so
require[2].
Here, the petitioner submits that the inadvertence of her counsel to serve a
copy of the Appellants Brief to the OSG is a persuasive reason or a compelling
justification to forego the Rules of Procedure as the wanton recklessness or
gross negligence of her counsel has deprived her of due process of law which
will result in the outright deprivation of her liberty.

In this regard, the Court agrees that the CA should have taken a liberal view of
the rules and ruled on the merits of the appeal, especially when what is involved
is no less than the petitioners liberty.
Nonetheless, even if the Court brushes aside the technicality issue, it will still
find that the prosecution was able to prove beyond reasonable doubt the
petitioners culpability.
In attempting to escape liability, the petitioner contends that: (a) she had the
supporting documents to show that she bought the questioned lumber from
legitimate sources; and (b) the warrantless search and seizure conducted by the
DENR personnel was illegal and, thus, the items seized should not have been
admitted in evidence against her.
The Constitution recognizes the right of the people to be secured in their
persons, houses, papers, and effects against unreasonable searches and
seizures[3]. Nonetheless, the constitutional prohibition against warrantless
searches and seizures admits of certain exceptions, one of which is seizure of
evidence in plain view. Under the plain view doctrine, objects falling in the plain
view of an officer, who has a right to be in the position to have that view, are
subject to seizure and may be presented as evidence[4].
There is no question that the DENR personnel were not armed with a search
warrant when they went to the house of the petitioner. When the DENR
personnel arrived at the petitioners house, the lumbers were lying under the
latters house and at the shoreline about two meters away from the house of the
petitioner. It is clear, therefore, that the said lumber is plainly exposed to sight.
Hence, the seizure of the lumber outside the petitioners house falls within the
purview of the plain view doctrine.
Besides, the DENR personnel had the authority to arrest the petitioner, even
without a warrant. Section 80[5] of the Forestry Code authorizes the forestry
officer or employee of the DENR or any personnel of the Philippine National
Police to arrest, even without a warrant, any person who has committed or is
committing in his presence any of the offenses defined by the Forestry Code and
to seize and confiscate the tools and equipment used in committing the offense
or the forest products gathered or taken by the offender. Clearly, in the course of
such lawful intrusion, the DENR personnel had inadvertently come across the
lumber which evidently incriminated the petitioner.

The fact of possession by the petitioner of the 24 pieces of magsihagon lumber,

as well as her subsequent failure to produce the legal documents as required
under existing forest laws and regulations constitute criminal liability for
violation of the Forestry Code. Under Section 68 of the Forestry Code, there are
two distinct and separate offenses punished, namely: (1) cutting, gathering,
collecting and removing timber or other forest products from any forest land, or
timber from alienable or disposable public land, or from private land without any
authority; and (2) possession of timber or other forest products without the legal
documents required under existing forest laws and regulations[6].
In the second offense, it is immaterial whether the cutting, gathering, collecting
and removal of the forest products are legal or not. Mere possession of forest
products without the proper documents consummates the crime. Whether or not
the lumber comes from a legal source is immaterial because the Forestry Code
is a special law which considers mere possession of timber or other forest
products without the proper documentation as malum prohibitum[7].
In the present case, the magsihagon lumber were admittedly owned by the
petitioner but unfortunately no permit evidencing authority to possess said
lumber was duly presented. Thus, the Information correctly charged the
petitioner with the second offense which is consummated by the mere
possession of forest products without the proper documents. The prosecution
adduced several documents to prove that the lumber was confiscated from the
petitioner, namely: a Statement Showing the Number/Pieces and Volume of
Lumber Being Confiscated on March 15, 1994, seizure receipt, a photograph of
the house of the petitioner, and a photograph of the confiscated lumber. Moreso,
the direct and affirmative testimony of the DENR personnel as state witnesses
on the circumstances surrounding the apprehension well establishes the
petitioners liability.
As to the imposable penalty on the petitioner, the RTC imposed an
indeterminate sentence of six (6) years and one (1) day of prision mayor as
minimum to eleven (11) years, six (6) months and twenty-one (21) days of
prision mayor as maximum.
The Court does not agree. This Court notes that the estimated value of the
confiscated pieces of lumber, as appearing in the Statement Showing the
Number/Pieces and Volume of Lumber Being Confiscated is P9,040.00 which is
alleged in the Information. However, except for the testimonies of Abaniel and

Butal that this amount is the estimate based on prevailing local price as stated
in the apprehension receipt they issued, the prosecution did not present any
proof as to the value of the lumber.
Clearly, this evidence does not suffice. The Court had ruled that in order to
prove the amount of the property taken for fixing the penalty imposable against
the accused under Article 309 of the Revised Penal Code (RPC), the prosecution
must present more than a mere uncorroborated estimate of such fact. In the
absence of independent and reliable corroboration of such estimate, courts may
either apply the minimum penalty under Article 309 or fix the value of the
property taken based on the attendant circumstances of the case[8]. Hence, the
lower court erred in finding that the value of the confiscated lumber is P9,040.00
for no evidence of such value was established during the trial.
Accordingly, the Court imposes on the petitioner the minimum penalty under
Article 309(6[9]) of the RPC, which is arresto mayor in its minimum and medium
periods. However, considering that violation of Section 68 of the Forestry Code is
punished as Qualified Theft under Article 310[10] in relation to Article 309 of the
RPC, the statutory penalty shall be increased by two degrees, that is, to prision
correccional in its medium and maximum periods or within the range of three (3)
years, six (6) months and twenty-one (21) days to four (4) years, nine (9)
months and ten (10) days, considering that there are no attending mitigating or
aggravating circumstance in the commission of the offense.
In accordance with current jurisprudence[11] and taking into account the
Indeterminate Sentence Law, the Court finds it proper to impose on the
petitioner, in view of the circumstances obtaining here, the penalty of four (4)
months and one (1) day of arresto mayor, as minimum, to three (3) years, six (6)
months and twenty-one (21) days of prision correccional, as maximum.
WHEREFORE, the Decision on August 12, 2008 of the Regional Trial Court of
Talibon, Bohol, Branch 52, in Criminal Case No. 96-27, is AFFIRMED with the
MODIFICATION that petitioner Ma. Mimie Crescencio is sentenced to suffer the
indeterminate penalty of four (4) months and one (1) day of arresto mayor, as
minimum, to three (3) years, six (6) months and twenty-one (21) days of prision
correccional, as maximum.

THIRD DIVISION, G.R. No. 205015, November 19, 2014, MA.

MIMIE CRESCENCIO, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

The RTC Has Jurisdiction To

Resolve The Constitutionality
Of A Statute, Presidential
Decree, Executive Order, Or
Administrative Regulation
March 13, 2015 by The Lawyer's Post

Philippine Migrant Rights Inc., together with Jesus and Rodoldo, returned
overseas Filipino workers, filed a complaint before the RTC of Pasay City against
the Overseas Workers Welfare Administration to annul Board Resolution No. 038
particularly Sections 4,5,6,7 and 8 of Article II, Sections 5(C) (H) of Article II, And
Articles IV, V, VII, and VIII. According to the petitioners. The subject Board
Resolution should be declared constitutional because the omnibus polices
mandates that OWWA benefits should be given only to those who have paid
their monetary contribution on a per contract basis, when the OWWA was
created by law to serve all overseas Filipino workers. It violates the equal
protection clause because it created a distinction between those who paid the
monetary contributions and those who have not. On the other hand, OWWA
countered that it did not violate the equal protection clause as the enactment of
the omnibus policies was germane to the purpose of the law which is to regulate
and register all Filipino overseas workers; the monetary contribution had long
been implemented by virtue of LOI 537 issued by then President Marcos, and
OWWA did not violate the right to free access to information of the petitioners.
Acting on the motion to dismiss filed by OWWA, the RTC granted the same. It
ruled that the declaration of the constitutionality of the subject Omnibus Polices
lie with the Supreme Court, and the appropriate remedy for the petitioners is to

file a petition for certiorari under Rule 65 with the Supreme Court, not with the
RTC.
The petitioners thus filed the instant petition for review on certiorari with the
Supreme Court, assailing the RTC decision. It argues that it erred when it relied
on the ruling in Fortich vs. Corona, because the same involves the exercise of
the Office of the President of its quasi-judicial functions, hence Rule 65 is the
appropriate remedy. In their comment, OWWA argued that the petitioners
violated the hierarchy of courts, thus the case should be dismissed.
The Supreme Court:
We rule in favor of petitioners.
Section 2(c), Rule 41 of the Rules of Court provides that the mode of appeal in
all cases involving only questions of law shall be by petition for review on
certiorari to the Supreme Court in accordance with Rule 45.
Time and again, this Court has distinguished cases involving pure questions of
law from those of pure questions of fact in the following manner:
A question of fact exists when a doubt or difference arises as to the truth or
falsity of alleged facts. If the query requires a re-evaluation of the credibility of
witnesses or the existence or relevance of surrounding circumstances and their
relation to each other, the issue in that query is factual. On the other hand,
there is a question of law when the doubt or difference arises as to what the law
is on certain state of facts and which does not call for an existence of the
probative value of the evidence presented by the parties-litigants. In a case
involving a question of law, the resolution of the issue rests solely on what the
law provides on the given set of circumstances[1]
In the present petition, the appeal interposed by petitioners stems from the
Orders of the RTC dismissing their complaint for lack of jurisdiction. The issue
raised herein is one of jurisdiction over the subject matter, specifically, whether
or not the RTC has jurisdiction over petitioners complaint challenging the
constitutionality of the Omnibus Policies issued by respondents.
Jurisdiction is the right to act or the power and authority to hear and determine
a case[2] It is conferred only by the Constitution or by statute[3]. The question
as to whether or not the dismissal by the lower court for lack of jurisdiction is

proper involves the determination of whether, admitting the facts alleged in the
complaint to be true, the trial court has jurisdiction over the same in light of the
laws governing jurisdiction[4]. As such, jurisdiction is neither a question of fact
or of fact and law but a matter of law. For this reason, We have consistently held
that a courts jurisdiction over the subject matter of a case is a question of
law[5], and have, in fact, affirmed dismissals by the CA of appeals brought to
them involving pure questions of law[6]. Considering that only questions of law
was raised in this petition, direct resort to this Court is proper[7].
We cannot, therefore, give credence to the lower courts contention that the
appropriate remedy to annul and set aside the issuance subject of this case is a
special civil action for certiorari under Rule 65 of the Rules of Court. Certiorari,
as a special civil action, is available only if: (1) it is directed against a tribunal,
board, or officer exercising judicial or quasi-judicial functions; (2) the tribunal,
board, or officer acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal
nor any plain, speedy, and adequate remedy in the ordinary course of law[8].
In this case, respondents did not act in any judicial or quasi-judicial capacity in
issuing the assailed resolution. They were not called upon to adjudicate the
rights of contending parties to exercise, in any manner, discretion of a judicial
nature. Instead, their issuance of the challenged resolution was done in the
exercise of their quasi-legislative and administrative functions within the
confines of the granting law. Hence, contrary to the lower courts contention,
certiorari is not the proper remedy in the instant case.
As to whether the RTC has jurisdiction over the subject matter involved in this
case, it is settled in law and jurisprudence that the RTC has jurisdiction to
resolve the constitutionality of a statute, presidential decree, executive order, or
administrative regulation, as recognized in Section 2(a), Article VIII of the 1987
Constitution, which provides:
SECTION 5. The Supreme Court shall have the following powers:
xxxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law
or the Rules of Court may provide final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international

or executive agreement, law, presidential decree, proclamation, order,

instruction, ordinance, or regulation is in question[9].
In view of the foregoing provision, the jurisdiction of regular courts involving the
validity or constitutionality of a rule or regulation cannot be denied. We have
had several occasions wherein We affirmed the power of the RTC to take
cognizance of actions assailing a specific rule or set of rules promulgated by
administrative bodies for the power of judicial review is vested by the
Constitution not only in this Court but in all Regional Trial Courts[10]. It was,
therefore, erroneous for the RTC to abruptly dismiss the complaint filed by
petitioners on the basis of lack of jurisdiction since said court clearly had the
power to take cognizance of the same. In so doing, the lower court failed to
ascertain factual issues necessary to determine whether the subject issuance is,
indeed, invalid and violative of the Constitution. Considering the settled rule that
this Court is not a trier of facts[11], a remand of this case to the RTC for the
proper determination of the merits of the complaint is just and proper.
WHEREFORE, premises considered, the instant petition is GRANTED. The Orders
of the Regional Trial Court, dated August 31, 2004 and January 14, 2005, in Civil
Case No. 04-0077, are REVERSED and SET ASIDE. This case is hereby
REMANDED to the Regional Trial Court, Branch CXI (111), Pasay City, for further
proceedings.

THIRD DIVISION, G.R. No. 166923, November 26, 2014,

PHILIPPINE MIGRANTS RIGHTS WATCH, INC., ON ITS OWN
BEHALF AND ON BEHALF OF ITS MEMBER-OVERSEAS FILIPINO
WORKERS, JESUS REYES AND RODOLFO MACOROL,
PETITIONERS, VS. OVERSEAS WORKERS WELFARE
ADMINISTRATION AND ITS BOARD OF TRUSTEES COMPOSED
OF HON. PATRICIA A. STO. TOMAS, VIRGILIO R. ANGELO,
MANUEL G. IMSON, THE SECRETARY OF FOREIGN AFFAIRS,
REPRESENTED BY UNDERSECRETARY JOSE S. BRILLANTES,
ROSALINDA BALDOZ, THE SECRETARY OF BUDGET AND
MANAGEMENT, REPRESENTED BY ASSISTANT SECRETARY
EDUARDO P. OPIDA, MINA C. FIGUEROA, VICTORINO F. BALAIS,
CAROLINE R. ROGGE, GREGORIO S. OCA, CORAZON P.
CARSOLA AND VIRGINIA J. PASALO, RESPONDENTS.

Whether A Local Government

Official May Secure The
Services Of A Private Counsel,
In An Action Filed Against Him
In His Official Capacity, Lies
On The Nature Of The Action
And The Relief Sought (1993)

March 10, 2015 by The Lawyer's Post

Zoraida, a regular employee of the municipal government of Escalante, Negros

Occidental, received an order from the newly proclaimed mayor, Rolando,
detailing her to the office of the mayor, to which she complied. On June 19,
1992, she absented herself from work, seeking permission from the personnel
officer but not the mayor. Mayor Rolando then issued Office Order No. 31
suspending her for one month and one day for simple misconduct. Zorayda,
feeling aggrieved, filed a complaint for injunction with damages and temporary
restraining order against Rolando and the municipal treasurer, Patricio, alleging
that her suspension was an act of political vendetta since she supported
Rolandos political opponent in the 1992 elections. Rolando and Patricio filed an
Answer to the petition, through private practitioner Samuel Lezama, imputing to
Zorayda non-exhaustion of administrative remedies. Zorayda then filed a motion
to expunge Rolando and Patricios answer, since according to her, the
respondents were being sued in their official capacities, thus they should have
been represented by either the municipal legal officer or provincial legal officer
as provided four under Section 481 (b), (I) and (3) of the Local Government
Code. Opposing the motion, Rolando and Patricio averred that the municipality
had no legal officer; the Local Government Code had no provision that the
municipal or provincial officers should represent municipal official in suits filed

against them by private individuals or an employee. Since Zorayda asked for

moral damages, their hiring of a private counsel was justified as held in the case
of Albuerra vs. Torrens. Public Prosecutor Villaflor entered his appearance in
behalf of Rolando and Patricio. The lower court denied the motion filed by
Zorayda, but she moved to reconsider, which the lower court again denied.
According to the RTC, since the hiring of a municipal legal officer was optional on
the part of a municipality, and since Escalante had in fact no legal officer, the
motion to declare in default Rolando and Patricio for being represented by a
private counsel is unjustified. Zorayda elevated her case to the Supreme Court.
The Supreme Court:
Sec. 443 (b) of the Local Government Code (Republic Act No. 7160), which took
effect on 01 January 1992[1], provides that, in addition to the officials
enumerated in the first paragraph thereof, the mayor may appoint, among other
officials enumerated therein, a municipal legal officer. Section 481, Article 11 of
Title V of the Code which provides for the appointment of local officials common
to all municipalities, cities and provinces, states that (t)he appointment of a
legal officer shall be mandatory for the provincial and city governments and
optional for the municipal government. The same section specifies the
functions of the legal officer, and one of them being that he shall:
(i) Represent the local government unit in all civil actions and special
proceedings wherein the local government unit or any official thereof, in his
official capacity, is a party: Provided, that in actions or proceedings where a
component city or municipality is a party adverse to the provincial government
or to another component city or municipality, a special legal officer may be
employed to represent the adverse party;
Indeed, it appears that the law allows a private counsel to be hired by a
municipality only when the municipality is an adverse party in a case involving
the provincial government or another municipality or city within the province.
This provision has its apparent origin in the ruling in De Guia v. The Auditor
General[2] where the Court held that the municipalitys authority to employ a
private attorney is expressly limited only to situations where the provincial fiscal
would be disqualified to serve and represent it. With Sec. 1683 of the old
Administrative Code[3] as legal basis, the Court therein cited Enriquez, Sr. v.
Gimenez[4] which enumerated instances when the provincial fiscal is
disqualified to represent in court a particular municipality; if and when original

jurisdiction of case involving the municipality is vested in the Supreme Court,

when the municipality is a party adverse to the provincial government or to
some other municipality in the same province, and when, in a case involving the
municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee,
creditor or otherwise.[5]
Thereafter, in Ramos v. Court of Appeals[6], the Court ruled that a municipality
may not be represented by a private law firm which had volunteered its services
gratis, in collaboration with the municipal attorney and the fiscal, as such
representation was violative Sec. 1683 of the old Administrative Code. This strict
coherence to the letter of the law appears to have been dictated by the fact that
the municipality should not be burdened with expenses of hiring a private
lawyer and that the interests of the municipality would be best protected if a
government lawyer handles its litigations.
But would these proscriptions include public officials? Not necessarily. It can
happen that a government official, ostensibly acting in his official capacity and
sued in that capacity, is later held to have exceeded his authority. On the one
hand, his defense would have then been underwritten by the peoples money
which ordinarily should have been his personal expense. On the other hand,
personal liability can attach to him without, however, his having had the benefit
of assistance of a counsel of his own choice. In Correa v. CFI of Bulacan[7], the
Court held that in the discharge of governmental functions, municipal
corporations are responsible for the acts of its officers, except if and when, the
only to the extent that, they have acted by authority of the law, and in
conformity with the requirements thereof.
In such instance, this Court has sanctioned that representation by private
counsel. In one case, We held that where rigid adherence to the law on
representation of local officials in court actions could deprive a party of his right
to redress for a valid grievance, the hiring of a private counsel would be
proper[8]. And, in Albuera v. Torres[9], this Court also said that a provincial
governor sued in his official capacity may engage the services of private counsel
when the complaint contains other allegations and a prayer for moral damages,
which, if due from the defendants, must be satisfied by them in their private
capacity.
We might also quote the pronouncement of the Court in Urbano v. Chavez[10]:

There is likewise another reason . . . why the Office of the Solicitor General
cannot represent an accused in a criminal case. Inasmuch as the State can
speak and act only by law, whatever it does say and do must be lawful, and that
which is unlawful is not the word or deed of the State, but is the mere wrong or
trespass of those individual persons who falsely speak and act in its name.
Therefore, the accused public official should not expect the State, through the
Office of the Solicitor General, to defend him for a wrongful act which cannot be
attributed to the State itself. In the same light, a public official who is sued in a
criminal case is actually sued in his personal capacity inasmuch as his principal,
the State, can never be the author of a wrongful act, much less commit a crime.
Urbano v. Chavez confronted the issue of whether the Office of the Solicitor
General may represent its own Solicitor General in the preliminary investigation
of a criminal action, or in a civil action for damages, against him.
The key then to resolving the issue of whether a local government official may
secure the services of private counsel, in an action filed against him in his
official capacity, lies on the nature of the action and the relief that is sought.
While the petition below was filed against respondents as public officials, its
allegations were also aimed at questioning certain acts that can well bring the
case beyond the mere confines of official functions; thus
2.12 These actuations of the respondent mayor in detailing petitioner to his
office and eventually suspending her from work, particularly the latter are no
doubt respondent mayors political vendetta of petitioner, a vengeance
unleased on her for her childrens and familys not going with and voting for him
in the May 11, 1992 election and instead supporting the candidacy of their
relative-candidate (Mr. Barcelona) in said election, who was his greated (sic)
worry at that time.
2.13 The aforesaid acts of respondent mayor are clearly, apparently and
obviously a political harassment and persecution, appreasive (sic), acts of
vindictiveness, a grave abuse of executive discretion, despotic, unjust,
unwarranted, condemnable and actionable; the indefinite detail order and,
especially the suspension, were not done in good faith, not for a valid cause,
and done without giving petitioner opportunity to be heard, hence, null and void
for being violative of petitioners legal and constitutional right to due
process. . . . .[11]

The petition then went on to claim moral and exemplary damages, as well as
litigation expenses, as shown by its prayer.
Moral damages cannot generally be awarded unless they are the proximate
result of a wrongful act or omission. Exemplary damages, on the other hand, are
not awarded if the defendant had not acted in a wanton, oppressive or
malevolent manner nor in the absence of gross or reckless negligence.[12] A
public official, who in the performance of his duty acts in such fashion, does so
in excess of authority, and his actions would be ultra vires[13] that can thereby
result in an incurrence of personal liability.
All the foregoing considered, We hold that the respondents were not improperly
represented by a private counsel, whose legal fees shall be for their own
account.

EN BANC, G.R. No. 108232 August 23, 1993, ZONSAYDA L.

ALINSUG, petitioner, vs. REGIONAL TRIAL COURT, Branch 58,
San Carlos City, Negros Occidental, Presided by Hon. Rolindo
D. Beldia, Jr.; ROLANDO P. PONSICA as Municipal Mayor of
Escalante, Negros Occidental; MUNICIPALITY OF ESCALANTE,
NEGROS OCCIDENTAL, and PATRICIO A. ALVAREZ as Municipal
Treasurer of Escalante, Negros Occidental, respondents.

The Existence Of An Actual

Controversy Is A Condition
Precedent For The Courts
Exercise Of Its Power Of
Adjudication
March 2, 2015 by The Lawyer's Post

Joseph Fauni took out two life insurance benefits from Insular Life, covered by
Insurance Policy Nos. A001440747 and A001440758, with a total face value of
P8 Million, on September 9 and 16, 1998. On October 19, 1998, a charred body
belonging to a car owned by Joseph was found in Ternate, Cavite. His mother,
Ofelia and brother Noel, filed a claim for death benefits under the policy, which
Insular denied on the ground of Josephs alleged misrepresentation and
concealment of material facts in the application. Insular then filed a complaint
for rescission of insurance contracts before the RTC of Makati City, alleging that
Josephs death was not established by preponderance of evidence. Joseph also
concealed that there was a threat to his life, based on a sworn statement
executed by Ofelia. Joseph also engaged in a wagering scheme wherein he took
out life insurance contracts despite the threats to his life. He also concealed the
fact that his salary was not P800,000.00 but a mere P38,453.00. The RTC,
however, dismissed the case, giving weight and credence to the testimony of
NBI officials that the charred body was that of Joseph. Insular appealed the case
to the Court of Appeals in C.A. But Ofelia, citing her old age, moved for issuance
of writ of execution pending appeal, which the RTC granted upon posting of a
bond. Insular elevated the issuance by the RTC of writ of execution pending
appeal via petition for certiorari.
Meanwhile, the appeal filed by Insular on the main case was denied by the Court
of Appeals, and subsequently dismissed also by the Supreme Court in G.R. No.
189605. Entry of judgment was made on May 12, 2010.
The Court of Appeals, ruling in favour of Insular, granted the petition for
certiorari on the issue of the grant of writ of execution pending appeal by the
RTC, citing that old age as a ground for issuance of writ of execution pending
appeal was a personal ground which can only be invoked by Ofelia, not Noel.
Thus, Ofelia and Noel elevated the case to the Supreme Court, on the issue of
whether or not they are entitled to writ of execution pending appeal.
The Supreme Court:
We deny the petition.
The petition has already been
rendered moot and academic with
the entry of judgment in G.R. No.
189605

The existence of an actual case or controversy is a condition precedent for the

courts exercise of its power of adjudication. An actual case or controversy exists
when there is a conflict of legal rights or an assertion of opposite legal claims
between the parties that is susceptible or ripe for judicial resolution.[1] In
negative terms, a justiciable controversy must neither be conjectural nor moot
and academic. There must be a definite and concrete dispute touching on the
legal relations of the parties who have adverse legal interests. The reason is that
the issue ceases to be justiciable when a controversy becomes moot and
academic; otherwise, the court would engage in rendering an advisory opinion
on what the law would be upon a hypothetical state of facts. The disposition of
the case would not have any practical use or value as there is no actual
substantial relief to which the applicant would be entitled to and which would be
negated by the dismissal or denial of the petition.[2]
There is a final judgment when the court has adjudicated on the merits of the
case or has categorically determined the rights and obligations of the parties in
the case. A final judgment, once rendered, leaves nothing more to be done by
the court.[3]Consequently, a final judgment also becomes executory by
operation of law; it becomes a fact upon the lapse of the reglementary period to
appeal if no appeal or motion for new trial or reconsideration is filed or
perfected. It becomes incumbent for the clerk of court to enter in the book of
entries the judgment and the date of finality of the judgment shall also be
deemed to be the date of the entry of judgment.[4] Thereafter, the prevailing
party is entitled to a writ of execution, and the issuance of the writ becomes the
courts ministerial duty.[5]
In the present case, the issue of the propriety of discretionary execution has
already been rendered moot and academic with our denial of Insular Lifes
petition and issuance of the entry of judgment in G.R. No. 189605. This means
that our affirmation of the lower courts rulings on the main case has become
final and executory. Consequently, the issue of whether the petitioners are
entitled to discretionary execution pending appeal no longer presents any
justiciable controversy. It becomes the RTCs ministerial duty to issue a writ of
execution in favor of the petitioners who are now entitled to execution as a
matter of right.
In relation to this, Section 6, Rule 39 of the Rules of Court provides that a final
and executory judgment or order may be executed on motion within five years

from the date of its entry. A judgment may also be enforced by action after the
lapse of five years and before it is barred by the statute of limitations. The
revived judgment may then be enforced by motion within five years from the
date of its entry.

SECOND DIVISION, G.R. No. 180098, April 02, 2014, OFELIA

FAUNI REYES AND NOEL FAUNI REYES, PETITIONERS, VS. THE
INSULAR LIFE ASSURANCE CO., LTD., RESPONDENT.

Jurisdiction: The Court Is

Invested With The Power To
Suspend The Application Of
The Rules As A Necessary
Complement Of Its Power To
Promulgate The Same
February 28, 2015 by The Lawyer's Post

The Teodoro R. Yangco (2nd and 3rd Generation Heirs) Foundation, Inc. (TRY
Foundation) filed a petition for issuance of new title in lieu of TCT No. 20970 T22702 before the RTC of Quezon City acting as Land Registration Court. Alleging
that it is the 2nd and 3rd generation heirs of philanthropist Teodoro R. Yangco, it
sought issuance of a new title in lieu of the title which was donated to Philippine
Womens Christian Temperance Union Inc., with the following conditions: that
the property be used to provide a home for needy women and children; that
should the property be used for another purpose, the donation shall become
ipso facto void and the property shall automatically revert to the donor. The
property was registered in the name of PCWTUI with the conditions of the
donation annotated at the back. PCTWUI, incorporated in 1929, ended its
corporate term in 1979. Five years later, it obtained a new SEC Registration (SEC

122088) and applied for a new title over the property which was granted, hence,
TCT No 20970 T-22702 was issued. TRY claimed that the expiration of the
corporate life of PCTWUI in 1979 effectively rescinded the donation pursuant to
an unwritten resolutely condition under Article 1315 of the Civil Code prescribing
that the Corporation Code, specifically Art. 122 thereof be read into the
donation. Being the heirs of Yangco, they are entitled to a new title in their name
pursuant to Sec. 108 of PD 1529. PCTWUI opposed the petition, arguing that
there was no revocation of donation, and the right to rescind it prescribed; even
if PCTRWUIs corporate term was not renewed in 1979, it nevertheless registered
a new corporation and continued the social work of the old PCTWUI; TRY and its
counsel are guilty of forum shopping. The RTC, however, ruled in favour of TRY,
holding that with the expiration of the corporate term of PCTWUI in 1979, the
property ceased to be used for the purpose it was intended; the new corporation
is separate and distinct from the old PCTWUI, hence it is not the donee and has
no claim to the property. As such, the reversion clause in the deed of donation
became activated and the property reverted to Teodoro R. Yangco, whose
testamentary heirs were those named in his last will and testament. It thus
issued a new title in the name of TRY 2nd and 3rd Generation Foundation, Inc.
PCTWUI appealed to the Court of Appeals on whether the conditions of the deed
of donation was fulfilled or already occurred, which the CA denied, holding that
the new PCTWUI is not the donee contemplated in the donation made by
Yangco. The CA Decision was elevated by PCTWUI to the Supreme Court, which,
however, dismissed the case in G.R. No 190193. Entry of judgment was made
stating that the decision became final and executory on October 20, 2010.
PCTWUI filed with Supreme Court a special civil action for Certiorari and
Prohibition to seek an order commanding the Register of Deeds of Quezon City
to cease and desist from implementing the decision in G.R. No. 190193, alleging
that TRY Foundation has no legal claim to the property because its members are
not the true heirs of Teodoro R. Yangco who died single and without heirs. His
only relatives are his half siblings who are legitimate children of his mother,
Dona Ramona Corpus and her first husband, Don Tomas Corpus, hence no right
of inheritance ab intestato can take place between them pursuant to Art. 992 of
the Civil Code. Even assuming they are heirs of Yangco, the right to rescind
prescribed since the donation was made 40 years ago in 1934. It also prayed
that the decision of the RTC be set aside.
The Supreme Court:

On its face, it is immediately apparent that the petition merits outright dismissal
in view of the doctrine of immutability attached to the Courts final and
executory Resolutions dated July 21, 2010 and September 15, 2010 in G.R. No.
190193.
The doctrine postulates that a decision that has acquired finality becomes
immutable and unalterable, and may no longer be modified in any respect, even
if the modification is meant to correct erroneous conclusions of fact and law, and
whether it is made by the court that rendered it or by the Highest Court of the
land. Any act which violates this principle must immediately be struck down.[1]
A long and intent study, however, of the arguments raised in the present
recourse vis--vis the proceedings taken in LRC Case No. Q-18126(04) disclose
that it is necessary, obligatory even, for the Court to accord affirmative
consideration to the supplications tendered by PWCTUI in the petition at bar.
While firmly ingrained as a basic procedural tenet in Philippine jurisprudence,
immutability of final judgments was never meant to be an inflexible tool to
excuse and overlook prejudicial circumstances. The doctrine must yield to
practicality, logic, fairness and substantial justice. Hence, its application admits
the following exceptions: (1) the correction of clerical errors; (2) the so-called
nunc pro tunc entries which cause no prejudice to any party; (3) void judgments;
and (4) whenever circumstances transpire after the finality of the decision
rendering its execution unjust and inequitable.[2]
Here, the third exception is attendant. The nullity of the RTC judgment and all
subsequent rulings affirming the same, render inoperative the doctrine of
immutability of judgment, and consequently justify the propriety of giving due
course to the present petition.
To expound, the RTC judgment in LRC Case No. Q-18126(04) and all proceedings
taken in relation thereto were void because the RTC did not acquire jurisdiction
over the fundamental subject matter of TRY Foundations petition for the
issuance of a title which was in reality, a complaint for revocation of donation,
an ordinary civil action outside the ambit of Section 108 of P.D. No. 1529.
The petition filed by TRY
Foundation was a disguised

complaint for revocation of

donation.
It has been held that the jurisdiction of a court over the subject matter of a
particular action is determined by the plaintiffs allegations in the complaint and
the principal relief he seeks in the light of the law that apportions the jurisdiction
of courts.[3]Jurisdiction should be determined by considering not only the status
or the relationship of the parties but also the nature of the issues or questions
that is the subject of the controversy.[4]
The petition is premised on allegations that the deed of donation from whence
PWCTUI derived its title was automatically revoked when the latters original
corporate term expired in 1979. Consequently, reversion took effect in favor of
the donor and/or his heirs. As relief, TRY Foundation sought the cancellation of
TCT No. 20970 T-22702 and the issuance of a new title in its name, to wit:
WHEREFORE, in view of all the foregoing, it is respectfully prayed of the Hon.
Court that after due hearing, the Hon. Court render judgment:
Ordering the Register of Deeds of Quezon City to cancel TCT No. 20970 T-22702
and issue in lieu thereof a new title in the name of TRY Heirs (2nd and 3rd
Generation) Heirs Foundation, Inc. free from all liens and encumbrances.[5]
The above contentions and plea betray the caption of the petition. Observably,
TRY Foundation is actually seeking to recover the possession and ownership of
the subject property from PWCTUI and not merely the cancellation of PWCTUIs
TCT No. 20970 T-22702. The propriety of pronouncing TRY Foundation as the
absolute owner of the subject property rests on the resolution of whether or not
the donation made to PWCTUI has been effectively revoked when its corporate
term expired in 1979. Stated otherwise, no judgment proclaiming TRY
Foundation as the absolute owner of the property can be arrived at without
declaring the deed of donation revoked.
The Court made a similar observation in Dolar v. Barangay Lublub (now P.D.
Monfort North), Municipality of Dumangas[6], the facts of which bear
resemblance to the facts at hand. In Dolar, the petitioner filed a complaint for
quieting of title and recovery of possession with damages involving a land he
had earlier donated to the respondent. The petitioner claimed that the donation
had ceased to be effective when the respondent failed to comply with the

conditions of the donation. As relief, the petitioner prayed that he be declared

the absolute owner of the property. The complaint was dismissed by the trial
court on the ground that the petitioners cause of action for revocation has
already prescribed and as such, its claim for quieting of title is ineffective
notwithstanding that the latter cause of action is imprescriptible. In sustaining
such dismissal, the Court remarked:
As aptly observed by the trial court, the petitory portion of petitioners complaint
in Civil Case No. 98-033 seeks for a judgment declaring him the absolute owner
of the donated property, a plea which necessarily includes the revocation of the
deed of donation in question. Verily, a declaration of petitioners absolute
ownership appears legally possible only when the deed of donation is
contextually declared peremptorily revoked.
xxxx
It cannot be overemphasized that respondent barangay traces its claim of
ownership over the disputed property to a valid contract of donation which is yet
to be effectively revoked. Such rightful claim does not constitute a cloud on the
supposed title of petitioner over the same property removable by an action to
quiet title. Withal, the remedy afforded in Article 476 of the Civil Code is
unavailing until the donation shall have first been revoked in due course under
Article 764 or Article 1144 of the Code.[7]
An action which seeks the recovery
of property is outside the ambit of
Section 108 of P.D. No. 1529.
Whether the donation merits revocation and consequently effect reversion of
the donated property to the donor and/or his heirs cannot be settled by filing a
mere petition for cancellation of title under Section 108 of P.D. No. 1529 which
reads:
Sec. 108. Amendment and alteration of certificates. No erasure, alteration, or
amendment shall be made upon the registration book after the entry of a
certificate of title or of a memorandum thereon and the attestation of the same
by the Register of Deeds, except by order of the proper Court of First Instance.
A registered owner or other person having interest in the registered property, or,
in proper cases, the Register of Deeds with the approval of the Commissioner of

Land Registration, may apply by petition to the court upon the ground that the
registered interest of any description, whether vested, contingent, expectant or
inchoate appearing on the certificate, have terminated and ceased; or that new
interest not appearing upon the certificate have arisen or been created; or that
an omission or an error was made in entering a certificate or any memorandum
thereon, or on any duplicate certificate: or that the same or any person in the
certificate has been changed or that the registered owner has married, or, if
registered as married, that the marriage has been terminated and no right or
interest of heirs or creditors will thereby be affected; or that a corporation which
owned registered land and has been dissolved has not yet convened the same
within three years after its dissolution; or upon any other reasonable ground;
and the court may hear and determine the petition after notice to all parties in
interest, and may order the entry or cancellation of a new certificate, the entry
or cancellation of a memorandum upon a certificate, or grant any other relief
upon such terms and conditions, requiring security and bond if necessary, as it
may consider proper; Provided, however, That this section shall not be
construed to give the court authority to reopen the judgment or decree of
registration, and that nothing shall be done or ordered by the court which shall
impair the title or other interest of a purchaser holding a certificate for value and
in good faith, or his heirs and assigns without his or their written consent.
Where the owners duplicate certificate is not presented, a similar petition may
be filed as provided in the preceding section.
All petitions or motions filed under this section as well as any other provision of
this decree after original registration shall be filed and entitled in the original
case in which the decree of registration was entered.
A parallel issue was encountered by the Court in Paz v. Republic of the
Philippines[8], which involved a petition for the cancellation of title brought
under the auspices of Section 108 of P.D. No. 1529. The petition sought the
cancellation of Original Certificate of Title No. 684 issued thru LRC Case No. 00059 in favor of the Republic, Filinvest Development Corporation and Filinvest
Alabang, Inc., and the issuance of a new title in the name of the petitioner
therein. The petition was dismissed by the RTC. The dismissal was affirmed by
the CA and eventually by this Court on the following reasons:
We agree with both the CA and the RTC that the petitioner was in reality seeking
the reconveyance of the property covered by OCT No. 684, not the cancellation

of a certificate of title as contemplated by Section 108 of P.D. No. 1529. Thus,

his petition did not fall under any of the situations covered by Section 108, and
was for that reason rightly dismissed.
Moreover, the filing of the petition would have the effect of reopening the
decree of registration, and could thereby impair the rights of innocent
purchasers in good faith and for value. To reopen the decree of registration was
no longer permissible, considering that the one-year period to do so had long
ago lapsed, and the properties covered by OCT No. 684 had already been
subdivided into smaller lots whose ownership had passed to third persons. x x x.
xxxx
Nor is it subject to dispute that the petition was not a mere continuation of a
previous registration proceeding. Shorn of the thin disguise the petitioner gave
to it, the petition was exposed as a distinct and independent action to seek the
reconveyance of realty and to recover damages. Accordingly, he should perform
jurisdictional acts, like paying the correct amount of docket fees for the filing of
an initiatory pleading, causing the service of summons on the adverse parties in
order to vest personal jurisdiction over them in the trial court, and attaching a
certification against forum shopping (as required for all initiatory pleadings). He
ought to know that his taking such required acts for granted was immediately
fatal to his petition, warranting the granting of the respondents motion to
dismiss.[9]
By analogy, the above pronouncements may be applied to the controversy at
bar considering that TRY Foundations exposed action for revocation of the
donation necessarily includes a claim for the recovery of the subject property.
The circumstances upon which the ruling in Paz was premised are attendant in
the present case. The petition of TRY Foundation had the effect of reopening the
decree of registration in the earlier LRC Case No. 20970 which granted PWCTUIs
application for the issuance of a new owners duplicate copy of TCT No. 20970.
As such, it breached the caveat in Section 108 that this section shall not be
construed to give the court authority to reopen the judgment or decree of
registration. The petition of TRY Foundation also violated that portion in
Section 108 stating that all petitions or motions filed under this section as well
as any other provision of this decree after original registration shall be filed and
entitled in the original case in which the decree of registration was entered.

The petition of TRY Foundation in LRC Case No. Q-18126(04) was clearly not a
mere continuation of LRC Case No. 20970.
Further, the petition filed by TRY Foundation is not within the province of Section
108 because the relief thereunder can only be granted if there is unanimity
among the parties, or that there is no adverse claim or serious objection on the
part of any party in interest.[10] Records show that in its opposition to the
petition, PWCTUI maintained that it remains and continues to be the true and
sole owner in fee simple of the property and that TRY Foundation has no iota
of right thereto.[11]
More so, the enumerated instances for amendment or alteration of a certificate
of title under Section 108 are non-controversial in nature. They are limited to
issues so patently insubstantial as not to be genuine issues. The proceedings
thereunder are summary in nature, contemplating insertions of mistakes which
are only clerical, but certainly not controversial issues.[12] Undoubtedly,
revocation of donation entails litigious and controversial matters especially in
this case where the condition supposedly violated by PWCTUI is not expressly
stated in the deed of donation. Thus, it is imperative to conduct an exhaustive
examination of the factual and legal bases of the parties respective positions
for a complete determination of the donors desires. Certainly, such objective
cannot be accomplished by the court through the abbreviated proceedings of
Section 108.
In fact, even if it were specifically imposed as a ground for the revocation of the
donation that will set off the automatic reversion of the donated property to the
donor and/or his heirs, court intervention is still indispensable.
As ruled in Vda. de Delgado v. CA[13], [a]lthough automatic reversion
immediately happens upon a violation of the condition and therefore no judicial
action is necessary for such purpose, still judicial intervention must be sought by
the aggrieved party if only for the purpose of determining the propriety of the
rescission made.[14] In addition, where the donee denies the rescission of the
donation or challenges the propriety thereof, only the final award of the court
can conclusively settle whether the resolution is proper or not.[15] Here,
PWCTUI unmistakably refuted the allegation that the expiration of its corporate
term in 1979 rescinded the donation.

Lastly, the issues embroiled in revocation of donation are litigable in an ordinary

civil proceeding which demands stricter jurisdictional requirements than that
imposed in a land registration case.
Foremost of which is the requirement on the service of summons for the court to
acquire jurisdiction over the persons of the defendants. Without a valid service
of summons, the court cannot acquire jurisdiction over the defendant, unless the
defendant voluntarily submits to it. Service of summons is a guarantee of ones
right to due process in that he is properly apprised of a pending action against
him and assured of the opportunity to present his defenses to the suit.[16]
In contrast, jurisdiction in a land registration cases being a proceeding in rem, is
acquired by constructive seizure of the land through publication, mailing and
posting of the notice of hearing.[17] Persons named in the application are not
summoned but merely notified of the date of initial hearing on the petition.[18]
The payment of docket fees is another jurisdictional requirement for an action
for revocation which was absent in the suit filed by TRY Foundation. On the
other hand, Section 111 of P.D. No. 1529 merely requires the payment of filing
fees and not docket fees.
Filing fees are intended to take care of court expenses in the handling of cases
in terms of cost of supplies, use of equipment, salaries and fringe benefits of
personnel, etc., computed as to man hours used in handling of each case.
Docket fees, on the other hand, vest the trial court jurisdiction over the subject
matter or nature of action.[19]
The absence of the above jurisdictional requirements for ordinary civil actions
thus prevented the RTC, acting as a land registration court, from acquiring the
power to hear and decide the underlying issue of revocation of donation in LRC
Case No. Q-18126(04). Any determination made involving such issue had no
force and effect; it cannot also bind PWCTUI over whom the RTC acquired no
jurisdiction for lack of service of summons.
Jurisdiction is the power with which courts are invested for administering
justice; that is, for hearing and deciding cases. In order for the court to have
authority to dispose of the case on the merits, it must acquire jurisdiction over
the subject matter and the parties.[20]

Conclusion
All told, the RTC, acting as a land registration court, had no jurisdiction over the
actual subject matter contained in TRY Foundations petition for issuance of a
new title. TRY Foundation cannot use the summary proceedings in Section 108
of P.D. No. 1529 to rescind a contract of donation as such action should be
threshed out in ordinary civil proceedings. In the same vein, the RTC had no
jurisdiction to declare the donation annulled and as a result thereof, order the
register of deeds to cancel PWCTUIs TCT No. 20970 T-22702 and issue a new
one in favor of TRY Foundation.
The RTC, acting as a land registration court, should have dismissed the land
registration case or re-docketed the same as an ordinary civil action and
thereafter ordered compliance with stricter jurisdictional requirements. Since
the RTC had no jurisdiction over the action for revocation of donation
disguised as a land registration case, the judgment in LRC Case No. Q-18126(04)
is null and void. Being void, it cannot be the source of any right or the creator of
any obligation. It can never become final and any writ of execution based on it
is likewise void.[21] It may even be considered as a lawless thing which can be
treated as an outlaw and slain at sight, or ignored wherever and whenever it
exhibits its head.[22]
Resultantly, the appellate proceedings relative to LRC Case No. Q-18126(04) and
all issuances made in connection with such review are likewise of no force and
effect. A void judgment cannot perpetuate even if affirmed on appeal by the
highest court of the land. All acts pursuant to it and all claims emanating from it
have no legal effect.[23]
The Court Resolutions dated July
21, 2010 and September 15, 2010
do not bar the present ruling.
It is worth emphasizing that despite PWCTUIs incessant averment of the RTCs
lack of jurisdiction over TRY Foundations petition, the trial court shelved the
issue, took cognizance of matters beyond those enveloped under Section 108
and sorted out, in abridged proceedings, complex factual issues otherwise
determinable in a full-blown trial appropriate for an ordinary civil action.

PWCTUI no longer raised the jurisdiction issue before the CA and limited its
appeal to the factual findings and legal conclusions of the RTC on its corporate
existence and capacity as the subject propertys uninterrupted owner. The
matter reached the Court thru a petition for review under Rule 45, but with
the question of jurisdiction absent in the appellate pleadings, the Court was
constrained to review only mistakes of judgment.
While PWCTUI could have still challenged the RTCs jurisdiction even on appeal,
its failure to do so cannot work to its disadvantage. The issue of jurisdiction is
not lost by waiver or by estoppel; no laches will even attach to a judgment
rendered without jurisdiction.[24]
Hence, since the Court Resolutions dated July 21, 2010 and September 15, 2010
in G.R. No. 190193 disposed the case only insofar as the factual and legal
questions brought before the CA were concerned, they cannot operate as a
procedural impediment to the present ruling which deals with mistake of
jurisdiction.
This is not to say, however, that a certiorari before the Court is a remedy against
its own final and executory judgment. As made known in certain cases, the
Court is invested with the power to suspend the application of the rules of
procedure as a necessary complement of its power to promulgate the same.[25]
Barnes v. Hon. Quijano Padilla[26] discussed the rationale for this tenet, viz:
Let it be emphasized that the rules of procedure should be viewed as mere tools
designed to facilitate the attainment of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate rather than promote
substantial justice, must always be eschewed. Even the Rules of Court reflect
this principle. The power to suspend or even disregard rules can be so
pervasive and compelling as to alter even that which this Court itself has
already declared to be final, x x x.
The emerging trend in the rulings of this Court is to afford every party litigant
the amplest opportunity for the proper and just determination of his cause, free
from the constraints of technicalities. Time and again, this Court has
consistently held that rules must not be applied rigidly so as not to override
substantial justice.[27] (Citation omitted and italics supplied)

Here, the grave error in jurisdiction permeating the proceedings taken in LRC
Case No. Q-18126(04) deprived PWCTUI of its property without the very
foundation of judicial proceedings due process. Certainly, the Court cannot let
this mistake pass without de rigueur rectification by suspending the rules of
procedure and permitting the present recourse to access auxiliary review.
If the Court, as the head and guardian of the judicial branch, must continuously
merit the force of public trust and confidence which ultimately is the real
source of its sovereign power and if it must decisively discharge its sacred
duty as the last sanctuary of the oppressed and the weak, it must, in
appropriate cases, pro-actively provide weary litigants with immediate legal and
equitable relief, free from the delays and legalistic contortions that oftentimes
result from applying purely formal and procedural approaches to judicial
dispensations.[28]
WHEREFORE, all things studiedly viewed in the correct perspective, the petition
is hereby GRANTED. All proceedings taken, decisions, resolutions, orders and
other issuances made in LRC Case No. Q-18126(04), CA-G.R. CV No. 90763
and G.R. No. 190193 are hereby ANNULLED and SET ASIDE.
The Register of Deeds of Quezon City is hereby ORDERED to CANCEL any
Transfer Certificate of Title issued in the name of Teodoro R. Yangco 2nd and 3rd
Generation Heirs Foundation, Inc. as a consequence of the execution of the
disposition in LRC Case No. Q-18126(04), and to REINSTATE Transfer Certificate
of Title No. 20970 T-22702 in the name of Philippine Womans Christian
Temperance Union, Inc.
FIRST DIVISION, G.R. No. 199595, April 02, 2014, PHILIPPINE WOMANS
CHRISTIAN TEMPERANCE UNION, INC., PETITIONER, VS. TEODORO R.
YANGCO 2ND AND 3RD GENERATION HEIRS FOUNDATION, INC.,
RESPONDENT.

Every Reasonable Intendment

Must Be Made In Support Of

Presumption Of Regularity Of
Official Acts
February 18, 2015 by The Lawyer's Post

Tze Sun Wong, a Chinese citizen, immigrated to the Philippines and

obtained a permanent resident status in 1982. He studied, married,
and lived in the country, owning a business called Happy Sun Travel
and Tours. In 2000, Kenny Wong, owner of a construction supply store,
filed a complaint against Tse Sun before the Bureau of Immigration,
averring that Tse committed misrepresentation when he stated in his
drivers license application tha he is a Filipino citizen. He also accused
Tse and his partner Tina Yu of issuing a bounced check to him. Thus he
prayed that Tze be investigated for possible violation of immigration
laws. In his answer, alleging that it was another person who filled up
his application form, but entered the wrong information on his birth,
year and nationality. After finding probable cause, the Special
Prosecutor filed a case against Tze before the Bureau of Immigration.
In October, 2002, the Board of Commissioners ordered Tses
deportation for use of illegal alias (Joseph Wong), and misrepresenting
himself as a Filipino citizen in the application, in violation of Sections
37 (a)(7) and (9) of CA 613. The BI took judicial notice of the fact that
in securing a drivers license, Tzes personal appearance is required,
hence he cannot deny that he actively involved himself in the
preparation and issuance of a fraudulent drivers license, and the entry
thereof of his purported Filipino citizenship. His motion for
reconsideration denied, Tse filed an appeal with the Secretary of
Justice, which also affirmed the BOI ruling. In his motion for
reconsideration of the DOJ ruling, he averred that that the judgment
was null and void, since only two commissioners of the BI participated
in the decision-making process. Ruling thereon, the DOJ Secretary
denied it, holding that Section 8 of CA 613 provides that the decision
of two commissioners are enough to sustain a judgment. Even then,
when he filed a motion for reconsideration, four of the BI
commissioners participated in it. Thus, Tze, filed a petition for
certiorari before the Court of Appeals on the decision of the Secretary
of Justice . However, the Court of Appeals denied the petition, holding
that Tse availed of the wrong remedy since decisions of the Bureau of
Immigration are directly appealable to the Court of Appeals via Rule
43. Tze elevated his case to the Supreme Court on petition for review
on certiorari, averring that his deportation was unwarranted, and the
decision of the Board of Commissioners was null and void since it was
signed by only two commissioners.

The Supreme Court:

It must be highlighted that the case under consideration essentially
calls for the Court to determine whether the CAs dismissal of
petitioners certiorari petition before it was correct.
In a special civil action for certiorari brought against a court with
jurisdiction over a case, the petitioner carries the burden to prove that
the respondent tribunal committed not merely a reversible error but a
grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the impugned order. Showing mere abuse of discretion is not
enough, for the abuse must be shown to be grave. Grave abuse of
discretion means either that the judicial or quasi-judicial power was
exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, or that the respondent judge, tribunal or board
evaded a positive duty, or virtually refused to perform the duty
enjoined or to act in contemplation of law, such as when such judge,
tribunal or board exercising judicial or quasi-judicial powers acted in a
capricious or whimsical manner as to be equivalent to lack of
jurisdiction.[1]
Petitioners certiorari petition before the CA basically revolves on his
denial of the acts of misrepresentation imputed against him, claiming
that the same do not warrant his deportation. However, the
commission of said acts involves factual matters that have already
been established during the proceedings before the BOI Board of
Commissioners. In this regard, it is crucial to point out that [t]he
Bureau is the agency that can best determine whether petitioner
violated certain provisions of the Philippine Immigration Act of 1940,
as amended. In this jurisdiction, courts will not interfere in matters
which are addressed to the sound discretion of government agencies
entrusted with the regulation of activities coming under the special
technical knowledge and training of such agencies. By reason of the
special knowledge and expertise of administrative departments over
matters falling within their jurisdiction, they are in a better position to
pass judgment thereon and their findings of fact in that regard are
generally accorded respect, if not finality, by the courts.[2] As
petitioner has not sufficiently demonstrated any cogent reason to
deviate from the BOI Board of Commissioners findings, courts are
wont to defer to its judgment.

Besides, petitioners defenses anent what had actually transpired

during the relevant incidents surrounding his drivers license
application apparently constitute mere self-serving allegations barren
of any independent proof. While he blamed the unnamed fixer filling up
the erroneous details in his application, his version of the story
remained uncorroborated. The lack of testimony on the part of the
fixer leaves much to be desired from petitioners theory.
Moreover, the Courts review of the present case is via a petition for
review under Rule 45 of the Rules of Court, which generally bars any
question pertaining to the factual issues raised. The well-settled rule is
that questions of fact are not reviewable in petitions for review under
Rule 45, subject only to certain exceptions, among them, the lack of
sufficient support in evidence of the trial courts judgment or the
appellate courts misapprehension of the adduced facts.[3] None of
these exceptions was, however, convincingly shown to attend in this
case.
Now, on the matter of the alleged nullity of the BOI Board of
Commissioners Judgment due to the fact that it had been signed only
by two (2) commissioners, suffice it to state that Section 8 of the
Immigration Act simply requires that in any case coming before the BOI
Board of Commissioners, the decision of any two (2) members shall
prevail:
BOARD OF COMMISSIONERS
Sec. 8. Decision of the Board. The board of Commissioners,
hereinafter referred to in this Act, shall be composed of the
Commissioner of Immigration and the two Deputy Commissioners. In
the absence of a member of the Board, the Department Head shall
designate an officer or employee in the Bureau of Immigration to serve
as a member thereof. In any case coming before the Board of
Commissioners, the decision of any two members shall prevail.
Petitioner argues that the foregoing rule only refers to the number of
votes necessary to constitute the decision of the Board, insisting that
deliberation should still be made by all commissioners as a collegial
body.[4]

Petitioners argument is correct in theory since deliberation by all

members of the collegial body is evidently what the rule contemplates,
with the votes of only two (2) members being sufficient for a decision
to prevail. Unfortunately, however, petitioner has not shown any proof
that deliberations were not conducted by all commissioners before the
questioned Judgment was made. The rule is well-settled that he who
alleges a fact has the burden of proving it and a mere allegation is not
evidence.[5] Thus, once more, his self-serving assertion cannot be
given credence. This is especially so in light of the presumption of
regularity, which herein ought to prevail due to the absence of any
clear and convincing evidence to the contrary. Bustillo v. People[6]
states:
The presumption of regularity of official acts may be rebutted by
affirmative evidence of irregularity or failure to perform a duty. The
presumption, however, prevails until it is overcome by no less than
clear and convincing evidence to the contrary. Thus, unless the
presumption is rebutted, it becomes conclusive. Every reasonable
intendment will be made in support of the presumption and in case of
doubt as to an officers act being lawful or unlawful, construction
should be in favor of its lawfulness.[7]
In particular, the presumption that the Judgment had been deliberated
by the BOI Board of Commissioners as a collegial body stands. In any
event, the lack of any concurrence or dissension from the two (2) other
commissioners missing on the face of the October 2, 2002 Judgment
has already been placated by their eventual signing of full concurrence
in the subsequent Resolution dated December 4, 2002 denying
petitioners motion for reconsideration.
Petition denied.
FIRST DIVISION, G.R. No. 180364, December 03, 2014, TZE SUN WONG,
PETITIONER, VS. KENNY WONG, RESPONDENT.

To Be Considered A Member Of
The House Of Representatives,
There Must Be Concurrence Of

The Following Requisites: A

Valid Proclamation, A Proper
Oath, And Assumption Of
Office
February 11, 2015 by The Lawyer's Post

Joseph, a registered voter and resident of the municipality of Torrijos,

Marinduque, filed a petition to deny due course or cancel the
certificate of candidacy of Regina Ongsiako Reyes, congressional
candidate for the lone district of Marinduque. According to him, Regina
committed material misrepresentation in her certificate of candidacy
by committing the following: she declared herself as single when she is
married to Rep. Mandanas of Batangas City; that she is a resident of
Bgy. Lupac, Boac, Marinduque, she in fact she resides in Bauan,
Batangas and Quezon City; that she is not a permanent resident of
another country when she is a permanent resident of the United
States; that she is a Filipino citizen when she is an American citizen.
Answering, Regina countered that there is no valid and binding
marriage between her and Rep. Mandanas; thus she is not duty bound
to live with him and his residence cannot be attributed to her; the
allegation that she is a permanent resident of the US is not supported
by the evidence. During the proceedings, Joseph submitted additional
evidence such as an article published in the internet as well as an
affidavit of authenticity of document, providing a database of the
Bureau of Immigration stating she is an alien, as well as a certification
from the BI officer that she used American passport in her various
travels abroad. Thus, the First Division of the COMELEC issued a
Resolution cancelling her certificate of candidacy, finding her an
American citizen since she did not comply with the provisions of
Republic Act 9225; also it found her lacking the one-year residency
requirement thus unqualified to run as Representative in the lone
district of Marinduque. In her Motion for Reconsideration, Angelina
argued that she is a natural-born citizen and did not lose such status
by simply applying for an American passport; the First Division
surmised that she is an American citizen by virtue of her marriage to
an American citizen, but that such marriage only resulted in her being
a dual citizen, thus no need for her to fulfil the requirements of RA
9225; she presented an Affidavit of Renunciation of her American
citizenship; as to the one-year residency requirement, since she did
not become an American citizen, she never lost her residency which is
Boac, Marinduque. The Comelec en BAnch denied her motion for
reconsideration; on the other hand, she won the election, but the
Comelec En Banc issued a Certificate of Finality of its Resolution in the
absence of an order from the Supreme Court restraining the same.

Regina took her oath of office before Speaker Belmonte, but had not
yet assumed office. She then filed a Petition for Certiorari with prayer
for TRO on the Comelec Resolution. She argues that the resolution was
issued in grave abuse of discretion because it admitted the newlydiscovered evidence without the same being offered in evidence; the
Comelec imposed an additional requirement in the qualification by
making it mandatory to comply with the provisions of RA 9225, in
violation of the Constitution; and it erred when it declared her not a
Filipino citizen and did not meet the residency requirement.
The Supreme Court:
The petition must fail.
At the outset, it is observed that the issue of jurisdiction of respondent
COMELEC vis-a-vis that of House of Representatives Electoral Tribunal
(HRET) appears to be a non-issue. Petitioner is taking an inconsistent,
if not confusing, stance for while she seeks remedy before this Court,
she is asserting that it is the HRET which has jurisdiction over her.
Thus, she posits that the issue on her eligibility and qualifications to
be a Member of the House of Representatives is best discussed in
another tribunal of competent jurisdiction. It appears then that
petitioners recourse to this Court was made only in an attempt to
enjoin the COMELEC from implementing its final and executory
judgment in SPA No. 13-053.
Nevertheless, we pay due regard to the petition, and consider each of
the issues raised by petitioner. The need to do so, and at once, was
highlighted during the discussion En Banc on 25 June 2013 where and
when it was emphasized that the term of office of the Members of the
House of Representatives begins on the thirtieth day of June next
following their election.
According to petitioner, the COMELEC was ousted of its jurisdiction
when she was duly proclaimed[1] because pursuant to Section 17,
Article VI of the 1987 Constitution, the HRET has the exclusive
jurisdiction to be the sole judge of all contests relating to the
election, returns and qualifications of the Members of the House of
Representatives.
Contrary to petitioners claim, however, the COMELEC retains
jurisdiction for the following reasons:

First, the HRET does not acquire jurisdiction over the issue of
petitioners qualifications, as well as over the assailed COMELEC
Resolutions, unless a petition is duly filed with said tribunal.
Petitioner has not averred that she has filed such action.
Second, the jurisdiction of the HRET begins only after the candidate is
considered a Member of the House of Representatives, as stated in
Section 17, Article VI of the 1987 Constitution:
Section 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their respective
Members. x x x
As held in Marcos v. COMELEC[2], the HRET does not have jurisdiction
over a candidate who is not a member of the House of Representatives,
to wit:
As to the House of Representatives Electoral Tribunals supposed
assumption of jurisdiction over the issue of petitioners qualifications
after the May 8, 1995 elections, suffice it to say that HRETs
jurisdiction as the sole judge of all contests relating to the elections,
returns and qualifications of members of Congress begins only after a
candidate has become a member of the House of Representatives.
Petitioner not being a member of the House of Representatives, it is
obvious that the HRET at this point has no jurisdiction over the
question. (Emphasis supplied.)
The next inquiry, then, is when is a candidate considered a Member of
the House of Representatives?
In Vinzons-Chato v. COMELEC[3], citing Aggabao v.
COMELEC[4] and Guerrero v. COMELEC[5], the Court ruled that:
The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the
House of Representatives, the COMELECs jurisdiction over election
contests relating to his election, returns, and qualifications ends, and
the HRETs own jurisdiction begins. (Emphasis supplied.)
This pronouncement was reiterated in the case of Limkaichong v.
COMELEC[6], wherein the Court, referring to the jurisdiction of the
COMELEC vis-a-vis the HRET, held that:

The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the
House of Representatives, the COMELECs jurisdiction over election
contests relating to his election, returns, and qualifications ends, and
the HRETs own jurisdiction begins. (Emphasis supplied.)
This was again affirmed in Gonzalez v. COMELEC[7], to wit:
After proclamation, taking of oath and assumption of office by
Gonzalez, jurisdiction over the matter of his qualifications, as well as
questions regarding the conduct of election and contested returns
were transferred to the HRET as the constitutional body created to
pass upon the same. (Emphasis supplied.)
From the foregoing, it is then clear that to be considered a Member of
the House of Representatives, there must be a concurrence of the
following requisites: (1) a valid proclamation, (2) a proper oath, and (3)
assumption of office.
Indeed, in some cases, this Court has made the pronouncement that
once a proclamation has been made, COMELECs jurisdiction is already
lost and, thus, its jurisdiction over contests relating to elections,
returns, and qualifications ends, and the HRETs own jurisdiction
begins. However, it must be noted that in these cases, the doctrinal
pronouncement was made in the context of a proclaimed candidate
who had not only taken an oath of office, but who had also assumed
office.
For instance, in the case of Dimaporo v. COMELEC[8], the Court upheld
the jurisdiction of the HRET against that of the COMELEC only after the
candidate had been proclaimed, taken his oath of office before the
Speaker of the House, and assumed the duties of a Congressman on 26
September 2007, or after the start of his term on 30 June 2007, to wit:
On October 8, 2007, private respondent Belmonte filed his comment in
which he brought to Our attention that on September 26, 2007, even
before the issuance of the status quo ante order of the Court, he had
already been proclaimed by the PBOC as the duly elected Member of
the House of Representatives of the First Congressional District of
Lanao del Norte. On that very same day, he had taken his oath before
Speaker of the House Jose de Venecia, Jr. and assumed his duties
accordingly.

In light of this development, jurisdiction over this case has already

been transferred to the House of Representatives Electoral Tribunal
(HRET). (Emphasis supplied.)
Apparently, the earlier cases were decided after the questioned
candidate had already assumed office, and hence, was already
considered a Member of the House of Representatives, unlike in the
present case.
Here, the petitioner cannot be considered a Member of the House of
Representatives because, primarily, she has not yet assumed office. To
repeat what has earlier been said, the term of office of a Member of
the House of Representatives begins only at noon on the thirtieth day
of June next following their election.[9] Thus, until such time, the
COMELEC retains jurisdiction.
In her attempt to comply with the second requirement, petitioner
attached a purported Oath Of Office taken before Hon. Feliciano
Belmonte Jr. on 5 June 2013. However, this is not the oath of office
which confers membership to the House of Representatives.
Section 6, Rule II (Membership) of the Rules of the House of
Representatives provides:
Section 6. Oath or Affirmation of Members. Members shall take their
oath or affirmation either collectively or individually before the
Speaker in open session.
Consequently, before there is a valid or official taking of the oath it
must be made (1) before the Speaker of the House of Representatives,
and (2) in open session. Here, although she made the oath before
Speaker Belmonte, there is no indication that it was made during
plenary or in open session and, thus, it remains unclear whether the
required oath of office was indeed complied with.

More importantly, we cannot disregard a fact basic in this controversy

that before the proclamation of petitioner on 18 May 2013, the
COMELEC En Banc had already finally disposed of the issue of
petitioners lack of Filipino citizenship and residency via its Resolution
dated 14 May 2013. After 14 May 2013, there was, before the
COMELEC, no longer any pending case on petitioners qualifications to
run for the position of Member of the House of Representative. We will
inexcusably disregard this fact if we accept the argument of the
petitioner that the COMELEC was ousted of jurisdiction when she was
proclaimed, which was four days after the COMELEC En Banc decision.
The Board of Canvasser which proclaimed petitioner cannot by such act
be allowed to render nugatory a decision of the COMELEC En Banc
which affirmed a decision of the COMELEC First Division.
Indeed, the assailed Resolution of the COMELEC First Division which
was promulgated on 27 March 2013, and the assailed Resolution of the
COMELEC En Banc which was promulgated on 14 May 2013, became
final and executory on 19 May 2013 based on Section 3, Rule 37 of the
COMELEC Rules of Procedure which provides:
Section 3. Decisions Final after five days. Decisions in preproclamation cases and petitions to deny due course to or cancel
certificates of candidacy, to declare nuisance candidate or to disqualify
a candidate, and to postpone or suspend elections shall become final
and executory after the lapse of five (5) days from their promulgation
unless restrained by the Supreme Court.
To prevent the assailed Resolution dated 14 May 2013 from becoming
final and executory, petitioner should have availed herself of Section 1,
Rule 37[10] of the COMELEC Rules of Procedure or Rule 64[11] of the
Rules of Court by filing a petition before this Court within the 5-day
period, but she failed to do so. She would file the present last hour
petition on 10 June 2013. Hence, on 5 June 2013, respondent COMELEC
rightly issued a Certificate of Finality.
As to the issue of whether petitioner failed to prove her Filipino
citizenship, as well as her one-year residency in Marinduque, suffice it
to say that the COMELEC committed no grave abuse of discretion in
finding her ineligible for the position of Member of the House of
Representatives.

Petitioner alleges that the COMELEC gravely abused its discretion

when it took cognizance of newly-discovered evidence without the
same having been testified on and offered and admitted in evidence.
She assails the admission of the blog article of Eli Obligacion as
hearsay and the photocopy of the Certification from the Bureau of
Immigration. She likewise contends that there was a violation of her
right to due process of law because she was not given the opportunity
to question and present controverting evidence.
Her contentions are incorrect.
It must be emphasized that the COMELEC is not bound to strictly
adhere to the technical rules of procedure in the presentation of
evidence. Under Section 2 of Rule I, the COMELEC Rules of Procedure
shall be liberally construed in order x xx to achieve just, expeditious
and inexpensive determination and disposition of every action and
proceeding brought before the Commission. In view of the fact that
the proceedings in a petition to deny due course or to cancel
certificate of candidacy are summary in nature, then the newly
discovered evidence was properly admitted by respondent COMELEC.
Furthermore, there was no denial of due process in the case at bar as
petitioner was given every opportunity to argue her case before the
COMELEC. From 10 October 2012 when Tans petition was filed up to
27 March 2013 when the First Division rendered its resolution,
petitioner had a period of five (5) months to adduce evidence.
Unfortunately, she did not avail herself of the opportunity given her.
Also, in administrative proceedings, procedural due process only
requires that the party be given the opportunity or right to be heard.
As held in the case of Sahali v. COMELEC[12]:
The petitioners should be reminded that due process does not
necessarily mean or require a hearing, but simply an opportunity or
right to be heard. One may be heard, not solely by verbal presentation
but also, and perhaps many times more creditably and predictable
than oral argument, through pleadings. In administrative proceedings
moreover, technical rules of procedure and evidence are not strictly
applied; administrative process cannot be fully equated with due
process in its strict judicial sense. Indeed, deprivation of due process
cannot be successfully invoked where a party was given the chance to
be heard on his motion for reconsideration. (Emphasis supplied)

As to the ruling that petitioner is ineligible to run for office on the

ground of citizenship, the COMELEC First Division, discoursed as
follows:
x x x for respondent to reacquire her Filipino citizenship and become
eligible for public office, the law requires that she must have
accomplished the following acts: (1) take the oath of allegiance to the
Republic of the Philippines before the Consul-General of the Philippine
Consulate in the USA; and (2) make a personal and sworn renunciation
of her American citizenship before any public officer authorized to
administer an oath.
In the case at bar, there is no showing that respondent complied with
the aforesaid requirements. Early on in the proceeding, respondent
hammered on petitioners lack of proof regarding her American
citizenship, contending that it is petitioners burden to present a case.
She, however, specifically denied that she has become either a
permanent resident or naturalized citizen of the USA.
Due to petitioners submission of newly-discovered evidence thru a
Manifestation dated February 7, 2013, however, establishing the fact
that respondent is a holder of an American passport which she
continues to use until June 30, 2012, petitioner was able to
substantiate his allegations. The burden now shifts to respondent to
present substantial evidence to prove otherwise. This, the respondent
utterly failed to do, leading to the conclusion inevitable that
respondent falsely misrepresented in her COC that she is a naturalborn Filipino citizen. Unless and until she can establish that she had
availed of the privileges of RA 9225 by becoming a dual FilipinoAmerican citizen, and thereafter, made a valid sworn renunciation of
her American citizenship, she remains to be an American citizen and is,
therefore, ineligible to run for and hold any elective public office in the
Philippines.[13] (Emphasis supplied.)

Let us look into the events that led to this petition: In moving for the
cancellation of petitioners COC, respondent submitted records of the
Bureau of Immigration showing that petitioner is a holder of a US
passport, and that her status is that of a balikbayan. At this point,
the burden of proof shifted to petitioner, imposing upon her the duty
to prove that she is a natural-born Filipino citizen and has not lost the
same, or that she has re-acquired such status in accordance with the
provisions of R.A. No. 9225. Aside from the bare allegation that she is
a natural-born citizen, however, petitioner submitted no proof to
support such contention. Neither did she submit any proof as to the
inapplicability of R.A. No. 9225 to her.
Notably, in her Motion for Reconsideration before the COMELEC En
Banc, petitioner admitted that she is a holder of a US passport, but she
averred that she is only a dual Filipino-American citizen, thus the
requirements of R.A. No. 9225 do not apply to her.[14] Still, attached
to the said motion is an Affidavit of Renunciation of Foreign Citizenship
dated 24 September 2012.[15] Petitioner explains that she attached
said Affidavit if only to show her desire and zeal to serve the people
and to comply with rules, even as a superfluity.[16] We cannot,
however, subscribe to petitioners explanation. If petitioner executed
said Affidavit if only to comply with the rules, then it is an admission
that R.A. No. 9225 applies to her. Petitioner cannot claim that she
executed it to address the observations by the COMELEC as the
assailed Resolutions were promulgated only in 2013, while the Affidavit
was executed in September 2012.

Moreover, in the present petition, petitioner added a footnote to her

oath of office as Provincial Administrator, to this effect: This does not
mean that Petitioner did not, prior to her taking her oath of office as
Provincial Administrator, take her oath of allegiance for purposes of reacquisition of natural-born Filipino status, which she reserves to
present in the proper proceeding. The reference to the taking of oath
of office is in order to make reference to what is already part of the
records and evidence in the present case and to avoid injecting into
the records evidence on matters of fact that was not previously passed
upon by Respondent COMELEC.[17] This statement raises a lot of
questions Did petitioner execute an oath of allegiance for reacquisition of natural-born Filipino status? If she did, why did she not
present it at the earliest opportunity before the COMELEC? And is this
an admission that she has indeed lost her natural-born Filipino status?
To cover-up her apparent lack of an oath of allegiance as required by
R.A. No. 9225, petitioner contends that, since she took her oath of
allegiance in connection with her appointment as Provincial
Administrator of Marinduque, she is deemed to have reacquired her
status as a natural-born Filipino citizen.
This contention is misplaced. For one, this issue is being presented for
the first time before this Court, as it was never raised before the
COMELEC. For another, said oath of allegiance cannot be considered
compliance with Sec. 3 of R.A. No. 9225 as certain requirements have
to be met as prescribed by Memorandum Circular No. AFF-04-01,
otherwise known as the Rules Governing Philippine Citizenship under
R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised
Rules) and Administrative Order No. 91, Series of 2004 issued by the
Bureau of Immigration. Thus, petitioners oath of office as Provincial
Administrator cannot be considered as the oath of allegiance in
compliance with R.A. No. 9225.
These circumstances, taken together, show that a doubt was clearly
cast on petitioners citizenship. Petitioner, however, failed to clear
such doubt.
As to the issue of residency, proceeding from the finding that
petitioner has lost her natural-born status, we quote with approval the
ruling of the COMELEC First Division that petitioner cannot be
considered a resident of Marinduque:

Thus, a Filipino citizen who becomes naturalized elsewhere effectively

abandons his domicile of origin. Upon re-acquisition of Filipino
citizenship pursuant to RA 9225, he must still show that he chose to
establish his domicile in the Philippines through positive acts, and the
period of his residency shall be counted from the time he made it his
domicile of choice.
In this case, there is no showing whatsoever that [petitioner] had
already re-acquired her Filipino citizenship pursuant to RA 9225 so as
to conclude that she has regained her domicile in the Philippines.
There being no proof that [petitioner] had renounced her American
citizenship, it follows that she has not abandoned her domicile of
choice in the USA.
The only proof presented by [petitioner] to show that she has met the
one-year residency requirement of the law and never abandoned her
domicile of origin in Boac, Marinduque is her claim that she served as
Provincial Administrator of the province from January 18, 2011 to July
13, 2011. But such fact alone is not sufficient to prove her one-year
residency. For, [petitioner] has never regained her domicile in
Marinduque as she remains to be an American citizen. No amount of
her stay in the said locality can substitute the fact that she has not
abandoned her domicile of choice in the USA.[18] (Emphasis
supplied.)
All in all, considering that the petition for denial and cancellation of
the COC is summary in nature, the COMELEC is given much discretion
in the evaluation and admission of evidence pursuant to its principal
objective of determining of whether or not the COC should be
cancelled. We held in Mastura v. COMELEC[19]:
The rule that factual findings of administrative bodies will not be
disturbed by courts of justice except when there is absolutely no
evidence or no substantial evidence in support of such findings should
be applied with greater force when it concerns the COMELEC, as the
framers of the Constitution intended to place the COMELEC created
and explicitly made independent by the Constitution itself on a level
higher than statutory administrative organs. The COMELEC has broad
powers to ascertain the true results of the election by means available
to it. For the attainment of that end, it is not strictly bound by the
rules of evidence.

Time and again, We emphasize that the grave abuse of discretion

which warrants this Courts exercise of certiorari jurisdiction has a
well-defined meaning. Guidance is found in Beluso v. Commission on
Elections[20] where the Court held:
x x x A petition for certiorari will prosper only if grave abuse of
discretion is alleged and proved to exist. Grave abuse of discretion,
under Rule 65, has a specific meaning. It is the arbitrary or despotic
exercise of power due to passion, prejudice or personal hostility; or the
whimsical, arbitrary, or capricious exercise of power that amounts to
an evasion or refusal to perform a positive duty enjoined by law or to
act at all in contemplation of law. For an act to be struck down as
having been done with grave abuse of discretion, the abuse of
discretion must be patent and gross. (Emphasis supplied.)
Here, this Court finds that petitioner failed to adequately and
substantially show that grave abuse of discretion exists.
Lastly, anent the proposition of petitioner that the act of the COMELEC
in enforcing the provisions of R.A. No. 9225, insofar as it adds to the
qualifications of Members of the House of Representatives other than
those enumerated in the Constitution, is unconstitutional, We find the
same meritless.
The COMELEC did not impose additional qualifications on candidates
for the House of Representatives who have acquired foreign
citizenship. It merely applied the qualifications prescribed by Section
6, Article VI of the 1987 Constitution that the candidate must be a
natural-born citizen of the Philippines and must have one-year
residency prior to the date of elections. Such being the case, the
COMELEC did not err when it inquired into the compliance by petitioner
of Sections 3 and 5 of R.A. No. 9225 to determine if she reacquired her
status as a natural-born Filipino citizen. It simply applied the
constitutional provision and nothing more.
IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding
no grave abuse of discretion on the part of the Commission on
Elections. The 14 May 2013 Resolution of the COMELEC En Banc
affirming the 27 March 2013 Resolution of the COMELEC First Division
is upheld.
SO ORDERED.

EN BANC, G.R. No. 207264, June 25, 2013, REGINA ONGSIAKO REYES,
PETITIONER, VS. COMMISSION ON ELECTIONS AND JOSEPH SOCORRO B.
TAN, RESPONDENTS.

The Constitutional Guarantee

Of Non-Impairment Of
Contract Is Limited By the
Exercise Of The Police Power
Of The State
January 25, 2015 by The Lawyer's Post

On November 11, 1997, the Municipal Council of Paranaque enacted

Municipal Ordinance No. 97-08. Sections 11.5 and 11.6 of the ordinance
reclassified El Grande and Aguirre Avenues in BF Homes Paranaque
from residential to commercial areas. Because of this, the United BF
Homeowners Associations, several other associations and residents,
filed a special civil action for prohibition with the Court of Appeals,
with application for temporary restraining order, to question the
constitutionality of the municipal ordinance, alleging t the
reclassification of certain portions of BF Homes Paraaque from
residential to commercial zone is unconstitutional because it amounts
to impairment of the contracts between the developer of BF Homes
Paraaque and the lot buyers. They cited the annotation on the lot
buyers titles which provides that the property shall be used for
residential purposes only and for no other purpose. On the other
hand, the respondents alleged that the passage of the ordinance was a
valid exercise of police power and such ordinance can supersede or
nullify the contractual obligations entered into by the homeowners and
the developer. El Grande Aguirre Commerce and Trade Association, an
association of business owners along El Grande and Aguirre Avenue,
moved to intervene, alleging that any declaration of
unconstitutionality of the ordinance will adversely affect them. The
Court of Appeals dismissed the petition, hence, the petitioners
elevated their case to the Supreme Court.
The Supreme Court:
The petition is without merit.
Power to Enact Zoning Ordinances
The Municipal Council of Paraaque enacted Municipal Ordinance No.
97-08 pursuant to the provisions of RA 7160 and Executive Order No.
72.
Under Section 447 of RA 7160, the Sangguniang Bayan or the Municipal
Council, as the legislative body of the municipality, has the power to
enact ordinances for the general welfare of the municipality and its
inhabitants.
Among the functions of the Sangguniang Bayan enumerated under
Section 447 of RA 7160 are:

(2) Generate and maximize the use of resources and revenues for the
development plans, program objectives and priorities of the
municipality as provided for under Section 18 of this Code with
particular attention to agro-industrial development and countryside
growth and progress, and relative thereto, shall:
xxxx
(vii) Adopt a comprehensive land use plan for the municipality:
Provided, That the formulation, adoption, or modification of said plan
shall be in coordination with the approved provincial comprehensive
land use plan;
(viii) Reclassify land within the jurisdiction of the municipality subject
to the pertinent provision of this Code;
(ix) Enact integrated zoning ordinances in consonance with the
approved comprehensive land use plan, subject to existing laws, rules
and regulations; establish fire limits or zones, particularly in populous
centers; and regulate the construction, repair or modification of
buildings within said fire limits or zones in accordance with the
provisions of the Fire Code; (Emphasis supplied)
On the other hand, Executive Order No. 72 provides:
SECTION 1. Plan formulation or updating. (a) Cities and municipalities
shall continue to formulate or update their respective comprehensive
land use plans, in conformity with the land use planning and zoning
standards and guidelines prescribed by the HLURB pursuant to
national policies.
As a policy recommending body of the LGU, the city or municipal
development council (CDC/MDC) shall initiate the formulation or
updating of its land use plan, in consultation with the concerned
sectors in the community. For this purpose, the CDC/MDC may seek the
assistance of any local official or field officer of NGAs operation in the
LGU.
The city or municipal planning and development coordinator
(CPDC/MPDC) and/or the city or municipal agriculturist, if there is any,
shall provide the technical support services and such other assistance
as may be required by the CDC/MDC to effectively carry out this
function.

The comprehensive land use plan prepared by the CDC/MDC shall be

submitted to the sangguniang panglungsod or sangguniang bayan, as
the case may be, for enactment into a zoning ordinance. Such
ordinance shall be enacted and approved in accordance with Articles
107 and 108 of the Implementing Rules and Regulations (IRR) of the
LGC.
(b) The comprehensive land use plans of component cities and
municipalities shall be formulated, adopted, or modified in accordance
with the approved provincial comprehensive land use plans.
(c) Cities and municipalities of metropolitan Manila shall continue to
formulate or update their respective comprehensive land use plans, in
accordance with the land use planning and zoning standards and
guidelines prescribed by the HLURB pursuant to EO 392, S. of 1990,
and other pertinent national policies.
x x x x (Emphasis supplied)
Under Section 3(m), Rule 131 of the Rules of Court, there is a
presumption that official duty has been regularly performed. Thus, in
the absence of evidence to the contrary, there is a presumption that
public officers performed their official duties regularly and legally and
in compliance with applicable laws, in good faith, and in the exercise of
sound judgment.
We find no sufficient evidence disputing the regularity of the
enactment of Municipal Ordinance No. 97-08. Before the Municipal
Council of Paraaque passed Municipal Ordinance No. 97-08, it has
been the subject of barangay consultations and committee hearings in
accordance with Executive Order No. 72.
Reclassification of El Grande and Aguirre Avenues
Contrary to petitioners allegations, we find Municipal Ordinance No.
97-08 reasonable and not discriminating or oppressive with respect to
BF Homes Paraaque. As held by the Court of Appeals, the increasing
number of homeowners in BF Homes Paraaque necessitated the
addition of commercial areas in the subdivision to service the needs of
the homeowners. In fact, several homeowners along El Grande and
Aguirre Avenues already converted their residences into business
establishments. Furthermore, as found by the Court of Appeals, El
Grande and Aguirre Avenues are main thoroughfares in BF Homes
Paraaque which have long been commercialized.

Even petitioner UBFHAI, the recognized umbrella organization of all

homeowners associations in BF Homes Paraaque, acknowledged the
need for additional commercial area. Records reveal that as early as 30
July 1989, UBFHAI recommended for approval an Amended Integrated
Zoning Policies and Guidelines for BF Homes Paraaque. UBFHAI
proposed another commercial zone in BF Homes Paraaque to
accommodate the growing needs of the residents, thus:
Subject to the approval of BF Homes, Inc., the Local Zoning
Official/Planning Officer of Paraaque and the Metro Manila
Commission and in recognition of the fact that the subdivision has
tremendously grown in size and population since 1983 when the
above-mentioned guidelines of the MMC [Ordinance 81-01] were
promulgated, such that one commercial zone for the entire subdivision
is now inadequate vis-a-vis the needs of the residents, the UBFHAI is
proposing another commercial zone in Phase III of the Subdivision, in
the vicinity of the Parish of the Presentation of the Child Jesus as
follows:
One lot deep along Aguirre Avenue from Gov. Santos St., to the end of
Aguirre Avenue and two lots deep along El Grande from where it
intersects Aguirre Avenue.
Pending approval of the aforesaid proposal, commercial buildings
constructed and existing in the aforesaid area will be given temporaryuse permits good for five (5) years from December 31, 1986 or until
December 31, 1991, after which, the same must revert to residential
status, unless, in the meantime the proposal is approved, provided all
such buildings must comply with the set-back and parking provision of
the Metro Manila Commission Ordinance 81-01; I.M. 09-83.
xxxx
The term for temporary use permits of the designated commercial area
shall be considered extended for 8 years from December 31, 1991 to
December 31, 1998; without prejudice to the official conversion of the
area under existing MMA/LGC guidelines to commercial.18 (Emphasis
supplied)
Thus, UBFHAIs proposed new commercial area, encompassing El
Grande and Aguirre Avenues, is substantially the same area, which
Municipal Ordinance No. 97-08 later reclassified as a commercial zone.

Furthermore, in the subsequent years, UBFHAI and its member

homeowners associations endorsed the issuance of municipal and
barangay permits for commercial establishments along El Grande and
Aguirre Avenues. Contrary to petitioners allegations, the commercial
establishments endorsed by UBFHAI were not mere convenience
stores, which Metro Manila Commission Ordinance No. 81-01 and
Municipal Ordinance No. 97-08 allow in residential areas. Among the
commercial establishments which UBFHAI endorsed were a trading
business, electronics repair shop, mini-grocery store, beauty salon,
school, dress shop, and consultancy or management services
business.26
Clearly, the reclassification of El Grande and Aguirre Avenues in BF
Homes Paraaque as commercial area was reasonable and justified
under the circumstances.
Non-Impairment of Contract
Petitioners invoke Presidential Decree No. 957 (PD 957), otherwise
known as the Subdivision and Condominium Buyers Protective Decree.
Petitioners maintain that PD 957 is intended primarily to protect the
buyers and to ensure that subdivision developers keep their promises
and representations. Petitioners allege that one of the promises of the
developer of BF Homes Paraaque is that the property shall be used
for residential purposes only. Petitioners assert that the
reclassification of certain portions of BF Homes Paraaque from
residential to commercial zone is unconstitutional because it impairs
the contracts between the developer of BF Homes Paraaque and the
lot buyers.
The Court has upheld in several cases the superiority of police power
over the non-impairment clause. The constitutional guaranty of nonimpairment of contracts is limited by the exercise of the police power
of the State, in the interest of public health, safety, morals and general
welfare
In Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co., the
Court held that contractual restrictions on the use of property could
not prevail over the reasonable exercise of police power through
zoning regulations. The Court held:

With regard to the contention that said resolution cannot nullify the
contractual obligations assumed by the defendant-appelleereferring
to the restrictions incorporated in the deeds of sale and later in the
corresponding Transfer Certificates of Title issued to defendantappelleeit should be stressed, that while non-impairment of contracts
is constitutionally guaranteed, the rule is not absolute, since it has to
be reconciled with the legitimate exercise of police power, i.e., the
power to prescribe regulations to promote the health, morals, peace,
education, good order or safety and general welfare of the people.
Invariably described as the most essential, insistent, and illimitable of
powers and in a sense, the greatest and most powerful attribute of
government, the exercise of the power may be judicially inquired into
and corrected only if it is capricious, whimsical, unjust or
unreasonable, there having been a denial of due process or a violation
of any other applicable constitutional guarantee. As this Court held
through Justice Jose P. Bengzon in Philippine Long Distance Company v.
City of Davao, et al., police power is elastic and must be responsive to
various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must
follow the legal progress of a democratic way of life. We were even
more emphatic in Vda. De Genuino v. The Court of Agrarian Relations,
et al., when We declared: We do not see why the public welfare when
clashing with the individual right to property should not be made to
prevail through the states exercise of its police power.

Resolution No. 27. s-1960 declaring the western part of Highway 54,
now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to
the Pasig River as an industrial and commercial zone, was obviously
passed by the Municipal Council of Mandaluyong, Rizal in the exercise
of police power to safeguard or promote the health, safety, peace,
good order and general welfare of the people in the locality. Judicial
notice may be taken of the conditions prevailing in the area, especially
where Lots Nos. 5 and 6 are located. The lots themselves not only front
the highway; industrial and commercial complexes have flourished
about the place. EDSA, a main traffic artery which runs through several
cities and municipalities in the Metro Manila area, supports an endless
stream of traffic and the resulting activity, noise and pollution are
hardly conducive to the health, safety or welfare of the residents in its
route. Having been expressly granted the power to adopt zoning and
subdivision ordinances or regulations, the municipality of
Mandaluyong, through its Municipal Council, was reasonably, if not
perfectly, justified under the circumstances, in passing the subject
resolution.(Emphasis supplied)
Likewise, in Sangalang v. Intermediate Appellate Court, the Court
upheld Metro Manila Commission Ordinance No. 81-01, which
reclassified Jupiter Street in Makati into a high-density commercial
zone, as a legitimate exercise of police power. The Court held that the
power of the Metro Manila Commission and the Makati Municipal
Council to enact zoning ordinances for the general welfare prevails
over the deed restrictions on the lot owners in Bel-Air Village which
restricted the use of the lots for residential purposes only. The Court
held:

It is not that we are saying that restrictive easements, especially the

easements herein in question, are invalid or ineffective. As far as the
Bel-Air subdivision itself is concerned, certainly, they are valid and
enforceable. But they are, like all contracts, subject to the overriding
demands, needs, and interests of the greater number as the State may
determine in the legitimate exercise of police power. Our jurisdiction
guarantees sanctity of contract and is said to be the law between the
contracting parties, but while it is so, it cannot contravene law,
morals, good customs, public order, or public policy. Above all, it
cannot be raised as a deterrent to police power, designed precisely to
promote health, safety, peace, and enhance the common good, at the
expense of contractual rights, whenever necessary. x x x (Emphasis
supplied)
Similarly, in this case, Municipal Ordinance No. 97-08 is a legitimate
exercise of police power and the reclassification of El Grande and
Aguirre Avenues in BF Homes Paraaque is not arbitrary or
unreasonable.
SECOND DIVISION, G.R. No. 141010, February 7, 2007, UNITED BF
HOMEOWNERS ASSOCIATIONS, INC., ROMEO T. VILLAMEJOR, RAUL S.
LANUEVO, ROBERTO ARNALDO, FLORENTINO CONCEPCION, BF
NORTHWEST HOMEOWNERS ASSOCIATION, INC., KK HOMEOWNERS
ASSOCIATION, INC., and BF (CRAB) HOMEOWNERS ASSOCIATION, INC.,
Petitioners, vs.THE (MUNICIPAL) CITY MAYOR, THE (MUNICIPAL) CITY
PLANNING AND DEVELOPMENT COORDINATING OFFICER OR ZONING
ADMINISTRATOR, THE (MUNICIPAL) CITY ENGINEER AND/OR BUILDING
OFFICIAL, THE CHIEF OF THE PERMITS AND LICENSES DIVISION, THE
SANGGUNIANG (BAYAN) PANGLUNGSOD, and BARANGAY BF HOMES, ALL
OF PARAAQUE CITY, METRO MANILA, Respondents, EL GRANDE
AGUIRRE COMMERCE AND TRADE ASSOCIATION (EL ACTO), RespondentIntervenor.

The Right To Association

Includes The Right Not To
Associate

January 24, 2015 by The Lawyer's Post

Ma. Victor and Lydia, residents of Sta. Clara Subdivision, alleged that
they bought the lot in 1974. At the time they bought the lot, there was
no mention or requirement of membership in any homeowners
association. Thus they remained non-members of the Sta. Clara
Homeowners Association. Thus, an arrangement was made wherein
non-members were issued gate-pass stickers for use as identification
by the security guards manning the gate. This arrangement lasted
until March, 1988, when the homeowners association disseminated a
board resolution whereby only members in good standing by the
association will be issued car stickers. Thereafter, Victor, a son of the
spouses who lives with them, were required to show his drivers license
despite the fact that the guards know him and the exact location of
their residence. Victor Ma. Gaston was himself prevented from
entering the subdivision when the guards lowered the steel bar at the
gate ands demanded his drivers license for identification. Thus, the
spouses filed a complaint for damages with prayer for preliminary
injunction/TRO against the homeowners association, alleging that
these acts of the association caused them mental anguish. During the
hearing on the application for preliminary injunction, counsel for the
association manifested that he will file a motion to dismiss and
promised that the plaintiffs will be granted unlimited access in the
subdivision pending issuance of the temporary restraining order.
Counsel then filed a motion to dismiss the complaint, alleging that the
proper forum was the HIGC, because the action is an intra-corporate
dispute among members of the association. To support their claim of
intra-corporate controversy, they stated that the Articles of
Incorporation of SCHA, which was duly approved by the Securities and
Exchange Commission (SEC) on 4 October 1973, provides that the
association shall be a non-stock corporation with all homeowners of
Sta. Clara constituting its membership. Also, its by-laws contains a
provision that all real estate owners in Sta. Clara Subdivision
automatically become members of the association. The plaintiffs,
having become lot owners of Sta. Clara Subdivision in 1974 after the
approval by the SEC of SCHAs articles of incorporation and by-laws,
became members automatically in 1974 of SCHA. Moreover, the
plaintiffs allegedly enjoyed the privileges and benefits of membership
in and abided by the rules of the association, and even attended the
general special meeting of the association members on 24 March 1998.

Their non-payment of the association yearly dues did not make them
non-members of SCHA continued the petitioners. And even granting
that the private respondents were not members of the association, the
petitioners opined that the HIGC still had jurisdiction over the case
pursuant to Section 1 (a), Rule II of the Rules of Procedure of the
HIGC..
The lower court denied the motion the dismiss. There was no intracorporate controversy, since the plaintiffs alleged not having joined
the association. On motion for reconsideration, the association alleged
another ground for dismissal of the complaint, lack of cause of action.
The trial court denied the motion for reconsideration. The Court of
Appeals, on petition for certiorari by the association, affirmed the trial
court, hence, the association elevated the denial of their motion to
dismiss before the Supreme Court.
The Supreme Court:
The Petition has no merit.
First Issue: Jurisdiction
Petitioners contend that the CA erred in upholding the trial courts
jurisdiction to declare as null and void the SCHA Resolution decreeing
that only members in good standing would be issued vehicle stickers.
The RTC did not void the SCHA Resolution; it merely resolved the
Motion to Dismiss filed by petitioners by holding that it was the RTC,
not the Home Insurance and Guaranty Corporation (HIGC), that had
jurisdiction over the dispute.
HIGCs Jurisdiction
HIGC was created pursuant to Republic Act 580. Originally,
administrative supervision over homeowners associations was vested
by law in the Securities and Exchange Commission (SEC).
Pursuant to Executive Order (EO) No. 535, however, the HIGC assumed
the regulatory and adjudicative functions of the SEC over homeowners
associations. Explicitly vesting such powers in the HIGC is paragraph 2
of EO 535, which we quote hereunder:
2. In addition to the powers and functions vested under the Home
Financing Act, the Corporation, shall have among others, the following
additional powers:

(a) x x x; and exercise all the powers, authorities and responsibilities

that are vested in the Securities and Exchange Commission with
respect to home owners associations, the provision of Act 1459, as
amended by P.D. 902-A, to the contrary nothwithstanding;
(b) To regulate and supervise the activities and operations of all
houseowners associations registered in accordance therewith.
Moreover, by virtue of the aforequoted provision, the HIGC also
assumed the SECs original and exclusive jurisdiction to hear and
decide cases involving controversies arising from intra-corporate or
partnership relations.
In December 1994, the HIGC adopted the Revised Rules of Procedure in
the Hearing of Homeowners Disputes, pertinent portions of which are
reproduced below:
RULE II
Disputes Triable by HIGC/Nature of Proceedings
Section 1. Types of Disputes. The HIGC or any person, officer, body,
board or committee duly designated or created by it shall have
jurisdiction to hear and decide cases involving the following:
a) Devices or schemes employed by or any acts of the Board of
Directors or officers of the association amounting to fraud and
misrepresentation which may be detrimental to the interest of the
public and/or of the members of the association or the association
registered with HIGC
b) Controversies arising out of intra-corporate relations between and
among members of the association, between any or all of them and the
association of which they are members; and between such association
and the state/general public or other entity in so far as it concerns its
right to exist as a corporate entity.
xxx
xxx
x x x.
The aforesaid powers and responsibilities, which had been vested in
the HIGC with respect to homeowners associations, were later
transferred to the Housing and Land Use Regulatory Board (HLURB)
pursuant to Republic Act 8763.
Are Private Respondents SCHA Members?
In order to determine if the HIGC has jurisdiction over the dispute, it is
necessary to resolve preliminarily on the basis of the allegations in
the Complaint whether private respondents are members of the
SCHA.

Petitioners contend that because the Complaint arose from intracorporate relations between the SCHA and its members, the HIGC
therefore has no jurisdiction over the dispute. To support their
contention that private respondents are members of the association,
petitioners cite the SCHAs Articles of Incorporation and By-laws which
provide that all landowners of the Sta. Clara Subdivision are
automatically members of the SCHA.
We are not persuaded. The constitutionally guaranteed freedom of
association includes the freedom not to associate. The right to choose
with whom one will associate oneself is the very foundation and
essence of that partnership. It should be noted that the provision
guarantees the right to form an association. It does not include the
right to compel others to form or join one.
More to the point, private respondents cannot be compelled to become
members of the SCHA by the simple expedient of including them in its
Articles of Incorporation and By-laws without their express or implied
consent. True, it may be to the mutual advantage of lot owners in a
subdivision to band themselves together to promote their common
welfare.But that is possible only if the owners voluntarily agree,
directly or indirectly, to become members of the association. True also,
memberships in homeowners associations may be acquired in various
ways often through deeds of sale, Torrens certificates or other forms
of evidence of property ownership. In the present case, however, other
than the said Articles of Incorporation and By-laws, there is no showing
that private respondents have agreed to be SCHA members.
As correctly observed by the CA:
x x x. The approval by the SEC of the said documents is not an
operative act which bestows membership on the private respondents
because the right to associate partakes of the nature of freedom of
contract which can be exercised by and between the homeowners
amongst themselves, the homeowners association and a homeowner,
and the subdivision owner and a homeowner/lot buyer x x x.
No Privity of Contract

Clearly then, no privity of contract exists between petitioners and

private respondents. As a general rule, a contract is a meeting of
minds between two persons. The Civil Code upholds the spirit over the
form; thus, it deems an agreement to exist, provided the essential
requisites are present. A contract is upheld as long as there is proof of
consent, subject matter and cause. Moreover, it is generally obligatory
in whatever form it may have been entered into. From the moment
there is a meeting of minds between the parties, it is perfected.
As already adverted to, there are cases in which a party who enters
into a contract of sale is also bound by a lien annotated on the
certificate of title. We recognized this in Bel Air Village Association,
Inc. v. Dionisio, in which we ruled:
There is no dispute that Transfer Certificate of Title No. 81136
covering the subject parcel of land issued in the name of the petitioner
contains an annotation to the effect that the lot owner becomes an
automatic member of the respondent Bel-Air Association and must
abide by such rules and regulations laid down by the Association in the
interest of the sanitation, security and the general welfare of the
community. It is likewise not disputed that the provision on automatic
membership was expressly annotated on the petitioners Transfer
Certificate of Title and on the title of his predecessor-in-interest.
The question, therefore, boils down to whether or not the petitioner is
bound by such annotation.
Section 39 of Art. 496 (The Land Registration Act) states:
Sec. 39. Every person receiving a certificate of title in pursuance of a
decree of registration, and every subsequent purchaser of registered
land who takes a certificate of title for value in good faith shall hold
the same free of all encumbrances except those noted on said
certificate x x x. (Italics supplied)
The above ruling, however, does not apply to the case at bar. When
private respondents purchased their property in 1974 and obtained
Transfer Certificates of Title Nos. T-126542 and T-127462 for Lots 11
and 12 of Block 37 along San Jose Avenue in Sta. Clara Subdivision,
there was no annotation showing their automatic membership in the
SCHA.
Thus, no privity of contract arising from the title certificate exists
between petitioners and private respondents.

Further, the records are bereft of any evidence that would indicate that
private respondents intended to become members of the SCHA. Prior
to the implementation of the aforesaid Resolution, they and the other
homeowners who were not members of the association were issued
non-member gate pass stickers for their vehicles. This fact has not
been disputed by petitioners. Thus, the SCHA recognized that there
were subdivision landowners who were not members thereof,
notwithstanding the provisions of its Articles of Incorporation and Bylaws.
Jurisdiction Determined by Allegations in the Complaint
It is a settled rule that jurisdiction over the subject matter is
determined by the allegations in the complaint. Jurisdiction is not
affected by the pleas or the theories set up by the defendant in an
answer or a motion to dismiss. Otherwise, jurisdiction would become
dependent almost entirely upon the whims of the defendant.
The Complaint does not allege that private respondents are members
of the SCHA. In point of fact, they deny such membership. Thus, the
HIGC has no jurisdiction over the dispute.
Petitioners likewise contend that even if private respondents are not
members of the SCHA, an intra-corporate controversy under the third
type of dispute provided in Section 1(b) of Rule II of the HIGC Rules
exists. Petitioners posit that private respondents fall within the
meaning of general public. We are not convinced.
First, the third type of dispute refers only to cases wherein an
associations right to exist as a corporate entity is at issue. In the
present case, the Complaint filed by private respondents refers to the
SCHAs acts allegedly amounting to an impairment of their free access
to their place of residence inside the Sta. Clara Subdivision. The
existence of SCHA as a corporate entity is clearly not at issue in the
instant case.
Second, in United BF Homeowners Association v. BF Homes, Inc., we
held that Section 1(b), Rule II of HIGCs Revised Rules of Procedure in
the Hearing of Homeowners Disputes was void. The HIGC went
beyond its lawful authority provided by law when it promulgated its
revised rules of procedure. There was a clear attempt to unduly
expand the provisions of Presidential Decree 902-A. As provided by the
law, it is only the State not the general public or other entity
that can question an associations franchise or corporate existence.

To reiterate, the HIGC exercises limited jurisdiction over homeowners

disputes. The law confines its authority to controversies that arise
from any of the following intra-corporate relations: (1) between and
among members of the association; (2) between any and/or all of them
and the association of which they are members; and (3) between the
association and the state insofar as the controversy concerns its right
to exist as a corporate entity.
It should be stressed that the Complaint here is for damages. It does
not assert membership in the SCHA as its basis. Rather, it is based on
an alleged violation of their alleged right of access through the
subdivision and on the alleged embarrassment and humiliation
suffered by the plaintiffs.
Second Issue:Sufficiency of Cause of Action
Petitioners claim that the CA erred in not ordering the dismissal of the
Complaint for lack of cause of action. They argue that there was no
allegation therein that private respondents were actually prevented
from entering the subdivision and gaining access to their residential
abode.
This contention is untenable. A defendant moving to dismiss a
complaint on the ground of lack of cause of action is regarded as
having hypothetically admitted all the factual averments in the
complaint. The test of the sufficiency of the allegations constituting
the cause of action is whether, admitting the facts alleged, the court
can render a valid judgment on the prayers. This test implies that the
issue must be passed upon on the basis of the bare allegations in the
complaint. The court does not inquire into the truth of such allegations
and declare them to be false. To do so would constitute a procedural
error and a denial of the plaintiffs right to due process.
A complaint states a cause of action when it contains these three
essential elements: (1) the legal right of the plaintiff, (2) the
correlative obligation of the defendant, and (3) the act or omission of
the defendant in violation of the said legal right.

In the instant case, the records sufficiently establish a cause of action.

First, the Complaint alleged that, under the Constitution, respondents
had a right of free access to and from their residential abode. Second,
under the law, petitioners have the obligation to respect this right.
Third, such right was impaired by petitioners when private
respondents were refused access through the Sta. Clara Subdivision,
unless they showed their drivers license for identification.
Given these hypothetically admitted facts, the RTC, in the exercise of
its original and exclusive jurisdiction, could have rendered judgment
over the dispute.
We stress that, in rendering this Decision, this Court is not prejudging
the main issue of whether, in truth and in fact, private respondents are
entitled to a favorable decision by the RTC. That will be made only
after the proper proceedings therein. Later on, if it is proven during
the trial that they are indeed members of the SCHA, then the case may
be dismissed on the ground of lack of jurisdiction. We are merely
holding that, on the basis of the allegations in the Complaint, (1) the
RTC has jurisdiction over the controversy and (2) the Complaint
sufficiently alleges a cause of action. Therefore, it is not subject to
attack by a motion to dismiss on these grounds.
THIRD DIVISION, G.R. No. 141961 January 23, 2002, STA. CLARA
HOMEOWNERS ASSOCIATION thru its Board of Directors composed of
ARNEIL CHUA, LUIS SARROSA, JOCELYN GARCIA, MA. MILAGROS
VARGAS, LORENZO LACSON, ERNESTO PICCIO, DINDO ILAGAN, DANILO
GAMBOA JR. and RIZZA DE LA RAMA; SECURITY GUARD CAPILLO; JOHN
DOE; and SANTA CLARA ESTATE, INC., petitioners, vs.Spouses VICTOR
MA. GASTON and LYDIA GASTON, respondents.

An Acquittal In A Criminal Case

Is Final And Unappealable
January 11, 2015 by The Lawyer's Post

Justin, Alberts son, for violation of disciplinary probation, was ordered

dismissed by the Reedley International School. RIS reconsidered its
decision upon request of Albert, but disallowed him from participating
on the graduation ceremonies, thus Albert filed a complaint with the
Department of Education, which found the code violation point system
implemented by the school null and void. Consequently, Justin was
allowed to graduate. After the graduation ceremonies, Albert met
Bernice, a fellow RIS parent. He intimated to Bernice his intention of
filing civil cases against the officers of RIS, including Jerome, the
assistant headmaster. Bernice then relayed the conversation to
Jerome, who, before he hung up, told Bernice Okay you too take care
and be careful talking to [Tan], hes dangerous. Bernice also relayed
what Jerome said to Albert. Feeling insulted, Albert filed a case for
grave oral defamation against Jerome before the Office of the City
Prosecutor of Mandaluyong City on August 21, 2003. After trial, the
Metropolitan Trial Court convicted Jerome for grave oral defamation,
hence he appealed his conviction to the Regional Trial Court. While
affirming the factual findings of the lower court, however, in view of
the animosity between Jerome and Albert, it ruled that Jerome can only
be convicted for slight physical injuries. Since the case was filed only
on August 21, 2003 or five months after discovery, prescription had
already set in, thus Jerome was acquitted on the criminal case.
Because of this the Office of the Solicitor General filed a petition for
certiorari with the Court of Appeals, which the latter granted, holding
that the RTC gravely abused its discretion when it misapprehended the
totality of the situation and found Jerome liable only for slight oral
defamation. Aggrieved by the turn of events, Jerome filed a petition for
review on certiorari with the Supreme Court.
The Supreme Court:
We grant the petition.
No person shall be twice put in jeopardy of punishment for the same
offense. This constitutional mandate is echoed in Section 7 of Rule 117
of the Rules of Court which provides:

Section 7. Former conviction or acquittal; double jeopardy. When an

accused has been convicted or acquitted or the case against him
dismissed or otherwise terminated without his express consent by a
court of competent jurisdiction, upon a valid complaint or in
information or other formal charge sufficient in form and substance to
sustain a conviction and after the accused had pleaded to the charge,
the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged or for any
attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.
xxx
xxx
xxx
Under this provision, double jeopardy occurs upon (1) a valid
indictment (2) before a competent court (3) after arraignment (4) when
a valid plea has been entered and (5) when the accused was acquitted
or convicted or the case was dismissed or otherwise terminated
without the express consent of the accused. Thus, an acquittal,
whether ordered by the trial or appellate court, is final and
unappealable on the ground of double jeopardy.
The only exception is when the trial court acted with grave abuse of
discretion or, as we held in Galman v. Sandiganbayan, when there was
mistrial. In such instances, the OSG can assail the said judgment in a
petition for certiorari establishing that the State was deprived of a fair
opportunity to prosecute and prove its case.[17]
The rationale behind this exception is that a judgment rendered by the
trial court with grave abuse of discretion was issued without
jurisdiction. It is, for this reason, void. Consequently, there is no
double jeopardy.
In this case, the OSG merely assailed the RTCs finding on the nature of
petitioners statement, that is, whether it constituted grave or slight
oral defamation. The OSG premised its allegation of grave abuse of
discretion on the RTCs erroneous evaluation and assessment of the
evidence presented by the parties.

What the OSG therefore questioned were errors of judgment (or those
involving misappreciation of evidence or errors of law). However, a
court, in a petition for certiorari, cannot review the public
respondents evaluation of the evidence and factual findings. Errors of
judgment cannot be raised in a Rule 65 petition as a writ of certiorari
can only correct errors of jurisdiction (or those involving the
commission of grave abuse of discretion).
Because the OSG did not raise errors of jurisdiction, the CA erred in
taking cognizance of its petition and, worse, in reviewing the factual
findings of the RTC. We therefore reinstate the RTC decision so as not
to offend the constitutional prohibition against double jeopardy.
At most, petitioner could have been liable for damages under Article 26
of the Civil Code
Article 26. Every person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons. The following
and similar acts, though they may not constitute a criminal offense,
shall produce a cause of action for damages, prevention and other
relief:
xxx
xxx
xxx
(3) Intriguing to cause another to be alienated from his friends;
xxx
xxx
xxx
Petitioner is reminded that, as an educator, he is supposed to be a role
model for the youth. As such, he should always act with justice, give
everyone his due and observe honesty and good faith.
WHEREFORE, the petition is hereby GRANTED. The August 29, 2007
decision and December 5, 2007 resolution of the Court of Appeals in
CA-G.R. SP No. 98649 are REVERSED and SET ASIDE. The November 20,
2006 decision of the Regional Trial Court of Mandaluyong City, Branch
212 is REINSTATED. Petitioner Jerome Castro is ACQUITTED of slight
oral defamation as defined and penalized in Article 358 of the Revised
Penal Code.
No pronouncement as to costs.
FIRST DIVISION, G.R. No. 180832, July 23, 2008, JEROME CASTRO,
PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
Like this:

Declaratory Relief: Malls May

Collect Parking Fees
January 8, 2015 by The Lawyer's Post

The Senate Committee on Trade and Commerce and on Justice and

Human Rights conducted a joint hearing on the issue of collection of
parking fees by several malls within Metro Manila, owned particularly
Ayala Land, Robinsons Land, Shangri-La, and SM Prime Holdings. After
the hearings, it published Joint Committee Report No. 225 which
declared that the collection of parking fees by the malls is illegal as it
violates the National Building Code. It recommended among others,
that the Office of the Solicitor General should institute the necessary
action to enjoin the collection of parking fees as well as enforce the
penal provision of the National Building Code. SM Prime received
information thereafter that the DPWH, and the local building officials
of different cities within Metro Manila intend to file thru the OSG an
action to enjoin respondent SM Prime and similar establishments from
collecting parking fees, and to impose upon said establishments penal
sanctions under Presidential Decree No. 1096, otherwise known as the
National Building Code of the Philippines (National Building Code), and
its Implementing Rules and Regulations (IRR). Thus, SM Prime filed a
petition for declaratory relief and injunction with prayer for temporary
restraining order to declare Rule XIX of the Implementing Rules and
Regulations of the National Building Code as ultra vires; and to declare
it as entitled to collection of parking fees, and also to declare the IRR
of the National Building Code as ineffective. The next day, the OSG also
filed its own petition for declaratory relief, to enjoin the companies
from collecting parking fees. The cases were consolidated into the sala
of Judge Marella. After trial, the RTC ruled in favour of the companies.
It declared OSG as a proper party to file the petition for declaratory
relief; that the cases all meet the requirements of a petition for
declaratory relief; and, that the companies are entitled to collect
parking fees. While the National Building Code provided for buildings
to have parking parking spaces, it did not say whether the same should
be free or paid. To compel the companies to provide free parking
spaces would be tantamount to deprivation of property without due
process of law. The OSG appealed the case to the Court of Appeals
which also denied it, hence this case before the Supreme Court.
The Supreme Court:
The OSG argues that respondents are mandated to provide free
parking by Section 803 of the National Building Code and Rule XIX of
the IRR.

According to Section 803 of the National Building Code:

SECTION 803. Percentage of Site Occupancy
(a) Maximum site occupancy shall be governed by the use, type of
construction, and height of the building and the use, area, nature, and
location of the site; and subject to the provisions of the local zoning
requirements and in accordance with the rules and regulations
promulgated by the Secretary.
In connection therewith, Rule XIX of the old IRR, provides:
RULE XIX PARKING AND LOADING SPACE REQUIREMENTS
Pursuant to Section 803 of the National Building Code (PD 1096)
providing for maximum site occupancy, the following provisions on
parking and loading space requirements shall be observed:
1. The parking space ratings listed below are minimum off-street
requirements for specific uses/occupancies for buildings/structures:
1.1 The size of an average automobile parking slot shall be computed
as 2.4 meters by 5.00 meters for perpendicular or diagonal parking,
2.00 meters by 6.00 meters for parallel parking. A truck or bus
parking/loading slot shall be computed at a minimum of 3.60 meters by
12.00 meters. The parking slot shall be drawn to scale and the total
number of which shall be indicated on the plans and specified whether
or not parking accommodations, are attendant-managed. (See Section
2 for computation of parking requirements).
xxxx
1.7 Neighborhood shopping center 1 slot/100 sq. m. of shopping floor
area
The OSG avers that the aforequoted provisions should be read
together with Section 102 of the National Building Code, which
declares:
SECTION 102. Declaration of Policy
It is hereby declared to be the policy of the State to safeguard life,
health, property, and public welfare, consistent with the principles of
sound environmental management and control; and to this end, make
it the purpose of this Code to provide for all buildings and structures, a
framework of minimum standards and requirements to regulate and
control their location, site, design, quality of materials, construction,
use, occupancy, and maintenance.

The requirement of free-of-charge parking, the OSG argues, greatly

contributes to the aim of safeguarding life, health, property, and
public welfare, consistent with the principles of sound environmental
management and control. Adequate parking spaces would contribute
greatly to alleviating traffic congestion when complemented by quick
and easy access thereto because of free-charge parking. Moreover, the
power to regulate and control the use, occupancy, and maintenance of
buildings and structures carries with it the power to impose fees and,
conversely, to control partially or, as in this case, absolutely the
imposition of such fees.
The Court finds no merit in the present Petition.
The explicit directive of the afore-quoted statutory and regulatory
provisions, garnered from a plain reading thereof, is that respondents,
as operators/lessors of neighborhood shopping centers, should provide
parking and loading spaces, in accordance with the minimum ratio of
one slot per 100 square meters of shopping floor area. There is nothing
therein pertaining to the collection (or non-collection) of parking fees
by respondents. In fact, the term parking fees cannot even be found
at all in the entire National Building Code and its IRR.
Statutory construction has it that if a statute is clear and unequivocal,
it must be given its literal meaning and applied without any attempt at
interpretation. Since Section 803 of the National Building Code and
Rule XIX of its IRR do not mention parking fees, then simply, said
provisions do not regulate the collection of the same. The RTC and the
Court of Appeals correctly applied Article 1158 of the New Civil Code,
which states:
Art. 1158. Obligations derived from law are not presumed. Only those
expressly determined in this Code or in special laws are demandable,
and shall be regulated by the precepts of the law which establishes
them; and as to what has not been foreseen, by the provisions of this
Book. (Emphasis ours.)
Hence, in order to bring the matter of parking fees within the ambit of
the National Building Code and its IRR, the OSG had to resort to
specious and feeble argumentation, in which the Court cannot concur.

The OSG cannot rely on Section 102 of the National Building Code to
expand the coverage of Section 803 of the same Code and Rule XIX of
the IRR, so as to include the regulation of parking fees. The OSG limits
its citation to the first part of Section 102 of the National Building
Code declaring the policy of the State to safeguard life, health,
property, and public welfare, consistent with the principles of sound
environmental management and control; but totally ignores the
second part of said provision, which reads, and to this end, make it
the purpose of this Code to provide for all buildings and structures, a
framework of minimum standards and requirements to regulate and
control their location, site, design, quality of materials, construction,
use, occupancy, and maintenance. While the first part of Section 102
of the National Building Code lays down the State policy, it is the
second part thereof that explains how said policy shall be carried out
in the Code. Section 102 of the National Building Code is not an allencompassing grant of regulatory power to the DPWH Secretary and
local building officials in the name of life, health, property, and public
welfare. On the contrary, it limits the regulatory power of said officials
to ensuring that the minimum standards and requirements for all
buildings and structures, as set forth in the National Building Code, are
complied with.
Consequently, the OSG cannot claim that in addition to fixing the
minimum requirements for parking spaces for buildings, Rule XIX of
the IRR also mandates that such parking spaces be provided by
building owners free of charge. If Rule XIX is not covered by the
enabling law, then it cannot be added to or included in the
implementing rules. The rule-making power of administrative agencies
must be confined to details for regulating the mode or proceedings to
carry into effect the law as it has been enacted, and it cannot be
extended to amend or expand the statutory requirements or to
embrace matters not covered by the statute. Administrative
regulations must always be in harmony with the provisions of the law
because any resulting discrepancy between the two will always be
resolved in favor of the basic law.

From the RTC all the way to this Court, the OSG repeatedly referred
to Republic v. Gonzales and City of Ozamis v. Lumapas to support its
position that the State has the power to regulate parking spaces to
promote the health, safety, and welfare of the public; and it is by
virtue of said power that respondents may be required to provide free
parking facilities. The OSG, though, failed to consider the substantial
differences in the factual and legal backgrounds of these two cases
from those of the Petition at bar.
In Republic, the Municipality of Malabon sought to eject the occupants
of two parcels of land of the public domain to give way to a roadwidening project. It was in this context that the Court pronounced:
Indiscriminate parking along F. Sevilla Boulevard and other main
thoroughfares was prevalent; this, of course, caused the build up of
traffic in the surrounding area to the great discomfort and
inconvenience of the public who use the streets. Traffic congestion
constitutes a threat to the health, welfare, safety and convenience of
the people and it can only be substantially relieved by widening
streets and providing adequate parking areas.
The Court, in City of Ozamis, declared that the City had been clothed
with full power to control and regulate its streets for the purpose of
promoting public health, safety and welfare. The City can regulate the
time, place, and manner of parking in the streets and public places;
and charge minimal fees for the street parking to cover the expenses
for supervision, inspection and control, to ensure the smooth flow of
traffic in the environs of the public market, and for the safety and
convenience of the public.
Republic and City of Ozamis involved parking in the local streets; in
contrast, the present case deals with privately owned parking facilities
available for use by the general public. In Republic and City of Ozamis,
the concerned local governments regulated parking pursuant to their
power to control and regulate their streets; in the instant case, the
DPWH Secretary and local building officials regulate parking pursuant
to their authority to ensure compliance with the minimum standards
and requirements under the National Building Code and its IRR. With
the difference in subject matters and the bases for the regulatory
powers being invoked, Republic and City of Ozamis do not constitute
precedents for this case.

Indeed, Republic and City of Ozamis both contain pronouncements that

weaken the position of the OSG in the case at bar. In Republic, the
Court, instead of placing the burden on private persons to provide
parking facilities to the general public, mentioned the trend in other
jurisdictions wherein the municipal governments themselves took the
initiative to make more parking spaces available so as to alleviate the
traffic problems, thus:
Under the Land Transportation and Traffic Code, parking in designated
areas along public streets or highways is allowed which clearly
indicates that provision for parking spaces serves a useful purpose. In
other jurisdictions where traffic is at least as voluminous as here, the
provision by municipal governments of parking space is not limited to
parking along public streets or highways. There has been a marked
trend to build off-street parking facilities with the view to removing
parked cars from the streets. While the provision of off-street parking
facilities or carparks has been commonly undertaken by private
enterprise, municipal governments have been constrained to put up
carparks in response to public necessity where private enterprise had
failed to keep up with the growing public demand. American courts
have upheld the right of municipal governments to construct off-street
parking facilities as clearly redounding to the public benefit.
In City of Ozamis, the Court authorized the collection by the City of
minimal fees for the parking of vehicles along the streets: so why then
should the Court now preclude respondents from collecting from the
public a fee for the use of the mall parking facilities? Undoubtedly,
respondents also incur expenses in the maintenance and operation of
the mall parking facilities, such as electric consumption, compensation
for parking attendants and security, and upkeep of the physical
structures.

It is not sufficient for the OSG to claim that the power to regulate and
control the use, occupancy, and maintenance of buildings and
structures carries with it the power to impose fees and, conversely, to
control, partially or, as in this case, absolutely, the imposition of such
fees. Firstly, the fees within the power of regulatory agencies to
impose are regulatory fees. It has been settled law in this jurisdiction
that this broad and all-compassing governmental competence to
restrict rights of liberty and property carries with it the undeniable
power to collect a regulatory fee. It looks to the enactment of specific
measures that govern the relations not only as between individuals but
also as between private parties and the political society. True, if the
regulatory agencies have the power to impose regulatory fees, then
conversely, they also have the power to remove the same. Even so, it is
worthy to note that the present case does not involve the imposition
by the DPWH Secretary and local building officials of regulatory fees
upon respondents; but the collection by respondents of parking fees
from persons who use the mall parking facilities. Secondly, assuming
arguendo that the DPWH Secretary and local building officials do have
regulatory powers over the collection of parking fees for the use of
privately owned parking facilities, they cannot allow or prohibit such
collection arbitrarily or whimsically. Whether allowing or prohibiting
the collection of such parking fees, the action of the DPWH Secretary
and local building officials must pass the test of classic reasonableness
and propriety of the measures or means in the promotion of the ends
sought to be accomplished.

Keeping in mind the aforementioned test of reasonableness and

propriety of measures or means, the Court notes that Section 803 of
the National Building Code falls under Chapter 8 on Light and
Ventilation. Evidently, the Code deems it necessary to regulate site
occupancy to ensure that there is proper lighting and ventilation in
every building. Pursuant thereto, Rule XIX of the IRR requires that a
building, depending on its specific use and/or floor area, should
provide a minimum number of parking spaces. The Court, however,
fails to see the connection between regulating site occupancy to
ensure proper light and ventilation in every building vis--vis
regulating the collection by building owners of fees for the use of their
parking spaces. Contrary to the averment of the OSG, the former does
not necessarily include or imply the latter. It totally escapes this Court
how lighting and ventilation conditions at the malls could be affected
by the fact that parking facilities thereat are free or paid for.
The OSG attempts to provide the missing link by arguing that:
Under Section 803 of the National Building Code, complimentary
parking spaces are required to enhance light and ventilation, that is, to
avoid traffic congestion in areas surrounding the building, which
certainly affects the ventilation within the building itself, which
otherwise, the annexed parking spaces would have served. Free-ofcharge parking avoids traffic congestion by ensuring quick and easy
access of legitimate shoppers to off-street parking spaces annexed to
the malls, and thereby removing the vehicles of these legitimate
shoppers off the busy streets near the commercial establishments.[33]

The Court is unconvinced. The National Building Code regulates

buildings, by setting the minimum specifications and requirements for
the same. It does not concern itself with traffic congestion in areas
surrounding the building. It is already a stretch to say that the
National Building Code and its IRR also intend to solve the problem of
traffic congestion around the buildings so as to ensure that the said
buildings shall have adequate lighting and ventilation. Moreover, the
Court cannot simply assume, as the OSG has apparently done, that the
traffic congestion in areas around the malls is due to the fact that
respondents charge for their parking facilities, thus, forcing vehicle
owners to just park in the streets. The Court notes that despite the
fees charged by respondents, vehicle owners still use the mall parking
facilities, which are even fully occupied on some days. Vehicle owners
may be parking in the streets only because there are not enough
parking spaces in the malls, and not because they are deterred by the
parking fees charged by respondents. Free parking spaces at the malls
may even have the opposite effect from what the OSG envisioned:
more people may be encouraged by the free parking to bring their own
vehicles, instead of taking public transport, to the malls; as a result,
the parking facilities would become full sooner, leaving more vehicles
without parking spaces in the malls and parked in the streets instead,
causing even more traffic congestion.
Without using the term outright, the OSG is actually invoking police
power to justify the regulation by the State, through the DPWH
Secretary and local building officials, of privately owned parking
facilities, including the collection by the owners/operators of such
facilities of parking fees from the public for the use thereof. The Court
finds, however, that in totally prohibiting respondents from collecting
parking fees from the public for the use of the mall parking facilities,
the State would be acting beyond the bounds of police power.

Police power is the power of promoting the public welfare by

restraining and regulating the use of liberty and property. It is usually
exerted in order to merely regulate the use and enjoyment of the
property of the owner. The power to regulate, however, does not
include the power to prohibit. A fortiori, the power to regulate does
not include the power to confiscate. Police power does not involve the
taking or confiscation of property, with the exception of a few cases
where there is a necessity to confiscate private property in order to
destroy it for the purpose of protecting peace and order and of
promoting the general welfare; for instance, the confiscation of an
illegally possessed article, such as opium and firearms.
When there is a taking or confiscation of private property for public
use, the State is no longer exercising police power, but another of its
inherent powe1rs, namely, eminent domain. Eminent domain enables
the State to forcibly acquire private lands intended for public use upon
payment of just compensation to the owner.
Normally, of course, the power of eminent domain results in the taking
or appropriation of title to, and possession of, the expropriated
property; but no cogent reason appears why the said power may not
be availed of only to impose a burden upon the owner of condemned
property, without loss of title and possession. It is a settled rule that
neither acquisition of title nor total destruction of value is essential to
taking. It is usually in cases where title remains with the private owner
that inquiry should be made to determine whether the impairment of a
property is merely regulated or amounts to a compensable taking. A
regulation that deprives any person of the profitable use of his
property constitutes a taking and entitles him to compensation, unless
the invasion of rights is so slight as to permit the regulation to be
justified under the police power. Similarly, a police regulation that
unreasonably restricts the right to use business property for business
purposes amounts to a taking of private property, and the owner may
recover therefor.

Although in the present case, title to and/or possession of the parking

facilities remain/s with respondents, the prohibition against their
collection of parking fees from the public, for the use of said facilities,
is already tantamount to a taking or confiscation of their properties.
The State is not only requiring that respondents devote a portion of
the latters properties for use as parking spaces, but is also mandating
that they give the public access to said parking spaces for free. Such is
already an excessive intrusion into the property rights of respondents.
Not only are they being deprived of the right to use a portion of their
properties as they wish, they are further prohibited from profiting from
its use or even just recovering therefrom the expenses for the
maintenance and operation of the required parking facilities.
The ruling of this Court in City Government of Quezon City v. Judge
Ericta is edifying. Therein, the City Government of Quezon City passed
an ordinance obliging private cemeteries within its jurisdiction to set
aside at least six percent of their total area for charity, that is, for
burial grounds of deceased paupers. According to the Court, the
ordinance in question was null and void, for it authorized the taking of
private property without just compensation:
There is no reasonable relation between the setting aside of at least
six (6) percent of the total area of all private cemeteries for charity
burial grounds of deceased paupers and the promotion of health,
morals, good order, safety, or the general welfare of the people. The
ordinance is actually a taking without compensation of a certain area
from a private cemetery to benefit paupers who are charges of the
municipal corporation. Instead of building or maintaining a public
cemetery for this purpose, the city passes the burden to private
cemeteries.

The expropriation without compensation of a portion of private

cemeteries is not covered by Section 12(t) of Republic Act 537, the
Revised Charter of Quezon City which empowers the city council to
prohibit the burial of the dead within the center of population of the
city and to provide for their burial in a proper place subject to the
provisions of general law regulating burial grounds and cemeteries.
When the Local Government Code, Batas Pambansa Blg. 337 provides
in Section 177(q) that a sangguniang panlungsod may provide for the
burial of the dead in such place and in such manner as prescribed by
law or ordinance it simply authorizes the city to provide its own city
owned land or to buy or expropriate private properties to construct
public cemeteries. This has been the law, and practise in the past. It
continues to the present. Expropriation, however, requires payment of
just compensation. The questioned ordinance is different from laws
and regulations requiring owners of subdivisions to set aside certain
areas for streets, parks, playgrounds, and other public facilities from
the land they sell to buyers of subdivision lots. The necessities of
public safety, health, and convenience are very clear from said
requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the
subdivision developer when individual lots are sold to homeowners.
In conclusion, the total prohibition against the collection by
respondents of parking fees from persons who use the mall parking
facilities has no basis in the National Building Code or its IRR. The
State also cannot impose the same prohibition by generally invoking
police power, since said prohibition amounts to a taking of
respondents property without payment of just compensation.
Given the foregoing, the Court finds no more need to address the issue
persistently raised by respondent SM Prime concerning the
unconstitutionality of Rule XIX of the IRR. In addition, the said issue
was not among those that the parties, during the pre-trial conference
for Civil Cases No. 12-08 and No. 00-1210, agreed to submit for
resolution of the RTC. It is likewise axiomatic that the constitutionality
of a law, a regulation, an ordinance or an act will not be resolved by
courts if the controversy can be, as in this case it has been, settled on
other grounds.

THIRD DIVISION, G.R. No. 177056, September 18, 2009, THE OFFICE OF
THE SOLICITOR GENERAL, PETITIONER, VS. AYALA LAND
INCORPORATED, ROBINSONS LAND CORPORATION, SHANGRI-LA PLAZA
CORPORATION AND SM PRIME HOLDINGS, INC.,

Right To Education Is Not

Absolute; Dean Has Discretion
To Disapprove Thesis
Committee
January 3, 2015 by The Lawyer's Post

Flord, Micah, Jose Marie and Che Che enrolled in the Master of Sciences in
Fisheries Biology at UP Visayas. After competing their first year of study with
good grades, they enrolled in the thesis program, drafted their tentative thesis
titles and obtained the consent of Dr. Rex to be their thesis adviser, as well as
the consent of other faculty members to constitute their respective thesis
committees. They then enclosed these details in letter they sent to Dean Carlos
Baylon, asking for approval of their thesis committees. Upon receipt of the
letter, however, Dean Baylon submitted a series of memos to Professor Roman
Sanares questioning the propriety of the thesis topics with the graduate proram.
He disapproved the composition of the thesis committees and their tentative
thesis topics; according to him, the topics connote a historical and social
dimension which is not appropriate for the students chosen graduate degrees.
He also directed the students to submit a two-page proposal containing an
outline of their tentative thesis and that he is forming an ad hoc committee to
take over the role of the advises and thesis committees. Aggrieved, the students
filed a petition for certiorari and mandamus with the RTC, to compel Dean
Baylon to approve their thesis committees and their thesis titles, which the RTC
granted but Dean Baylon refused to follow. The UP Visayas also filed a petition
for certiorari with prayer for TRO against the RTC order, which the Court of
Appeals granted, hence the students went to the Supreme Court. In their
separate petitions, Flord argues that the CA decisions should be set aside,
because his right to education, to due process and equal protection of the law

were violated. Only students who chose Dr. Rex, like him, were singled out for
disapproval while others were not; secondly, a reading of Executive Order No.
628, s. 1980, and Republic Act No. 9500 shows that the college deans functions
are merely administrative, and, hence, the CA erred in its construction of Article
51 of the Graduate Program Manual of UP Visayas, as well as its proclamation
that the college dean has supervisory authority over academic matters in the
college. The other petitioners harped on the alleged lack of authority of the
Dean to disapprove their thesis manuals, and his arbitrary exercise of it by
changing the thesis topics on the subterfuge of academic freedom; lastly, the
students have the right to choose the topics, not the dean.
The Supreme Court:
To be entitled to a writ of preliminary injunction, x x x the petitioners must
establish the following requisites: (a) the invasion of the right sought to be
protected is material and substantial; (b) the right of the complainant is clear
and unmistakable; and (c) there is an urgent and permanent necessity for the
writ to prevent serious damage. Since a preliminary mandatory injunction
commands the performance of an act, it does not preserve the status quo and is
thus more cautiously regarded than a mere prohibitive injunction. Accordingly,
the issuance of a writ of preliminary mandatory injunction [presents a fourth
requirement: it] is justified only in a clear case, free from doubt or dispute. When
the complainants right is thus doubtful or disputed, he does not have a clear
legal right and, therefore, the issuance of injunctive relief is improper.
The CA did not err in ruling that the petitioners failed to show a clear and
unmistakable right that needs the protection of a preliminary mandatory
injunction. We support the CAs conclusion that the dean has the discretion to
approve or disapprove the composition of a thesis committee, and, hence, the
petitioners had no right for an automatic approval and composition of their
thesis committees.
Calawags citation of Executive Order No. 628, s. 1980 and Republic Act No.
9500 to show that the dean of a college exercises only administrative functions
and, hence, has no ascendancy over the colleges academic matters, has no
legal ground to stand on. Neither law provides or supports such conclusion, as
neither specifies the role and responsibilities of a college dean. The functions
and duties of a college dean are outlined in the universitys Faculty Manual,
which details the rules and regulations governing the universitys

administration. Section 11.8.2, paragraph b of the Faculty Manual enumerates

the powers and responsibilities of a college dean, which include the power to
approve the composition of a thesis committee, to wit:
11.8.2 Administration
xxxx
b. Dean/Director of UP System or UP Diliman-based Programs * The
Dean/Director shall be responsible for the planning and
implementation of the graduate programs. In particular, the Dean/Director shall
exercise the following powers and responsibilities based on the
recommendations forwarded to him/her, through channels:
xxxx
Approve the composition of the Thesis, Dissertation or Special Project**
Committees and Masters or doctoral examination/oral defense panel for each
student[.](emphases and italics ours)
By necessary implication, the deans power to approve includes the power to
disapprove the composition of a thesis committee. Thus, under the UP Systems
faculty manual, the dean has complete discretion in approving or disapproving
the composition of a thesis committee. Harmonizing this provision with the
Graduate Program Manual of UP Visayas, and the Guidelines for the Master of
Science in Fisheries Program, we agree with the CAs interpretation that the
thesis committees composition needs the approval of the dean after the
students have complied with the requisites provided in Article 51 of the
Graduate Program Manual and Section IX of the Guidelines for the Master of
Science in Fisheries Program.
Anent the petitioners argument that Dean Baylon acted arbitrarily in imposing
additional requirements for the composition of the thesis committee, which
according to Calawag violated their right to due process, we hold that the deans
authority to approve or disapprove the composition of a thesis committee
includes this discretion. We also note the CAs finding that these additional
requirements were meant to assist the petitioners in formulating a thesis title
that is in line with the colleges master of fisheries program. Absent any finding

of grave abuse of discretion, we cannot interfere with the exercise of the deans
prerogative without encroaching on the colleges academic freedom.
Verily, the academic freedom accorded to institutions of higher learning gives
them the right to decide for themselves their aims and objectives and how best
to attain them. They are given the exclusive discretion to determine who can
and cannot study in them, as well as to whom they can confer the honor and
distinction of being their graduates.
This necessarily includes the prerogative to establish requirements for
graduation, such as the completion of a thesis, and the manner by which this
shall be accomplished by their students. The courts may not interfere with their
exercise of discretion unless there is a clear showing that they have arbitrarily
and capriciously exercised their judgment.
Lastly, the right to education invoked by Calawag cannot be made the basis for
issuing a writ of preliminary mandatory injunction. In Department of Education,
Culture and Sports v. San Diego, we held that the right to education is not
absolute. Section 5(e), Article XIV of the Constitution provides that [e]very
citizen has a right to select a profession or course of study, subject to fair,
reasonable, and equitable admission and academic requirements. The thesis
requirement and the compliance with the procedures leading to it, are part of
the reasonable academic requirements a person desiring to complete a course
of study would have to comply with.
SECOND DIVISION, G.R. No. 207412, August 07, 2013, FLORD NICSON CALAWAG,
PETITIONER, VS. UNIVERSITY OF THE PHILIPPINES VISAYAS AND DEAN CARLOS C.
BAYLON, RESPONDENTS.[G.R. No. 207542]MICAH P. ESPIA, JOSE MARIE F.
NASALGA AND CHE CHE B. SALCEPUEDES, PETITIONERS, VS. DR. CARLOS C. BA
YLON, DR. MINDA J. FORMACI ON AND DR. EMERLINDA ROMAN (TO BE
SUBSTITUTED BY ALFREDO E. PASCUAL, BEING THE NEW UP PRESIDENT),
UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS, RESPONDENTS.

Drunk Driving: Swerving By

Itself Is Not Indicative Of

Imprudent Behavior Let Alone

Constitutive Of Reckless
Driving
December 24, 2014 by The Lawyer's Post

Edmund was charged before the Metropolitan Trial Court of Manila with drunk
driving under the provisions of Section 56(f) of Republic Act 4136, and for
resisting arrest in violation of Article 151 of the Revised Penal Code. According to
the police officers who arrested him, they were conducting a checkpoint along
Roxas Avenue corner Quirino Avenue when they spotted a swerving Ford Ranger
driven by Edmundo They thus flagged down the vehicle and asked the driver to
alight from the vehicle so he could take rest in the nearby police station.
Denying that he was drunk, Edmund insisted he could drive the vehicle, refused
to alight, and swore at the team leader, P/Insp. Aguilar. The latter pointed out to
Edmund that they have seen him swerve and drive under the influence of liquor,
arrested him, but Edmund put up a resistance, which was futile as he was
eventually subdued. He was brought to the Ospital ng Maynila which conducted
a medical examination on him and issued a medical certificate stating he was
positive for alcoholic breath. On the other hand, Edmund denied the accusation
against him. He stated that on that early morning, he had just come from his
restaurant in Macapagal Ave., together with his cook Josie and waiter Joenilo
when they came upon the police checkpoint. The police officers ordered him
open his door alight from the vehicle to be subjected to bodily search. He
refused, insisting on plain view only search, which irked the team leader,
P/Insp. Aguilar, who then hit him and accused him of drunk driving, pointing to
the empty cases of beer in his vehicle. Edmund insisted on being sober pointing
out that the bottles came from his restaurant. The team leader then boxed him
on the mouth and pointed a gun at his head and arrested him. They brought him
to the Ospital ng Maynila where he refused to be examined and no alcoholic
breath was conducted on him; however, they still succeeded in securing a
medical certificate attesting that he was positive for alcoholic breath. For this,
he filed charges against the police officers as well as the doctor who issued the
medical certificate. He was detained at the police station, but before his release,
he was able to secure a medical certificate that he sustained physical injuries

and that he was negative for alcoholic breath. After trial, the MTC convicted him
as charged, which were affirmed by the Regional Trial Court and the Court of
Appeals. In his appeal to the Supreme Court, Edmund averred that the lower
courts should not have upheld the presumption of regularity in the performance
of official duty by the police officers in his case, and the medical certificate
should not have been given probative weight as the doctor who prepared it did
not testify before the court.
The Supreme Court:
In the case at bar, the men manning the checkpoint in the subject area and
during the period material appeared not to have performed their duties as
required by law, or at least fell short of the norm expected of peace officers.
They spotted the petitioners purported swerving vehicle. They then signaled
him to stop which he obeyed. But they did not demand the presentation of the
drivers license or issue any ticket or similar citation paper for traffic violation as
required under the particular premises by Sec. 29 of RA 4136, which specifically
provides:
SECTION 29. Confiscation of Drivers License. Law enforcement and peace
officers of other agencies duly deputized by the Director shall, in apprehending a
driver for any violation of this Act or any regulations issued pursuant thereto, or
of local traffic rules and regulations x x x confiscate the license of the driver
concerned and issue a receipt prescribed and issued by the Bureau therefor
which shall authorize the driver to operate a motor vehicle for a period not
exceeding seventy-two hours from the time and date of issue of said receipt.
The period so fixed in the receipt shall not be extended, and shall become
invalid thereafter, x x x (Emphasis added.)
Instead of requiring the vehicles occupants to answer one or two routinary
questions out of respect to what the Court has, inAbenes v. Court of Appeals,
adverted to as the motorists right of free passage without [intrusive]
interruption, P/Insp. Aguilar, et al. engaged petitioner in what appears to be an
unnecessary conversation and when utterances were made doubtless not to
their liking, they ordered the latter to step out of the vehicle, concluding after
seeing three (3) empty cases of beer at the trunk of the vehicle that petitioner
was driving under the influence of alcohol. Then petitioner went on with his
plain view search line. The remark apparently pissed the police officers off no
end as one of them immediately lashed at petitioner and his companions as

mga lasing (drunk) and to get out of the vehicle, an incongruous response to
an otherwise reasonable plea. Defense witness, Joenilo Pano, graphically
described this particular event in his sinumpaang salaysay, as follows:
xxx matapos kami huminto ay naglapitan sa amin ang mga pulis, nag flash light
sa loob ng sasakyan at sa aming mga mukha.
xxx isang pulis ang nag-utos sa amin na kami ay magsi-baba at buksan ang
pintuan ng nasabing sasakyan.
xxx dahil doon sinabi ni Kuya sa mga pulis, na hindi pwede iyon at pinigilan niya
ako at ang aking kasama kong waitress na bumaba.
xxx iginiit ni Kuya sa mga pulis ang salitang PLAIN VIEW LANG BOSS, PLAIN
VIEW LANG pero iyon ay hindi nila pinansin. Sa halip as isang pulis ang nagsabi
na MGA LASING KAYO HETO MAY CASE PA KAYO NG BEER.
xxx habang nagpapaliwanag si Kuya, isang pulis ang biglang kumuha ng susi ng
sasakyan habang ang isang pulis ang biglang sumuntok sa bibig ni Kuya,
nagbunot ng baril at tinutukan sa ulo si Kuya.
xxx dahil doon ay nagmakaawa ako na wag barilin si Kuya subalit ako rin ay
tinutukan ng baril.
x x x na matapos suntukin si Kuya ay pinagtulungan siya ng mga pulis na ilabas
sa sasakyan at nang mailabas siya ay pinagtulakan siya ng mga pulis sa gilid ng
kalsada habang hawak ang kanilang baril.
Panos above account ironically finds in a way collaboration from the arresting
officers themselves who admitted that they originally had no intention to search
the vehicle in question nor subject its occupants to a body search. The officers
wrote in their aforementioned joint affidavit:
xxxx
That we arrested the suspect, Edmund Sydeco y Siozon x x x for violation of RA
4136 (Driving under the influence of liquor), and violation of Article 151 of the
RPC (Resisting Arrest) x x x committed on or about 3:30A.M., June 11, 2006
along x x x Malate, Manila, x x x He began to raise his voice and converse with
us rudely without considering that we are in uniform, on duty and performing

our job. P/INSP Manuel Aguilar pointed out that we saw him swerving and driving
under the influence of liquor that was why we are inviting him to our police
station in which our intention was to make him rest for a moment before he
continue to drive, x x x (Emphasis added.)
In fine, at the time of his apprehension, or when he was signaled to stop, to be
precise, petitioner has not committed any crime or suspected of having
committed one. Swerving, as ordinarily understood, refers to a movement
wherein a vehicle shifts from a lane to another or to turn aside from a direct
course of action or movement. The act may become punishable when there is a
sign indicating that swerving is prohibited or where swerving partakes the
nature of reckless driving, a concept defined under RA 4136, as:
SECTION 48. Reckless Driving. No person shall operate a motor vehicle on any
highway recklessly or without reasonable caution considering the width, traffic,
grades, crossing, curvatures, visibility and other conditions of the highway and
the conditions of the atmosphere and weather, or so as to endanger the
property or the safety or rights of any person or so as to cause excessive or
unreasonable damage to the highway.
Swerving is not necessarily indicative of imprudent behavior let alone
constitutive of reckless driving. To constitute the offense of reckless driving, the
act must be something more than a mere negligence in the operation of a motor
vehicle, and a willful and wanton disregard of the consequences is required.
Nothing in the records indicate that the area was a no swerving or overtaking
zone. Moreover, the swerving incident, if this be the case, occurred at around
3:00 a.m. when the streets are usually clear of moving vehicles and human
traffic, and the danger to life, limb and property to third persons is minimal.
When the police officers stopped the petitioners car, they did not issue any
ticket for swerving as required under Section 29 of RA 4136. Instead, they
inspected the vehicle, ordered the petitioner and his companions to step down
of their pick up and concluded that the petitioner was then drunk mainly
because of the cases of beer found at the trunk of the vehicle.
xxx
Going over the records, it is fairly clear that what triggered the confrontational
stand-off between the police team, on one hand, and petitioner on the other,
was the latters refusal to get off of the vehicle for a body and vehicle search

juxtaposed by his insistence on a plain view search only. Petitioners twin

gestures cannot plausibly be considered as resisting a lawful orders. He may
have sounded boorish or spoken crudely at that time, but none of this would
make him a criminal. It remains to stress that the petitioner has not, when
flagged down, committed a crime or performed an overt act warranting a
reasonable inference of criminal activity. He did not try to avoid the road block
established. He came to a full stop when so required to stop. The two key
elements of resistance and serious disobedience punished under Art. 151 of the
RPC are: (1) That a person in authority or his agent is engaged in the
performance of official duty or gives a lawful order to the offender; and (2) That
the offender resists or seriously disobeys such person or his agent.
There can be no quibble that P/Insp. Aguilar and his apprehending team are
persons in authority or agents of a person in authority manning a legal
checkpoint. But surely petitioners act of exercising ones right against
unreasonable searches to be conducted in the middle of the night cannot, in
context, be equated to disobedience let alone resisting a lawful order in
contemplation of Art. 151 of the RPC. As has often been said, albeit expressed
differently and under dissimilar circumstances, the vitality of democracy lies not
in the rights it guarantees, but in the courage of the people to assert and use
them whenever they are ignored or worse infringed. Moreover, there is, to
stress, nothing in RA 4136 that authorized the checkpoint-manning policemen to
order petitioner and his companions to get out of the vehicle for a vehicle and
body search. And it bears to emphasize that there was no reasonable suspicion
of the occurrence of a crime that would allow what jurisprudence refers to as a
stop and frisk action. As SPO4 Bodino no less testified, the only reason why
they asked petitioner to get out of the vehicle was not because he has
committed a crime, but because of their intention to invite him to Station 9 so
he could rest before he resumes driving. But instead of a tactful invitation, the
apprehending officers, in an act indicative of overstepping of their duties,
dragged the petitioner out of the vehicle and, in the process of subduing him,
pointed a gun and punched him on the face. None of the police officers, to note,
categorically denied the petitioners allegation about being physically hurt
before being brought to the Ospital ng Maynila to be tested for intoxication.
What the policemen claimed was that it took the three (3) of them to subdue the
fifty-five year old petitioner. Both actions were done in excess of their authority
granted under RA 4136. They relied on the medical certificate issued by Dr.
Balucating attesting that petitioner showed no physical injuries. The medical

certificate was in fact challenged not only because the petitioner insisted at
every turn that he was not examined, but also because Dr. Balucating failed to
testify as to its content. Ms. Delos Santos, the medical record custodian of the
Ospital ng Maynila, testified, but only to attest that the hospital has a record of
the certificate. The trial court, in its decision, merely stated:
At the outset, the records of the case show that the same were not testified
upon by the doctor who issued it. Instead, the Records Custodian of the Ospital
ng Maynila was presented by the Prosecution to testify on the said documents.
However, although the doctor who examined the accused was unable to testify
to affirm the contents of the Medical Certificate he issued (re: that he was found
to have an alcoholic breath), this court finds that the observation of herein
private complainants as to the accuseds behavior and condition after the
incident was sufficient.
Under Section 50 of Rule 130 of the Revised Rules of evidence:
The opinion of a witness for which proper basis is given, may be received in
evidence regarding
xxxx
The witness may also testify on his impressions of the emotion, behavior,
condition or appearance of a person Under Section 15 of the Revised Rules on
Summary Procedure, at the trial, the affidavits submitted by the parties shall
constitute the direct testimonies of the witnesses who executed the same.
In sum, the MeTC, as echoed by RTC and CA later, did not rely on the medical
certificate Dr. Balucating issued on June 12, 2006 as to petitioners intoxicated
state, as the former was not able to testify as to its contents, but on the
testimony of SPO4 Bodino, on the assumption that he and his fellow police
officers were acting in the regular performance of their duties. It cannot be
emphasized enough that smelling of liquor/alcohol and be under the influence of
liquor are differing concepts. Corollarily, it is difficult to determine with legally
acceptable certainty whether a person is drunk in contemplation of Sec. 56(f) of
RA 4136 penalizing the act of driving under the influence of alcohol. The legal
situation has of course changed with the approval in May 2013 of the Anti-Drunk
and Drugged Driving Act of 2013 (RA 10586) which also penalizes driving under

the influence of alcohol (DUIA), a term defined under its Sec. 3(e) as the act of
operating a motor vehicle while the drivers blood alcohol concentration level
has, after being subjected to a breath analyzer test reached the level of
intoxication as established jointly by the [DOH], the NAPOLCOM] and the
[DOTC]. And under Sec. 3(g) of the IRR of RA 10586, a driver of a private motor
vehicle with gross vehicle weight not exceeding 4,500 kilograms who has BAC
[blood alcohol concentration] of 0.05% or higher shall be conclusive proof that
said driver is driving under the influence of alcohol. Viewed from the prism of RA
10586, petitioner cannot plausibly be convicted of driving under the influence of
alcohol for this obvious reason: he had not been tested beyond reasonable
doubt, let alone conclusively, for reaching during the period material the
threshold level of intoxication set under the law for DUIA, i.e., a BAC of 0.05% or
over. Under Art. 22 of the RPC, penal laws shall be given retroactive insofar as
they are favorable to the accused. Section 19 of RA 10586 expressly modified
Sec. 56(f) of RA 4136. Verily, even by force of Art. 22 of the RPC in relation to
Sec. 3(e) of RA 10586 alone, petitioner could very well be acquitted for the
charge of driving under the influence of alcohol, even if the supposed
inculpatory act occurred in 2006.
Parenthetically, the Office of the City Prosecutor of Manila, per its Resolution of
November 21, 2006 found, on the strength of another physical examination from
the same Ospital ng Maynila conducted by Dr. Devega on the petitioner on the
same day, June 12, but later hour, probable cause for slight physical injuries
against P/Insp. Aguilar et al. That finding to be sure tends to indicate that the
police indeed manhandled the petitioner and belied, or at least cancelled out,
the purported Dr. Balucatings finding as to petitioners true state.
The Court must underscore at this juncture that the petitioner, after the
unfortunate incident, lost no time in commencing the appropriate criminal
charges against the police officers and Dr. Balucating, whom he accused of
issuing Exh. F even without examining him. The element of immediacy in the
filing lends credence to petitioners profession of innocence, particularly of the
charge of disobeying lawful order or resisting arrest. Certainly not to be
overlooked is the fact that petitioner, in so filing his complaint, could not have
possibly been inspired by improper motive, the police officers being complete
strangers to him and vice versa. Withal, unless he had a legitimate grievance, it
is difficult to accept the notion that petitioner would expose himself to harms
way by filing a harassment criminal suit against policemen.

Conviction must come only after it survives the test of reason. It is thus required
that every circumstance favoring ones innocence be duly taken into account.
Given the deviation of the police officers from the standard and usual procedure
in dealing with traffic violation by perceived drivers under the influence of
alcohol and executing an arrest, the blind reliance and simplistic invocation by
the trial court and the CA on the presumption of regularity in the conduct of
police duty is clearly misplaced. As stressed in People v. Ambrosio, the
presumption of regularity is merely just that, a presumption disputable by
contrary proof and which when challenged by the evidence cannot be regarded
as binding truth. And to be sure, this presumption alone cannot preponderate
over the presumption of innocence that prevails if not overcome by proof that
obliterates all doubts as to the offenders culpability. In the present case, the
absence of conclusive proof being under the influence of liquor while driving
coupled with the forceful manner the police yanked petitioner out of his vehicle
argues against or at least cast doubt on the finding of guilt for drunken driving
and resisting arrest.
In case of doubt as to the moral certainty of culpability, the balance tips in favor
of innocence or at least in favor of the milder form of criminal liability. This is as
it should be. For, it is basic, almost elementary, that the burden of proving the
guilt of an accused lies on the prosecution which must rely on the strength of its
evidence and not on the weakness of the defense.
THIRD DIVISION, G.R. No. 202692, November 12, 2014, EDMUND SYDECO Y
SIONZON, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

The Power To Remove Elected

Officials Is Exclusively Vested
In The Proper Courts
December 20, 2014 by The Lawyer's Post

Solomon and Renato, both members of the Sangguniang Bayan of San Vicente,
Palawan, charged Alejandro, mayor of San Vicente before the Sangguniang
Panlalawigan of Palawan, for abuse of authority and culpable violation of the
Constitution when he allegedly entering into a consultancy agreement with

Orlando, a defeated mayoralty candidate in the 1998 elections, which they

argue is within the one-year prohibition for appointment to a government
position under Article IX-B, Section 6 of the 1987 Constitution. Invoking the
provisions of DOJ Opinion No. 106 s. 1992, Alejandro answered that the
appointment of a defeated consultant does not constitute an appointment to a
government position. The Sangguniang Palnlalawigan of Palawan found
Alejandro guilty as charged and imposed upon him the penalty of dismissal from
service, which upon appeal to the Office of the President, affirmed. Thus,
Ramiro, the Vice-Mayor took his oath. Alejandro filed a petition for prohibition
and certiorari with prayer for preliminary injunction and TRO, which the trial
court initially granted, but upon regular assignment to the handling court did not
extend. Hence, Ramiro filed a petition for certiorari and prohibition before the
Court of Appeals, which thereupon declared void the decisions of the Office of
the President and the Sangguniang Panlalawigan of Palawan and ordered Ramiro
to vacate the position of mayor, hence Ramiro filed a petition for review on
certiorari of the CA decision to the Supreme Court.
The Supreme Court:
The pertinent portion of Section 60 of the Local Government Code of 1991
provides:
Section 60. Grounds for Disciplinary Actions. An elective local official may be
disciplined, suspended, or removed from office on any of the following grounds:
xxxxxxxxx
An elective local official may be removed from office on the grounds
enumerated above by order of the proper court.
(Emphasis supplied)
It is clear from the last paragraph of the aforecited provision that the penalty of
dismissal from service upon an erring elective local official may be decreed only
by a court of law.
Thus, in Salalima, et al. v. Guingona, et al., we held that [t]he Office of the
President is without any power to remove elected officials, since such power is
exclusively vested in the proper courts as expressly provided for in the last
paragraph of the aforequoted Section 60.

Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local
Government Code, however, adds that (b) An elective local offi cial may be
removed from office on the grounds enumerated in paragraph (a) of this Article
[The grounds enumerated in Section 60, Local Government Code of 1991] by
order of the proper court or the disciplining authority whichever first acquires
jurisdiction to the exclusion of the other. The disciplining authority referred to
pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of
the President.
As held in Salalima, this grant to the disciplining authority of the power to
remove elective local officials is clearly beyond the authority of the Oversight
Committee that prepared the Rules and Regulations. No rule or regulation may
alter, amend, or contravene a provision of law, such as the Local Government
Code. Implementing rules should conform, not clash, with the law that they
implement, for a regulation which operates to create a rule out of harmony with
the statute is a nullity. Even Senator Aquilino Q. Pimentel, Jr., the principal author
of the Local Government Code of 1991, expressed doubt as to the validity of
Article 124 (b), Rule XIX of the implementing rules.
Verily, the clear legislative intent to make the subject power of removal a judicial
prerogative is patent from the deliberations in the Senate quoted as follows:
xxxxxxxxx
Senator Pimentel. This has been reserved, Mr. President, including the issue of
whether or not the Department Secretary or the Office of the President can
suspend or remove an elective official.
Senator Saguisag. For as long as that is open for some later disposition, may I
just add the following thought: It seems to me that instead of identifying only
the proper regional trial court or the Sandiganbayan, and since we know that in
the case of a regional trial court, particularly, a case may be appealed or may be
the subject of an injunction, in the framing of this later on, I would like to
suggest that we consider replacing the phrase PROPER REGIONAL TRIAL COURT
OR THE SANDIGANBAYAN simply by COURTS. Kasi po, maaaring sabihin nila
na mali iyong regional trial court o ang Sandiganbayan.
Senator Pimentel. OR THE PROPER COURT.

Senator Saguisag. OR THE PROPER COURT.

Senator Pimentel. Thank you. We are willing to accept that now, Mr. President.
Senator Saguisag. It is to be incorporated in the phraseology that will craft to
capture the other ideas that have been elevated.
x x x x x x x x x.
It is beyond cavil, therefore, that the power to remove erring elective local
officials from service is lodged exclusively with the courts. Hence, Article 124
(b), Rule XIX, of the Rules and Regulations Implementing the Local Government
Code, insofar as it vests power on the disciplining authority to remove from
office erring elective local officials, is void for being repugnant to the last
paragraph of Section 60 of the Local Government Code of 1991. The law on
suspension or removal of elective public officials must be strictly construed and
applied, and the authority in whom such power of suspension or removal is
vested must exercise it with utmost good faith, for what is involved is not just an
ordinary public official but one chosen by the people through the exercise of
their constitutional right of suffrage. Their will must not be put to naught by the
caprice or partisanship of the disciplining authority. Where the disciplining
authority is given only the power to suspend and not the power to remove, it
should not be permitted to manipulate the law by usurping the power to
remove. As explained by the Court in Lacson v. Roque:
the abridgment of the power to remove or suspend an elective mayor is not
without its own justification, and was, we think, deliberately intended by the
lawmakers. The evils resulting from a restricted authority to suspend or remove
must have been weighed against the injustices and harms to the public interests
which would be likely to emerge from an unrestrained discretionary power to
suspend and remove.
EN BANC, G.R. No. 147870, July 31, 2002, RAMIR R. PABLICO, PETITIONER,VS.
ALEJANDRO A. VILLAPANDO, RESPONDENT.

MTRCB Has Power To Review

Television Programs Under P.D.
1986
December 15, 2014 by The Lawyer's Post

The Inside Story, a show produced and hosted by Loren, featured a show
depicting students moonlighting as prostitutes to enable them to pay for their
tuition fees. Students, prostitutes, pimps and some faculty members were
interviewed. The Philippine Womens University was one of those schools
named, and its facade served as background of the episode. Due to this, an
uproar erupted within the PWU community, leading its chancellor and a parent
teachers group to file a letter-complaint with the Movie and Television Review
and Classification Board, alleging that the episode besmirched the reputation of
the school and the harassment of some of its students. The MTRCB Legal
Counsel then filed a formal complaint with the Investigating Committee against
ABS-CBN and Loren, alleging that the network did not submit The Inside Story
for its review, thus violating Section 7 of PD 1986 and Section 3, Chapter III and
Section 7, Chapter IV of the MTRCB Rules and Regulations. The respondents
explained that the show is a public affairs program, news documentary and
socio-political editorial which is protected by the constitutional provision on
freedom of expression and of the press, thus the MTRCB has no power, authority
or jurisdiction to impose any form of prior restraint upon them. The Investigating
Committed thereafter ruled that the network shall submit The Inside Story and
all other programs of the network of the same format, and fined it P20,000.00,
which ruling was affirmed by the MTRCB Chairman.
ABS-CCBN and Loren then filed a petition for certiorari with the Regional Trial
Court to declare as unconstitutional Sections 3(b), 3(c),] 3(d), 4, 7, and 11 of P.
D. No. 1986 and Sections 3, 7, and 28 (a) of the MTRCB Rules and Regulations;
(in the alternative) exclude the The Inside Story from the coverage of the
above cited provisions; and annul and set aside the MTRCB Decision dated
March 12, 1993 and Resolution dated April 14, 1993, alleging that the said
provisions constitute prior restraint and does not apply to The Inside Story
because it is a public affairs program.

The RTC ruled in favour of ABS-CBN and Loren, and declared unconstitutional the
above-cited provisions of PD 1986 and the MTRCB Rules and Regulations, thus
MTRCB appealed to the Supreme Court.
The Supreme Court:
Vis-a-vis the foregoing provisions, our task is to decide whether or not
petitioner has the power to review the television program The Inside Story.
The task is not Herculean because it merely resurrects this Court En Bancs
ruling in Iglesia ni Cristo vs. Court of Appeals.[ There, the Iglesia ni Cristo sought
exception from petitioners review power contending that the term television
programs under Sec. 3 (b) does not include religious programs which are
protected under Section 5, Article III of the Constitution. This Court, through
Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives petitioner the
power to screen, review and examine all television programs, emphasizing
the phrase all television programs, thus:
The law gives the Board the power to screen, review and examine all television
programs. By the clear terms of the law, the Board has the power to approve,
delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x
x television programs x x x. The law also directs the Board to apply
contemporary Filipino cultural values as standard to determine those which are
objectionable for being immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission of violence
or of a wrong or crime.
Settled is the rule in statutory construction that where the law does not make
any exception, courts may not except something therefrom, unless there is
compelling reason apparent in the law to justify it. Ubi lex non distinguit nec
distinguere debemos. Thus, when the law says all television programs, the
word all covers all television programs, whether religious, public affairs, news
documentary, etc. The principle assumes that the legislative body made no
qualification in the use of general word or expression.
It then follows that since The Inside Story is a television program, it is within
the jurisdiction of the MTRCB over which it has power of review.

Here, respondents sought exemption from the coverage of the term television
programs on the ground that the The Inside Story is a public affairs
program, news documentary and socio-political editorial protected under
Section 4, Article III of the Constitution. Albeit, respondents basis is not
freedom of religion, as in Iglesia ni Cristo, but freedom of expression and of the
press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is
significant to note that in Iglesia ni Cristo, this Court declared that freedom of
religion has been accorded a preferred status by the framers of our fundamental
laws, past and present, designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs x x x. Yet
despite the fact that freedom of religion has been accorded a preferred status,
still this Court, did not exempt the Iglesia ni Cristos religious program from
petitioners review power.
Respondents claim that the showing of The Inside Story is protected by the
constitutional provision on freedom of speech and of the press. However, there
has been no declaration at all by the framers of the Constitution that freedom of
expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the
jurisdiction and review power of petitioner MTRCB, with more reason, there is no
justification to exempt therefrom The Inside Story which, according to
respondents, is protected by the constitutional provision on freedom of
expression and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCBs power of review are those expressly
mentioned in Section 7 of P. D. No. 1986, such as (1) television programs
imprinted or exhibited by the Philippine Government and/or its departments and
agencies, and (2) newsreels. Thus:
SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person
or entity to exhibit or cause to be exhibited in any moviehouse, theatre, or
public place or by television within the Philippines any motion picture, television
program or publicity material, including trailers, and stills for lobby displays in
connection with motion pictures, not duly authorized by the owner or his
assignee and passed by the BOARD; or to print or cause to be printed on any
motion picture to be exhibited in any theater or public place or by television a
label or notice showing the same to have been officially passed by the BOARD
when the same has not been previously authorized, except motion pictures,

television programs or publicity material imprinted or exhibited by the Philippine

Government and/or its departments and agencies, and newsreels.
Still in a desperate attempt to be exempted, respondents contend that the The
Inside Story falls under the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define newsreels. Websters dictionary defines
newsreels as short motion picture films portraying or dealing with current
events. A glance at actual samples of newsreels shows that they are mostly
reenactments of events that had already happened. Some concrete examples
are those of Dziga Vertovs Russian Kino-Pravda newsreel series (Kino-Pravda
means literally film-truth, a term that was later translated literally into the
French cinema verite) and Frank Capras Why We Fight series.Apparently,
newsreels are straight presentation of events. They are depiction of
actualities. Correspondingly, the MTRCB Rules and Regulations implementing
P. D. No. 1986 define newsreels as straight news reporting, as distinguished
from news analyses, commentaries and opinions. Talk shows on a given issue
are not considered newsreels. Clearly, the The Inside Story cannot be
considered a newsreel. It is more of a public affairs program which is described
as a variety of news treatment; a cross between pure television news and newsrelated commentaries, analysis and/or exchange of opinions.] Certainly, such
kind of program is within petitioners review power.
It bears stressing that the sole issue here is whether petitioner MTRCB has
authority to review The Inside Story. Clearly, we are not called upon to
determine whether petitioner violated Section 4, Article III (Bill of Rights) of the
Constitution providing that no law shall be passed abridging the freedom of
speech, of oppression or the press. Petitioner did not disapprove or ban the
showing of the program. Neither did it cancel respondents permit.
Respondents were merely penalized for their failure to submit to petitioner The
Inside Story for its review and approval. Therefore, we need not resolve
whether certain provisions of P. D. No. 1986 and the MTRCB Rules and
Regulations specified by respondents contravene the Constitution.
Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7
and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and
Regulations are unconstitutional. It is settled that no question involving the

constitutionality or validity of a law or governmental act may be heard and

decided by the court unless there is compliance with the legal requisites for
judicial inquiry, namely: (1) that the question must be raised by the proper
party; (2) that there must be an actual case or controversy; (3) that the question
must be raised at the earliest possible opportunity; and, (4) that the decision on
the constitutional or legal question must be necessary to the determination of
the case itself.
THIRD DIVISION, G.R. NO. 155282, January 17, 2005, MOVIE AND TELEVISION
REVIEW AND CLASSIFICATION BOARD (MTRCB), PETITIONER, VS. ABS-CBN
BROADCASTING CORPORATION AND LOREN LEGARDA, RESPONDENTS.