MAXIMO CALALANG, Petitioner, v. A. D.
WILLIAMS, ET road should be closed to traffic, in view of the condition of the
AL., Respondents.
Maximo Calalang in his own behalf.
Solicitor General Ozaeta and Assistant Solicitor General
Amparo for respondents Williams, Fragante and Bayan
City Fiscal Mabanag for the other respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF
COMMONWEALTH ACT No. 648; DELEGATION OF
LEGISLATIVE POWER; AUTHORITY OF DIRECTOR OF
PUBLIC WORKS AND SECRETARY OF PUBLIC WORKS
AND COMMUNICATIONS TO PROMULGATE RULES AND
REGULATIONS. — The provisions of section 1 of
Commonwealth Act No. 648 do not confer legislative power
upon the Director of Public Works and the Secretary of Public
Works and Communications. The authority therein conferred
upon them and under which they promulgated the rules and
regulations now complained of is not to determine what public
policy demands but merely to carry out the legislative policy
laid down by the National Assembly in said Act, to wit, "to
promote safe transit upon, and avoid obstructions on, roads
and streets designated as national roads by acts of the
National Assembly or by executive orders of the President of
the Philippines" and to close them temporarily to any or all
classes of traffic "whenever the condition of the road or the
traffic thereon makes such action necessary or advisable in
the public convenience and interest." The delegated power, if
at all, therefore, is not the determination of what the law shall
be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be
predicated. To promulgate rules and regulations on the use of
national roads and to determine when and how long a national
road or the traffic thereon and the requirements of public
convenience and interest, is an administrative function which
cannot be directly discharged by the National Assembly. It
must depend on the discretion of some other government
official to whom is confided the duty of determining whether
the proper occasion exists for executing the law. But it cannot
be said that the exercise of such discretion is the making of
the law.
2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY;
GOVERNMENTAL AUTHORITY. — Commonwealth Act No.
548 was passed by the National Assembly in the exercise of
the paramount police power of the state. Said Act, by virtue of
which the rules and regulations complained of were
promulgated, aims to promote safe transit upon and avoid
obstructions on national roads, in the interest and convenience
of the public. In enacting said law, therefore, the National
Assembly was prompted by considerations of public
convenience and welfare. It was inspired by a desire to relieve
congestion of traffic, which is, to say the least, a menace to
public safety. Public welfare, then, lies at the bottom of the
enactment of said law, and the state in order to promote the
general welfare may interfere with personal liberty, with
property, and with business and occupations. Persons and
property may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort, health, and
prosperity of the state (U.S. v. Gomer Jesus, 31 Phil., 218). To
this fundamental aim of our Government the rights of the
individual are subordinated. Liberty is a blessing without which
life is a misery, but liberty should not be made to prevail over
authority because then society will fall into anarchy. Neither
should authority be made to prevail over liberty because then
the individual will fall into slavery. The citizen should achieve
the required balance of liberty and authority in his mind
through education and, personal discipline, so that there may
 be established the resultant equilibrium, which means peace
and order and happiness for all. The moment greater authority
is conferred upon the government, logically so much is
withdrawn from the residuum of liberty which resides in the
people. The paradox lies in the fact that the apparent
curtailment of liberty is precisely the very means of insuring its
preservation.
3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither
communism, nor despotism, nor atomism, nor anarchy," but
the humanization of laws and the equalization of social and
economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated.
Social justice means the promotion of the welfare of all the
people, the adoption by the Government of measures
calculated to insure economic stability of all the competent
elements of society, through the maintenance of a proper
economic and social equilibrium in the interrelations of the
members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers underlying the
existence of all governments on the time-honored principle of
salus populi est suprema lex. Social justice, therefore, must be
founded on the recognition of the necessity of
interdependence among divers and diverse units of a society
and of the protection that should be equally and evenly
extended to all groups as a combined force in our social and
economic life, consistent with the fundamental and paramount
objective of the state of promoting the health, comfort, and
quiet of all persons, and of bringing about "the greatest good
to the greatest number."
DECISION
LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and as a
taxpayer of Manila, brought before this court this petition for a
writ of prohibition against the respondents, A. D. Williams, as
Chairman of the National Traffic Commission; Vicente
Fragante, as Director of Public Works; Sergio Bayan, as
Acting Secretary of Public Works and Communications;
Eulogio Rodriguez, as Mayor of the City of Manila; and Juan
Dominguez, as Acting Chief of Police of Manila.
It is alleged in the petition that the National Traffic
Commission, in its resolution of July 17, 1940, resolved to
recommend to the Director of Public Works and to the
Secretary of Public Works and Communications that animal-
drawn vehicles be prohibited from passing along Rosario
Street extending from Plaza Calderon de la Barca to
Dasmariñas Street, from 7:30 a.m. to 12:30 p.m. and from
1:30 p.m. to 5:30 p.m.; and along Rizal Avenue extending from
the railroad crossing at Antipolo Street to Echague Street, from
7 a.m. to 11 p.m., from a period of one year from the date of
the opening of the Colgante Bridge to traffic; that the Chairman
of the National Traffic Commission, on July 18, 1940
recommended to the Director of Public Works the adoption of
the measure proposed in the resolution aforementioned, in
pursuance of the provisions of Commonwealth Act No. 548
which authorizes said Director of Public Works, with the
approval of the Secretary of Public Works and
Communications, to promulgate rules and regulations to
regulate and control the use of and traffic on national roads;
that on August 2, 1940, the Director of Public Works, in his first
indorsement to the Secretary of Public Works and
Communications, recommended to the latter the approval of
the recommendation made by the Chairman of the National
Traffic Commission as aforesaid, with the modification that the
closing of Rizal Avenue to traffic to animal-drawn vehicles be
limited to the portion thereof extending from the railroad
crossing at Antipolo Street to Azcarraga Street; that on August
10, 1940, the Secretary of Public Works and Communications,
in his second indorsement addressed to the Director of Public
Works, approved the recommendation of the latter that
Rosario Street and Rizal Avenue be closed to traffic of animal-
drawn vehicles, between the points and during the hours as
above indicated, for a period of one year from the date of the
opening of the Colgante Bridge to traffic; that the Mayor of
Manila and the Acting Chief of Police of Manila have enforced
and caused to be enforced the rules and regulations thus
adopted; that as a consequence of such enforcement, all
animal-drawn vehicles are not allowed to pass and pick up
passengers in the places above-mentioned to the detriment
not only of their owners but of the riding public as well.
It is contended by the petitioner that Commonwealth Act No.
548 by which the Director of Public Works, with the approval of
the Secretary of Public Works and Communications, is
authorized to promulgate rules and regulations for the
regulation and control of the use of and traffic on national
roads and streets is unconstitutional because it constitutes an
undue delegation of legislative power. This contention is
untenable. As was observed by this court in Rubi v. Provincial
Board of Mindoro (39 Phil, 660, 700), "The rule has nowhere
been better stated than in the early Ohio case decided by
Judge Ranney, and since followed in a multitude of cases,
namely: ’The true distinction therefore is between the
delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be exercised
under and in pursuance of the law. The first cannot be done; to
the latter no valid objection can be made.’ (Cincinnati, W. & Z.
R. Co. v. Comm’rs. Clinton County, 1 Ohio St., 88.) Discretion,
as held by Chief Justice Marshall in Wayman v. Southard (10
Wheat., 1) may be committed by the Legislature to an
executive department or official. The Legislature may make
decisions of executive departments or subordinate officials
thereof, to whom it has committed the execution of certain
acts, final on questions of fact. (U.S. v. Kinkead, 248 Fed.,
141.) The growing tendency in the decisions is to give
prominence to the ’necessity’ of the case."cralaw virtua1aw
library
Section 1 of Commonwealth Act No. 548 reads as
follows:jgc:chanrobles.com.ph
"SECTION 1. To promote safe transit upon, and avoid
obstructions on, roads and streets designated as national
roads by acts of the National Assembly or by executive orders
of the President of the Philippines, the Director of Public
Works, with the approval of the Secretary of Public Works and
Communications, shall promulgate the necessary rules and
regulations to regulate and control the use of and traffic on
such roads and streets. Such rules and regulations, with the
approval of the President, may contain provisions controlling
or regulating the construction of buildings or other structures
within a reasonable distance from along the national roads.
Such roads may be temporarily closed to any or all classes of
traffic by the Director of Public Works and his duly authorized
representatives whenever the condition of the road or the
traffic thereon makes such action necessary or advisable in
the public convenience and interest, or for a specified period,
with the approval of the Secretary of Public Works and
Communications."cralaw virtua1aw library
The above provisions of law do not confer legislative power
upon the Director of Public Works and the Secretary of Public
Works and Communications. The authority therein conferred
upon them and under which they promulgated the rules and
regulations now complained of is not to determine what public
policy demands but merely to carry out the legislative policy
laid down by the National Assembly in said Act, to wit, "to
promote safe transit upon and avoid obstructions on, roads
and streets designated as national roads by acts of the
National Assembly or by executive orders of the President of
the Philippines" and to close them temporarily to any or all
classes of traffic "whenever the condition of the road or the
traffic makes such action necessary or advisable in the public
convenience and interest." The delegated power, if at all,
therefore, is not the determination of what the law shall be, but
merely the ascertainment of the facts and circumstances upon
which the application of said law is to be predicated. To
promulgate rules and regulations on the use of national roads
and to determine when and how long a national road should
be closed to traffic, in view of the condition of the road or the
traffic thereon and the requirements of public convenience and
interest, is an administrative function which cannot be directly
discharged by the National Assembly. It must depend on the
discretion of some other government official to whom is
confided the duty of determining whether the proper occasion
exists for executing the law. But it cannot be said that the
exercise of such discretion is the making of the law. As was
said in Locke’s Appeal (72 Pa. 491): "To assert that a law is
less than a law, because it is made to depend on a future
event or act, is to rob the Legislature of the power to act wisely
for the public welfare whenever a law is passed relating to a
state of affairs not yet developed, or to things future and
impossible to fully know." The proper distinction the court said
was this: "The Legislature cannot delegate its power to make
the law; but it can make a law to delegate a power to
determine some fact or state of things upon which the law
makes, or intends to make, its own action depend. To deny
this would be to stop the wheels of government. There are
many things upon which wise and useful legislation must
depend which cannot be known to the law-making power, and,
must, therefore, be a subject of inquiry and determination
outside of the halls of legislation." (Field v. Clark, 143 U. S.
649, 694; 36 L. Ed. 294.)
In the case of People v. Rosenthal and Osmeña, G.R. Nos.
46076 and 46077, promulgated June 12, 1939, and in
Pangasinan Transportation v. The Public Service Commission,
G.R. No. 47065, promulgated June 26, 1940, this Court had
occasion to observe that the principle of separation of powers
has been made to adapt itself to the complexities of modern
governments, giving rise to the adoption, within certain limits,
of the principle of "subordinate legislation," not only in the
United States and England but in practically all modern
governments. Accordingly, with the growing complexity of
modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the
laws, the rigidity of the theory of separation of governmental
powers has, to a large extent, been relaxed by permitting the
delegation of greater powers by the legislative and vesting a
larger amount of discretion in administrative and executive
officials, not only in the execution of the laws, but also in the
promulgation of certain rules and regulations calculated to
promote public interest.
The petitioner further contends that the rules and regulations
promulgated by the respondents pursuant to the provisions of
Commonwealth Act No. 548 constitute an unlawful
interference with legitimate business or trade and abridge the
right to personal liberty and freedom of locomotion.
Commonwealth Act No. 548 was passed by the National
Assembly in the exercise of the paramount police power of the
state.
Said Act, by virtue of which the rules and regulations
complained of were promulgated, aims to promote safe transit
upon and avoid obstructions on national roads, in the interest
and convenience of the public. In enacting said law, therefore,
the National Assembly was prompted by considerations of
public convenience and welfare. It was inspired by a desire to
relieve congestion of traffic. which is, to say the least, a
menace to public safety. Public welfare, then, lies at the
bottom of the enactment of said law, and the state in order to
promote the general welfare may interfere with personal
liberty, with property, and with business and occupations.
Persons and property may be subjected to all kinds of
restraints and burdens, in order to secure the general comfort,
health, and prosperity of the state (U.S. v. Gomez Jesus, 31
Phil., 218). To this fundamental aim of our Government the
rights of the individual are subordinated. Liberty is a blessing
without which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into
anarchy. Neither should authority be made to prevail over
liberty because then the individual will fall into slavery. The
citizen should achieve the required balance of liberty and
authority in his mind through education and personal
discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for
all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum
of liberty which resides in the people. The paradox lies in the
fact that the apparent curtailment of liberty is precisely the very
means of insuring its preservation.
The scope of police power keeps expanding as civilization
advances. As was said in the case of Dobbins v. Los Angeles
(195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise the
police power is a continuing one, and a business lawful today
may in the future, because of the changed situation, the
growth of population or other causes, become a menace to the
public health and welfare, and be required to yield to the public
good." And in People v. Pomar (46 Phil., 440), it was observed
that "advancing civilization is bringing within the police power
of the state today things which were not thought of as being
within such power yesterday. The development of civilization,
the rapidly increasing population, the growth of public opinion,
with an increasing desire on the part of the masses and of the
government to look after and care for the interests of the
individuals of the state, have brought within the police power
many questions for regulation which formerly were not so
considered."cralaw virtua1aw library
The petitioner finally avers that the rules and regulations
complained of infringe upon the constitutional precept
regarding the promotion of social justice to insure the well-
being and economic security of all the people. The promotion
of social justice, however, is to be achieved not through a
mistaken sympathy towards any given group. Social justice is
"neither communism, nor despotism, nor atomism, nor
anarchy," but the humanization of laws and the equalization of
social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be
approximated. Social justice means the promotion of the
welfare of all the people, the adoption by the Government of
measures calculated to insure economic stability of all the
competent elements of society, through the maintenance of a
proper economic and social equilibrium in the interrelations of
the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers underlying the
existence of all governments on the time-honored principle of
salus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of
the necessity of interdependence among divers and diverse
units of a society and of the protection that should be equally
and evenly extended to all groups as a combined force in our
social and economic life, consistent with the fundamental and
paramount objective of the state of promoting the health,
comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number."cralaw virtua1aw library
In view of the foregoing, the writ of prohibition prayed for is
hereby denied, with costs against the petitioner. So ordered.
ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN,
PEOPLE OF THE PHILIPPINES and JOSE C.
BATAUSA, respondents.
DECISION
PANGANIBAN, J.:
Does the Sandiganbayan have jurisdiction over a private
individual who is charged with malversation of public funds as a
principal after the said individual had been designated by the
Bureau of Internal Revenue as a custodian of distrained
property? Did such accused become a public officer and
therefore subject to the graft courts jurisdiction as a
consequence of such designation by the BIR?
These are the main questions in the instant petition for
review of respondent Sandiganbayans Decision[1] in Criminal
Case No. 14260 promulgated on March 8, 1994, convicting
petitioner of malversation of public funds and property, and
Resolution[2] dated June 20, 1994, denying his motion for new
trial or reconsideration thereof.
The Facts
Petitioner Alfredo Azarcon owned and operated an earth-
moving business, hauling dirt and ore.[3] His services were
contracted by the Paper Industries Corporation of the
Philippines (PICOP) at its concession in Mangagoy, Surigao del
Sur. Occasionally, he engaged the services of sub-contractors
like Jaime Ancla whose trucks were left at the formers
premises.[4] From this set of circumstances arose the present
controversy.
x x x It appears that on May 25, 1983, a Warrant of Distraint of
Personal Property was issued by the Main Office of the
Bureau of Internal Revenue (BIR) addressed to the Regional
Director (Jose Batausa) or his authorized representative of
Revenue Region 10, Butuan City commanding the latter to
distraint the goods, chattels or effects and other personal
property of Jaime Ancla, a sub-contractor of accused Azarcon
and, a delinquent taxpayer. The Warrant of Garnishment was
issued to accused Alfredo Azarcon ordering him to transfer,
surrender, transmit and/or remit to BIR the property in his
possession owned by taxpayer Ancla. The Warrant of
Garnishment was received by accused Azarcon on June 17,
1985.[5]
Petitioner Azarcon, in signing the Receipt for Goods,
Articles, and Things Seized Under Authority of the National
Internal Revenue, assumed the undertakings specified in the
receipt the contents of which are reproduced as follows:
(I), the undersigned, hereby acknowledge to have received
from Amadeo V. San Diego, an Internal Revenue Officer,
Bureau of Internal Revenue of the Philippines, the following
described goods, articles, and things:
Kind of property --- Isuzu dump truck
Motor number --- E120-229598
Chassis No. --- SPZU50-1772440
Number of CXL --- 6
Color --- Blue
Owned By --- Mr. Jaime Ancla
the same having been this day seized and left in (my)
possession pending investigation by the Commissioner of
Internal Revenue or his duly authorized representative. (I)
further promise that (I) will faithfully keep, preserve, and, to the
best of (my) ability, protect said goods, articles, and things
seized from defacement, demarcation, leakage, loss, or
destruction in any manner; that (I) will neither alter nor remove,
nor permit others to alter or remove or dispose of the same in
any manner without the express authority of the Commissioner
of Internal Revenue; and that (I) will produce and deliver all of
said goods, articles, and things upon the order of any court of
the Philippines, or upon demand of the Commissioner of
Internal Revenue or any authorized officer or agent of the
Bureau of Internal Revenue.[6]
Subsequently, Alfredo Azarcon wrote a letter dated
November 21, 1985 to the BIRs Regional Director for Revenue
Region 10 B, Butuan City stating that
x x x while I have made representations to retain possession
of the property and signed a receipt of the same, it appears
now that Mr. Jaime Ancla intends to cease his operations with
us. This is evidenced by the fact that sometime in August,
1985 he surreptitiously withdrew his equipment from my
custody. x x x In this connection, may I therefore formally
inform you that it is my desire to immediately relinquish
whatever responsibilities I have over the above-mentioned
property by virtue of the receipt I have signed. This
cancellation shall take effect immediately. x x x .[7]
Incidentally, the petitioner reported the taking of the truck to the
security manager of PICOP, Mr. Delfin Panelo, and requested
him to prevent this truck from being taken out of the PICOP
concession. By the time the order to bar the trucks exit was
given, however, it was too late.[8]
Regional Director Batausa responded in a letter dated May
27, 1986, to wit:
An analysis of the documents executed by you reveals that
while you are (sic) in possession of the dump truck owned by
JAIME ANCLA, you voluntarily assumed the liabilities of
safekeeping and preserving the unit in behalf of the Bureau of
Internal Revenue. This is clearly indicated in the provisions of
the Warrant of Garnishment which you have signed, obliged
and committed to surrender and transfer to this office. Your
failure therefore, to observe said provisions does not relieve
you of your responsibility.[9]
Thereafter, the Sandiganbayan found that
On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document
Processor of Revenue Region 10 B, Butuan City, sent a
progress report to the Chief of the Collection Branch of the
surreptitious taking of the dump truck and that Ancla was
renting out the truck to a certain contractor by the name of
Oscar Cueva at PICOP (Paper Industries Corporation of the
Philippines, the same company which engaged petitioners
earth moving services), Mangagoy, Surigao del Sur. She also
suggested that if the report were true, a warrant of
garnishment be reissued against Mr. Cueva for whatever
amount of rental is due from Ancla until such time as the
latters tax liabilities shall be deemed satisfied. x x x However,
instead of doing so, Director Batausa filed a letter-complaint
against the (herein Petitioner) and Ancla on 22 January 1988,
or after more than one year had elapsed from the time of Mrs.
Calos report.[10]
Provincial Fiscal Pretextato Montenegro forwarded the
records of the complaint x x x to the Office of the Tanodbayan
on May 18, 1988. He was deputized Tanodbayan prosecutor
and granted authority to conduct preliminary investigation on
August 22, 1988, in a letter by Special Prosecutor Raul
Gonzales approved by Ombudsman (Tanodbayan) Conrado
Vasquez.[11]
 Along with his co-accused Jaime Ancla, petitioner Azarcon
was charged before the Sandiganbayan with the crime of
malversation of public funds or property under Article 217 in
relation to Article 222 of the Revised Penal Code (RPC) in the
following Information[12]filed on January 12, 1990, by Special
Prosecution Officer Victor Pascual:
That on or about June 17, 1985, in the Municipality of Bislig,
Province of Surigao del Sur, Philippines, and within the
jurisdiction of this Honorable Court, accused Alfredo L.
Azarcon, a private individual but who, in his capacity as
depository/administrator of property seized or deposited by the
Bureau of Internal Revenue, having voluntarily offered himself
to act as custodian of one Isuzu Dumptruck (sic) with Motor
No. E120-22958, Chasis No. SPZU 50-1772440, and number
CXL-6 and was authorized to be such under the authority of
the Bureau of Internal Revenue, has become a responsible
and accountable officer and said motor vehicle having been
seized from Jaime C. Ancla in satisfaction of his tax liability in
the total sum of EIGHTY THOUSAND EIGHT HUNDRED
THIRTY ONE PESOS and 59/100 (P80,831.59) became a
public property and the value thereof as public fund, with grave
abuse of confidence and conspiring and confederating with
said Jaime C. Ancla, likewise, a private individual, did then and
there wilfully, (sic) unlawfully and feloniously misappropriate,
misapply and convert to his personal use and benefit the
aforementioned motor vehicle or the value thereof in the
aforestated amount, by then and there allowing accused Jaime
C. Ancla to remove, retrieve, withdraw and tow away the said
Isuzu Dumptruck (sic) with the authority, consent and
knowledge of the Bureau of Internal Revenue, Butuan City, to
the damage and prejudice of the government in the amount
of P80,831.59 in a form of unsatisfied tax liability.
CONTRARY TO LAW.
The petitioner filed a motion for reinvestigation before the
Sandiganbayan on May 14, 1991, alleging that: (1) the
petitioner never appeared in the preliminary
investigation;and (2) the petitioner was not a public officer,
hence a doubt exists as to why he was being charged with
malversation under Article 217 of the Revised Penal
Code.[13] The Sandiganbayan granted the motion for
reinvestigation on May 22, 1991.[14] After the reinvestigation,
Special Prosecution Officer Roger Berbano, Sr., recommended
the withdrawal of the information[15] but was overruled by the
Ombudsman.[16]
A motion to dismiss was filed by petitioner on March 25,
1992 on the ground that the Sandiganbayan did not have
jurisdiction over the person of the petitioner since he was not a
public officer.[17] On May 18, 1992, the Sandiganbayan denied
the motion.[18]
When the prosecution finished presenting its evidence, the
petitioner then filed a motion for leave to file demurrer to
evidence which was denied on November 16, 1992, for being
without merit.[19] The petitioner then commenced and finished
presenting his evidence on February 15, 1993.
The Respondent Courts Decision
On March 8, 1994, respondent Sandiganbayan[20] rendered
a Decision,[21] the dispositive portion of which reads:
WHEREFORE, the Court finds accused Alfredo Azarcon y
Leva GUILTY beyond reasonable doubt as principal of
Malversation of Public Funds defined and penalized under
Article 217 in relation to Article 222 of the Revised Penal Code
and, applying the Indeterminate Sentence Law, and in view of
the mitigating circumstance of voluntary surrender, the Court
hereby sentences the accused to suffer the penalty of
imprisonment ranging from TEN (10) YEARS and ONE (1)
DAY of prision mayor in its maximum period to SEVENTEEN
(17) YEARS, FOUR (4) MONTHS and ONE (1) DAY
of Reclusion Temporal. To indemnify the Bureau of Internal
Revenue the amount of P80,831.59; to pay a fine in the same
amount without subsidiary imprisonment in case of insolvency;
to suffer special perpetual disqualification; and, to pay the
costs.
Considering that accused Jaime Ancla has not yet been
brought within the jurisdiction of this Court up to this date, let
this case be archived as against him without prejudice to its
revival in the event of his arrest or voluntary submission to the
jurisdiction of this Court.
SO ORDERED.
Petitioner, through new counsel,[22] filed a motion for new
trial or reconsideration on March 23, 1994, which was denied by
the Sandiganbayan in its Resolution[23] dated December 2,
1994.
Hence, this petition.
The Issues
The petitioner submits the following reasons for the
reversal of the Sandiganbayans assailed Decision and
Resolution:
I. The Sandiganbayan does not have jurisdiction over
crimes committed solely by private individuals.
II. In any event, even assuming arguendo that the
appointment of a private individual as a custodian
or a depositary of distrained property is sufficient to
convert such individual into a public officer, the
petitioner cannot still be considered a public officer
because:
[A]
There is no provision in the National Internal Revenue Code
which authorizes the Bureau of Internal Revenue to constitute
private individuals as depositaries of distrained properties.
[B]
His appointment as a depositary was not by virtue of a direct
provision of law, or by election or by appointment by a
competent authority.
III. No proof was presented during trial to prove that the
distrained vehicle was actually owned by the accused Jaime
Ancla; consequently, the governments right to the subject
property has not been established.
IV. The procedure provided for in the National Internal
Revenue Code concerning the disposition of distrained
property was not followed by the B.I.R., hence the distraint of
personal property belonging to Jaime C. Ancla and found
allegedly to be in the possession of the petitioner is therefore
invalid.
V. The B.I.R. has only itself to blame for not promptly selling
the distrained property of accused Jaime C. Ancla in order to
realize the amount of back taxes owed by Jaime C. Ancla to
the Bureau.[24]
 In fine, the fundamental issue is whether the
Sandiganbayan had jurisdiction over the subject matter of the
controversy. Corollary to this is the question of whether
petitioner can be considered a public officer by reason of his
being designated by the Bureau of Internal Revenue as a
depositary of distrained property.
The Courts Ruling
The petition is meritorious.
Jurisdiction of the Sandiganbayan
It is hornbook doctrine that in order (to) ascertain whether
a court has jurisdiction or not, the provisions of the law should
be inquired into.[25] Furthermore, the jurisdiction of the court
must appear clearly from the statute law or it will not be held to
exist. It cannot be presumed or implied.[26] And for this purpose
in criminal cases, the jurisdiction of a court is determined by the
law at the time of commencement of the action.[27]
In this case, the action was instituted with the filing of this
information on January 12, 1990; hence, the applicable
statutory provisions are those of P.D. No. 1606, as amended by
P.D. No. 1861 on March 23, 1983, but prior to their amendment
by R.A. No. 7975 on May 16, 1995. At that time, Section 4 of
P.D. No. 1606 provided that:
SEC. 4. Jurisdiction. -- The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII of
the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed
in government-owned or controlled corporations, whether
simple or complexed with other crimes, where the penalty
prescribed by law is higher than prision correccional or
imprisonment for six (6) years, or a fine of P6,000.00:
PROVIDED, HOWEVER, that offenses or felonies mentioned
in this paragraph where the penalty prescribed by law does not
exceed prision correccional or imprisonment for six (6) years
or a fine of P6,000.00 shall be tried by the proper Regional
Trial Court, Metropolitan Trial Court, Municipal Trial Court and
Municipal Circuit Trial Court.
xxxxxxxxx
In case private individuals are charged as co-principals,
accomplices or accessories with the public officers or
employees, including those employed in government-owned or
controlled corporations, they shall be tried jointly with said
public officers and employees.
x x x x x x x x x.
The foregoing provisions unequivocally specify the only
instances when the Sandiganbayan will have jurisdiction over a
private individual, i.e. when the complaint charges the private
individual either as a co-principal, accomplice or accessory of a
public officer or employee who has been charged with a crime
within its jurisdiction.
 Azarcon: A Public Officer or A Private Individual?
The Information does not charge petitioner Azarcon of
being a co-principal, accomplice or accessory to a public officer
committing an offense under the Sandiganbayans
jurisdiction. Thus, unless petitioner be proven a public officer,
the Sandiganbayan will have no jurisdiction over the crime
charged. Article 203 of the RPC determines who are public
officers:
Who are public officers. -- For the purpose of applying the
provisions of this and the preceding titles of the book, any
person who, by direct provision of the law, popular election,
popular election or appointment by competent authority, shall
take part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in said
Government or in any of its branches public duties as an
employee, agent, or subordinate official, of any rank or
classes, shall be deemed to be a public officer.
Thus,
(to) be a public officer, one must be --
(1) Taking part in the performance of public functions in the
government, or
Performing in said Government or any of its branches public
duties as an employee, agent, or subordinate official, of any
rank or class; and
(2) That his authority to take part in the performance of public
functions or to perform public duties must be --
a. by direct provision of the law, or
b. by popular election, or
c. by appointment by competent authority.[28]
Granting arguendo that the petitioner, in signing the receipt
for the truck constructively distrained by the BIR, commenced
to take part in an activity constituting public functions, he
obviously may not be deemed authorized by popular
election. The next logical query is whether petitioners
designation by the BIR as a custodian of distrained property
qualifies as appointment by direct provision of law, or by
competent authority.[29] We answer in the negative.
The Solicitor General contends that the BIR, in effecting
constructive distraint over the truck allegedly owned by Jaime
Ancla, and in requiring the petitioner Alfredo Azarcon who was
in possession thereof to sign a pro forma receipt for it,
effectively designated petitioner a depositary and, hence,
citing U.S. vs. Rastrollo,[30] a public officer.[31] This is based on
the theory that
(t)he power to designate a private person who has actual
possession of a distrained property as a depository of
distrained property is necessarily implied in the BIRs power to
place the property of a delinquent tax payer (sic) in distraint as
provided for under Sections 206, 207 and 208 (formerly
Sections 303, 304 and 305) of the National Internal Revenue
Code, (NIRC) x x x.[32]
We disagree. The case of U.S. vs. Rastrollo is not
applicable to the case before us simply because the facts
therein are not identical, similar or analogous to those obtaining
here. While the cited case involved a judicial deposit of the
proceeds of the sale of attached property in the hands of the
debtor, the case at bench dealt with the BIRs administrative act
of effecting constructive distraint over alleged property of
taxpayer Ancla in relation to his back taxes, property which was
received by petitioner Azarcon. In the cited case, it was clearly
within the scope of that courts jurisdiction and judicial power to
constitute the judicial deposit and give the depositary a
character equivalent to that of a public official.[33] However, in
the instant case, while the BIR had authority to require petitioner
Azarcon to sign a receipt for the distrained truck, the NIRC did
not grant it power to appoint Azarcon a public officer.
It is axiomatic in our constitutional framework, which
mandates a limited government, that its branches and
administrative agencies exercise only that power delegated to
them as defined either in the Constitution or in legislation or in
both.[34] Thus, although the appointing power is the exclusive
prerogative of the President, x x x[35] the quantum of powers
possessed by an administrative agency forming part of the
executive branch will still be limited to that conferred expressly
or by necessary or fair implication in its enabling act. Hence,
(a)n administrative officer, it has been held, has only such
powers as are expressly granted to him and those necessarily
implied in the exercise thereof.[36]Corollarily, implied powers are
those which are necessarily included in, and are therefore of
lesser degree than the power granted. It cannot extend to other
matters not embraced therein, nor are not incidental
thereto.[37] For to so extend the statutory grant of power would
be an encroachment on powers expressly lodged in Congress
by our Constitution.[38] It is true that Sec. 206 of the NIRC, as
pointed out by the prosecution, authorizes the BIR to effect a
constructive distraint by requiring any person to preserve a
distrained property, thus:
xxxxxxxxx
The constructive distraint of personal property shall be
effected by requiring the taxpayer or any person having
possession or control of such property to sign a receipt
covering the property distrained and obligate himself to
preserve the same intact and unaltered and not to
dispose of the same in any manner whatever without the
express authority of the Commissioner.
xxxxxxxxx
However, we find no provision in the NIRC constituting
such person a public officer by reason of such requirement. The
BIRs power authorizing a private individual to act as a
depositary cannot be stretched to include the power to appoint
him as a public officer. The prosecution argues that Article 222
of the Revised Penal Code x x x defines the individuals covered
by the term officers under Article 217[39] x x x of the same
Code.[40] And accordingly, since Azarcon became a depository
of the truck seized by the BIR he also became a public officer
who can be prosecuted under Article 217 x x x.[41]
The Court is not persuaded. Article 222 of the RPC reads:
Officers included in the preceding provisions. -- The provisions
of this chapter shall apply to private individuals who, in any
capacity whatever, have charge of any insular, provincial or
municipal funds, revenues, or property and to any
administrator or depository of funds or property attached,
seized or deposited by public authority, even if such property
belongs to a private individual.
Legislative intent is determined principally from the
language of a statute. Where the language of a statute is clear
and unambiguous, the law is applied according to its express
terms, and interpretation would be resorted to only where a
literal interpretation would be either impossible or absurd or
would lead to an injustice.[42] This is particularly observed in the
interpretation of penal statutes which must be construed with
such strictness as to carefully safeguard the rights of the
defendant x x x.[43] The language of the foregoing provision is
clear. A private individual who has in his charge any of the
public funds or property enumerated therein and commits any
of the acts defined in any of the provisions of Chapter Four, Title
Seven of the RPC, should likewise be penalized with the same
penalty meted to erring public officers. Nowhere in this provision
is it expressed or implied that a private individual falling under
said Article 222 is to be deemed a public officer.
After a thorough review of the case at bench, the Court thus
finds petitioner Alfredo Azarcon and his co-accused Jaime
Ancla to be both private individuals erroneously charged before
and convicted by Respondent Sandiganbayan which had no
jurisdiction over them. The Sandiganbayans taking cognizance
of this case is of no moment since (j)urisdiction cannot be
conferred by x x x erroneous belief of the court that it had
jurisdiction.[44] As aptly and correctly stated by the petitioner in
his memorandum:
From the foregoing discussion, it is evident that the petitioner
did not cease to be a private individual when he agreed to act
as depositary of the garnished dump truck. Therefore, when
the information charged him and Jaime Ancla before the
Sandiganbayan for malversation of public funds or property,
the prosecution was in fact charging two private
individuals without any public officer being similarly charged
as a co-conspirator. Consequently, the Sandiganbayan had no
jurisdiction over the controversy and therefore all the
proceedings taken below as well as the Decision rendered by
Respondent Sandiganbayan, are null and void for lack of
jurisdiction.[45]
WHEREFORE, the questioned Resolution and Decision of
the Sandiganbayan are hereby SET ASIDE and declared
NULL and VOID for lack of jurisdiction. No costs.
SO ORDERED.
QUILINO L. PIMENTEL III, petitioner,
vs.
THE COMMISSION ON ELECTIONS EN BANC SITTING AS
THE NATIONAL BOARD OF CANVASSERS, THE SPECIAL
PROVINCIAL BOARD OF CANVASSERS FOR
MAGUINDANAO CHAIRED BY ATTY. EMILIO S. SANTOS,
and JUAN MIGUEL F. ZUBIRI, respondents.
DECISION
CHICO-NAZARIO, J.:
On 4 July 2007, petitioner Aquilino L. Pimentel III (Pimentel)
filed the present Petition for Certiorari and Mandamus(with
Urgent Prayer for Temporary Restraining Order and/or Status
Quo Ante Order).1
The Petition stemmed from the 14 May 2007 national elections
for 12 senatorial posts. At the time of filing of the Petition,
around two months after the said elections, the 11 candidates
with the highest number of votes had already been officially
proclaimed and had taken their oaths of office as Senators.
With other candidates conceding, the only remaining
contenders for the twelfth and final senatorial post were
Pimentel and private respondent Juan Miguel F. Zubiri (Zubiri).
Public respondent Commission on Elections (COMELEC) en
banc, acting as the National Board of Canvassers (NBC),
continued to conduct canvass proceedings so as to determine
the twelfth and last Senator-elect in the 14 May 2007
elections.
Pimentel assailed the proceedings before the NBC and its
constituted Special Provincial Board of Canvassers for
Maguindanao (SPBOC-Maguindanao) in which the Provincial
and Municipal Certificates of Canvass (PCOC and MCOCs)
from the province of Maguindanao were respectively
canvassed.
The SPBOC-Maguindanao was created because the canvass
proceedings held before the original Provincial Board of
Canvassers for Maguindanao (PBOC-Maguindanao), chaired
by Provincial Election Supervisor (PES) Lintang Bedol, were
marred by irregularities, and the PCOC (Bedol PCOC) and
other electoral documents submitted by the said PBOC-
Maguindanao were tainted with fraud and statistical
improbabilities. Hence, the Bedol PCOC was excluded from
the national canvass then being conducted by the NBC.
Task Force Maguindanao, headed by COMELEC Chairman
Benjamin S. Abalos, Sr. and Commissioner Nicodemo T.
Ferrer, retrieved and collected 21 MCOCs from the
municipalities of Maguindanao, mostly copy 2, or the copy
intended to be posted on the wall. The SPBOC-Maguindanao
was then tasked to re-canvass the MCOCs submitted by Task
Force Maguindanao. The re-canvassing of the Maguindanao
MCOCs was conducted by the SPBOC-Maguindanao from 25
to 26 June 2007 at Shariff Aguak, Maguindanao. Although
PES Bedol and the Chairpersons of the Municipal Boards of
Canvassers of Maguindanao (MBOCs-Maguindanao) were
present during the canvass proceedings before the SPBOC-
Maguindanao, the candidates’ legal counsels were not allowed
to ask them any questions. Due to the consistent denial by the
SPBOC-Maguindanao of the repeated and persistent motions
made by Pimentel’s counsel to propound questions to PES
Bedol and the Chairpersons of the MBOCs-Maguindanao
regarding the due execution and authenticity of the
Maguindanao MCOCs, Pimentel’s counsel manifested her
continuing objection to the canvassing of the said MCOCs. In
particular, Pimentel’s counsel objected to the Maguindanao
MCOCs because:
a) the proceedings were illegal;
b) the MCOCs were palpably manufactured;
c) the results reflected in the MCOCs were statistically
improbable;
d) there is no basis for saying the MCOCs were
authentic because there were no other available copies
for comparison purposes;
e) in most of the MCOCs[,] no watcher signed;
f) there was no evidence or indication that the copy 2
MCOCs had been posted as intended by law;
g) the serial numbers of the MCOCs are not clearly
stamped;
h) copy 2 of the MCOCs cannot be used for canvass;
i) that the MCOCs are therefore, improper, unworthy
and unfit for canvass;
j) that the manner the "re-canvassing" which was being
done where the parties are not allowed to ask
questions was patently illegal; and
k) that it has not been established that the other copies
of the MCOCs have been lost.2
All of the foregoing observations, manifestations, and
objections made by Pimentel’s counsel, as well as those made
by the other candidates’ counsels, were simply noted by the
SPBOC-Maguindanao without specific action thereon.
On 29 June 2007, the SPBOC-Maguindanao submitted to the
NBC the second PCOC for Maguindanao. In the proceedings
before the NBC, Pimentel’s counsel reiterated her request to
propound questions to PES Bedol and the Chairpersons of the
MBOCs-Maguindanao and the SPBOC-Maguindanao. The
NBC, however, refused to grant her request. Pimentel’s
counsel thereafter moved for the exclusion of the second
Maguindanao PCOC from the canvass, maintaining that the
said PCOC did not reflect the true results of the elections
because it was based on the manufactured Maguindanao
MCOCs, the authenticity and due execution of which had not
been duly established. The motion to exclude made by
Pimentel’s counsel was once again denied by the NBC, and
she was ordered to sit down or she would be forcibly evicted
from the session hall. The second Maguindanao PCOC was
thus included in the canvass proceedings conducted by the
NBC and, resultantly, Pimentel’s lead over Zubiri was
significantly reduced from 133,000 votes to only 4,000 votes.
Pimentel averred that said canvass proceedings were
conducted by the NBC and SPBOC-Maguindanao in violation
of his constitutional rights to substantive and procedural due
process and equal protection of the laws, and in obvious
partiality to Zubiri. Pimentel thus filed the Petition at bar on 4
July 2007, anchored on the following grounds:
I. The petitioner [Pimentel] was denied his right to due
process of law when the respondent SPBOC and the
respondent NBC adopted an unconstitutional
procedure which disallowed the petitioner [Pimentel]
the opportunity to raise questions on the COCs subject
of the canvass.
II. The petitioner [Pimentel] was denied his right to
equal protection of the law when the respondent
SPBOC and the respondent NBC unconstitutionally
adopted a procedure of "no questions" in the canvass
of COCs from Maguindanao, different from the
procedure adopted in the canvass of COCs from other
provinces/areas.
III. The respondent NBC acted with manifest grave
abuse of discretion when it refused to exercise its
broad, plenary powers in fully or accurately
ascertaining due execution, authenticity and fitness for
the canvass of the MCOCs collected by the Comelec in
the exercise of such broad plenary powers. It violated
its own rules when it deprived petitioner [Pimentel] of
the right to ventilate and prove his objections to the
Maguindanao COCs.3
Pimentel seeks from this Court the following remedies:
1. Forthwith ISSUE A TEMPORARY RESTRAINING
ORDER enjoining the respondent Commission on
Elections en banc sitting as the National Board of
Canvassers for Senators for the May 14, 2007
elections ("NBC") from proceeding with any
proclamation (of the twelfth and last winner of the May
14, 2007 Elections for Senators) based on the on-going
senatorial canvass which includes the new/second
Provincial Certificate of Canvass of Maguindanao, until
further orders from this Court, or, in the alternative, in
the event that the proclamation of Respondent Zubiri is
made before the application for a TRO is acted
upon, ISSUE A STATUS QUO ANTE
ORDER requiring the parties to observe the status quo
at the time of the filing of the Petition, in order to
maintain and preserve the situation of the parties at the
time of the filing of this Petition, so as not to render the
issues raised in this Petition moot and academic;
2. After proper proceedings, RENDER JUDGMENT:
(a) ANNULLING AND SETTING ASIDE for being
 unconstitutional and illegal the proceedings and acts of
respondent Commission on Elections en banc sitting
as the National Board of Canvassers for Senators for
the May 14, 2007 elections ("NBC") of including, on
June 29, 2007, in the national canvass of votes for
Senators the results from the Province of Maguindanao
as reflected in its new/second Provincial Certificate of
Canvass as well as the proceedings and acts of the
respondent Special Provincial Board of Canvassers for
Maguindanao ("SPBOC") in canvassing or "re-
canvassing" the collected MCOCs, on June 25, 26 and
27, 2007, leading to the preparation of the new/second
PCOC for Maguindanao, and
(b) COMPELLING or ORDERING respondent NBC
and its deputy, the SPBOC, to perform their ministerial
constitutional duty of fully determining the due
execution and authenticity of the MCOCs, including,
but not limited to, allowing petitioner [Pimentel] to
substantiate his claim of manufactured results and
propound questions to the officers concerned,
primarily, the Chairpersons of the former PBOC and
SPBOC of Maguindanao and the Chairpersons of the
Municipal Boards of Canvassers of Maguindanao.
Petitioner [Pimentel] also prays for other reliefs, just
and equitable, under the premises.4
Pursuant to the Resolution5 dated 10 July 2007 issued by this
Court, Zubiri filed his Comment6 on the Petition at bar on 12
July 2007; while the NBC and SPBOC-Maguindano, chaired
by Atty. Emilio S. Santos, filed their joint Comment7 on even
date. The respondents Zubiri, NBC, and SPBOC-
Maguindanao collectively sought the denial of Pimentel’s
application for Temporary Restraining Order (TRO)
and/or Status Quo Ante Order and the dismissal of the instant
Petition.
Pimentel’s prayer for the issuance of a TRO and/or Status Quo
Ante Order was set for oral arguments on 13 July 2007. After
hearing the parties’ oral arguments, the Court voted seven for
the grant and seven for the denial of Pimentel’s prayer for the
issuance of a TRO and/or Status Quo Ante Order; thus, said
prayer was deemed denied for failure to garner the required
majority vote. The parties were then directed to submit their
respective Memoranda, after which, the case would be
deemed submitted for resolution.8 All the parties complied,
with Zubiri submitting his Memorandum9 on 31 July 2007;
Pimentel,10 on 1 August 2007; and the NBC and SPBOC-
Maguindanao,11 on 10 August 2007.
In the meantime, without any TRO and/or Status Quo
Ante Order from the Court, the canvass proceedings before
the NBC continued, and by 14 July 2007, Zubiri (with
11,004,099 votes) and Pimentel (with 10,984,807 votes) were
respectively ranked as the twelfth and thirteenth Senatorial
candidates with the highest number of votes in the 14 May
2007 elections. Since the NBC found that the remaining
uncanvassed certificates of canvass would no longer
materially affect Zubiri’s lead of 19,292 votes over Pimentel, it
issued Resolution No. NBC 07-67,12 dated 14 July 2007,
proclaiming Zubiri as the twelfth duly elected Senator of the
Philippines in the 14 May 2007 elections, to serve for a term of
six years beginning 30 June 2007 in accordance with the
provisions of the Constitution.
On 19 July 2007, Zubiri filed with this Court a Manifestation
with Motion to Dismiss.13 Zubiri sought the dismissal of the
Petition at bar arguing that, in consideration of his
proclamation pursuant to Resolution No. NBC 07-67 and his
formal assumption of office on 16 July 2007, controversies
involving his election and qualification as a Senator are now
within the exclusive jurisdiction of the Senate Electoral
Tribunal (SET).
Zubiri further informed the Court through a
Manifestation,14 dated 16 August 2007, that Pimentel filed an
Election Protest (Ex Abudante Ad Cautelam) before the SET
on 30 July 2007, docketed as SET Case No. 001-07, to which
Zubiri filed his Answer Ad Cautelam (With Special Affirmative
Defenses, Counter-Protest and Petition for a Preliminary
Hearing on the Affirmative Defenses) on 13 August 2007. In
his election protest, Pimentel prays, among other remedies, for
the annulment of Zubiri’s proclamation as the twelfth winning
Senator in the 14 May 2007 elections. Zubiri called the
attention of the Court to the "glaring reality" that with G.R. No.
178413 before this Court and SET Case No. 001-07 before the
SET, "there are now two cases involving the same parties with
practically the same issues and similar remedies sought filed
before the two (2) separate courts/tribunals." Zubiri also
pointed out Pimentel’s ostensible failure to inform this Court of
his institution of SET Case No. 001-07 and the subsequent
developments therein.
On 23 August 2007, Pimentel filed before this Court his
Comment/Opposition (to Private Respondent’s Manifestation
with Motion to Dismiss).15 Pimentel alleged that Zubiri’s Motion
to Dismiss solely relied on Aggabao v. Commission on
Elections.16 However, Pimentel argued that Aggabao cannot
be applied to the instant Petition because of the difference in
the factual backgrounds of the two cases. In Aggabao, therein
petitioner Aggabao filed his Petition before this Court after the
proclamation of therein private respondent Miranda as
Congressman for the Fourth District of Isabela; while in the
present case, Pimentel already filed his Petition before this
Court prior to the proclamation of Zubiri as Senator. Moreover,
Pimentel asserted that his Petition questioned not Zubiri’s
proclamation, but the conduct of the canvass proceedings
before the NBC and SPBOC-Maguindanao. He maintained
that his case was one of first impression and no existing
jurisprudence could be used as precedent for its summary
dismissal. Pimentel then reiterated his arguments in his
Memorandum that Sections 37 and 38 of Republic Act No.
9369,17 amending Sections 30 and 15 of Republic Act No.
7166,18 respectively, significantly affected and changed the
nature of canvass proceedings, the nature of the duty of
canvassing boards, and the extent of allowable pre-
proclamation controversies in Senatorial elections. Based on
the foregoing, Pimentel prayed for the denial of Zubiri’s Motion
to Dismiss.
After a close scrutiny of the allegations, arguments, and
evidence presented by all the parties before this Court, this
Court rules to dismiss the present Petition.
Pre-proclamation controversy/case
A pre-proclamation controversy has been defined by Batas
Pambansa Blg. 881, otherwise known as the Omnibus
Election Code of the Philippines, as follows:
SEC. 241. Definition. – A pre-proclamation controversy
is any question pertaining to or affecting the
proceeding of the board of canvassers which may be
raised by any candidate or by any registered political
party or coalition of political parties before the board or
directly with the Commission, or any matter raised
under Sections 233, 234, 235 and 236 in relation to the
preparation, transmission, receipt, custody and
appearance of the election returns.
Under Republic Act No. 7166, providing for synchronized
national and local elections, pre-proclamation controversies
refer to matters relating to the preparation, transmission,
receipt, custody and appearance of election
returns and certificates of canvass.19
Essentially reiterating Section 243 of the Omnibus Election
Code, but adding the reference to the certificates of canvass,
COMELEC Resolution No. 7859, dated 17 April 2007,
identified the issues that may be subject of a pre-proclamation
controversy, to wit:
SEC. 37. Issues that may be raised in pre-proclamation
controversy. – The following shall be proper issues that
may be raised in a pre-proclamation controversy:
1) Illegal composition or proceedings of the Board of
Canvassers;
2) The canvassed election returns/certificates of
canvass are incomplete, contain material defects,
appear to be tampered with or falsified, or contain
discrepancies in the same returns/certificates or in the
other authentic copies thereof as mentioned in
Sections 233, 234, 235 and 236 of the Omnibus
Election Code;
3) The election returns/certificates of canvass were
prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not
authentic; and
4) When substitute or fraudulent election
return/certificates of canvass were canvassed, the
results of which materially affected the standing of the
aggrieved candidate or candidates.
Pre-proclamation cases to resolve pre-proclamation
controversies are allowed in local elections. According to
Section 16 of Republic Act No. 7166:
SEC. 16. Pre-proclamation Cases Involving Provincial,
City and Municipal Offices. – Pre-proclamation cases
involving provincial, city and municipal officer shall be
allowed and shall be governed by Sections 17, 18, 19,
20, 21 and 22 hereof.
All pre-proclamation cases pending before the
Commission shall be deemed terminated at the
beginning of the term of the office involved and the
rulings of the boards of canvassers concerned shall be
deemed affirmed, without prejudice to the filing of a
regular election protest by the aggrieved party.
However, proceedings may continue when on the basis
of the evidence thus far presented, the Commission
determines that the petition appears meritorious and
accordingly issues an order for the proceeding to
continue or when an appropriate order has been issued
by the Supreme Court in a petition for certiorari.
SEC. 17. Pre-proclamation Controversies: How
Commenced. – Questions affecting the composition or
proceedings of the board of canvassers may be
initiated in the board or directly with the Commission.
However, matters raised under Sections 233, 234, 235
and 236 of the Omnibus Election Code in relation to
the preparation, transmission, receipt, custody and
appreciation of the election returns, and the certificates
of canvass shall be brought in the first instance before
the board of canvassers only.
However, as to elections for President, Vice-President,
Senators, and Members of the House of Representatives, pre-
proclamation cases are prohibited. Section 15 of Republic Act
No. 7166, prior to its amendment, read:
 SEC. 15. Pre-proclamation Cases Not Allowed in
Elections for President, Vice-President, Senator, and
Member of the House of Representatives. – For
purposes of the elections for President, Vice-President,
Senator, and Member of the House of Representatives,
no pre-proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt,
custody and appreciation of the election returns or the
certificates of canvass, as the case may be. However,
this does not preclude the authority of the appropriate
canvassing body motu propio or upon written complaint
of an interested person to correct manifest errors in the
certificate of canvass or election returns before it.
Questions affecting the composition or proceedings of
the board of canvassers may be initiated in the board
or directly with the Commission in accordance with
Section 19 hereof.
Any objection on the election returns before the city or
municipal board of canvassers, or on the municipal
certificates of canvass before the provincial board of
canvassers or district boards of canvassers in Metro
Manila Area, shall be specifically noted in the minutes
of their respective proceedings.
As Section 15 of Republic Act No. 7166 was then worded, it
would appear that any pre-proclamation case relating to the
preparation, transmission, receipt, custody and appreciation of
election returns or certificates of canvass, was prohibited in
elections for President, Vice-President, Senators and
Members of the House of Representatives. The prohibition
aims to avoid delay in the proclamation of the winner in the
election, which delay might result in a vacuum in these
sensitive posts. Proceedings which may delay the
proclamation of the winning candidate beyond the date20 set
for the beginning of his term of office must be avoided,
considering that the effect of said delay is, in the case of
national offices for which there is no hold over, to leave the
office without any incumbent.21
The law, nonetheless, recognizes an exception and allows the
canvassing body motu proprio or an interested person to file a
written complaint for the correction of manifest errors in the
election returns or certificates of canvass even in elections for
President, Vice-President, Senators and Members of the
House of Representatives, for the simple reason that the
correction of manifest error will not prolong the process of
canvassing nor delay the proclamation of the winner in the
election.22 To be manifest, the errors must appear on the face
of the certificates of canvass or election returns sought to be
corrected and/or objections thereto must have been made
before the board of canvassers and specifically noted in the
minutes of their respective proceedings.23 The law likewise
permits pre-proclamation cases in elections for President,
Vice-President, Senators and Members of the House of
Representatives, when these cases question the composition
or proceedings of the board of canvassers before the board
itself or the COMELEC, since such cases do not directly relate
to the certificate of canvass or election returns.
Section 15 of Republic Act No. 7166, after the amendment
introduced by Republic Act No. 9369, now reads:
SEC. 15. Pre-proclamation Cases in Elections for
President, Vice-President, Senator, and Member of the
House of Representatives. – For purposes of the
elections for president, vice-president, senator, and
member of the House of Representatives, no pre-
proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt,
custody and appreciation of election returns or the
 certificates of canvass, as the case may be, except as
provided for in Section 30 hereof. However, this
does not preclude the authority of the appropriate
canvassing body motu propio or upon written complaint
of an interested person to correct manifest errors in the
certificate of canvass or election returns before it.
Questions affecting the composition or proceedings of
the board of canvassers may be initiated in the board
or directly with the Commission in accordance with
Section 19 hereof.
Any objection on the election returns before the city or
municipal board of canvassers, or on the municipal
certificates of canvass before the provincial board of
canvassers or district board of canvassers in Metro
Manila Area, shall be specifically noticed in the minutes
of their respective proceedings. (Emphasis supplied.)
Republic Act No. 9369 significantly amended Section 15 of
Republic Act No. 7166 by adding an excepting phrase to the
general prohibition against pre-proclamation controversies in
elections for President, Vice-President, Senators and
Members of the House of Representatives. According to the
amended Section 15, no pre-proclamation cases on matters
relating to the preparation, transmission, receipt, custody and
appreciation of election returns or the certificates of canvass
shall be allowed in elections for President, Vice-President,
Senators and Members of the House of
Representatives, except as provided by Section 30 of the
same statute.
Section 30 of Republic Act No. 7166, which was likewise
amended by Republic Act No. 9369, provides:
SEC. 30. Congress as the National Board of
Canvassers for the Election of President and Vice
President: The Commission en banc as the National
Board of Canvassers for the election of
senators:Determination of Authenticity and Due
Execution of Certificates of Canvass. – Congress and
the Commission en banc shall determine the
authenticity and due execution of the certificate of
canvass for president and vice-president and
senators, respectively, as accomplished and
transmitted to it by the local board of canvassers, on a
showing that: (1) each certificate of canvass was
executed, signed and thumbmarked by the chairman
and members of the board of canvassers and
transmitted or caused to be transmitted to Congress by
them; (2) each certificate of canvass contains the
names of all of the candidates for president and vice-
president or senator, as the case may be, and their
corresponding votes in words and figures; (3) there
exists no discrepancy in other authentic copies of the
certificates of canvass or in any of its supporting
documents such as statement of votes by
city/municipality/by precinct or discrepancy in the
votes of any candidate in words and figures in the
certificate; and (4) there exists no discrepancy in the
votes of any candidate in words and figures in the
certificate of canvass against the aggregate
number of votes appearing in the election returns
of precincts covered by the certificate of canvass:
Provided, That certified print copies of election
returns or certificates of canvass may be used for
the purpose of verifying the existence of the
discrepancy.
When the certificate of canvass, duly certified by the
board of canvassers of each province, city or district,
appears to be incomplete the Senate President or the
Chairman of the Commission, as the case may
beshall require the board of canvassers concerned to
transmit by personal delivery the election returns from
polling places that were not included in the certificate of
canvass and supporting statements. Said election
returns shall be submitted by personal delivery within
two (2) days from receipt of notice.
When it appears that any certificate of canvass or
supporting statement of votes by city/municipality
or by precinct bears erasures or alterations which may
cast doubt as to the veracity of the number of votes
stated herein and may affect the result of the election,
upon request of the presidential, vice-presidential or
senatorial candidate concerned or his party,
Congress or the Commission en banc, as the case
may be, shall, for the sole purpose of verifying the
actual number of votes cast for President and Vice-
President or senator, count the votes as they appear
in the copies of the election returns submitted to it.
In case of any discrepancy, incompleteness,
erasure or alteration as mentioned above, the
procedure on pre-proclamation controversies shall
be adopted and applied as provided in Sections 17,
18, 19 and 20.
Any person who presents in evidence a simulated
copy of an election return, certificate of canvass or
statement of votes, or a printed copy of an election
return, certificate of canvass or statement of votes
bearing a simulated certification or a simulated
image, shall be guilty of an election offense and
shall be penalized in accordance with Batas
Pambansa Blg. 881. (Emphasis supplied.)
The highlighted portions in the afore-quoted section identify
the amendments introduced by Republic Act No. 9369,
specifically: (1) the duty to determine the authenticity and due
execution of certificates of canvass is now imposed, not only
on Congress acting as the NBC for the election for President
and Vice-President, but also on COMELEC en banc acting as
the NBC for the election for Senators; (2) the third criterion for
the determination of the authenticity and due execution of the
certificates of canvass requires the absence of discrepancy in
comparison not only with other authentic copies of the said
certificates, but also with the supporting documents, such as
the statements of votes; (3) a fourth criterion for the
determination of the authenticity and due execution of the
certificates of canvass was added, mandating the absence of
discrepancy between the number of votes of a candidate in a
certificate when compared with the aggregate number of votes
appearing in the election returns of the precincts covered by
the same certificate; (4) pursuant to the exception now
provided in Section 15 of Republic Act No. 7166, as amended
by Republic Act No. 9369, permissible pre-proclamation cases
shall adopt and apply the procedure provided in Sections 17 to
20 of the same statute; and (5) the use of a simulated copy of
an election return, certificate of canvass, or statement of vote,
or a printed copy of said election documents bearing a
simulated certification or image shall be penalized as an
election offense.
Indeed, this Court recognizes that by virtue of the
amendments introduced by Republic Act No. 9369 to Sections
15 and 30 of Republic Act No. 7166, pre-proclamation cases
involving the authenticity and due execution of certificates of
canvass are now allowed in elections for President, Vice-
President, and Senators. The intention of Congress to treat a
case falling under Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, as a pre-proclamation
case is apparent in the fourth paragraph of the said provision
which adopts and applies to such a case the same procedure
provided under Sections 17,24 18,25 1926 and 2027 of Republic
Act No. 7166 on pre-proclamation controversies.
In sum, in elections for President, Vice-President, Senators
and Members of the House of Representatives, the general
rule still is that pre-proclamation cases on matters relating to
the preparation, transmission, receipt, custody and
appreciation of election returns or certificates of canvass are
still prohibited. As with other general rules, there are
recognized exceptions to the prohibition, namely: (1)
correction of manifest errors; (2) questions affecting the
composition or proceedings of the board of canvassers; and
(3) determination of the authenticity and due execution of
certificates of canvass as provided in Section 30 of Republic
Act No. 7166, as amended by Republic Act No. 9369.
The Petition at bar
Pimentel’s objections to the Maguindanao MCOCs delve into
"matters relating to the preparation, transmission, receipt,
custody and appreciation" of the said MCOCs by the SPBOC-
Maguindanao. He suspects the authenticity and due execution
of the Maguindanao MCOCs used by the SPBOC-
Maguindanao in its canvass, which were mostly copy 2 or the
copy for the wall,28 because of the supposed mysterious
circumstances surrounding the loss or unavailability of any
other copy of the said MCOCs. He decries the denial by the
SPBOC-Maguindanao and the NBC of the opportunity to
question PES Bedol and the Chairpersons of the MBOCs-
Maguindanao on "where did that copy 2 come from, what was
the basis, when was it accomplished, how was it posted x x
x";29 and to substantiate his claim that the Maguindanao
MCOCs are palpably manufactured and are not fit for
canvass.30 He is raising issues related to the tampering with,
falsification of, or discrepancies in the Maguindanao MCOCs,
which are properly the subject of a pre-proclamation
controversy.31
Pimentel insists that the SPBOC-Maguindanao and the NBC
should hear his observations, accept his evidence, and rule on
his objections to the Maguindanao MCOCs in what would
undeniably be a pre-proclamation case. Ultimately, what
Pimentel seeks is that his pre-proclamation case be given due
course by the boards of canvassers.
Respondents contend that Pimentel cannot initiate and pursue
a pre-proclamation case before the SPBOC-Maguindanao or
the NBC, since such a case is prohibited in elections for
Senators. Pimentel, however, argues that his pre-proclamation
case is an exception to the prohibition pursuant to Section 30,
in relation to Section 15, of Republic Act No. 7166, as
amended by Republic Act No. 9369.
This Court rules for the respondents.
Proceedings before the SPBOC-Maguindanao
The SPBOC-Maguindanao, in the conduct of its canvass
proceedings, properly refused to allow Pimentel to contest the
Maguindanao MCOCs at that stage by questioning PES Bedol
and the Chairpersons of the MBOCs-Maguindanao and
presenting evidence to prove the alleged manufactured nature
of the said MCOCs, for such would be tantamount to a pre-
proclamation case still prohibited by Section 15 of Republic
Act No. 7166, even after its amendment by Republic Act No.
9369.
The SPBOC-Maguindanao, as its name suggests, was
constituted to be of the same stature and to perform the same
function as the PBOC-Maguindano: to canvass the
Maguindanao MCOCs and prepare the Maguindanao PCOC
to be submitted to the NBC. Undeniably, the SPBOC-
Maguindanao is not Congress nor COMELEC en banc
acting as the NBC, specifically charged by Section 30 of
Republic Act No. 7166, as amended by Republic Act No.
9369, with the duty to determine the authenticity and due
execution of the certificates of canvass submitted to it in
accordance with the four given criteria. There is no
ambiguity in the said provision, at least, as to whom it imposes
the duty, namely: (1) Congress as the NBC for the election for
President and Vice-President; and (2) COMELEC en banc as
the NBC for the election for Senators. This is a case where the
law is clear. It speaks in a language that is categorical. It is
quite explicit; it is too plain to be misread. No interpretation is
needed. All that is called for is to apply the statutory
command.32
Even if there is still a need for this Court to construe Section
30 of Republic Act No. 7166, as amended by Republic Act No.
9369, it still cannot extend the scope of said provision to local
boards of canvassers. A pre-proclamation case under Section
30 is allowed only as an exception to the prohibition under
Section 15 of Republic Act No. 7166, as amended by Republic
Act No. 9369. According to the rules of statutory construction,
exceptions, as a general rule, are strictly, but reasonably
construed; they extend only so far as their language fairly
warrants, and all doubts should be resolved in favor of the
general provisions rather than the exception. Where a general
rule is established by statute with exceptions, the court will not
curtail the former nor add to the latter by implication.33 A
maxim of recognized practicality is the rule that the expressed
exception or exemption excludes others. Exceptio firmat
regulim in casibus non exceptis. The express mention of
exceptions operates to exclude other exceptions; conversely,
those which are not within the enumerated exceptions are
deemed included in the general rule.34 And, in this case, the
exception applies only to Congress or the COMELEC en
banc acting as the NBC, and not to local boards of
canvassers who must still be deemed covered by the
prohibition on pre-proclamation controversies.
It is also significant to note that Section 15 of Republic Act No.
7166, as amended by Republic Act No. 9369, prohibits pre-
proclamation cases in elections for President, Vice-
President, Senators, and Members of the House of
Representatives; while Section 30 of the same statute, as
amended, refers only to elections for President, Vice-
President and Senators. The intent of the Legislature to
confine the application of Section 30 of Republic Act No. 7166,
as amended by Republic Act No. 9369, only to Congress or
the COMELEC en banc acting as the NBC thus becomes even
more evident, considering that the said provision does not
apply to elections for Members of the House of
Representatives. It must be borne in mind that only the votes
for national elective positions such as the President, Vice-
President, and Senators are canvassed by the NBC. The
canvassing of votes for local elective positions, including those
for Members of the House of Representatives, end with the
local boards of canvassers. Therefore, it would be contrary to
the legislative intent to extend Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369, even to the
canvass proceedings before local boards of canvassers.
This Court can only conclude that the canvass proceedings
before local boards of canvassers in elections for Senators are
unaffected by the amendment of Republic Act No. 7166 by
Republic Act No. 9369. They still remain administrative and
summary in nature, so as to guard against the paralyzation of
canvassing and proclamation proceedings that would lead to a
vacuum in so important and sensitive office as that of Senator
of the Republic.35
For the same reasons stated in the preceding paragraphs, the
four criteria enumerated by Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369, are not
mandatory on local boards of canvassers in their
determination of authenticity and due execution of the
certificates of canvass submitted to them. It is already well-
settled that the local boards of canvassers, as well as the
SPBOC-Maguindanao in this case, may proceed with the
canvassing of the election returns or certificates of canvass for
as long as they appear to be authentic and duly accomplished
on their face.36
Boards of canvassers are ad hoc bodies that exist only for the
interim task of canvassing election returns. They do not have
the facilities, the time and even the competence to hear,
examine and decide on alleged election irregularities, unlike
regular courts or the COMELEC itself or the electoral tribunals
(Presidential, Senate, and House), which are regular agencies
of government tasked and equipped for the purpose. While
this Court has time and again expressed its abhorrence of the
nefarious "grab the proclamation and prolong the protest"
strategy of some candidates, nonetheless, it recognizes the
very limited jurisdiction of MBOCs and PBOCs. Unless
Pimentel is able to show cogently and clearly his entitlement to
the summary exclusion of clearly unacceptable certificates of
canvass, this Court must uphold the constitutional and legal
presumption of regularity in the performance of official
functions and authenticity of official documents.37
The burden is upon Pimentel to establish that the
Maguindanao MCOCs are manufactured, and that it is evident
on the face thereof. Pimentel’s insistence on being allowed to
propound questions to PES Bedol and the Chairpersons of the
MBOCs-Maguindanao and SPBOC-Maguindanao reveals that,
although he has his suspicions, he has yet no actual evidence
that the Maguindanao MCOCs were indeed manufactured.
Moreover, Pimentel’s main objection to the Maguindanao
MCOCs used in the canvass by the SPBOC-Maguindanao is
that they are mostly copy 2 or the copy intended to be posted
on the wall. According to Section 43 of COMELEC Resolution
No. 7859, dated 17 April 2007, the MBOCs must transmit copy
1 of the MCOCs to the PBOC for use in the provincial
canvassing of votes. The SPBOC-Maguindanao was
compelled to use copy 2 of the Maguindanao MCOCs in the
absence of copy 1 thereof. The fact that copy 2 of the
Maguindanao MCOCs was not the copy meant for the PBOC-
Maguindanao does not necessarily mean that copy 2 of the
said MCOCs was manufactured, falsified or tampered with. All
the seven copies of the MCOCs required to be prepared by
the MBOCs should be considered duplicate originals.38 Just
like copy 1 of the MCOCs, copy 2 should be afforded the
presumption of authenticity as an official document prepared
by the MBOCs-Maguindanao in the regular performance of
their official functions. Copy 2 is no less authentic than all the
other copies of the MCOCs although it may be more
susceptible to manufacture, falsification, or tampering. If the
manufacture, falsification, or tampering of copy 2 of the
MCOCs is not apparent on its face, the burden to prove the
same falls on the candidate making the allegation in a regular
election protest. At least as far as the proceedings before the
local boards of canvassers are concerned, this Court’s ruling
in Pangarungan v. Commission on Elections39 still holds true: it
is not required that all the other copies of the election returns
or certificates of canvass be taken into account and compared
with one another before one of them, determined to be
authentic, may be used or included in the canvass.
The SPBOC-Maguindanao determined that copy 2 of the
Maguindanao MCOCs is authentic and duly executed on its
face, while Pimentel insists otherwise. This issue involves the
appreciation of copy 2 of the Maguindanao MCOCs by the
SPBOC-Maguindanao, the proper subject of a pre-
proclamation controversy, which, as this Court already
declared, is still prohibited in proceedings before local boards
of canvassers for elections for Senators.
The resolution of the issues raised by Pimentel as to the
irregularities and suspicious circumstances surrounding the
Maguindanao MCOCs, which appear prima facie regular on
their face, compels or necessitates the piercing of the veil of
the said MCOCs. These issues, however, are more
appropriate in a regular election protest, wherein the parties
may litigate all the legal and factual issues raised by them in
as much detail as they may deem necessary or appropriate.40
Proceedings before the COMELEC en banc acting as the
NBC for elections for Senators
Similarly, the COMELEC en banc acting as the NBC for the
election for Senators, did not violate Section 30 of Republic
Act No. 7166, as amended by Republic Act No. 9369, when it
denied Pimentel’s request to question PES Bedol and the
Chairpersons of the MBOCs-Maguindanao and SPBOC-
Maguindanao, and his subsequent motion to exclude the
second Maguindanao PCOC.
As already declared by this Court, the NBC has the duty to
determine the authenticity and due execution of the certificates
of canvass submitted to it in accordance with the four criteria
enumerated in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369. It has not been
established to the satisfaction of this Court that the NBC failed
to comply with its duty under said provision.
Pimentel asserts that in the absence of all the other copies of
the Maguindanao MCOCs, except copy 2, there is no way to
apply the third criterion under Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369. According to this
criterion for authenticity and due execution of a certificate of
canvass, there must exist no discrepancy in other authentic
copies of the certificate or in any of its supporting documents
such as the statement of votes by city/municipality/precinct
and no discrepancy in the votes of any candidate in words and
figures in the certificate. Pimentel posits that without any other
copies available for comparison, then copy 2 of the
Maguindanao MCOCs cannot be deemed authentic and duly
executed.
While it is true that having only one copy of the certificate of
canvass may raise problems as to the determination by the
NBC of its authenticity and due execution since there are no
other copies to compare it with, such is not the situation in the
Petition at bar.
According to Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, Congress and the
COMELEC en banc, acting as the NBC, shall determine the
authenticity and due execution of the certificates of canvass
for President, Vice-President and Senators, respectively, as
accomplished and transmitted to them by the local boards of
canvassers. For the province of Maguindanao, it is the PBOC
which transmits the PCOC to the NBC. For the 14 May 2007
senatorial elections, the NBC excluded from the national
canvass the Bedol PCOC submitted by the PBOC-
Maguindanao after it found the same to be tainted by
irregularities and statistical improbabilities. Thereafter, the
SPBOC-Maguindanao was created, which re-canvassed the
Maguindanao MCOCs and prepared and submitted to the
NBC the second Maguindanao PCOC.
Hence, the four criteria enumerated in Section 30 of Republic
Act No. 7166, as amended by Republic Act No. 9369, must be
applied by the NBC to the second Maguindanao PCOC. The
authenticity and due execution of the Maguindanao MCOCs,
which had already been determined by the SPBOC-
Maguindanao, are no longer in issue before the NBC. To allow
Pimentel to revive again before the NBC the issue of
authenticity and due execution of the Maguindanao MCOCs
after a determination thereof by the SPBOC-Maguindanao is
like granting him an appeal, a remedy which is without any
statutory or regulatory basis.
The SPBOC-Maguindanao prepared all seven copies of the
second Maguindanao PCOC. It properly submitted the first
copy to the NBC for national canvassing of the votes for
Senators. All the six other copies are in existence and have
been distributed to the intended recipients. There is no
allegation or proof that there is a discrepancy among the
seven authentic copies of the second Maguindanao PCOC.
Neither is it shown that the second Maguindanao PCOC
contains any discrepancy when compared with its supporting
documents. It would thus appear to this Court that the second
Maguindanao PCOC passed the third criterion for its
authenticity and due execution as provided in Section 30 of
Republic Act No. 7166, as amended by Republic Act No.
9369. As for the three other criteria, there is no sufficient
allegation, much less proof, that the NBC did not apply them to
the second Maguindanao PCOC or that the second
Maguindanao PCOC actually failed to meet any of them.
Given the foregoing, there is indeed no merit in Pimentel’s
request before the NBC to still question PES Bedol and the
Chairpersons of the MBOCs-Maguindanao and SPBOC-
Maguindanao regarding the Maguindanao MCOCs. There is
also no reason to exclude the second Maguindanao PCOC
from the national canvass of votes for Senators after its
authenticity and due execution had been determined by the
NBC in accordance with the criteria provided by the law.
Due process and equal protection of the law
Pimentel alleges that the proceedings before the NBC and the
SPBOC-Maguindanao disallowing him from asking certain
election officials, such as PES Bedol and the Chairpersons of
the MBOCs-Maguindanao and SPBOC-Maguindanao,
questions regarding the Maguindanao PCOC and MCOCs,
deprived him of his right to due process.
In City of Manila v. Hon. Laguio, Jr.,41 this Court already
provided a discourse on due process, to wit:
The constitutional safeguard of due process is
embodied in the fiat "(N)o person shall be deprived of
life, liberty or property without due process of law x x
x."
There is no controlling and precise definition of due
process. It furnishes though a standard to which
governmental action should conform in order that
deprivation of life, liberty or property, in each
appropriate case, be valid. This standard is aptly
described as a responsiveness to the supremacy of
reason, obedience to the dictates of justice, and as
such it is a limitation upon the exercise of the police
power.
The purpose of the guaranty is to prevent
governmental encroachment against the life, liberty
and property of individuals; to secure the individual
from the arbitrary exercise of the powers of the
government, unrestrained by the established principles
of private rights and distributive justice; to protect
property from confiscation by legislative enactments,
from seizure, forfeiture, and destruction without a trial
and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and
impartial justice and the benefit of the general law.
The guaranty serves as a protection against arbitrary
regulation, and private corporations and partnerships
are "persons" within the scope of the guaranty insofar
as their property is concerned.
This clause has been interpreted as imposing two
separate limits on government, usually called
"procedural due process" and "substantive due
process."
Procedural due process, as the phrase implies, refers
to the procedures that the government must follow
before it deprives a person of life, liberty, or property.
Classic procedural due process issues are concerned
with what kind of notice and what form of hearing the
government must provide when it takes a particular
action.
Substantive due process, as that phrase connotes,
asks whether the government has an adequate reason
for taking away a person’s life, liberty, or property. In
other words, substantive due process looks to whether
there is a sufficient justification for the government’s
action. Case law in the United States (U.S.) tells us
that whether there is such a justification depends very
much on the level of scrutiny used. For example, if a
law is in an area where only rational basis review is
applied, substantive due process is met so long as the
law is rationally related to a legitimate government
purpose. But if it is an area where strict scrutiny is
used, such as for protecting fundamental rights, then
the government will meet substantive due process only
if it can prove that the law is necessary to achieve a
compelling government purpose.
This Court finds Pimentel’s argument of deprivation of due
process problematic since he has not established what he is
being deprived of: life, liberty, or property. He was a candidate
in the senatorial elections. At the time he filed the instant
Petition, he might have been leading in the canvassing of
votes, yet the canvass proceedings were still ongoing, and no
winner for the twelfth and last senatorial post had been
proclaimed. May he already claim a right to the elective post
prior to the termination of the canvass proceedings and his
proclamation as winner, and may such a right be considered a
property right which he cannot be deprived of without due
process? These were clearly substantial and weighty issues
which Pimentel did not address. Unfortunately, this Court
cannot argue and settle them for him.
Pimentel only made a sweeping claim that in the canvass
proceedings of the Maguindanao votes before the NBC and
the SPBOC-Maguindanao, he was deprived of his
constitutional right to due process, both procedural and
substantive. After going over his allegations, however, and the
definition of substantive due process, this Court finds that
Pimentel cannot invoke denial of substantive due process
because he is not assailing any law, which, arbitrarily or
without sufficient justification, supposedly deprived him of life,
liberty, or property.
At most, Pimentel can claim that he was denied procedural
due process when he was not allowed by the NBC and the
SPBOC-Maguindanao to propound questions to certain
election officials. But even on this point, Pimentel fails to
convince this Court. Asking election officials questions and
confronting them with evidence are not part of the canvass
proceedings. There is no statute or regulation expressly
providing for such a procedure.
Any objection or manifestation concerning a certificate of
canvass before the NBC, as well as any contest involving the
inclusion or exclusion of an election return or certificate of
canvass before a local board of canvassers, must be orally
submitted to the Chairperson of the NBC or the local board of
canvassers, as the case may be. Simultaneous with the oral
submission, the party concerned must submit his written
objection, manifestation, or contest in the form required. The
objection, manifestation, or contest shall also be recorded in
the minutes of the canvass. In the event that the NBC or local
board of canvassers shall determine that there is a proper
case for the objection, manifestation, or contest submitted, it
shall automatically defer the canvass of the assailed election
return or certificate of canvass. Within 24 hours from the
submission of the objection, manifestation, or contest, the
party concerned shall submit his evidence which shall be
attached to his written objection, manifestation, or contest.
Within the same 24-hour period, any party may file a written
and verified opposition to the objection, manifestation, or
contest. Upon receipt of the evidence, the NBC or the local
board of canvassers shall take up the assailed election return
or certificate of canvass, and after considering the objection,
manifestation or contest, together with the opposition thereto
and the evidences submitted, shall summarily and immediately
rule thereon.42
The afore-described procedure does not provide any party the
opportunity to question and confront election officials and other
witnesses. It may have been allowed on occasion by the
boards of canvassers, but it does not necessarily ripen into a
legally demandable right. Again, canvass proceedings are
administrative and summary in nature. As for local boards of
canvassers, in elections for Senators, they only need to
determine the authenticity and due execution of the election
returns or certificates of canvass on the face thereof. As for
the COMELEC en banc, acting as the NBC, the determination
of the authenticity and due execution of the certificates of
canvass shall be limited only to those submitted before it by
the local boards of canvassers and in accordance with the
criteria provided in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369. The limitations on the
powers and duties of the boards of canvassers are meant to
avoid any delay in the proclamation of the elected official.
Issues whose resolution would require the presentation and
examination of witnesses are more properly raised in a regular
election protest.
And as a final observation on the matter of due process, this
Court notes that although Pimentel was not able to propound
questions to the election officials involved in the preparation
and canvassing of the Maguindanao MCOCs and PCOC, he
was still able, through his counsel, to state his observations,
manifestations, and objections regarding the said certificates,
which were duly noted.43 He may not have received the
response or action that he wanted with respect to his
observations, manifestations, and objections, but Pimentel
cannot deny that these were heard and presented in the
canvass proceedings. Pimentel further admitted that he did not
submit his written observations, manifestations, and objections
as the rules of procedure before the NBC and the local boards
of canvassers require.44 He cannot now decry that his
observations, manifestations, and objections were not given
due course when he himself failed to comply with the
procedure governing the same.
Equally baseless is Pimentel’s averment that his right to equal
protection of the laws was violated when the NBC and the
SPBOC-Maguindanao adopted a procedure of "no questions"
in the canvass of the Maguindanao MCOCs, different from the
procedure adopted in the canvass of the certificates of
canvass from other provinces/areas. Article III, Section 1 of the
1987 Constitution guarantees that no person shall be denied
equal protection of the laws. According to a long line of
decisions, equal protection simply 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.45According to Pimentel, he was deprived of equal
protection of the laws when he was not allowed to question the
election officials involved in the canvass proceedings for
Maguindanao, although he was allowed to do so for other
provinces or districts. In support of his claim, Pimentel
compared his own experiences in the canvass proceedings for
different provinces or districts. This Court, however, finds
Pimentel’s assessment misplaced. What would have been
essential for Pimentel to allege and prove was that other
senatorial candidates were allowed during the canvass
proceedings to question the election officials involved in the
preparation and canvassing of the Maguindanao MCOCs and
PCOC, while he was not; and that the other senatorial
candidates were given undue favor, while he was the only one
unjustly discriminated against. It seems apparent to this Court
that the position of the SPBOC-Maguindanao and the NBC not
to allow, during the canvass proceedings, the questioning of
election officials involved in the preparation and canvassing of
the Maguindanao MCOCs and PCOC, was consistent for all
senatorial candidates. Hence, petitioner was similarly situated
with all the other senatorial candidates and they were all
treated alike insofar as the canvass proceedings for
Maguindanao were concerned.
Electoral protest before the Senate Electoral Tribunal
(SET)
Pimentel’s Petition is for Certiorari and Mandamus, both
governed by Rule 65 of the Rules of Court.
A special civil action for certiorari may be filed under the
following circumstances:
SECTION 1. Petition for certiorari. – When any tribunal,
board or officer exercising judicial or quasi-judicial
functions has acted 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 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
judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may
require.
In a special civil action for certiorari, the burden is on the part
of 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. Grave abuse of discretion means a capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction. Mere abuse of discretion is not enough, it must be
so grave as when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility,
and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.46
The extraordinary remedy of mandamus, on the other hand,
may be availed of under the conditions provided below:
RULE 65, SECTION 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 writ of mandamus shall be issued only if the legal right to
be enforced is well defined, clear and certain. It lies only to
compel an officer to perform a ministerial duty, not a
discretionary one. The duty is ministerial only when its
discharge requires neither the exercise of official discretion nor
judgment.47
To avail of both special civil actions, there must be no other
plain, speedy and adequate remedy in the ordinary course of
law available to the petitioner, and in this, Pimentel’s Petition
falters.
It must be kept in mind that Zubiri was proclaimed the twelfth
Senator-elect in the 14 May 2007 elections on 14 July 2007,
and that he formally assumed office on 16 July 2007. In
accordance with this Court’s ruling in Aggabao, Pimentel’s
Petition must be dismissed, for his recourse lies, not with this
Court, but with the SET.
This Court elucidated in Aggabao48 that:
Article VI, Section 17 of the 1987 Constitution provides:
Sec. 17. The Senate and the House of Representatives
shall each have an Electoral Tribunal which shall be
the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice,
and the remaining six shall be Members of the Senate
or the House of Representatives, as the case may be,
who shall be chosen on the basis of proportional
representation from the political parties and the parties
or organization registered under the party-list system
represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.
In Pangilinan v. Commission on Elections we ruled
that:
The Senate and the House of Representatives
now have their respective Electoral Tribunals
which are the "sole judge of all contests relating
to the election, returns, and qualifications of
their respective Members, thereby divesting the
Commission on Elections of its jurisdiction
under the 1973 Constitution over election cases
pertaining to the election of the Members of the
Batasang Pambansa (Congress). It follows that
the COMELEC is now bereft of jurisdiction to
hear and decide pre-proclamation controversies
against members of the House of
Representatives as well as of the Senate.
The HRET has sole and exclusive jurisdiction over all
contests relative to the election, returns, and
qualifications of members of the House of
Representatives. Thus, once a winning candidate has
been proclaimed, taken his oath, and assumed office
as a Member of the House of Representatives,
COMELEC’s jurisdiction over election contests relating
to his election, returns, and qualifications ends, and the
HRET’s own jurisdiction begins.
It is undisputed that Miranda has already been
proclaimed, taken his oath and assumed office on June
14, 2004. As such, petitioner’s recourse would have
been to file an electoral protest before the HRET. His
remedy is not this petition for certiorari. Thus:
Finally, the private respondent Feliciano
Belmonte, Jr. has already been proclaimed as
the winner in the congressional elections in the
fourth district of Quezon City. He has taken his
oath of office and assumed his duties as
representative; hence, the remedy open to the
petitioner was to have filed an electoral protest
with the Electoral Tribunal of the House of
Representatives.
The allegation that Miranda’s proclamation is null and
void ab initio does not divest the HRET of its
jurisdiction. Thus:
(I)n an electoral contest where the validity of the
proclamation of a winning candidate who has
taken his oath of office and assumed his post
as Congressman is raised, that issue is best
addressed to the HRET. The reason for this
ruling is self-evident, for it avoids duplicity of
proceedings and a clash of jurisdiction between
constitutional bodies, with due regard to the
people’s mandate.
In Lazatin v. Commission on Elections we ruled that,
upon proclamation of the winning candidate and
despite its alleged invalidity, the COMELEC is divested
of its jurisdiction to hear the protest. Thus:
The petition is impressed with merit because
the petitioner has been proclaimed winner of
the Congressional elections in the first district of
Pampanga, has taken his oath of office as
such, and assumed his duties as
Congressman. For this Court to take
cognizance of the electoral protest against him
would be to usurp the functions of the House
Electoral Tribunal. The alleged invalidity of the
proclamation (which has been previously
ordered by the COMELEC itself) despite
alleged irregularities in connection therewith,
and despite the pendency of the protests of the
rival candidates, is a matter that is also
addressed, considering the premises, to the
sound judgment of the Electoral Tribunal.
In this case, certiorari will not lie considering that there
is an available and adequate remedy in the ordinary
course of law for the purpose of annulling or modifying
the proceedings before the COMELEC. After the
proclamation, petitioner’s remedy was an electoral
protest before the HRET. The resolution of the issues
presented in this petition is best addressed to the
sound judgment and discretion of the electoral tribunal.
The afore-quoted pronouncements are likewise applicable to
the Petition at bar, with the references therein to the
jurisdiction of the House of Representatives Electoral Tribunal
over election protests involving members of the House of
Representatives also being true for the SET as regards
election protests involving Senators.
In Chavez v. Commission on Elections,49 this Court similarly
ruled that the word "sole" in Article VI, Section 17 of the 1987
Constitution underscores the exclusivity of the electoral
tribunals' jurisdiction over election contests relating to their
respective members. It is therefore crystal clear that this Court
has no jurisdiction to entertain a petition
for certiorari and mandamus on matters which may be
threshed out in an election contest. It is the SET which has
exclusive jurisdiction to act on the complaint of Pimentel
involving, as it does, a contest relating to the election of Zubiri,
now a member of the Senate.
Pimentel attempts to bring his case outside the jurisprudential
precedent set by Aggabao, but to no avail.
That Pimentel filed the present Petition prior to Zubiri’s
proclamation is insignificant. Since Pimentel’s prayer for a
TRO and/or Status Quo Ante Order had been denied, Zubiri
was proclaimed the twelfth winning Senator in the 2007
Senatorial Elections.
Pimentel further claims that he is not challenging Zubiri’s
proclamation, but rather the conduct of the proceedings before
the NBC and the SPBOC-Maguindanao. This is just a
roundabout argument. Pimentel cannot deny that he assails
the canvass proceedings because he believes that the
annulment and setting aside thereof would result in his winning
as the twelfth Senator in the 14 May 2007 elections; and if he
is the rightful winner, then logically and necessarily, Zubiri’s
proclamation must also be annulled and set aside.
Finally, while Section 15, in relation to Section 30, of Republic
Act No. 7166, as amended by Republic Act No. 9369, did
introduce an additional exception to the prohibition against
pre-proclamation controversies in elections for President, Vice-
President, and Senators, this Court has already established in
the preceding discussion that Pimentel cannot invoke the
same in his Petition. The provisions in question did not
materially change the nature of canvass proceedings before
the boards of canvassers, which still remain summary and
administrative in nature for the purpose of canvassing the
votes and determining the elected official with as little delay as
possible and in time for the commencement of the new term of
office.
This Court deems it necessary to stress that attempts to delay
the canvass proceedings, except for the permissible pre-
proclamation controversies, must be shunned. Grounds which
are proper for electoral protests should not be allowed to delay
the proclamation of the winners.50 It may well be true that
public policy may occasionally permit the occurrence of "grab
the proclamation and prolong the protest" situations; that
public policy, however, balances the possibility of such
situations against the shortening of the period during which no
winners are proclaimed, a period commonly fraught with
tension and danger for the public at large. For those who
disagree with that public policy, the appropriate recourse is not
to ask this Court to abandon case law, which merely interprets
faithfully existing statutory norms, to engage in judicial
legislation and in effect to rewrite portions of the Omnibus
Election Code. The appropriate recourse is, of course, to the
Legislative Department of the Government and to ask that
Department to strike a new and different equilibrium in the
balancing of the public interests at stake.51
IN VIEW OF THE FOREGOING, the present Petition
for Certiorari and Mandamus is hereby DISMISSED. No costs.
SO ORDERED.
994."[23]
Simultaneous with the filing of its petition, AIFC filed a
motion to consolidate the said petition with GTEB's petition in
G.R. No. 114711. On July 20, 1994, after praying for time for
the filing thereof, Glorious Sun filed, in G.R. No. 115889, a
"Motion for Outright Dismissal of the Petition (with Opposition to
Motion to Consolidate), where it sought the dismissal of said
petition on the grounds that (1) AIFC has no personality to file
the petition; (2) AIFC failed to exhaust administrative remedies;
and (3) AIFC is guilty of forum-shopping.
In view of Our July 20, 1994 Resolution: (1) requiring the
respondents in G.R. No. 115889 to comment on the petition,
and not to file a motion to dismiss, and (2) granting AIFC's
motion to consolidate, Glorious Sun filed a "Manifestation" on
August 15, 1994 whereby it withdrew the aforesaid "Motion for
Outright Dismissal of the Petition (with Opposition to Motion to
Consolidate)." At the same time it made manifest its intention to
file a motion for reconsideration of the same July 20, 1994
Resolution insofar as it ordered AIF's petition in G.R. No.
115889 consolidated with the GTEB's petition in G.R. No.
114711.
Accordingly, on September 7, 1994, Glorious Sun filed a
"Motion for Reconsideration[24] with Motion to Suspend Period
to File Comment."
However, prior to the filing of Glorious Sun's aforesaid
"Motion for Reconsideration, etc.," or on September 5, 1994, we
issued our Resolution in the above-numbered cases, where we
resolved to:
"(a) NOTE WITHOUT ACTION the motions filed by: (1)
Glorious Sun Fashion Garments Manufacturing in G.R. No.
115889 for first and second extensions totalling fifteen (15)
days from July 13, 1994 within which to file motion to dismiss
petition and opposition to the motion to consolidate; and (2)
American Inter-Fashion Corporation [N.B. this should have
read 'Glorious Sun Fashion Garments Manufacturing'] in G.R.
No. 114711 for the outright dismissal of the case with
opposition to the motion to consolidate, it appearing that the:
(1) motion for outright dismissal with opposition to the motion
to consolidate was withdrawn by private respondent Glorious
Sun Fashion Garments Manufacturing in G.R. No. 115889
through its manifestation dated August 11, 1994; and (2)
motion to consolidate these cases was granted by the Second
Division on July 20, 1994;
(b) GRANT the motions of: (1) private respondent American
Inter-Fashion corporation: (aa) for a fourth (final) extension of
five (5) days from July 23, 1994 within which to file comment
on the petition for review on certiorari; and (bb) to admit
comment on the petition in G.R. No. 114711;
(c) NOTE the: (1) urgent motion of petitioner in G.R. No.
115889 to resolve application for temporary restraining order
or injunction; and (2) comment on the petition with motion for
the issuance of a show cause order filed by private respondent
American Inter-Fashion Corporation in G.R. No. 114711;
(d) require the petitioners [N.B. this should have read
petitioner] to file a REPLY within ten (10) days from notice
hereof to the comment on the petition filed by American Inter-
Fashion Corporation; and
(e) NOTE the manifestation dated August 12, 1994 by Atty.
Benjamin D. de Asis, manifesting his withdrawal as counsel for
petitioner Garments and Textile Export Board in G.R. No.
114711 but require aforesaid counsel to SUBMIT the
conformity of his client within five (5) days from notice
hereof." [25]
Thereafter, Glorious Sun filed on September 22, 1994 with
the First Division of this Court, its "Manifestation and Motion to
Suspend Further Proceedings Until After Resolution by Second
Division of Motion for Reconsideration of Order of July 20, 1994
on Consolidation."[26] On the other hand, the GTEB, pursuant to
Our above directive, filed its Reply to AIFC's Comment in G.R.
No. 115889.
AIFC, as petitioner in G.R. No. 114711, filed with the
Second Division of this Court an "Urgent Motion to Resolve
Application for Injunction,"[27] which it followed up with an
"Urgent Motion to Restore Status Quo Ante."[28] The latter
motion was filed with the Third Division of this Court, to whom
the above-numbered petitions had, in the meantime, been
assigned. In response to these urgent motions, Glorious Sun
filed, also with the Third Division of this Court, its "Comment
(Re: Petitioner's Urgent Motions: [1] to Resolve Application for
Injunction; and [2] to Restore Status Quo Ante)" where it argued
that:
"I. The First Division of this Honorable Court, as far back as 05
September 1994, had already acted upon petitioner's urgent
motion for the issuance of a temporary restraining order or
injunction, by merely noting the same.
II. In any event, the instant motions should nevertheless be
denied, there being absolutely no showing that petitioner is
clearly entitled to injunctive relief."[29]
Subsequent to the filing of the above pleadings, AIFC filed
yet another "Urgent Motion to Resolve," to which Glorious Sun
replied through a pleading denominated as "Manifestation (Re:
Petitioner's March 30, 1995 Urgent Motion to Resolve) with
Motion for Summary Dismissal and Motion to Cite Petitioner for
Direct Contempt (For Violation of SC Revised Circular 28-
91)."[30]
On April 3, 1995, we issued a resolution, the pertinent
portions whereof reads:
"Considering the allegations contained, the issues raised and
the arguments adduced in the petitions for review on certiorari,
as well as the respective comments of the private respondents
thereon and the replies of petitioner to said comments, the
Court Resolved to give DUE COURSE to the petition, and to
require the parties to FILE their respective MEMORANDA in
both cases, within twenty (20) days from notice.
The Court further Resolved:
xxx xxx xxx
(b) to NOTE:
(1) the urgent motion to resolve application for
injunction, dated March 2, 1995, filed by counsel for
petitioner American Inter-Fashion Corporation; and
(2) the urgent motion to restore status quo ante,
dated March 14, 1995, filed by counsel for petitioner."
Thereafter, both American Inter-Fashion Corporation and
the GTEB filed their respective Memoranda. On the other hand,
on August 4, 1995, Glorious Sun filed its "Comment on Petition
with Memorandum,"[31] which pleading included the succeeding
explanatory remarks:
"1. At the outset, it should be mentioned that contrary to the 05
April 1995 Resolution of the Honorable Court, Glorious Sun
has not yet filed its comment to American Inter-Fashion
Corporation's (AIFC's) petition in the above-numbered case.
2. On 07 September 1994, Glorious Sun filed a motion for
reconsideration of the order of this Honorable Court which
consolidated the instant petition with the petition of the
Garments and Textile Export Board (GTEB) in G.R. No.
114711. Glorious Sun included in said motion for
reconsideration a 'Motion to Suspend Period to File Comment,'
pending resolution by the Honorable Court of the consolidation
incident.
3. Subsequent thereto, or on 22 September 1994, Glorious
Sun filed a 'Manifestation and Motion to Suspend Further
Proceedings Until After Resolution by Second Division of
Motion for Reconsideration of Order of July 20, 1994 on
Consolidation.
4. In view of the filing of the aforementioned motions, Glorious
Sun held off the filing of its comment to the petition until said
motions were resolved by the Honorable Court. To this day,
however, no resolution has as yet been rendered by the
Honorable Court relative to the above-stated motions.
5. We surmise that the comment being referred to by the
Honorable Court as having been filed by Glorious Sun is that
which the latter filed in connection with AIFC's Urgent Motions
(1) to Resolve Application for Injunction; and (2) to
Restore Status Quo Ante.
6. Be that as it may, Glorious Sun is filing the instant pleading
which it prays be treated as its comment and
memorandum."[32]
A "Motion for Leave to Intervene and Submit
Manifestation"[33] in the above-entitled cases was subsequently
filed by Messrs. Yeung Chun Kam and Yeung Chun Ho, who
purport to be the Hongkong investors referred to by American
Inter-Fashion Corporation in its 23 June 1995 Memorandum.
On July 19, 1996, Glorious Sun filed a "Manifestation,"
whereby it informed this Court of the May 20, 1996 Order of the
Securities and Exchange Commission (SEC), the entirety
whereof reads thus:
"The articles of incorporation of American Inter-Fashion
Corporation (the new AIFC, for short) with SEC Reg. No.
AS093-008101-A reveal that said corporation was formed for
the purpose of re-registering American Inter-Fashion
Corporation (the old AIFC) with SEC Reg. No. 12236
registered with the SEC on July 16, 1985 and that the same
appear to have been approved by the Commission en banc in
its Commission meeting held on October 14, 1993. What was
actually approved in said meeting was the 'registration of a
new corporation' and that it was not the intention of this
Commission to approve the re-registration of the old AIFC.
American Inter-Fashion Corporation (SEC Reg. 12236), whose
corporate registration had been ordered revoked, cannot avoid
liquidation by reason of the revocation of its franchise and it
cannot also be allowed to continue its business by virtue of its
so-called 're-registration.'
Viewed in this light, this Commission en banc hereby
RECALLS the certificate of registration issued to American
Inter-Fashion Corporation on October 14, 1993 under SEC
Reg. No. AS093-008101-A without prejudice to the registration
of a new corporation."[34]
In the same "Manifestation," Glorious Sun prayed, among
others, for the dismissal of the above-entitled petitions, citing as
ground therefor the above-quoted SEC. Order recalling
American Inter-Fashion Corporation's certificate of registration.
Thereafter, American Inter-Fashion Corporation filed its
"Counter Manifestation (To Glorious Sun's Manifestation dated
July 15, 1996),"[35] to which Glorious Sun responded by way of
its "Reply (Re: Counter-Manifestation)."[36]
In G.R. No. 114711, the GTEB made the following
assignment of errors:
"I. The respondent Court of Appeals erred gravely in
failing to rule that it had no jurisdiction over the petition
in CA-G.R. SP No. 31596.
II. The respondent Court of Appeals erred gravely in
failing to rule that the petition in CA-G.R. SP No.
31596 did not state a cause of action against GTEB.
III. The respondent Court of Appeals erred gravely in
failing to hold that the 11 January 1993 Resolution
issued by GTEB was valid and in the proper exercise
of its administrative discretion and jurisdiction.
IV. The respondent Court of Appeals erred gravely in
failing to hold that the petition in CA-G.R. SP No.
31596 was rendered moot and academic in its entirety
by the mere passage of the year 1993.
V. The respondent Court of Appeals erred gravely in
failing to deny and/or to dismiss the petition in CA-
G.R. SP No. 31596 for lack of merit."[37]
On the other hand, AIFC makes the following assignment
of errors in its petition:[38]
"The GTEB has no jurisdiction to take cognizance of
Glorious Sun's action against AIFC for 'recovery' of
property."[39]
"In any case, the GTEB's issuance of a resolution
deciding the action on its 'merits' without hearing AIFC's
evidence is a violation of AIFC's right to due process."[40]
"The GTEB's cancellation of AIFC's EQs is a confiscation
of property without due process of law."[41]
THE ISSUES
1. Considering that AIFC's Certificate of Registration
had been effectively revoked by the Securities and
Exchange Commission on May 22, 1990, may AIFC still
engage in business and claim entitlement to the export
allocations subject of these petitions?
2. Does the Garments and Textile Export Board
(GTEB) have the power and authority to grant or cancel
export quotas or authorizations?
3. Did the GTEB, in issuing the assailed Resolutions,
afford AIFC the right to due process?
I
This is not the first time that we have been asked to resolve
an issue relative to AIFC's corporate personality. In G.R. No.
110711, entitled "American Inter-Fashion Corporation v.
Securities and Exchange Commission, et al.," this Court en
banc upheld the resolutions of the Prosecution and
Enforcement Department (PED) of the Securities and Exchange
Commission (SEC) in PED Case No. 87-0321 revoking AIFC's
certificate of registration, on the basis of Glorious Sun's
assertions that AIFC committed fraud and misrepresentation in
securing said certificate of registration, after we had likewise
effectively upheld the very same resolutions in an earlier petition
filed by AIFC, entitled "American Inter-Fashion Corporation v.
Court of Appeals, et al."[42]
In said G.R No. 110711, we recounted the factual
circumstances pertinent to the revocation of AIFC's certificate
of registration in the succeeding manner:
"The complaint was assigned for investigation and hearing to
SEC's Prosecution and Enforcement Department (PED). On
14 May 1990, PED issued a resolution recommending the
revocation of petitioner's SEC certificate of registration;
however, on 24 May 1990, PED issued an amended resolution
this time revoking the said certificate on the basis of its ruling
that 'there was in effect no payment of at least P1,657,000.00
of the P2,500,000.00 supposed payment on subscription,
contrary to the treasurer's affidavit that the subscription
of P2,500,000.00 was fully paid and the payment had been
fully received.' In PED's resolution of 15 October 1990,
petitioner's motion for reconsideration was denied.
Acting on petitioner's appeal (docketed as Sec-AC No. 319)
from the said resolutions of PED, the SEC affirmed the same,
in its decisions of 22 May 1992. A copy of which was received
by petitioner on 25 May 1992. Petitioner's motion for
reconsideration was denied by the SEC in the latter's order
dated September 16, 1992, copy of which order was received
by petitioner's counsel on September 18, 1992 (three [3] SEC
commissioners concurred; two [2] dissented). On September
25, 1992, petitioner then filed a petition for review with the
Court of Appeals docketed as CA-G.R. SP No. 29017. But
on September 30, 1992, the Court of Appeals dismissed the
petition on the ground that it was filed late (last day to file
petition was on September 19, 1992, but petition was filed only
on September 25, 1992, thus, petition was filed six [6] days
late).
On November 23, 1992, petitioner filed a petition for review
(under Rule 45 of the Rules of Court) with this Court, docketed
as G.R. No. 107742 assailing the resolution of the Court of
Appeals in said CA-G.R. SP No. 29017, and questioning the
SEC decision of 22 May 1992 in SEC-AC No. 319. On January
13, 1993, this Court (Third Division) denied AIFC's petition,
thus affirming the Court of Appeals' assailed resolution of
September 30, 1992, on the ground that the appellate court
committed no reversible error in dismissing the petition in CA-
G.R. SP No. 29017. Petitioner's motion for reconsideration
was referred to the Court en banc. On July 1, 1993 the
Court en banc denied with finality petitioner's motion for
reconsideration and held that the reason given by petitioner's
counsel for late filing of its petition (i.e. petition was filed late
with the Court of Appeals because petitioner's counsel Atty.
Ceniza of Sycip Law got seriously ill) was not a valid excuse
and not a compelling reason to reconsider the Court's
resolution of January 13, 1993.
Petitioner's counsel has filed the present petition (filed on 13
July 1993) under Rule 65 of the Rules of Court, assailing the
same PED resolutions and SEC decision assailed in G.R. No.
107742 (filed under Rule 45 of the Rules), this time on the
ground that they were issued or rendered without jurisdiction.
As earlier noted, substantially and even principally the same
issues and subject matter are raised and involved in the
present petition (filed under Rule 65 of the Rules of Court) and
those in the petition in G.R No. 107742 (filed under Rule 45 of
the Rules).
In said G.R. No. 107742, petitioner had availed of the remedy
of appeal by certiorari, i.e., appealing from the decision of the
Court of Appeals in CA-G.R. SP No. 29017. Settled is the rule
that a special civil action of certiorari (under Rule 65) is not a
substitute for a lost appeal (Bank of America, et al., vs. CA,
G.R No. 78917, June 8, 1990, 186 SCRA 417).
By the resolution of this Court en banc, dated July 1, 1993,
rendered in G.R No. 107742, the petitioner's privilege (or
opportunity) to question the SEC decision dated May 22, 1993
rendered in SEC-AC No. 319 was lost when the Court
sitting en banc denied with finality the motion of petitioner to
reconsider this Court's resolution of 13 January 1993, denying
its petition for review (G.R. No. 107742).
Thus, since petitioner had already lost its privilege to question
the SEC resolution dated May 22, 1992, petitioner can no
longer assail the same SEC resolution, not even
by certiorari under Rule 65 of the Rules of Court. A contrary
rule would swamp this Court with petitions for certiorari under
Rule 65 after an appeal is lost under Rule 45 of the Rules.
This would subvert the long established public policy that
litigations must come to an end at one time or other.
But even granting ex gratia arguendo that petitioner can still
avail itself of the remedy of a special civil action
of certiorari (under Rule 65) said remedy should be availed of
within a reasonable period from the date of receipt of the
assailed order/decision. In Reas vs. Bonife, we held that 'a
petition for certiorari under Rule 65 is required to be filed within
a reasonable period, no time frame being provided in the
Rules within which such petition has to be filed.' In the
subsequent case of Philsec Workers' Union vs. Hon. Romeo
A. Young (Resolution dated 22 January 1992, G.R No.
101734), it was held that ninety (90) days from notice of the
questioned order/decision is a reasonable period within which
to file a petition for certiorari under Rule 65.
In the present petition, the assailed decision of the respondent
SEC dated May 22, 1992, was received by petitioner's counsel
on May 25, 1992, and the SEC's resolution denying
petitioner's motion for reconsideration was received by
petitioner on September 18, 1992. The present petition was
filed on July 13, 1993. From September 18, 1992 to July 13,
1993, almost ten (10) months had lapsed. Undoubtedly, said
period of ten (10) months is no longer a 'reasonable period'
within which a petition for certiorari under Rule 65 may be
filed.
As earlier said the denial of the petition in G.R No. 107742 is
final. We must all be reminded of the settled rule that once a
judgment has become final, the issues raised therein should
be laid to rest. Hence, the issues raised anew regarding the
again assailed decision of SEC, dated May 22, 1992, in SEC-
AC No. 319, are no longer open to debate and/or adjudication.
ACCORDINGLY, the present petition is DISMISSED."[43]
It appears that subsequent to the revocation of AIFC's
certificate of registration, or on October 14, 1993, AIFC
registered anew with the SEC, this time under SEC Reg. No.
AS093-008101-A under the name and style: AIFC International
Fashion Corporation. Evidently then, the AIFC which filed the
petition in G.R No. 115889 is the AIFC which was "re-
registered" on the above date, the original AIFC's certificate of
registration having been revoked with finality by virtue of our
resolutions referred to in our above-quoted 11 August 1993
Resolution.[44] In the same manner, the AIFC which the GTEB
refers to in its petition in G.R No. 114711 could not have been
any one other than this same "re-registered" AIFC, said petition
having been filed subsequent to the revocation of the original
AIFC's certificate of registration.
It is obvious that the "re-registered" AIFC does not possess
the legal personality necessary for it to prosecute these
petitions. In view of the May 20, 1990 Order of the SEC, "the
certificate of registration issued to American Inter-Fashion
Corporation on October 14, 1993 under SEC Reg. No. AS093-
008101-A"[45] was revoked. For all legal intents and purposes,
AIFC no longer exists, and it may no longer claim to be entitled
to the export allocations subject of these petitions. After all, it
stands to reason that where there is no claimant, there can be
no claim. The AIFC International is a personality separate and
distinct from AIFC. For this reason, we cannot grant to AIFC
International Fashion Corporation the personality to pursue the
petition in G.R. No. 114711. It has not applied for and is thus
equally devoid of any personality to lay claim on the export
allocations subject of said petition.
In fine, if only for AIFC's lack of legal personality to maintain
its claim relative to the export allocations subject of these
petitions, its petition in G.R. No. 115889 is rendered dismissible.
On the other hand, and in view likewise of this lack of legal
personality, we would be justified in annulling the January 26,
1994 and March 22, 1994 Resolutions of the Court of Appeals
in CA-G.R. SP No. 31596, and in dismissing the said petition,
as prayed for by the GTEB in G.R. No. 114711.
II
In support of its assertion that it is "the sole entity
possessed with the power, jurisdiction and discretion to grant
and disapprove export allocations such as export quotas," the
GTEB makes reference to Executive Order No. 537, as
amended, including its implementing rules and regulations, and
the fact that among the functions of the GTEB therein
enumerated are "the approval of export allocations, as well as
the monitoring, administration and regulation thereof."[46] Citing
the doctrine of primary jurisdiction, the GTEB further argues that
being "a highly specialized administrative agency endowed with
regulatory and quasi-judicial powers x x x it enjoys the
fundamental presumption that it has the technical expertise and
mastery over such specialized matters, so much so that its
findings as to the latter would ordinarily deserve the respect of
the courts."[47]
AIFC, on the other hand, argues that inasmuch as none of
the powers specified in Executive Order 537, specifically
Section 3 thereof, gives the GTEB any judicial powers, nor any
specific jurisdiction to hear and decide actions, as the term is
understood under Section 1, Rule 2 of the Rules of Court, and
inasmuch as GTEB Case No. 92-50 is such an action between
private litigants, the GTEB has no jurisdiction over said
case.[48] To reinforce its argument, AIFC cites our ruling
in Globe Wireless Ltd. v. PSC.[49] In said case, we held:
"Too basic in administrative law to need citation of
jurisprudence is the rule that the jurisdiction and powers of
administrative agencies x x x are limited to those expressly
granted or necessarily implied from those granted in the
legislation creating such body; and any order without or
beyond such jurisdiction is void and ineffective x x x"[50]
For its part, Glorious Sun joins the GTEB in the latter's
assertion that it is the GTEB which has the jurisdiction to act
and rule on Glorious Sun's petition for the cancellation and
restoration to it of the quotas awarded to AIFC. Thus it argues:
"48. Contrary to AIFC's assertions, it is beyond dispute that the
GTEB has the jurisdiction to act and rule on Glorious Sun's
Petition for the cancellation and restoration to it of the quotas
illegally awarded to AIFC. A simple reference to the pertinent
provisions of the various Executive Orders (E.O.s) relative to
the functions of the GTEB easily reveals as much.
49. Under E.O. No. 952, which amended E.O. Nos. 537 and
823 it is provided:
'SECTION 1. Section 3 subparagraphs (a), (h), and (i) of
Executive Order No. 537 [on the powers and functions of the
Board] is hereby amended to read as follows:
xxx xxx xxx
(h) In case of violations of its rules and regulations, cancel or
suspend quota allocations, export authorizations and licenses
for the operations of bonded garment manufacturing
warehouses or disqualify the firm and/or its principal
stockholders and officers from engaging in garment exports
and from doing business with the Board; x x x'
50. Thus, if only on the basis of the above-quoted provision,
and even in the face of the criteria set forth in Globe, it is at
once evident that the power to adjudicate on the question of
the AIFC's entitlement to the subject EQs is 'necessarily
implied' from the Board's power to 'cancel or suspend quota
allocations, export authorizations and licenses.'
xxx xxx xxx
51. However, in addition to the above, E.O. No. 913, entitled
'Strengthening the Rule-Making and Adjudicatory Powers of
the Minister of Trade and Industry in Order to Further Protect
Consumers,' was likewise issued, which E.O., we respectfully
submit, made the GTEB's power to adjudicate on the question
of the AIFC's entitlement to the subject EQs more than just
being merely 'necessarily implied.'
52. Thus, Section 5 of Article III of the above-numbered E.O.
reads:
SEC. 5. Formal investigation. (a) Whenever the Minister has
verified that violation/s of 'Trade and Industry Laws' has/have
been committed, he may motu proprio charge said violator/s,
and thereafter proceed with a formal investigation,
independent of the corresponding criminal or civil action for the
said violation/s. The imposition of administrative penalties in
the formal investigation is without prejudice to the imposition of
penalties in the criminal action and/or judgment in the civil
action, and vice versa. Provided, however, that in deciding the
case the Minister or the judge, as the case may be, shall
consider the decision of the other and impose further
penalties, or consider the penalties imposed by the other as
already sufficient, as his sense of justice dictates.
(b) The Minister may proceed to hear and determine the
violation in the absence of any party who has been served with
notice to appear in the hearing.
(c) The Minister shall use every and all reasonable means to
ascertain the facts of the case speedily and objectively without
regard to technicalities of law or procedure and strict rules of
evidence prevailing in courts of law and equity. The Minister
shall decide the case within thirty working days from the time
the formal investigation was terminated.
(d) The minister shall have the same power to punish direct
and indirect contempts granted to superior courts under Rule
71 of the Rules of Court and the power to issue
subpoena duces tecum.
(e) When the 'trade and industry law' violated provides for its
own administrative procedure and penalties, including a
procedure where a Board Council, Authority, or Committee
takes part as a body, the Minister shall have the option of
selecting that procedure and penalties or the procedure and
penalties provided in this Executive Order. If he opts for the
latter, the approval of such Board, Council, Authority, or
Committee of the Minister's decision shall not be necessary.'
53. The above-quoted provisions are very significant in light of
the definition of the 'Ministry' as the Ministry of Trade and
Industry 'and/or any of its bureaus, offices, or attached
agencies, or any other office, unit or committee by whatever
name which is placed under or attached to the Ministry of
Trade and Industry (Section 1, Article I, E.O. 913;
Underscoring supplied).' The GTEB is one such bureau, office
or agency.
54. In this connection, AIFC's statement to the effect that
GTEB Case No. 92-50 is an action by one party against
another for the enforcement or protection of a right, is not
entirely accurate. It will be remembered that said GTEB case
was initiated principally for the purpose of securing the
cancellation of EQs being illegally held onto by AIFC, a
proceeding which is undoubtedly within the ambit of the
Board's powers; that Glorious Sun stood to benefit from such
cancellation was merely incidental to said proceeding."[51]
After examining the arguments raised by all parties
concerned, we find the arguments of the GTEB and Glorious
Sun to be impressed with merit, and accordingly hold that the
power and jurisdiction to adjudicate on the question of AIFC's
entitlement to the export allocations subject of the above-
entitled petitions (be they export quotas or export
authorizations), which includes the discretion to grant and
disapprove said export allocations, belongs solely to the GTEB,
and not to the regular courts.
Semantics notwithstanding, it cannot be denied that GTEB
Case No. 92-50 was instituted by Glorious Sun for the purpose
of securing the cancellation of EQs then alleged by it as being
illegally held by AIFC. This being the case, it likewise cannot be
denied that, as Glorious Sun correctly observes, such a
proceeding is clearly within the ambit of the GTEB's powers,
more specifically, the power granted to it by Section 3
subparagraph (h) of Executive Order No. 537 (as amended by
E.O. No. 952) to "cancel or suspend quota allocations, export
authorizations and licenses for the operations of bonded
garment manufacturing warehouses or disqualify the firm and/or
its principal stockholders and officers from engaging in garment
exports and from doing business with the Board," in case of
violations of its rules and regulations.
In light of the above, AIFC's reliance on our ruling in Globe
Wireless Ltd. v. PSC,[52] is clearly misplaced. On the basis of the
provisions of law cited by both the GTEB and Glorious Sun, that
the power to adjudicate on the question of an entity's entitlement
to export allocations was expressly granted to the GTEB, or at
the very least, was necessarily implied from the power to cancel
or suspend quota allocations, is beyond cavil.
In addition, we must take judicial notice of the fact that
AIFC, in cases involving the same controversy as that in the
above-entitled petitions, has recognized the exclusive
jurisdiction of the GTEB to award or cancel export allocations to
deserving entities.
AIFC categorically declared in its "Motion to Dismiss," Civil
Case No. 93-138[53] that "Executive Order No. 537, as amended
by Executive Order Nos. 823 and 952, vests upon defendant
GTEB exclusive jurisdiction to grant export quota allocations,"
and that "(u)nder the doctrine of primary jurisdiction, only
defendant GTEB has the authority to award/cancel export
quotas." In fact, it is noteworthy that in said motion to dismiss,
AIFC relied upon the very principles cited by both the GTEB and
Glorious Sun in the above-entitled petitions in support of their
argument that it is the GTEB which has jurisdiction over the
export allocations subject of said petitions, to wit:
"Courts of justice should not generally interfere with purely
administrative and discretionary functions; that courts have no
supervisory power over the proceedings and actions of the
administrative departments of the government involving the
exercise of judgment and findings of fact, because by reason
of their special knowledge and expertise over matters falling
under their jurisdiction, the latter are in a better position to
pass judgment on such matters and their findings of facts in
that regard are generally accorded respect, if not finality, by
the courts. (Ateneo de Manila v. CA, 145 SCRA 105)"[54]
AIFC reiterated this stance in its "Motion to Dismiss" in Civil
Case No. 64010[55] in this wise:
"As stated above, this Court cannot grant the reliefs sought in
the Complaint without first deciding that AIFC is not entitled to
EQs, and that, in effect, the EQs now in AIFC's name should
be cancelled. This power, however, has been granted not to
the courts but to the GTEB, which is vested with jurisdiction
'[i]n case of violations of its rules and regulations, [to]
cancel or suspend quota allocations, export
authorizations and licenses for the operations of
bonded garment manufacturing warehouses and/or to
disqualify the firm and/or its principal stockholders and
officers from engaging in garment exports and from
doing business with the Board (Section 3[h], Exec.
Order No. 537 [1979], as amended by Exec. Order
No. 823 [1982] and Exec. Order No. 952 [1984]).'
And even assuming for argument that it is indeed vested with
original jurisdiction to cancel EQs, under the doctrine of
primary jurisdiction, this Court cannot at this time take
cognizance of the Complaint (Supra, at pp. 14-15)."
Having already invoked the jurisdiction of the GTEB in
earlier actions involving the same controversy as that before us,
AIFC cannot now be heard to question that same jurisdiction
simply because it was unable to obtain the reliefs prayed for by
it from the GTEB. We have warned against such a practice on
more than one occasion in the past. Most recently, in St. Luke's
Medical Center, Inc. v. Torres,[56] we reiterated such warning:
"It is a settled rule that a party cannot invoke the jurisdiction of
a court to secure affirmative relief against his opponent and
after failing to obtain such relief, repudiate or question that
same jurisdiction. A party cannot invoke jurisdiction at one
time and reject it at another in the same controversy to suit its
interests and convenience. The Court frowns upon and does
not tolerate the undesirable practice of some litigants who
submit voluntarily a cause and then accepting the judgment
when favorable to them and attacking it for lack of jurisdiction
when adverse (Tajonera v. Lamaroza, 110 SCRA 447, citing
Tijam v. Sibonghanoy, 23 SCRA 35)."[57]
III
As to the allegations of AIFC that it was deprived of due
process, we find no merit to this contention. With respect to the
June 21, 1994 Resolution of the GTEB which AIFC assails in its
petition in G.R No. 115889, it is AIFC's contention that the
GTEB issued said resolution[58] without giving AIFC the
opportunity to be heard and without receiving its evidence in any
form.
We disagree.
Insofar as the supposed failure of the GTEB to issue a
show cause order to AIFC is concerned, we hold that the GTEB
committed no grave abuse of discretion in instituting an action
against AIFC on the basis of the allegations in Glorious Sun's
petition in GTEB Case No. 92-50. It is apparent from the rule
cited by AIFC[59] that the same was aimed primarily at ensuring
that if any action is to be filed against a respondent, the same
must have sufficient basis in fact. Consequently, for so long as
this goal is achieved, albeit through some other means, no
undue prejudice can be caused by the non-issuance of a show-
cause order. In fact, as correctly pointed out by Glorious Sun,
the GTEB, as a bureau, office or agency attached to the Ministry
of Trade and Industry, may even motu proprio charge violators
of "Trade and Industry Laws," and thereafter proceed with a
formal investigation.[60]
Anent AIFC's claim that it was not afforded the opportunity
to present evidence in GTEB Case No. 92-50, we find such
claim unworthy of belief. The GTEB, as an administrative
agency, has in its favor the presumption that it has regularly
performed its official duties, including those which are quasi-
judicial in nature. In the absence of clear facts to rebut the same,
said presumption of regularity must be upheld. This is also but
in keeping with the doctrine of primary jurisdiction.
We are inclined to give credence instead to Glorious Sun's
assertions relative to AIFC's presentation of evidence in GTEB
Case No. 92-50, there being ample basis in the records
therefor. Thus, after examining the "Motion to Dismiss" filed by
AIFC in GTEB Case No. 92-50,[61] we find nothing therein to
indicate that AIFC reserved its right to present evidence in said
GTEB case, contrary to AIFC's claims. On the other hand, as
correctly pointed out by Glorious Sun, if any reservation was
made by AIFC in its "Sur Rejoinder (Re: Motion to Dismiss),"
attached to AIFC's petition as Annex "E," this was limited to the
reservation "to raise the question of jurisdiction."[62]
More importantly, it is apparent that not only was AIFC
afforded the opportunity to present evidence, it actually took
advantage of this opportunity by presenting documentary
evidence, as asserted by Glorious Sun, an assertion which
AIFC most notably failed to refute. As we have declared time
and again, what is repugnant to due process is the denial of
the opportunity to be heard.[63] That AIFC was afforded this
opportunity is beyond question.
From what has been discussed the following conclusions
are made:
(1) AIFC no longer has the legal personality to prosecute the
above-entitled petitions and may therefore no longer claim
entitlement to the export allocations subject of these petitions;
(2) It is the GTEB, and not the regular courts, nor the Court of
Appeals, which has the jurisdiction to adjudicate on the
question of AIFC's entitlement to the export allocations subject
to these petitions; and
(3) AIFC's right to due process was in no wise violated by the
GTEB, the former not having taken advantage of the
opportunity afforded to it to present evidence in its behalf.
WHEREFORE, AIFC's petition in G.R. No. 115889 is
hereby DENIED for lack of merit, as well as for being moot and
academic, AIFC having lost the legal personality to prosecute
the same. GTEB's petition is GRANTED, and the assailed
January 21, 1994 Decision and March 22, 1994 Resolution of
the Court of Appeals in CA-G.R. SP No. 31596 is hereby
ANNULLED AND SET ASIDE (except insofar as it denied AIFC
and AIFC International Fashion Corporation's "Motion for
Issuance of Writ of Mandamus"). Said CA-G.R SP No. 31596 is
likewise ordered annulled and set aside.
SO ORDERED.
LORENZO M. TAÑADA and DIOSDADO
MACAPAGAL, petitioners,
vs.
MARIANO JESUS CUENCO, FRANCISCO A. DELGADO,
ALFREDO CRUZ, CATALINA CAYETANO, MANUEL
SERAPIO, PLACIDO REYES, and FERNANDO HIPOLITO in
his capacity as cashier and disbursing officer,respondents.
Tañada, Teehankee and Macapagal for petitioners.
Office of the Solicitor General Ambrosio Padilla and Solicitor
Troadio T. Quiazon, Jr. for respondents.
CONCEPCION, J.:
Petitioner Lorenzo M. Tañada is a member of the Senate of
the Philippines, and President of the Citizens Party, whereas
petitioner Diosdado Macapagal, a member of the House of
Representatives of the Philippines, was one of the official
candidates of the Liberal Party for the Senate, at the General
elections held in November, 1955, in which Pacita Madrigal
Warns, Lorenzo Sumulong, Quintin Paredes, Francisco
Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and
Decoroso Rosales, were proclaimed elected. Subsequently,
the elections of this Senators-elect-who eventually assumed
their respective seats in the Senate-was contested by
petitioner Macapagal, together with Camilo Osias, Geronima
Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and
William Chiongbian-who had, also, run for the Senate, in said
election-in Senate Electoral Case No. 4, now pending before
the Senate Electoral Tribunal. .
The Senate, in its session of February 22, 1956, upon
nomination of Senator Cipriano Primicias, on behalf of the
Nacionalista Party, chose Senators Jose P. Laurel, Fernando
Lopez and Cipriano Primicias, as members of the Senate
Electoral Tribunal. Upon nomination of petitioner Senator
Tañada, on behalf of the Citizens Party, said petitioner was
next chosen by the Senate as member of said Tribunal. Then,
upon nomination of Senator Primicias on behalf of the
Committee on Rules of the Senate, and over the objections of
Senators Tañada and Sumulong, the Senate choose
respondents Senators Mariano J. Cuenco and Francisco A.
Delgado as members of the same Electoral Tribunal.
Subsequently, the Chairman of the latter appointed: (1) Alfredo
Cruz and Catalina Cayetano, as technical assistant and
private secretary, respectively, to Senator Cuenco, as
supposed member of the Senate Electoral Tribunal, upon his
recommendation of said respondent; and (2) Manuel Serapio
and Placido Reyes, as technical assistant and private
secretary, respectively to Senator Delgado, as supposed
member of said Electoral Tribunal, and upon his
recommendation.
Soon, thereafter, Senator Lorenzo M. Tañada and
Congressman Diosdado Macapagal instituted the case at bar
against Senators Cuenco and Delgado, and said Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes, as
well as Fernando Hipolito, in his capacity as Cashier and
Disbursing Officer of the Senate Electoral Tribunal. Petitioners
allege that on February 22, 1956, as well as at present, the
Senate consists of 23 Senators who belong to the Nacionalista
Party, and one (1) Senator-namely, petitioner, Lorenzo M.
Tañada-belonging to the Citizens Party; that the Committee on
Rules for the Senate, in nominating Senators Cuenco and
Delgado, and the Senate, in choosing these respondents, as
members of the Senate Electoral Tribunal, had "acted
absolutely without power or color of authority and in clear
violation .. of Article VI, Section 11 of the Constitution"; that "in
assuming membership in the Senate Electoral Tribunal, by
taking the corresponding oath of office therefor", said
respondents had "acted absolutely without color of
appointment or authority and are unlawfully, and in violation of
the Constitution, usurping, intruding into and exercising the
powers of members of the Senate Electoral Tribunal"; that,
consequently, the appointments of respondents, Cruz,
Cayetano, Serapio and Reyes, as technical assistants and
private secretaries to Senators Cuenco and Delgado-who
caused said appointments to be made-as members of the
Senate Electoral Tribunal, are unlawful and void; and that
Senators Cuenco and Delgado "are threatening and are about
to take cognizance of Electoral Case No. 4 of the Senate
Electoral Tribunal, as alleged members thereof, in nullification
of the rights of petitioner Lorenzo M. Tañada, both as a
Senator belonging to the Citizens Party and as representative
of the Citizens Party in the Senate Electoral Tribunal, and in
deprivation of the constitutional rights of petitioner Diosdado
Macapagal and his co-protestants to have their election
protest tried and decided-by an Electoral Tribunal composed
of not more than three (3) senators chosen by the Senate
upon nomination of the party having the largest number of
votes in the Senate and not more than the (3) Senators upon
nomination of the Party having the second largest number of
votes therein, together, three (3) Justice of the Supreme Court
to be designated by the Chief Justice, instead of by an
Electoral Tribunal packed with five members belonging to the
Nacionalista Party, which is the rival party of the Liberal Party,
to which the Petitioner Diosdado Macapagal and his co-
protestants in Electoral Case No. 4 belong, the said five (5)
Nacionalista Senators having been nominated and chosen in
the manner alleged.. hereinabove.".
Petitioners pray that:.
"1. Upon petitioners' filing of bond in such amount as may be
determined by this Honorable Court, a writ of preliminary
injunction be immediately issued directed to respondents
Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes,
restraining them from continuing to usurp, intrude into and/ or
hold or exercise the said public offices respectively being
occupied by them in the Senate Electoral Tribunal, and to
respondent Fernando Hipolito restraining him from paying the
salaries of respondent Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, pending this action.
"2. After hearing, judgment be rendered ousting respondent
Mariano J. Cuenco Francisco A. Delgado, Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes from
the aforementioned public offices in the Senate Electoral
Tribunal and that they be altogether excluded therefrom and
making the Preliminary injunction permanent, with costs
against the respondents.".
Respondents have admitted the main allegations of fact in the
petition, except insofar as it questions the legality, and validity
of the election of respondents Senators Cuenco and Delgado,
as members of the Senate Electoral Tribunal, and of the
appointment of respondent Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes as technical assistants
and private secretaries to said respondents Senators.
Respondents, likewise, allege, by way of special and
affirmative defenses, that: (a) this Court is without power,
authority of jurisdiction to direct or control the action of the
Senate in choosing the members of the Electoral Tribunal; and
(b) that the petition states no cause of action, because
"petitioner Tañada has exhausted his right to nominate after
he nominated himself and refused to nominate two (2) more
Senators", because said petitioner is in estoppel, and because
the present action is not the proper remedy. .
I. Respondents assail our jurisdiction to entertain the petition,
upon the ground that the power to choose six (6) Senators as
members of the Senate Electoral Tribunal has been expressly
conferred by the Constitution upon the Senate, despite the fact
that the draft submitted to the constitutional convention gave to
the respective political parties the right to elect their respective
representatives in the Electoral Commission provided for in the
original Constitution of the Philippines, and that the only
remedy available to petitioners herein "is not in the judicial
forum", but "to bring the matter to the bar of public opinion.".
We cannot agree with the conclusion drawn by respondents
from the foregoing facts. To begin with, unlike the cases of
Alejandrino vs. Quezon (46 Phil., 83) and Vera vs. Avelino (77
Phil., 192)-relied upon by the respondents this is not an action
against the Senate, and it does not seek to compel the latter,
either directly or indirectly, to allow the petitioners to perform
their duties as members of said House. Although the
Constitution provides that the Senate shall choose six (6)
Senators to be members of the Senate Electoral Tribunal, the
latter is part neither of Congress nor of the Senate. (Angara
vs. Electoral Commission, 63 Phil., 139, Suanes vs. Chief
Accountant, 81 Phil., 818; 46 Off. Gaz., 462.).
Secondly, although the Senate has, under the Constitution, the
exclusive power to choose the Senators who shall form part of
the Senate Electoral Tribunal, the fundamental law has
prescribed the manner in which the authority shall be
exercised. As the author of a very enlightening study on
judicial self-limitation has aptly put it:.
"The courts are called upon to say, on the one hand, by whom
certain powers shall be exercised, and on the other hand, to
determine whether the powers possessed have been validly
exercised. In performing the latter function, they do not
encroach upon the powers of a coordinate branch of the,
government, since the determination of the validity of an act is
not the same, thing as the performance of the act. In the one
case we are seeking to ascertain upon whom devolves the
duty of the particular service. In the other case we are merely
seeking to determine whether the Constitution has been
violated by anything done or attented by either an executive
official or the legislative." (Judicial Self-Limitation by
Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39;
emphasis supplied,).
The case of Suanes vs. Chief Accountant (supra) cited by
respondent refutes their own pretense. This Court exercised
its jurisdiction over said case and decided the same on the
merits thereof, despite the fact that it involved an inquiry into
the powers of the Senate and its President over the Senate
Electoral Tribunal and the personnel thereof. .
Again, under the Constitution, "the legislative power" is vested
exclusively in the Congress of the Philippines. Yet, this does
not detract from the power of the courts to pass upon the
constitutionality of acts of Congress 1 And, since judicial
power includes the authority to inquire into the legality of
statutes enacted by the two Houses of Congress, and
approved by the Executive, there can be no reason why the
validity of an act of one of said Houses, like that of any other
branch of the Government, may not be determined in the
proper actions. Thus, in the exercise of the so-called "judicial
supremacy", this Court declared that a resolution of the
defunct National Assembly could not bar the exercise of the
powers of the former Electoral Commission under the original
Constitution. 2 (Angara vs. Electoral Commission, supra), and
annulled certain acts of the Executive 3 as incompatible with
the fundamental law.
In fact, whenever the conflicting claims of the parties to a
litigation cannot properly be settled without inquiring into the
validity of an act of Congress or of either House thereof, the
courts have, not only jurisdiction to pass upon said issue, but,
also, the duty to do so, which cannot be evaded without
violating the fundamental law and paving the way to its
eventual destruction. 4.
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1)
and Cabili vs. Francisco (88 Phil., 654), likewise, invoked by
respondents, in point. In the Mabanag case, it was held that
the courts could not review the finding of the Senate to the
effect that the members thereof who had been suspended by
said House should not be considered in determining whether
the votes cast therein, in favor of a resolution proposing an
amendment to the Constitution, sufficed to satisfy the
requirements of the latter, such question being a political one.
The weight of this decision, as a precedent, has been
weakened, however, by our resolutions in Avelino vs. Cuenco
(83 Phil., 17), in which this Court proceeded to determine the
number essential to constitute a quorum in the Senate.
Besides, the case at bar does not hinge on the number of
votes needed for a particular act of said body. The issue
before us is whether the Senate-after acknowledging that the
Citizens Party is the party, having the second largest number
of votes in the Senate, to which party the Constitution gives
the right to nominate three (3) Senators for the Senate
electoral Tribunal-could validly choose therefor two (2)
Nacionalista Senators, upon nomination by the floor leader of
the Nacionalista Party in the Senate, Senator Primicias
claiming to act on behalf of the Committee on Rules for the
Senate.
The issue in the Cabili case was whether we could review a
resolution of the Senate reorganizing its representation in the
Commission on Appointments. This was decided in the
negative, upon the authority of Alejandrino vs. Quezon (supra)
and Vera vs. Avelino (supra), the main purpose of the petition
being "to force upon the Senate the reinstatement of Senator
Magalona in the Commission on Appointments," one-half (1/2)
of the members of which is to be elected by each House on
the basis of proportional representation of the political parties
therein. Hence, the issue depended mainly on the
determination of the political alignment of the members of the
Senate at the time of said reorganization and of the necessity
or advisability of effecting said reorganization, which is a
political question. We are not called upon, in the case at bar,
to pass upon an identical or similar question, it being
conceded, impliedly, but clearly, that the Citizens Party is the
party with the second largest number of votes in the Senate.
The issue, therefore, is whether a right vested by the
Constitution in the Citizens Party may validly be exercised,
either by the Nacionalista Party, or by the Committee on Rules
for the Senate, over the objection of said Citizens Party.
xxx xxx xxx
The only ground upon which respondents' objection to the
jurisdiction of this Court and their theory to the effect that the
proper remedy for petitioners herein is, not the present action,
but an appeal to public opinion, could possibly be entertained
is, therefore, whether the case at bar raises merely a political
question, not one justiciable in nature.
In this connection, respondents assert in their answer that "the
remedy of petitioners is not in the judicial forum, but, to use
petitioner, Tañada's own words, to bring the matter to the bar
of public opinion' (p. 81, Discussion on the Creation of the
Senate Electoral Tribunal, February 21, 1956)." This allegation
may give the impression that said petitioner had declared, on
the floor of the Senate, that his only relief against the acts
complained of in the petition is to take up the issue before the
people- which is not a fact. During the discussions in the
Senate, in the course of the organization of the Senate
Electoral Tribunal, on February 21, 1956, Senator Tañada was
asked what remedies he would suggest if he nominated two
(2) Nacionialista Senators and the latter declined the,
nomination. Senator Tañada replied:.
"There are two remedies that occur to my mind right now, Mr.
Senator; one is the remedy open to all of us that if we feel
aggrieved and there is no recourse in the court of justice, we
can appeal to public opinion. Another remedy is an action in
the Supreme Court. Of course, as Senator Rodriguez, our
President here, has said one day; "If you take this matter to
the Supreme Court, you will lose, because until now the
Supreme Court has always ruled against any action that would
constitute interference in the business of anybody pertaining to
the Senate. The theory of separation of powers will be upheld
by the Supreme Court." But that learned opinion of Senator
Rodriguez, our President, notwithstanding, I may take the case
to the Supreme Court if my right herein is not respected. I may
lose, Mr. President, but who has not lost in the Supreme
Court? I may lose because of the theory of the separation of
powers, but that does not mean, Mr. President, that what has
been done here is pursuant to the provision of the
Constitution." (Congressional Record, Vol. III, p. 339;
emphasis supplied.).
This statement did not refer to the nomination, by Senator
Primicias, and the election, by the Senate, of Senators Cuenco
and Delgado as members of said Tribunal. Indeed, said
nomination and election took place the day after the
aforementioned statement of Senator Tañada was made. At
any rate, the latter announced that he might "take the case to
the Supreme Court if my right here is not respected.".
As already adverted to, the objection to our jurisdiction hinges
on the question whether the issue before us is political or not.
In this connection, Willoughby lucidly states:.
"Elsewhere in this treatise the well-known and well-established
principle is considered that it is not within the province of the
courts to pass judgment upon the policy of legislative or
executive action. Where, therefore, discretionary powers are
granted by the Constitution or by statute, the manner in which
those powers are exercised is not subject to judicial review.
The courts, therefore, concern themselves only with the
question as to the existence and extent of these discretionary
powers.
"As distinguished from the judicial, the legislative and
executive departments are spoken of as the political
departments of government because in very many cases their
action is necessarily dictated by considerations of public or
political policy. These considerations of public or political
policy of course will not permit the legislature to violate
constitutional provisions, or the executive to exercise authority
not granted him by the Constitution or by, statute, but, within
these limits, they do permit the departments, separately or
together, to recognize that a certain set of facts exists or that a
given status exists, and these determinations, together with
the consequences that flow therefrom, may not be traversed in
the courts." (Willoughby on the Constitution of the United
States, Vol. 3, p. 1326; emphasis supplied.).
To the same effect is the language used in Corpus Juris
Secundum, from which we quote:.
"It is well-settled doctrine that political questions are not within
the province of the judiciary, except to the extent that power to
deal with such questions has been conferred upon the courts
by express constitutional or statutory provisions.
"It is not easy, however, to define the phrase `political
question', nor to determine what matters, fall within its scope. It
is frequently used to designate all questions that lie outside the
scope of the judicial questions, which under the constitution,
are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government." (16 C.J.S., 413; see, also Geauga Lake
Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St.
565; Sevilla vs, Elizalde, 112 F. 2d 29, 72 App. D. C., 108;
emphasis supplied.).
Thus, it has been repeatedly held that the question whether
certain amendments to the Constitution are invalid for non-
compliance with the procedure therein prescribed, is not a
political one and may be settled by the Courts. 5 .
In the case of In re McConaughy (119 N.W. 408), the nature of
political question was considered carefully. The Court said:.
"At the threshold of the case we are met with the assertion that
the questions involved are political, and not judicial. If this is
correct, the court has no jurisdiction as the certificate of the
state canvassing board would then be final, regardless of the
actual vote upon the amendment. The question thus raised is
a fundamental one; but it has been so often decided contrary
to the view contended for by the Attorney General that it would
seem to be finally settled.
xxx xxx x x x.
" .. What is generally meant, when it is, said that a question is
political, and not judicial, is that it is a matter which, is to be
exercised by the people in their primary political capacity, or
that it has been specifically delegated to some other
department or particular officer of the government, with
discretionary power to act. See State vs. Cunningham, 81 Wis.
497, 51 L. R. A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470,
948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C. C. A.
516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E.
683, 25 L. R. A. 143, 42 Am. St. Rep. 220. Thus the
Legislature may in its discretion determine whether it will pass
a law or submit a proposed constitutional amendment to the
people. The courts have no judicial control over such matters,
not merely because they involve political question, but
because they are matters which the people have by the
Constitution delegated to the Legislature. The Governor may
exercise the powers delegated to him, free from judicial
control, so long as he observes the laws and acts within the
limits of the power conferred. His discretionary acts cannot be
controllable, not primarily because they are of a political
nature, but because the Constitution and laws have placed the
particular matter under his control. But every officer under a
constitutional government must act according to law and
subject him to the restraining and controlling power of the
people, acting through the courts, as well as through the
executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department
which is charged with the special duty of determining the
limitations which the law places upon all official action. The
recognition of this principle, unknown except in Great Britain
and America, is necessary, to the end that the government
may be one of laws and not men'-words which Webster said
were the greatest contained in any written constitutional
document." (pp. 411, 417; emphasis supplied.).
In short, the term "political question" connotes, in legal
parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, in the language of Corpus
Juris Secundum (supra), it refers to "those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive
branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure.
Such is not the nature of the question for determination in the
present case. Here, we are called upon to decide whether the
election of Senators Cuenco and Delgado, by the Senate, as
members of the Senate Electoral Tribunal, upon nomination by
Senator Primicias-a member and spokesman of the party
having the largest number of votes in the Senate-on behalf of
its Committee on Rules, contravenes the constitutional
mandate that said members of the Senate Electoral Tribunal
shall be chosen "upon nomination .. of the party having the
second largest number of votes" in the Senate, and hence, is
null and void. This is not a political question. The Senate is not
clothed with "full discretionary authority" in the choice of
members of the Senate Electoral Tribunal. The exercise of its
power thereon is subject to constitutional limitations which are
claimed to be mandatory in nature. It is clearly within the
legitimate prove of the judicial department to pass upon the
validity the proceedings in connection therewith.
".. whether an election of public officers has been in
accordance with law is for the judiciary. Moreover, where the
legislative department has by statute prescribed election
procedure in a given situation, the judiciary may determine
whether a particular election has been in conformity with such
statute, and, particularly, whether such statute has been
applied in a way to deny or transgress on the constitutional or
statutory rights .." (16 C.J.S., 439; emphasis supplied.).
It is, therefore, our opinion that we have, not only jurisdiction,
but, also, the duty, to consider and determine the principal
issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the
Senate, as members of the Electoral Tribunal, valid and
lawful?.
Section 11 of Article VI of the Constitution, reads:.
"The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice,
and the remaining six shall be Members of the Senate or of
the House of Representatives, as the case may be, who shall
be chosen by each House, three upon nomination of the party
having the largest number of votes and three of the party
having the second largest number of votes therein. The Senior
Justice in each Electoral Tribunal shall be its Chairman."
(Emphasis supplied.).
It appears that on February 22, 1956, as well as at present,
the Senate of the Philippines consists of twenty three (23)
members of the Nacionalista Party and one (1) member of the
Citizens Party, namely, Senator Tañada, who is, also, the
president of said party. In the session of the Senate held on
February 21, 1956, Senator Sabido moved that Senator
Tañada, "the President of the Citizens Party, be given the
privilege to nominate .. three (3) members" of the Senate
Electoral Tribunal (Congressional Record for the Senate, Vol.
III, pp. 328-329), referring to those who, according to the
provision above-quoted, should be nominated by "the party
having the second largest number of votes" in the Senate.
Senator Tañada objected formally to this motion upon the-
ground: (a) that the right to nominate said members of the
Senate Electoral Tribunal belongs, not to the Nacionalista
Party of which Senator Sabido and the other Senators are
members-but to the Citizens Party, as the one having the
second largest number of votes in the Senate, so that, being
devoid of authority to nominate the aforementioned members
of said Tribunal, the Nacionalista Party cannot give it to the
Citizens Party, which, already, has such authority, pursuant to
the Constitution; and (b) that Senator Sabido's motion would
compel Senator Tañada to nominate three (3) Senators to said
Tribunal, although as representative of the minority party in the
Senate he has "the right to nominate one, two or three to the
Electoral Tribunal," in his discretion. Senator Tañada further
stated that he reserved the right to determine how many he
would nominate, after hearing the reasons of Senator Sabido
in support of his motion. After some discussion, in which
Senators Primicias, Cea, Lim, Sumulong, Zulueta, and
Rodrigo took part, the Senate adjourned until the next
morning, February 22, 1956 (Do., do, pp. 329, 330, 332-333,
336, 338, 339, 343).
Then, said issues were debated upon more extensively, with
Senator Sumulong, not only seconding the opposition of
Senator Tañada, but, also, maintaining that "Senator Tañada
should nominate only one" member of the Senate, namely,
himself, he being the only Senator who belongs to the minority
party in said House (Do., do., pp. 360-364, 369). Thus, a new
issue was raised - whether or not one who does not belong to
said party may be nominated by its spokesman, Senator
Tañada - on which Senators Paredes, Pelaez, Rosales and
Laurel, as well as the other Senators already mentioned,
expressed their views (Do., do., pp. 345, 349, 350, 354, 358,
364, 375). Although the deliberations of the Senate consumed
the whole morning and afternoon of February 22, 1956, a
satisfactory solution of the question before the Senate
appeared to be remote. So, at 7:40 p.m., the meeting was
suspended, on motion of Senator Laurel, with a view to
seeking a compromise formula (Do., do., pp. 377). When
session was resumed at 8:10 p.m., Senator Sabido withdrew
his motion above referred to. Thereupon, Senator Primicias,
on behalf of the Nacionalista Party, nominated, and the Senate
elected, Senators Laurel, Lopez and Primicias, as members of
the Senate Electoral Tribunal. Subsequently, Senator Tañada
stated:.
"On behalf of the Citizens Party, the minority party in this
Body, I nominate the only Citizens Party member in this Body,
and that is Senator Lorenzo M. Tañada.".
Without an objection, this nomination was approved by the
House. Then, Senator Primicias stood up and said:.
"Now, Mr. President, in order to comply with the provision in
the Constitution, the Committee on Rules of the Senate-and I
am now making this proposal not on behalf of the Nacionalista
Party but on behalf of the Committee on Rules of the Senate-I
nominate two other members to complete the membership of
the Tribunal: Senators Delgado and Cuenco.".
What took place thereafter appears in the following quotations
from the Congressional Record for the Senate.
"SENATOR TAÑADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
"SENATOR TAÑADA. I would like to record my opposition to
the nominations of the last two named gentlemen, Senators
Delgado and Cuenco, not because I don't believe that they do
not deserve to be appointed to the tribunal but because of my
sincere and firm conviction that these additional nominations
are not sanctioned by the Constitution. The Constitution only
permits the Nacionalista Party or the party having the largest
number of votes to nominate three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a
few moments ago when I took the floor, I also wish to record
my objection to the last nominations, to the nomination of two
additional NP's to the Electoral Tribunal.
"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a
votar? (Varios Senadores: Si.) Los que esten conformes con
la nominacion hecha por el Presidente del Comite de
Reglamentos a favor de los Senadores Delgado y Cuenco
para ser miembros del Tribunal Electoral, digan, si. (Varios
Senadores: Si.) Los que no lo esten digan, no (Silencio.)
Queda aprobada." (Congressional Record for the Senate, Vol.
III, p. 377; emphasis supplied.).
Petitioners maintain that said nomination and election of
Senators Cuenco and Delgado-who belong to the Nacionalista
Party-as members of the Senate Electoral Tribunal, are null
and void and have been made without power or color of
authority, for, after the nomination by said party, and the
election by the Senate, of Senators Laurel, Lopez and
Primicias, as members of said Tribunal, the other Senators,
who shall be members thereof, must necessarily be nominated
by the party having the second largest number of votes in the
Senate, and such party is, admittedly, the Citizens Party, to
which Senator Tañada belongs and which he represents.
Respondents allege, however, that the constitutional mandate
to the effect that "each Electoral Tribunal shall be compose of
nine (9) members," six (6) of whom "shall be members of the
Senate or of the House of Representatives, as the case may
be", is mandatory; that when-after the nomination of three (3)
Senators by the majority party, and their election by the
Senate, as members of the Senate Electoral Tribunal-Senator
Tañada nominated himself only, on behalf of the minority
party, he thereby "waived his right to no two more Senators;"
that, when Senator Primicias nominated Senators Cuenco and
Delgado, and these respondents were chosen by the Senate,
as members of the Senate Electoral Tribunal, Said Senator
Primicias and the Senate merely complied with the
aforementioned provision of the fundamental law, relative to
the number of members of the Senate Electoral Tribunal; and,
that, accordingly, Senators Cuenco and Delgado are de jure
members of said body, and the appointment of their co-
respondents, Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes is valid and lawful.
At the outset, it will be recalled that the proceedings the
organization of the Senate Electoral Tribunal began with a
motion of Senator Sabido to the effect that "the distinguished
gentleman from Quezon, the President of the Citizens Party,
be given the privilege to nominate the three Members" of said
Tribunal. Senator Primicias inquired why the movant had used
the word "privilege". Senator Sabido explained that the present
composition of the Senate had created a condition or situation
which was not anticipated by the framers of our Constitution;
that although Senator Tañada formed part of the Nacionalista
Party before the end of 1955, he subsequently parted ways
with" said party; and that Senator Tañada "is the distinguished
president of the Citizens Party," which "approximates the
situation desired by the framers of the Constitution"
(Congressional Record for the Senate Vol. III, pp. 329-330).
Then Senator Lim intervened, stating:.
"At present Senator Tañada is considered as forming the only
minority or the one that has the second largest number of
votes in the existing Senate, is not that right? And if this is so,
he should be given this as a matter of right, not as a matter of
privilege. .. I don't believe that we should be allowed to grant
this authority to Senator Tañada only as a privilege but we
must grant it as a matter of right." (Id., id., p. 32; emphasis
supplied.).
Similarly, Senator Sumulong maintained that "Senator Tañada,
as Citizens Party Senator, has the right and not a mere
privilege to nominate," adding that:.
".. the question is whether we have a party here having the
second largest number of votes, and it is clear in my mind that
there is such a party, and that is the Citizens Party to which
the gentleman from Quezon belongs. .. We have to bear in
mind, .. that when Senator Tañada was included in the
Nacionalista Party ticket in 1953, it was by virtue of a coalition
or an alliance between the Citizens Party and the Nacionalista
Party at that time, and I maintain that when Senator Tañada as
head of the Citizens Party entered into a coalition with the
Nacionalista Party, he did not thereby become a Nacionalista
because that was a mere coalition, not a fusion. When the
Citizens Party entered into a mere coalition, that party did not
lose its personality as a party separate and distinct from the,
Nacionalista Party. And we should also remember that the
certificate of candidacy filed by Senator Tañada in the 1953
election was one to the effect that he belonged to the Citizens
Party .." (Id., id., p. 360; emphasis supplied.).
The debate was closed by Senator Laurel, who remarked,
referring to Senator Tañada:.
"..there is no doubt that he does not belong to the majority in
the first place, and that, therefore, he belongs to the minority.
And whether we like it or not, that is the reality of the actual
situation-that he is not a Nacionalista now, that he is the head
and the representative of the Citizens Party. I think that on
equitable ground and from the point of view of public opinion,
his situation .. approximates or approaches what is within the
spirit of that Constitution. .. and from the point of view of the
spirit of the Constitution it would be a good thing if we grant
the opportunity to Senator Tañada to help us in the
organization of this Electoral Tribunal (Id., id., p. 376;
emphasis supplied.).
The foregoing statements and the fact that, thereafter, Senator
Sabido withdrew his motion to grant Senator Tañada the
"privilege" to nominate, and said petitioner actually nominated
himself "on behalf of the Citizens Party, the minority party in
this Body"-not only without any, objection whatsoever, but,
also, with the approval of the Senate-leave no room for doubt
that the Senate-leave no room for doubt that the Senate has
regarded the Citizens Party, represented by Senator Tañada,
as the party having the second largest number of votes in said
House.
Referring, now, to the contention of respondents herein, their
main argument in support of the mandatory character of the
constitutional provision relative to the number of members of
the Senate Electoral Tribunal is that the word "shall", therein
used, is imperative in nature and that this is borne out by an
opinion of the Secretary of Justice dated February 1, 1939,
pertinent parts of which are quoted at the footnote. 6.
Regardless of the respect due its author, as a distinguished
citizen and public official, said opinion has little, if any, weight
in the solution of the question before this Court, for the
practical construction of a Constitution is of little, if any, unless
it has been uniform .." 6a Again, "as a general rule, it is only in
cases of substantial doubt and ambiguity that the doctrine of
contemporaneous or practical construction has any
application". As a consequence, "where the meaning of a
constitutional provision is clear, a contemporaneous or
practical executive interpretation thereof is entitled to no
weight, and will not be allowed to distort or in any way change
its natural meaning." The reason is that "the application of the
doctrine of contemporaneous construction is more restricted
as applied to the interpretation of constitutional provisions than
when applied to statutory provisions", and that, "except as to
matters committed by the Constitution, itself to the discretion
of some other department, contemporary or practical
construction is not necessarily binding upon the courts, even in
a doubtful case." Hence, "if in the judgment of the court, such
construction is erroneous and its further application is not
made imperative by any paramount considerations of public
policy, it may he rejected." (16 C. J. S., 71-72; emphasis
supplied.) 6b.
The aforemention opinion of the Secretary of Justice is not
backed up by a, "uniform" application of the view therein
adopted, so essential to give thereto the weight accorded by
the rules on contemporaneous constructions. Moreover, said
opinion tends to change the natural meaning of section 11 of
Article VI of the Constitution, which is clear. What is more,
there is not the slightest doubt in our mind that the purpose
and spirit of said provisions do not warrant said change and
that the rejection of the latter is demanded by paramount
considerations of public policy. .
The flaw in the position taken in said opinion and by
respondent herein is that, while, it relies upon the compulsory
nature of the word "shall", as regards the number of members
of the Electoral Tribunals, it ignores the fact that the same
term is used with respect to the method prescribed for their
election, and that both form part of a single sentence and must
be considered, therefore, as integral portions of one and the
same thought. Indeed, respondents have not even tried to
show and we cannot conceive-why "shall" must be deemed
mandatory insofar as the number of members of each
Electoral Tribunal, and should be considered directory as
regards the procedure for their selection. More important still,
the history of section 11 of Article VI of the Constitution and
the records of the Convention, refute respondents' pretense,
and back up the theory of petitioners herein.
Commenting on the frame of mind of the delegates to the
Constitutional Convention, when they faced the task of
providing for the adjudication of contests relating to the
election, returns and qualifications of members of the
Legislative Department, Dr. Jose M. Aruego, a member of said
Convention, says:.
"The experience of the Filipino people under the provisions of
the organic laws which left to the lawmaking body the
determination of the elections, returns, and qualifications of its
members was not altogether satisfactory. There were many
complaints against the lack of political justice in this
determination; for in a great number of cases, party interests
controlled and dictated the decisions. The undue delay in the
dispatch of election contests for legislative seats, the
irregularities that characterized the proceedings in some of
them, and the very apparent injection of partisanship in the
determination of a great number of the cases were decried by
a great number of the people as well as by the organs of
public opinion.
"The faith of the people in the uprightness of the lawmaking
body in the performance of this function assigned to it in the
organic laws was by no means great. In fact so blatant was the
lack of political justice in the decisions that there was,
gradually built up a camp of thought in the Philippines inclined
to leave to the courts the determination of election contests,
following the practice in some countries, like England and
Canada.
"Such were the conditions of things at the time of the meeting
of the convention." (The Framing of the Philippine Constitution
by Aruego, Vol. 1, pp. 257-258; emphasis supplied.).
This view is shared by distinguished members of the Senate.
Thus, in its session of February 22, 1956, Senator Sumulong
declared:.
".. when you leave it to either House to decide election
protests involving its own members, that is virtually placing the
majority party in a position to dictate the decision in those
election cases, because each House will be composed of a
majority and a minority, and when you make each House the
judge of every election protest involving any member of that
House, you place the majority in a position to dominate and
dictate the decision in the case and result was, there were so
many abuses, there were so main injustices: committed by the
majority at the expense and to the prejudice of the minority
protestants. Statements have been made here that justice was
done even under the old system, like that case involving
Senator Mabanag, when he almost became a victim of the
majority when he had an election case, and it was only
through the intervention of President Quezon that he was
saved from becoming the victim of majority injustices.
"It is true that justice had sometimes prevailed under the old
system, but the record will show that those cases were few
and they were the rare exceptions. The overwhelming majority
of election protests decided under the old system was that the
majority being then in a position to dictate the, decision in the
election protest, was tempted to commit as it did commit many
abuses and injustices." (Congressional Record for the Senate,
Vol. 111, p. 361; emphasis supplied.).
Senator Paredes, a veteran legislator and former Speaker of
the House of Representatives, said:.
".. what was intended in the creation of the electoral tribunal
was to create a sort of collegiate court composed of nine
members: Three of them belonging to the party having the
largest number of votes, and three from the party having the
second largest number votes so that these members may
represent the party, and the members of said party who will sit
before the electoral tribunal as protestees. For when it comes
to a party, Mr. President, there ground to believe that
decisions will be made along party lines." (Congressional
Record for the Senate, Vol. III, p. 351; emphasis supplied.).
Senator Laurel, who played an important role in the framing of
our Constitution, expressed himself as follows:.
"Now, with reference to the protests or contests, relating to the
election, the returns and the qualifications of the members of
the legislative bodies, I heard it said here correctly that there
was a time when that was given to the corresponding chamber
of the legislative department. So the election, returns and
qualifications of the members, of the Congress or legislative
body was entrusted to that body itself as the exclusive body to
determine the election, returns and qualifications of its
members. There was some doubt also expressed as to
whether that should continue or not, and the greatest
argument in favor of the retention of that provision was the fact
that was, among other things, the system obtaining in the
United States under the Federal Constitution of the United
States, and there was no reason why that power or that right
vested in the legislative body should not be retained. But it
was thought that would make the determination of this contest,
of this election protest, purely political as has been observed in
the past." (Congressional Record for the Senate, Vol. III, p.
376; emphasis supplied.).
It is interesting to note that not one of the members of the
Senate contested the accuracy of the views thus expressed.
Referring particularly to the philosophy underlying the
constitutional provision quoted above, Dr. Aruego states:.
"The defense of the Electoral Commission was based primarily
upon the hope and belief that the abolition of Party line
because of the equal representation in this body of the
majority and the minority parties of the National Assembly and
the intervention of some members of the Supreme Court who,
under the proposed constitutional provision, would also be
members of the same, would insure greater political justice in
the determination of election contests for seats in the National
Assembly than there would be if the power had been lodged in
the lawmaking body itself. Delegate Francisco summarized the
arguments for the creation of the Electoral Commission in the
following words:.
"I understand that from the time that this question is placed in
the hands of members not only of the majority party but also of
the minority party, there is already a condition, a factor which
would make protests decided in a non-partisan manner. We
know from experience that many times in the many protests
tried in the House or in the Senate, it was impossible to
prevent the factor of party from getting in. From the moment
that it is required that not only the majority but also the minority
should intervene in these questions, we have already enough
guarantee that there would be no tyranny on the part of the
majority.
`But there is another more detail which is the one which
satisfies me most, and that is the intervention of three justices.
So that with this intervention of three justices if there would be
any question as to the justice applied by the majority or the
minority, if there would be any fundamental disagreement, or if
there would be nothing but questions purely of party in which
the members of the majority as well as those of the minority
should wish to take lightly a protest because the protestant
belongs to one of said parties, we have in this case, as a
check upon the two parties, the actuations of the three
justices. In the last analysis, what is really applied in the
determination of electoral cases brought before the tribunals of
justice or before the House of Representatives or the Senate?
Well, it is nothing more than the law and the doctrine of the
Supreme Court. If that is the case, there will be greater skill in
the application of the laws and in the application of doctrines to
electoral matters having as we shall have three justices who
will act impartially in these electoral questions.
`I wish to call the attention of my distinguished colleagues to
the fact that in electoral protests it is impossible to set aside
party interests. Hence, the best guarantee, I repeat, for the
administration of justice to the parties, for the fact that the laws
will not be applied rightfully or incorrectly as well as for the fact
that the doctrines of the Supreme Court will be applied
rightfully, the best guarantee which we shall have, I repeat, is
the intervention of the three justices. And with the formation of
the Electoral Commission, I say again, the protestants as well
as the protestees could remain tranquil in the certainty that
they will receive the justice that they really deserve. If we
eliminate from this precept the intervention of the party of the
minority and that of the three justices, then we shall be placing
protests exclusively in the hands of the party in power. And I
understand, gentlemen, that in practice that has not given
good results. Many have criticized, many have complained
against, the tyranny of the majority in electoral cases .. I repeat
that the best guarantee the fact that these questions will be
judged not only by three members of the majority but also by
three members of the minority, with the additional guarantee of
the impartial judgment of three justices of the Supreme Court."
(The Framing of the Philippine Constitution by Aruego, Vol. I,
pp. 261-263; emphasis supplied.).
The foregoing was corroborated by Senator Laurel. Speaking
for this Court, in Angara vs. Electoral Commission (63 Phil.,
139), he asserted:.
"The members of the Constitutional Convention who framed
our fundamental law were in their majority-men mature in
years and experience. To be sure, many of them were familiar
with the history and political development of other countries of
the world. When, therefore they deemed it wise to create an
Electoral Commission as a constitutional organ and invested
with the exclusive function of passing upon and determining
the election, returns and qualifications of the members of the
National Assembly, they must have done so not only in the
light of their own experience but also having in view the
experience of other enlightened peoples of the world. The
creation of the Electoral Commission was designed to remedy
certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some
members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of
98 against 58. All that can be said now is that, upon the
approval of the Constitution, the creation of the Electoral
Commission is the expression of the wisdom `ultimate justice
of the people'. (Abraham Lincoln, First Inaugural Address,
March 4, 1861.).
"From the deliberations of our Constitutional Convention it is
evident that the purpose was to transfer in its totality all the
powers previously exercised by the legislature in matters
pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the
knowledge and appreciation of contemporary constitutional
precedents, however, as the long felt need of determining
legislative contests devoid of partisan considerations which
prompted the people acting through their delegates to the
Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which
both the majority and minority parties are equally represented
to off-set partisan influence in its deliberations was created,
and further endowed with judicial temper by including in its
membership three justices of the Supreme Court," (Pp. 174-
175.) 7.
As a matter of fact, during the deliberations of the convention,
Delegates Conejero and Roxas said:.
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
pedir informacion del Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS.
Con mucho gusto. "El Sr. CONEJERO. Tal como esta el draft.,
dando tres miembrosala mayoria, y otros t?-es a la minyoryia
y atros a la Corte Suprerma, no cree su Senoria que este
equivale pricticamente a dejar el asunto a los miembros del
Tribunal Supremo?.
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la
Comision esta cotistuido en esa forma, tanto los miembros de
la mayoria como los de la minoria asi como los miembros de
la Corte Saprema consideration la cuestion sobre la base de
sus meritos, sabiendo que el partidismo no es suficiente para
dar el triunbo.
"El Sr. CONEJERO. Cree Su Senoria que en un caso como
ese, podriamos hacer que tanto los de la mayoria como los de
la minoria prescindieran del partidisrno?.
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria
el triunfo." (Angara vs. Electoral Commission, supra, pp. 168-
169; emphasis supplied.).
It is clear from the foregoing that the main objective of the
framers of our Constitution in providing for the establishment,
first, of an Electoral Commission, 8 and then 9 of one Electoral
Tribunal for each House of Congress, was to insure the
exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body. To
achieve this purpose, two devices were resorted to, namely:
(a) the party having the largest number of votes, and the party
having the second largest number of votes, in the National
Assembly or in each House of Congress, were given the same
number of representatives in the Electoral Commission or
Tribunal, so that they may realize that partisan considerations
could not control the adjudication of said cases, and thus be
induced to act with greater impartiality; and (b) the Supreme
Court was given in said body the same number of
representatives as each one of said political parties, so that
the influence of the former may be decisive and endow said
Commission or Tribunal with judicial temper.
This is obvious from the very language of the constitutional
provision under consideration. In fact, Senator Sabido-who
had moved to grant to Senator Tañada the privilege" to make
the nominations on behalf of party having the second largest
number of votes in the Senate-agrees with it. As Senator
Sumulong inquired:.
"..I suppose Your Honor will agree with me that the framers of
the Constitution precisely thought of creating this Electoral
Tribunal so as to prevent the majority from ever having a
preponderant majority in the Tribunal." (Congressional Record
for the Senate, Vol. III, p. 330; emphasis supplied.).
Senator Sabido replied:.
"That is so, .." (Id., p. 330.).
Upon further interpretation, Senator Sabido said:.
".. the purpose of the creation of the Electoral Tribunal and of
its composition is to maintain a balance between the two
parties and make the members of the Supreme Court the
controlling power so to speak of the Electoral Tribunal or hold
the balance of power. That is the ideal situation."
(Congressional Record for the Senate, Vol. III, p. 349;
emphasis supplied.).
Senator Sumulong opined along the same line. His words
were: .
"..The intention is that when the three from the majority and
the three from the minority become members of the Tribunal it
is hoped that they will become aware of their judicial functions,
not to protect the protestants or the protegees. It is hoped that
they will act as judges because to decide election cases is a
judicial function. But the framers of, the Constitution besides
being learned were men of experience. They knew that even
Senators like us are not angels, that we are human beings,
that if we should be chosen to go to the Electoral Tribunal no
one can say that we will entirely be free from partisan
influence to favor our party, so that in, case that hope that the
three from the majority and the three from the minority who will
act as Judges should result in disappointment, in case they do
not act as judges but they go there and vote along party liner,
still there is the guarantee that they will offset each other and
the result will be that the deciding vote will reside in the hands
of the three Justices who have no partisan motives to favor
either the protestees or the protestants. In other words, the
whole idea is to prevent the majority from controlling and
dictating the decisions of the Tribunal and to make sure that
the decisive vote will be wielded by the Congressmen or
Senators who are members the Tribunal but will be wielded by
the Justices who, by virtue of their judicial offices, will have no
partisan motives to serve, either protestants, or protestees.
That is my understanding of the intention of the framers of the
Constitution when they decided to create the Electoral
Tribunal.
xxx xxx x x x.
"My idea is that the intention of the framers of the constitution
in creating the Electoral Tribunal is to insure impartially and
independence in its decision, and that is sought to be done by
never allowing the majority party to control the Tribunal, and
secondly by seeing to it that the decisive vote in the Tribunal
will be left in the hands of persons who have no partisan
interest or motive to favor either protestant or protestee."
(Congressional Record for the Senate, Vol. III, pp. 362-363,
365-366; emphasis supplied.).
So important in the "balance of powers" between the two
political parties in the Electoral Tribunals, that several
members of the Senate questioned the right of the party
having the second largest number of votes in the Senate and,
hence, of Senator Tañada, as representative of the Citizens
Party-to nominate for the Senate Electoral Tribunal any
Senator not belonging to said party. Senators Lim, Sabido,
Cea and Paredes maintained that the spirit of the Constitution
would be violated if the nominees to the Electoral Tribunals did
not belong to the parties respectively making the nominations.
10.
It is not necessary, for the purpose of this decision, to
determine whether the parties having the largest, and the
second largest, number of votes in each House may nominate,
to the Electoral Tribunals, those members of Congress who do
not belong to the party nominating them. It is patent, however,
that the most vital feature of the Electoral Tribunals is the
equal representation of said parties therein, and the resulting
equilibrium to be maintained by the Justices of the Supreme
Court as members of said Tribunals. In the words of the
members of the present Senate, said feature reflects the
"intent" "purpose", and "spirit of the Constitution", pursuant to
which the Senate Electoral Tribunal should be organized
(Congressional Record for the Senate, pp. 330, 337, 348-9,
350, 351, 355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all rules or
maxims as to the construction or interpretation of statutes is to
discover the true intention of the law" (82 C. J. S., 526) and
that.
"As a general rule of statutory construction, the spirit or
intention of a statute prevails over the letter thereof, and
whatever is within the spirit of statute is within the statute
although it is not within the letter, while that which is within the
letter, but not within the spirit of a statute, is not within the
statute; but, where the law is free and clear from ambiguity,
the letter of it is not to be disregarded on the pretext of
pursuing its spirit." (82 C. J. S., 613.).
"There is no universal rule or absolute test by which directory
provisions in a statute may in all circumstances be
distinguished from those which are mandatory. However, in
the determination of this question, as of every other question
of statutory construction, the prime object is to ascertain the
legislative intent. The legislative intent must be obtained front
all the surrounding circumstances, and the determination does
not depend on the form of the statute. Consideration must be
given to the entire statute, its nature, its object, and the
consequences which would result from construing it one way
or the other, and the statute must be construed in connection
with other related statutes. Words of permissive character may
be given a mandatory significance in order to effect the
legislative intent, and, when the terms of a statute are such
that they cannot be made effective to the extent of giving each
and all of them some reasonable operation, without construing
the statute as mandatory, such construction should be given; ..
On the other hand, the language of a statute, however
mandatory in form, may be deemed directory whenever
legislative purpose can best be carried out by such
construction, and the legislative intent does not require a
mandatory construction; but the construction of mandatory
words as directory should not be lightly adopted and never
where it would in fact make a new law instead of that passed
by the legislature. .. Whether a statute is mandatory or
directory depends on whether the thing directed to be done is
of the essence of the thing required, or is a mere matter of
form, and what is a matter of essence can often be determined
only by judicial construction. Accordingly, when a particular
provision of a statute relates to some immaterial matter, as to
which compliance with the statute is a matter of convenience
rather than substance, or where the directions of a statute are
given merely with a view to the proper, orderly, and prompt
conduct of business, it is generally regarded as directory,
unless followed by words of absolute prohibition; and a statute
is regarded as directory were no substantial rights depend on
it, no injury can result from ignoring it, and the purpose of the
legislative can be accomplished in a manner other than that
prescribed, with substantially the same result. On the other
hand, a provision relating to the essence of the thing to be
done, that is, to matters of substance, is mandatory, and when
a fair interpretation of a statute, which directs acts or
proceedings to be done in a certain way shows that the
legislature intended a compliance with such provision to be
essential to the validity of the act or proceeding, or when same
antecedent and pre-requisite conditions must exist prior to the
exercise of power, or must be performed before certain other
powers can be exercise, the statute must be regarded as
mandatory. (Id., pp. 869-874.) (See also, Words and Phrases,
Vol. 26, pp. 463-467; emphasis supplied.).
What has been said above, relative to the conditions
antecedent to, and concomitant with, the adoption of section
11 of Article VI of the Constitution, reveals clearly that its
framers intended to prevent the majority party from controlling
the Electoral Tribunals, and that the structure thereof is
founded upon the equilibrium between the majority and the
minority parties therein, with the Justices of the Supreme
Court, who are members of said Tribunals, holding the
resulting balance of power. The procedure prescribed in said
provision for the selection of members of the Electoral
Tribunals is vital to the role they are called upon to play. it
constitutes the essence of said Tribunals. Hence, compliance
with said procedure is mandatory, and acts performed in
violation thereof are null and void. 11.
It is true that the application of the foregoing criterion would
limit the membership of the Senate Electoral Tribunal, in the
case at bar, to seven (7), instead of nine (9), members; but, it
is conceded that the present composition of the Senate was
not foreseen by the framers of our Constitution (Congressional
Record for the Senate, Vol. III, pp. 329, 342, 349, 354, 359,
375). Furthermore, the spirit of the law prevails over its letter,
and the solution herein adopted maintains the spirit of the
Constitution, for partisan considerations can not be decisive in
a tribunal consisting of three (3) Justices of the Supreme
Court, three (3) members nominated by the majority party and
either one (1) or two (2) members nominated by the party
having the second largest number of votes in the House
concerned.
Upon the other hand, what would be the result of respondents'
contention if upheld? Owing to the fact that the Citizens Party
12 has only one member in the Upper House, Senator Tañada
felt he should nominate, for the Senate Electoral Tribunal, only
said member of the Citizens Party. The same is, thus,
numerically handicapped, vis-a-vis the majority party, in said
Tribunal. Obviously, Senator Tañada did not nominate other
two Senators, because, otherwise, he would worsen the
already disadvantageous position, therein, of the Citizens
Party. Indeed, by the aforementioned nomination and election
of Senators Cuenco and Delgado, if the same were
sanctioned, the Nacionalista Party would have five (5)
members in the Senate Electoral Tribunal, as against one (1)
member of the Citizens Party and three members of the
Supreme Court. With the absolute majority thereby attained by
the majority party in said Tribunal, the philosophy underlying
the same would be entirely upset. The equilibrium between the
political parties therein would be destroyed. What is worst, the
decisive moderating role of the Justices of the Supreme Court
would be wiped out, and, in lieu thereof, the door would be
thrown wide open for the predominance of political
considerations in the determination of election protests
pending before said Tribunal, which is precisely what the
fathers of our Constitution earnestly strove to forestall. 13.
This does not imply that the honesty, integrity or impartiality of
Senators Cuenco and Delgado are being questioned. As a
matter of fact, when Senator Tañada objected to their
nomination, he explicitly made of record that his opposition
was based, not upon their character, but upon the principle
involved. When the election of members of Congress to the
Electoral Tribunal is made dependent upon the nomination of
the political parties above referred to, the Constitution thereby
indicates its reliance upon the method of selection thus
established, regardless of the individual qualities of those
chosen therefor. Considering the wealth of experience of the
delegatesto the Convention, as lawyers of great note, as
veteran politicians and as leaders in other fields of endeavor,
they could not, and did not, ignore the fact that the Constitution
must limit itself to giving general patterns or norms of action. In
connection, particularly, with the composition of the Electoral
Tribunals, they believed that, even the most well meaning
individuals often find it difficult to shake off the bias and
prejudice created by political antagonisms and to resist the
demands of political exigencies, the pressure of which is
bound to increase in proportion to the degree of predominance
of the party from which it comes. As above stated, this was
confirmed by distinguished members of the present Senate.
(See pp. 25-28, 33, 34, supra.).
In connection with the argument of the former Secretary of
Justice to the effect that when "there is no minority party
represented in the Assembly, the necessity for such a check
by the minority disappears", the following observations of the
petitioners herein are worthy of notice:.
" Under the interpretation espoused by the respondents, the
very frauds or terrorism committed by a party would establish
the legal basis for the final destruction of minority parties in the
Congress at least. Let us suppose, for example, that in the
Senate, the 15 or 16 senators with unexpired terms belong to
the party A. In the senatorial elections to fill the remaining 8
seats, all the 8 candidates of party A are proclaimed elected
through alleged fraud and/or terrorism. (The ouster of not less
than 3 senators-elect in the elections held since liberation
attests to the reality of election frauds and terrorism in our
country.) There being no senator or only one senator
belonging to the minority, who would sit in judgment on the
election candidates of the minority parties? According to the
contention of the respondents, it would be a Senate Electoral
Tribunal made up of three Supreme Court Justices and 5 or 6
members of the same party A accused of fraud and terrorism.
Most respectfully, we pray this Honorable Court to reject an
interpretation that would make of a democratic constitution the
very instrument by which a corrupt and ruthless party could
entrench itself in power the legislature and thus destroy
democracy in the Philippines.
xxx xxx x x x.
".. When there are no electoral protests filed by the Minority
party, or when the only electoral protests filed are by
candidates of the majority against members-elect of the same
majority party, there might be no objection to the statement.
But if electoral protests are filed by candidates of the minority
party, it is at this point that a need for a check on the majority
party is greatest, and contrary to the observation made in the
above-quoted opinion, such a cheek is a function that cannot
be successfully exercised by the 3 Justices of the Supreme
Court, for the obvious and simple reason that they could easily
be outvoted by the 6 members of the majority party in the
Tribunal.
xxx xxx x x x.
"In the case of the cited opinion of Secretary Abad Santos
rendered in 1939, it, did not appear that there were minority
party candidates who were adversely affected by the ruling of
the Secretary of Justice and who could have brought a test
case to court." (Emphasis supplied.).
The defenses of waiver and estoppel set up against petitioner
Tañada are untenable. Although "an individual may waive
constitutional provisions intended for his benefit", particularly
those meant for the protection of his property, and, sometimes,
even those tending "to secure his personal liberty", the power
to waive does not exist when "public policy or public morals"
are involved. (11 Am. Jur. 765; I Cooley's Constitutional
Limitations, pp. 368-371). The procedure outlined in the
Constitution for the organization, of the Electoral Tribunals was
adopted in response to the demands of the common weal, and
it has been held that where a statute is founded on public
policy, those to whom it applies should not be permitted to
waive its provisions" (82 C. J. S., 874). Besides, there can be
no waiver without an intent to such effect, which Senator
Tañada did not have. Again, the alleged waiver or exhaustion
of his rights does not justify the exercise thereof by a person or
party, other than that to which it is vested exclusively by the
Constitution.
The rule estoppel is that "whenever a party has, by his
declaration, act or omissions, intentionally and deliberately led
another to believe a particular thing true, and to act upon such
belief, he cannot, in a litigation arising out of such declaration,
act or omission, be permitted to falsify it" (Rule 69, sec. 68 [a],
Rules of Court). In the case at bar, petitioner Senator Tañada
did not lead the Senate to believe that Senator Primicias could
nominate Senators Cuenco and Delgado. On the contrary,
said petitioner repeatedly asserted that his was the exclusive
right to make the nomination. He, likewise, specifically
contested said nomination of Senators Cuenco and Delgado.
Again, the rule on estoppel applies to questions of fact, not of
law, about the truth of which the other party is ignorant (see
Moran's Comments on the Rules of Court, Vol. 3, pp. 490,
495). Such is not the nature of the situation that confronted
Senator Tañada and the other members of the Senate. Lastly,
the case of Zandueta vs. De la Costa (66 Phil., 615), cited by
respondents, is not in point. Judge Zandueta assumed office
by virtue of an appointment, the legality of which he later on
assailed. In the case at bar, the nomination and election of
Senator Tañada as member of the Senate Electoral Tribunal
was separate, distinct and independent from the nomination
and election of Senators Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may not
elect, as members of the Senate Electoral Tribunal, those
Senators who have not been nominated by the political parties
specified in the Constitution; that the party having the largest
number of votes in the Senate may nominate not more than
three (3) members thereof to said Electoral Tribunal; that the
party having the second largest number of votes in the Senate
has the exclusive right to nominate the other three (3)
Senators who shall sit as members in the Electoral Tribunal;
that neither these three (3) Senators, nor any of them, may be
nominated by a person or party other than the one having the
second largest number of votes in the Senate or its
representative therein; that the Committee on Rules for the
Senate has no standing to validly make such nomination and
that the nomination of Senators Cuenco and Delgado by
Senator Primicias, and the election of said respondents by the
Senate, as members of said Tribunal, are null and void ab
initio.
As regards respondents Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, we are not prepared to
hold, however, that their appointments were null and void.
Although recommended by Senators Cuenco and Delgado,
who are not lawful members of the Senate Electoral Tribunal,
they were appointed by its Chairman, presumably, with the
consent of the majority of the de jure members of said body 14
or, pursuant to the Rules thereof. At any rate, as held in
Suanes vs. Chief Accountant (supra), the election of its
personnel is an internal matter falling within the jurisdiction and
control of said body, and there is every reason to believe that it
will, hereafter take appropriate measures, in relation to the four
(4) respondents abovementioned, conformably with the spirit
of the Constitution and of, the decision in the case at bar.
Wherefore, judgment is hereby rendered declaring that,
respondents Senators Mariano Jesus Cuenco and Francisco
A. Delgado have not been duly elected as Members of the
Senate Electoral Tribunal, that they are not entitled to act as
such and that they should be, as they are hereby, enjoined
from exercising the powers and duties of Members of said
Electoral Tribunal and from acting in such capacity in
connection with Senate Electoral Case No. 4 thereof. With the
qualification stated above, the petition is dismissed, as regards
respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio
and Placido Reyes. Without special pronouncement as to
costs. It is so ordered.
G.R. No. 106611 July 21, 1994
COMMISSIONER OF INTERNAL REVENUE, petitioner,
vs.
COURT OF APPEALS, CITYTRUST BANKING
CORPORATION and COURT OF TAX
APPEALS, respondents.
The Solicitor General for petitioner.
Palaez, Adriano & Gregorio for private respondent.
REGALADO, J.:
The judicial proceedings over the present controversy
commenced with CTA Case No. 4099, wherein the Court of
Tax Appeals ordered herein petitioner Commissioner of
Internal Revenue to grant a refund to herein private
respondent Citytrust Banking Corporation (Citytrust) in the
amount of P13,314,506.14, representing its overpaid income
taxes for 1984 and 1985, but denied its claim for the alleged
refundable amount reflected in its 1983 income tax return on
the ground of prescription.1 That judgment of the tax court was
affirmed by respondent Court of Appeals in its judgment in CA-
G.R. SP
No. 26839.2 The case was then elevated to us in the present
petition for review on certiorari wherein the latter judgment is
impugned and sought to be nullified and/or set aside.
It appears that in a letter dated August 26, 1986, herein private
respondent corporation filed a claim for refund with the Bureau
of Internal Revenue (BIR) in the amount of P19,971,745.00
representing the alleged aggregate of the excess of its carried-
over total quarterly payments over the actual income tax due,
plus carried-over withholding tax payments on government
securities and rental income, as computed in its final income
tax return for the calendar year ending December 31, 1985.3
Two days later, or on August 28, 1986, in order to interrupt the
running of the prescriptive period, Citytrust filed a petition with
the Court of Tax Appeals, docketed therein as CTA Case No.
4099, claiming the refund of its income tax overpayments for
the years 1983, 1984 and 1985 in the total amount of
P19,971,745.00.4
In the answer filed by the Office of the Solicitor General, for
and in behalf of therein respondent commissioner, it was
asserted that the mere averment that Citytrust incurred a net
loss in 1985 does not ipso facto merit a refund; that the
amounts of P6,611,223.00, P1,959,514.00 and P28,238.00
claimed by Citytrust as 1983 income tax overpayment, taxes
withheld on proceeds of government securities investments,
as well as on rental income, respectively, are not properly
documented; that assuming arguendo that petitioner is entitled
to refund, the right to claim the same has prescribed
with respect to income tax payments prior to August 28, 1984,
pursuant to Sections 292 and 295 of the National Internal
Revenue Code of 1977, as amended, since the petition was
filed only on August 28, 1986.5
On February 20, 1991, the case was submitted for decision
based solely on the pleadings and evidence submitted by
herein private respondent Citytrust. Herein petitioner could not
present any evidence by reason of the repeated failure of the
Tax Credit/Refund Division of the BIR to transmit the records
of the case, as well as the investigation report thereon, to the
Solicitor General.6
However, on June 24, 1991, herein petitioner filed with the tax
court a manifestation and motion praying for the suspension of
the proceedings in the said case on the ground that the claim
of Citytrust for tax refund in the amount of P19,971,745.00 was
already being processed by the Tax Credit/Refund Division of
the BIR, and that said bureau was only awaiting the
submission by Citytrust of the required confirmation receipts
which would show whether or not the aforestated amount was
actually paid and remitted to the BIR.7
Citytrust filed an opposition thereto, contending that since the
Court of Tax Appeals already acquired jurisdiction over the
case, it could no longer be divested of the same; and, further,
that the proceedings therein could not be suspended by the
mere fact that the claim for refund was being administratively
processed, especially where the case had already been
submitted for decision.
It also argued that the BIR had already conducted an audit,
citing therefor Exhibits Y, Y-1, Y-2 and Y-3 adduced in the
case, which clearly showed that there was an overpayment of
income taxes and for which a tax credit or refund was due to
Citytrust. The Foregoing exhibits are allegedly conclusive
proof of and an admission by herein petitioner that there had
been an overpayment of income taxes.8
The tax court denied the motion to suspend proceedings on
the ground that the case had already been submitted for
decision since February 20, 1991.9
Thereafter, said court rendered its decision in the case, the
decretal portion of which declares:
WHEREFORE, in view of the foregoing,
petitioner is entitled to a refund but only for the
overpaid taxes incurred in 1984 and 1985. The
refundable amount as shown in its 1983 income
tax return is hereby denied on the ground of
prescription. Respondent is hereby ordered to
grant a refund to petitioner Citytrust Banking
Corp. in the amount of P13,314,506.14
representing the overpaid income taxes for
1984 and 1985, recomputed as follows:
 1984 Income tax due P 4,715,533.00
Less: 1984 Quarterly payments P
16,214,599.00*
1984 Tax Credits —
W/T on int. on gov't. sec. 1,921,245.37*
W/T on rental inc. 26,604.30* 18,162,448.67
——————— ———————
Tax Overpayment (13,446,915.67)
Less: FCDU payable 150,252.00
———————
Amount refundable for 1984 P (13,296,663.67)
1985 Income tax due (loss) P — 0 —
Less: W/T on rentals 36,716.47*
———————
Tax Overpayment (36,716.47)*
Less: FCDU payable 18,874.00
———————
Amount Refundable for 1985 P (17,842.47)
* Note:
These credits are smaller than
the claimed amount because
only the above figures are well
supported by the various exhibits
presented during the hearing.
No pronouncement as to costs.
SO ORDERED.10
The order for refund was based on the following findings of the
Court of Tax Appeals: (1) the fact of withholding has been
established by the statements and certificates of withholding
taxes accomplished by herein private respondent's withholding
agents, the authenticity of which were neither disputed nor
controverted by herein petitioner; (2) no evidence was
presented which could effectively dispute the correctness of
the income tax return filed by herein respondent corporation
and other material facts stated therein; (3) no deficiency
assessment was issued by herein petitioner; and (4) there was
an audit report submitted by the BIR Assessment Branch,
recommending the refund of overpaid taxes for the years
concerned (Exhibits Y to Y-3), which enjoys the presumption
of regularity in the performance of official duty.11
A motion for the reconsideration of said decision was initially
filed by the Solicitor General on the sole ground that the
statements and certificates of taxes allegedly withheld are not
conclusive evidence of actual payment and remittance of the
taxes withheld to the BIR.12 A supplemental motion for
reconsideration was thereafter filed, wherein it was contended
for the first time that herein private respondent had
outstanding unpaid deficiency income taxes. Petitioner alleged
that through an inter-office memorandum of the Tax
Credit/Refund Division, dated August 8, 1991, he came to
know only lately that Citytrust had outstanding tax liabilities for
1984 in the amount of P56,588,740.91 representing deficiency
income and business taxes covered by Demand/Assessment
Notice No. FAS-1-84-003291-003296.13
Oppositions to both the basic and supplemental motions for
reconsideration were filed by private respondent
Citytrust.14 Thereafter, the Court of Tax Appeals issued a
resolution denying both motions for the reason that Section 52
(b) of the Tax Code, as implemented by Revenue Regulation
6-85, only requires that the claim for tax credit or refund must
show that the income received was declared as part of the
gross income, and that the fact of withholding was duly
established. Moreover, with regard to the argument raised in
the supplemental motion for reconsideration anent the
deficiency tax assessment against herein petitioner, the tax
court ruled that since that matter was not raised in the
pleadings, the same cannot be considered, invoking therefor
the salutary purpose of the omnibus motion rule which is to
obviate multiplicity of motions and to discourage dilatory
pleadings.15
As indicated at the outset, a petition for review was filed by
herein petitioner with respondent Court of Appeals which in
due course promulgated its decision affirming the judgment of
the Court of Tax Appeals. Petitioner eventually elevated the
case to this Court, maintaining that said respondent court
erred in affirming the grant of the claim for refund of Citytrust,
considering that, firstly, said private respondent failed to prove
and substantiate its claim for such refund; and, secondly, the
bureau's findings of deficiency income and business tax
liabilities against private respondent for the year 1984 bars
such payment.16
After a careful review of the records, we find that under the
peculiar circumstances of this case, the ends of substantial
justice and public interest would be better subserved by the
remand of this case to the Court of Tax Appeals for further
proceedings.
It is the sense of this Court that the BIR, represented herein by
petitioner Commissioner of Internal Revenue, was denied its
day in court by reason of the mistakes and/or negligence of its
officials and employees. It can readily be gleaned from the
records that when it was herein petitioner's turn to present
evidence, several postponements were sought by its counsel,
the Solicitor General, due to the unavailability of the necessary
records which were not transmitted by the Refund Audit
Division of the BIR to said counsel, as well as the investigation
report made by the Banks/Financing and Insurance Division of
the said bureau/ despite repeated requests.17 It was under
such a predicament and in deference to the tax court that
ultimately, said records being still unavailable, herein
petitioner's counsel was constrained to submit the case for
decision on February 20, 1991 without presenting any
evidence.
For that matter, the BIR officials and/or employees concerned
also failed to heed the order of the Court of Tax Appeals to
remand the records to it pursuant to Section 2, Rule 7 of the
Rules of the Court of Tax Appeals which provides that the
Commissioner of Internal Revenue and the Commissioner of
Customs shall certify and forward to the Court of Tax Appeals,
within ten days after filing his answer, all the records of the
case in his possession, with the pages duly numbered, and if
the records are in separate folders, then the folders shall also
be numbered.
The aforestated impassé came about due to the fact that,
despite the filing of the aforementioned initiatory petition in
CTA Case No. 4099 with the Court of Tax Appeals, the Tax
Refund Division of the BIR still continued to act
administratively on the claim for refund previously filed therein,
instead of forwarding the records of the case to the Court of
Tax Appeals as ordered.18
It is a long and firmly settled rule of law that the Government is
not bound by the errors committed by its agents.19 In the
performance of its governmental functions, the State cannot
be estopped by the neglect of its agent and officers. Although
the Government may generally be estopped through the
affirmative acts of public officers acting within their authority,
their neglect or omission of public duties as exemplified in this
case will not and should not produce that effect.
Nowhere is the aforestated rule more true than in the field of
taxation.20 It is axiomatic that the Government cannot and
must not be estopped particularly in matters involving taxes.
Taxes are the lifeblood of the nation through which the
government agencies continue to operate and with which the
State effects its functions for the welfare of its
constituents.21 The errors of certain administrative officers
should never be allowed to jeopardize the Government's
financial position,22 especially in the case at bar where the
amount involves millions of pesos the collection whereof, if
justified, stands to be prejudiced just because of bureaucratic
lethargy.
Further, it is also worth nothing that the Court of Tax Appeals
erred in denying petitioner's supplemental motion for
reconsideration alleging bringing to said court's attention the
existence of the deficiency income and business tax
assessment against Citytrust. The fact of such deficiency
assessment is intimately related to and inextricably intertwined
with the right of respondent bank to claim for a tax refund for
the same year. To award such refund despite the existence of
that deficiency assessment is an absurdity and a polarity in
conceptual effects. Herein private respondent cannot be
entitled to refund and at the same time be liable for a tax
deficiency assessment for the same year.
The grant of a refund is founded on the assumption that the
tax return is valid, that is, the facts stated therein are true and
correct. The deficiency assessment, although not yet final,
created a doubt as to and constitutes a challenge against the
truth and accuracy of the facts stated in said return which, by
itself and without unquestionable evidence, cannot be the
basis for the grant of the refund.
Section 82, Chapter IX of the National Internal Revenue Code
of 1977, which was the applicable law when the claim of
Citytrust was filed, provides that "(w)hen an assessment is
made in case of any list, statement, or return, which in the
opinion of the Commissioner of Internal Revenue was false or
fraudulent or contained any understatement or undervaluation,
no tax collected under such assessment shall be recovered by
any suits unless it is proved that the said list, statement, or
return was not false nor fraudulent and did not contain any
understatement or undervaluation; but this provision shall not
apply to statements or returns made or to be made in good
faith regarding annual depreciation of oil or gas wells and
mines."
Moreover, to grant the refund without determination of the
proper assessment and the tax due would inevitably result in
multiplicity of proceedings or suits. If the deficiency
assessment should subsequently be upheld, the Government
will be forced to institute anew a proceeding for the recovery of
erroneously refunded taxes which recourse must be filed
within the prescriptive period of ten years after discovery of the
falsity, fraud or omission in the false or fraudulent return
involved.23 This would necessarily require and entail additional
efforts and expenses on the part of the Government, impose a
burden on and a drain of government funds, and impede or
delay the collection of much-needed revenue for governmental
operations.
Thus, to avoid multiplicity of suits and unnecessary difficulties
or expenses, it is both logically necessary and legally
appropriate that the issue of the deficiency tax assessment
against Citytrust be resolved jointly with its claim for tax
refund, to determine once and for all in a single proceeding the
true and correct amount of tax due or refundable.
In fact, as the Court of Tax Appeals itself has heretofore
conceded, 24 it would be only just and fair that the taxpayer
and the Government alike be given equal opportunities to avail
of remedies under the law to defeat each other's claim and to
determine all matters of dispute between them in one single
case. It is important to note that in determining whether or not
petitioner is entitled to the refund of the amount paid, it would
necessary to determine how much the Government is entitled
to collect as taxes. This would necessarily include the
determination of the correct liability of the taxpayer and,
certainly, a determination of this case would constitute res
judicata on both parties as to all the matters subject thereof or
necessarily involved therein.
The Court cannot end this adjudication without observing that
what caused the Government to lose its case in the tax court
may hopefully be ascribed merely to the ennui or ineptitude of
officialdom, and not to syndicated intent or corruption. The
evidential cul-de-sac in which the Solicitor General found
himself once again gives substance to the public perception
and suspicion that it is another proverbial tip in the iceberg of
venality in a government bureau which is pejoratively rated
over the years. What is so distressing, aside from the financial
losses to the Government, is the erosion of trust in a vital
institution wherein the reputations of so many honest and
dedicated workers are besmirched by the acts or omissions of
a few. Hence, the liberal view we have here taken pro hac
vice, which may give some degree of assurance that this Court
will unhesitatingly react to any bane in the government service,
with a replication of such response being likewise expected by
the people from the executive authorities.
WHEREFORE, the judgment of respondent Court of Appeals
in CA-G.R. SP No. 26839 is hereby SET ASIDE and the case
at bar is REMANDED to the Court of Tax Appeals for further
proceedings and appropriate action, more particularly, the
reception of evidence for petitioner and the corresponding
disposition of CTA Case No. 4099 not otherwise inconsistent
with our adjudgment herein.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, petitioner, vs.
HONORABLE SANDIGANBAYAN, MANSUETO V.
HONRADA, CEFERINO S. PAREDES, JR. and
GENEROSO S. SANSAET, respondents.
DECISION
REGALADO, J.:
Through the special civil action for certiorari at bar,
petitioner seeks the annulment of the resolution of respondent
Sandiganbayan, promulgated on December 22, 1993, which
denied petitioners motion for the discharge of respondent
Generoso S. Sansaet to be utilized as a state witness, and its
resolution of March 7, 1994 denying the motion for
reconsideration of its preceding disposition.[1]
The records show that during the dates material to this
case, respondent Honrada was the Clerk of Court and Acting
Stenographer of the First Municipal Circuit Trial Court, San
Francisco-Bunawan-Rosario in Agusan del Sur. Respondent
Paredes was successively the Provincial Attorney of Agusan del
Sur, then Governor of the same province, and is at present a
Congressman. Respondent Sansaet was a practicing attorney
who served as counsel for Paredes in several instances
pertinent to the criminal charges involved in the present
recourse.
The same records also represent that sometime in 1976,
respondent Paredes applied for a free patent over Lot No. 3097-
A, Pls-67 of the Rosario Public Land Subdivision Survey. His
application was approved and, pursuant to a free patent granted
to him, an original certificate of title was issued in his favor for
that lot which is situated in the poblacion of San Francisco,
Agusan del Sur.
However, in 1985, the Director of Lands filed an action[2] for
the cancellation of respondent Paredes patent and certificate of
title since the land had been designated and reserved as a
school site in the aforementioned subdivision survey. The trial
court rendered judgment[3] nullifying said patent and title after
finding that respondent Paredes had obtained the same through
fraudulent misrepresentations in his application. Pertinently,
respondent Sansaet served as counsel of Paredes in that civil
case.[4]
Consequent to the foregoing judgment of the trial court,
upon the subsequent complaint of the Sangguniang Bayan and
the preliminary investigation conducted thereon, an information
for perjury[5] was filed against respondent Paredes in the
Municipal Circuit Trial Court.[6] On November 27, 1985, the
Provincial Fiscal was, however, directed by the Deputy Minister
of Justice to move for the dismissal of the case on the
ground inter alia of prescription, hence the proceedings were
terminated.[7] In this criminal case, respondent Paredes was
likewise represented by respondent Sansaet as counsel.
* had initiated the perjury and graft charges against respondent
Nonetheless, respondent Paredes was thereafter haled
before the Tanodbayan for preliminary investigation on the
charge that, by using his former position as Provincial Attorney
to influence and induce the Bureau of Lands officials to
favorably act on his application for free patent, he had violated
Section 3(a) of Republic Act No. 3019, as amended. For the
third time, respondent Sansaet was Paredes counsel of record
therein.
On August 29, 1988, the Tanodbayan, issued a
resolution[8] recommending the criminal prosecution of
respondent Paredes. Atty. Sansaet, as counsel for his
aforenamed co-respondent, moved for reconsideration and,
because of its legal significance in this case, we quote some of
his allegations in that motion:
x x x respondent had been charged already by the
complainants before the Municipal Circuit Court of San
Francisco, Agusan del Sur, went to jail on detention in 1984
under the same set of factsand the same evidence x x x but
said case after arraignment, was ordered dismissed by the
court upon recommendation of the Department of
Justice. Copy of the dismissal order, certificate of
arraignment and the recommendation of the Department of
Justice are hereto attached for ready reference; thus the filing
of this case will be a case of double jeopardy for respondent
herein x x x.[9] (Italics supplied.)
A criminal case was subsequently filed with the
Sandiganbayan[10] charging respondent Paredes with a
violation of Section 3(a) of Republic Act No. 3019, as
amended.However, a motion to quash filed by the defense was
later granted in respondent courts resolution of August 1,
1991[11] and the case was dismissed on the ground of
prescription.
On January 23, 1990, one Teofilo Gelacio, a taxpayer who
Paredes, sent a letter to the Ombudsman seeking the
investigation of the three respondents herein for falsification of
public documents.[12] He claimed that respondent Honrada, in
conspiracy with his herein co-respondents, simulated and
certified as true copies certain documents purporting to be a
notice of arraignment, dated July 1, 1985, and transcripts of
stenographic notes supposedly taken during the arraignment of
Paredes on the perjury charge.[13] These falsified documents
were annexed to respondent Paredes motion for
reconsideration of the Tanodbayan resolution for the filing of a
graft charge against him, in order to support his contention that
the same would constitute double jeopardy.
In support of his claim, Gelacio attached to his letter a
certification that no notice of arraignment was ever received by
the Office of the Provincial Fiscal of Agusan del Sur in
connection with that perjury case; and a certification of
Presiding Judge Ciriaco Ario that said perjury case in his court
did not reach the arraignment stage since action thereon was
suspended pending the review of the case by the Department
of Justice.[14]
Respondents filed their respective counter-affidavits, but
Sansaet subsequently discarded and repudiated the
submissions he had made in his counter-affidavit. In a so-called
Affidavit of Explanations and Rectifications,[15] respondent
Sansaet revealed that Paredes contrived to have the graft case
under preliminary investigation dismissed on the ground of
double jeopardy by making it that the perjury case had been
dismissed by the trial court after he had been arraigned therein.
For that purpose, the documents which were later filed by
respondent Sansaet in the preliminary investigation were
prepared and falsified by his co-respondents in this case in the
house of respondent Paredes. To evade responsibility for his
own participation in the scheme, he claimed that he did so upon
the instigation and inducement of respondent Paredes. This
was intended to pave the way for his discharge as a government
witness in the consolidated cases, as in fact a motion therefor
was filed by the prosecution pursuant to their agreement.
Withal, in a resolution[16] dated February 24, 1992, the
Ombudsman approved the filing of falsification charges against
all the herein private respondents. The proposal for the
discharge of respondent Sansaet as a state witness was
rejected by the Ombudsman on this evaluative legal position:
x x x Taking his explanation, it is difficult to believe that a
lawyer of his stature, in the absence of deliberate intent to
conspire, would be unwittingly induced by another to commit a
crime. As counsel for the accused in those criminal cases,
Atty. Sansaet had control over the case theory and the
evidence which the defense was going to present. Moreover,
the testimony or confession of Atty. Sansaet falls under the
mantle of privileged communication between the lawyer and
his client which may be objected to, if presented in the trial.
The Ombudsman refused to reconsider that
resolution[17] and, ostensibly to forestall any further controversy,
he decided to file separate informations for falsification of public
documents against each of the herein respondents. Thus, three
criminal cases,[18] each of which named one of the three private
respondents here as the accused therein, were filed in the graft
court. However, the same were consolidated for joint trial in the
Second Division of the Sandiganbayan.
As stated at the outset, a motion was filed by the People on
July 27, 1993 for the discharge of respondent Sansaet as a
state witness. It was submitted that all the requisites therefor,
as provided in Section 9, Rule 119 of the Rules of Court, were
satisfied insofar as respondent Sansaet was concerned. The
basic postulate was that, except for the eyewitness testimony of
respondent Sansaet, there was no other direct evidence to
prove the confabulated falsification of documents by
respondents Honrada and Paredes.
Unfortunately for the prosecution, respondent
Sandiganbayan, hewing to the theory of the attorney-client
privilege adverted to by the Ombudsman and invoked by the
two other private respondents in their opposition to the
prosecutions motion, resolved to deny the desired discharge on
this ratiocination:
From the evidence adduced, the opposition was able to
establish that client and lawyer relationship existed between
Atty. Sansaet and Ceferino Paredes, Jr., before, during and
after the period alleged in the information. In view of such
relationship, the facts surrounding the case, and other
confidential matter must have been disclosed by accused
Paredes, as client, to accused Sansaet, as his lawyer in his
professional capacity. Therefore, the testimony of Atty.
Sansaet on the facts surrounding the offense charged in the
information is privileged.[19]
 Reconsideration of said resolution having been likewise
denied,[20] the controversy was elevated to this Court by the
prosecution in an original action for the issuance of the
extraordinary writ of certiorari against respondent
Sandiganbayan.
The principal issues on which the resolution of the petition
at bar actually turns are therefore (1) whether or not the
projected testimony of respondent Sansaet, as proposed state
witness, is barred by the attorney-client privilege; and (2)
whether or not, as a consequence thereof, he is eligible for
discharge to testify as a particeps criminis.
I
As already stated, respondent Sandiganbayan ruled that
due to the lawyer-client relationship which existed between
herein respondents Paredes and Sansaet during the relevant
periods, the facts surrounding the case and other confidential
matters must have been disclosed by respondent Paredes, as
client, to respondent Sansaet, as his lawyer. Accordingly, it
found no reason to discuss it further since Atty. Sansaet cannot
be presented as a witness against accused Ceferino S.
Paredes, Jr. without the latters consent.[21]
The Court is of a contrary persuasion. The attorney-client
privilege cannot apply in these cases, as the facts thereof and
the actuations of both respondents therein constitute an
exception to the rule. For a clearer understanding of that
evidential rule, we will first sweep aside some distracting mental
cobwebs in these cases.
1. It may correctly be assumed that there was a confidential
communication made by Paredes to Sansaet in connection with
Criminal Cases Nos. 17791-93 for falsification before
respondent court, and this may reasonably be expected since
Paredes was the accused and Sansaet his counsel
therein. Indeed, the fact that Sansaet was called to witness the
preparation of the falsified documents by Paredes and Honrada
was as eloquent a communication, if not more, than verbal
statements being made to him by Paredes as to the fact and
purpose of such falsification. It is significant that the evidentiary
rule on this point has always referred to any communication,
without distinction or qualification.[22]
In the American jurisdiction from which our present
evidential rule was taken, there is no particular mode by which
a confidential communication shall be made by a client to his
attorney. The privilege is not confined to verbal or written
communications made by the client to his attorney but extends
as well to information communicated by the client to the attorney
by other means.[23]
Nor can it be pretended that during the entire process,
considering their past and existing relations as counsel and
client and, further, in view of the purpose for which such falsified
documents were prepared, no word at all passed between
Paredes and Sansaet on the subject matter of that criminal
act. The clincher for this conclusion is the undisputed fact that
said documents were thereafter filed by Sansaet in behalf of
Paredes as annexes to the motion for reconsideration in the
preliminary investigation of the graft case before the
Tanodbayan.[24] Also, the acts and words of the parties during
the period when the documents were being falsified were
necessarily confidential since Paredes would not have invited
Sansaet to his house and allowed him to witness the same
except under conditions of secrecy and confidence.
2. It is postulated that despite such complicity of Sansaet at
the instance of Paredes in the criminal act for which the latter
stands charged, a distinction must be made between
confidential communications relating to past crimes already
committed, and future crimes intended to be committed, by the
client. Corollarily, it is admitted that the announced intention of
a client to commit a crime is not included within the confidences
which his attorney is bound to respect. Respondent court
appears, however, to believe that in the instant case it is dealing
with a past crime, and that respondent Sansaet is set to testify
on alleged criminal acts of respondents Paredes and Honrada
that have already been committed and consummated.
The Court reprobates the last assumption which is flawed
by a somewhat inaccurate basis. It is true that by now, insofar
as the falsifications to be testified to in respondent court are
concerned, those crimes were necessarily committed in the
past. But for the application of the attorney-client privilege,
however, the period to be considered is the date when the
privileged communication was made by the client to the attorney
in relation to either a crime committed in the past or with respect
to a crime intended to be committed in the future. In other
words, if the client seeks his lawyers advice with respect to a
crime that the former has theretofore committed, he is given the
protection of a virtual confessional seal which the attorney-client
privilege declares cannot be broken by the attorney without the
clients consent. The same privileged confidentiality, however,
does not attach with regard to a crime which a client intends to
commit thereafter or in the future and for purposes of which he
seeks the lawyers advice.
Statements and communications regarding the
commission of a crime already committed, made by a party who
committed it, to an attorney, consulted as such,
are privileged communications. Contrarily, the unbroken
stream of judicial dicta is to the effect that communications
between attorney and client having to do with the
clients contemplated criminal acts, or in aid or furtherance
thereof, are not covered by the cloak of privileges ordinarily
existing in reference to communications between attorney and
client.[25] (Emphases supplied.)
3. In the present cases, the testimony sought to be elicited
from Sansaet as state witness are the communications made to
him by physical acts and/or accompanying words of Paredes at
the time he and Honrada, either with the active or passive
participation of Sansaet, were about to falsify, or in the process
of falsifying, the documents which were later filed in the
Tanodbayan by Sansaet and culminated in the criminal charges
now pending in respondent Sandiganbayan. Clearly, therefore,
the confidential communications thus made by Paredes to
Sansaet were for purposes of and in reference to the crime of
falsification which had not yet been committed in the past by
Paredes but which he, in confederacy with his present co-
respondents, later committed. Having been made for purposes
of a future offense, those communications are outside the pale
of the attorney-client privilege.
4. Furthermore, Sansaet was himself a conspirator in the
commission of that crime of falsification which he, Paredes and
Honrada concocted and foisted upon the authorities. It is well
settled that in order that a communication between a lawyer and
his client may be privileged, it must be for a lawful purpose or in
furtherance of a lawful end. The existence of an unlawful
purpose prevents the privilege from attaching.[26] In fact, it has
also been pointed out to the Court that the prosecution of the
honorable relation of attorney and client will not be permitted
under the guise of privilege, and every communication made to
an attorney by a client for a criminal purpose is a conspiracy or
attempt at a conspiracy which is not only lawful to divulge, but
which the attorney under certain circumstances may be bound
to disclose at once in the interest of justice.[27]
It is evident, therefore, that it was error for respondent
Sandiganbayan to insist that such unlawful communications
intended for an illegal purpose contrived by conspirators are
nonetheless covered by the so-called mantle of privilege. To
prevent a conniving counsel from revealing the genesis of a
crime which was later committed pursuant to a conspiracy,
because of the objection thereto of his conspiring client, would
be one of the worst travesties in the rules of evidence and
practice in the noble profession of law.
II
 On the foregoing premises, we now proceed to the
consequential inquiry as to whether respondent Sansaet
qualifies, as a particeps criminis, for discharge from the criminal
prosecution in order to testify for the State. Parenthetically,
respondent court, having arrived at a contrary conclusion on the
preceding issue, did not pass upon this second aspect and the
relief sought by the prosecution which are now submitted for our
resolution in the petition at bar. We shall, however, first dispose
likewise of some ancillary questions requiring preludial
clarification.
1. The fact that respondent Sandiganbayan did not fully
pass upon the query as to whether or not respondent Sansaet
was qualified to be a state witness need not prevent this Court
from resolving that issue as prayed for by petitioner. Where the
determinative facts and evidence have been submitted to this
Court such that it is in a position to finally resolve the dispute, it
will be in the pursuance of the ends of justice and the
expeditious administration thereof to resolve the case on the
merits, instead of remanding it to the trial court.[28]
2. A reservation is raised over the fact that the three private
respondents here stand charged in three separate
informations. It will be recalled that in its resolution of February
24, 1992, the Ombudsman recommended the filing of criminal
charges for falsification of public documents against all the
respondents herein. That resolution was affirmed but,
reportedly in order to obviate further controversy, one
information was filed against each of the three respondents
here, resulting in three informations for the same acts of
falsification.
This technicality was, however, sufficiently explained away
during the deliberations in this case by the following discussion
thereof by Mr. Justice Davide, to wit:
Assuming no substantive impediment exists to block Sansaets
discharge as state witness, he can, nevertheless, be
discharged even if indicted under a separate information. I
suppose the three cases were consolidated for joint trial since
they were all raffled to the Second Division of the
Sandiganbayan. Section 2, Rule XV of the Revised Rules of
the Sandiganbayan allows consolidation in only one Division of
cases arising from the same incident or series of incidents, or
involving common questions of law and fact. Accordingly, for
all legal intents and purposes, Sansaet stood as co-accused
and he could be discharged as state witness. It is of no
moment that he was charged separately from his co-
accused. While Section 9 of Rule 119 of the 1985 Rules of
Criminal Procedure uses the word jointly, which was absent in
the old provision, the consolidated and joint trial has the effect
of making the three accused co-accused or joint defendants,
especially considering that they are charged for the same
offense. In criminal law, persons indicted for the same offense
and tried together are called joint defendants.
As likewise submitted therefor by Mr. Justice Francisco
along the same vein, there having been a consolidation of the
three cases, the several actions lost their separate identities
and became a single action in which a single judgment is
rendered, the same as if the different causes of action involved
had originally been joined in a single action.[29]
Indeed, the former provision of the Rules referring to the
situation (w)hen two or more persons are charged with the
commission of a certain offense was too broad and indefinite;
hence the word joint was added to indicate the identity of the
charge and the fact that the accused are all together charged
therewith substantially in the same manner in point of
commission and time. The word joint means common to two or
more, as involving the united activity of two or more, or done or
produced by two or more working together, or shared by or
affecting two or more.[30] Had it been intended that all the
accused should always be indicted in one and the same
information, the Rules could have said so with facility, but it did
not so require in consideration of the circumstances obtaining
in the present case and the problems that may arise from
amending the information.After all, the purpose of the Rule can
be achieved by consolidation of the cases as an alternative
mode.
2. We have earlier held that Sansaet was a conspirator in
the crime of falsification, and the rule is that since in a
conspiracy the act of one is the act of all, the same penalty shall
be imposed on all members of the conspiracy. Now, one of the
requirements for a state witness is that he does not appear to
be the most guilty.[31] not that he must be the least guilty[32] as is
so often erroneously framed or submitted. The query would
then be whether an accused who was held guilty by reason of
membership in a conspiracy is eligible to be a state witness.
To be sure, in People vs. Ramirez, et al.[33] we find this
obiter:
It appears that Apolonio Bagispas was the real mastermind. It
is believable that he persuaded the others to rob Paterno, not
to kill him for a promised fee. Although he did not actually
commit any of the stabbings, it was a mistake to discharge
Bagispas as a state witness. All the perpetrators of the
offense, including him, were bound in a conspiracy that made
them equally guilty.
However, prior thereto, in People vs. Roxas, et al.,[34] two
conspirators charged with five others in three separate
informations for multiple murder were discharged and used as
state witnesses against their confederates. Subsequent
thereto, in Lugtu, et al. vs. Court of Appeals, et al.,[35] one of the
co-conspirators was discharged from the information charging
him and two others with the crime of estafa. The trial court found
that he was not the most guilty as, being a poor and ignorant
man, he was easily convinced by his two co-accused to open
the account with the bank and which led to the commission of
the crime.
On appeal, this Court held that the finding of respondent
appellate court that Lugtu was just as guilty as his co-accused,
and should not be discharged as he did not appear to be not the
most guilty, is untenable. In other words, the Court took into
account the gravity or nature of the acts committed by the
accused to be discharged compared to those of his co-accused,
and not merely the fact that in law the same or equal penalty is
imposable on all of them.
Eventually, what was just somehow assumed but not
explicitly articulated found expression in People vs. Ocimar, et
al.,[36] which we quote in extenso:
Ocimar contends that in the case at bar Bermudez does not
satisfy the conditions for the discharge of a co-accused to
become a state witness. He argues that no accused in a
conspiracy can lawfully be discharged and utilized as a state
witness, for not one of them could satisfy the requisite of
appearing not to be the most guilty. Appellant asserts that
since accused Bermudez was part of the conspiracy, he is
equally guilty as the others.
We do not agree. First, there is absolute necessity for the
testimony of Bermudez. For, despite the presentation of four
(4) other witnesses, none of them could positively identify the
accused except Bermudez who was one of those who pulled
the highway heist which resulted not only in the loss of cash,
jewelry and other valuables, but even the life of Capt. Caeba,
Jr. It was in fact the testimony of Bermudez that clinched the
case for the prosecution. Second, without his testimony, no
other direct evidence was available for the prosecution to
prove the elements of the crime.Third, his testimony could be,
as indeed it was, substantially corroborated in its material
points as indicated by the trial court in its well-reasoned
decision. Fourth, he does not appear to be the most guilty. As
the evidence reveals, he was only invited to a drinking party
without having any prior knowledge of the plot to stage a
highway robbery. But even assuming that he later became part
of the conspiracy, he does not appear to be the most
guilty. What the law prohibits is that the most guilty will be set
free while his co-accused who are less guilty will be sent to
jail. And by most guilty we mean the highest degree of
culpability in terms of participation in the commission of the
offense and not necessarily the severity of the penalty
imposed. While all the accused may be given the same
penalty by reason of conspiracy, yet one may be considered
least guilty if We take into account his degree of participation
in the perpetration of the offense. Fifth, there is no evidence
that he has at any time been convicted of any offense
involving moral turpitude.
xxx
Thus, We agree with the observations of the Solicitor General
that the rule on the discharge of an accused to be utilized as
state witness clearly looks at his actual and individual
participation in the commission of the crime, which may or may
not have been perpetrated in conspiracy with the other
accused. Since Bermudez was not individually responsible for
the killing committed on the occasion of the robbery except by
reason of conspiracy, it cannot be said then that Bermudez
appears to be the most guilty. Hence, his discharge to be a
witness for the government is clearly warranted. (Italics ours.)
The rule of equality in the penalty to be imposed upon
conspirators found guilty of a criminal offense is based on the
concurrence of criminal intent in their minds and translated into
concerted physical action although of varying acts or degrees
of depravity. Since the Revised Penal Code is based on the
classical school of thought, it is the identity of the mens
rea which is considered the predominant consideration and,
therefore, warrants the imposition of the same penalty on the
consequential theory that the act of one is thereby the act of all.
Also, this is an affair of substantive law which should not be
equated with the procedural rule on the discharge of particeps
criminis. This adjective device is based on other considerations,
such as the need for giving immunity to one of them in order
that not all shall escape, and the judicial experience that the
candid admission of an accused regarding his participation is a
guaranty that he will testify truthfully. For those reasons, the
Rules provide for certain qualifying criteria which, again, are
based on judicial experience distilled into a judgmental policy.
III
The Court is reasonably convinced, and so holds, that the
other requisites for the discharge of respondent Sansaet as a
state witness are present and should have been favorably
appreciated by the Sandiganbayan.
Respondent Sansaet is the only cooperative eyewitness to
the actual commission of the falsification charged in the criminal
cases pending before respondent court, and the prosecution is
faced with the formidable task of establishing the guilt of the two
other co-respondents who steadfastly deny the charge and
stoutly protest their innocence. There is thus no other direct
evidence available for the prosecution of the case, hence there
is absolute necessity for the testimony of Sansaet whose
discharge is sought precisely for that purpose. Said respondent
has indicated his conformity thereto and has, for the purposes
required by the Rules, detailed the substance of his projected
testimony in his Affidavit of Explanations and Rectifications.
His testimony can be substantially corroborated on its
material points by reputable witnesses, identified in the basic
petition with a digest of their prospective testimonies, as follows:
Judge Ciriaco C. Ario, Municipal Circuit Trial Court in San
Francisco, Agusan del Sur; Provincial Prosecutor and
Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo
Gelacio, private complainant who initiated the criminal cases
through his letter-complaint; Alberto Juvilan of the Sangguniang
Bayan of San Fernando, Agusan del Sur, who participated in
the resolution asking their Provincial Governor to file the
appropriate case against respondent Paredes, and Francisco
Macalit, who obtained the certification of non-arraignment from
Judge Ario.
On the final requirement of the Rules, it does not appear
that respondent Sansaet has at any time been convicted of any
offense involving moral turpitude. Thus, with the confluence of
all the requirements for the discharge of this respondent, both
the Special Prosecutor and the Solicitor General strongly urge
and propose that he be allowed to testify as a state witness.
This Court is not unaware of the doctrinal rule that, on this
procedural aspect, the prosecution may propose but it is for the
trial court, in the exercise of its sound discretion, to determine
the merits of the proposal and make the corresponding
disposition. It must be emphasized, however, that such
discretion should have been exercised, and the disposition
taken on a holistic view of all the facts and issues herein
discussed, and not merely on the sole issue of the applicability
of the attorney-client privilege.
This change of heart and direction respondent
Sandiganbayan eventually assumed, after the retirement of two
members of its Second Division [37]and the reconstitution
thereof. In an inversely anticlimactic Manifestation and
Comment [38] dated June 14, 1995, as required by this Court in
its resolution on December 5, 1994, the chairman and new
members thereof [39] declared:
4) That the questioned Resolutions of December 22, 1993 and
March 7, 1994 upon which the Petition for Certiorari filed by
the prosecution are based, was penned by Associate Justice
Narciso T. Atienza and concurred in by the undersigned and
Associate Justice Augusto M. Amores;
5) That while the legal issues involved had been already
discussed and passed upon by the Second Division in the
aforesaid Resolution, however, after going over the arguments
submitted by the Solicitor-General and re-assessing Our
position on the matter, We respectfully beg leave of the
Honorable Supreme Court to manifest that We are amenable
to setting aside the questioned Resolutions and to grant the
prosecutions motion to discharge accused Generoso Sansaet
as state witness, upon authority of the Honorable Supreme
Court for the issuance of the proper Resolution to that effect
within fifteen (15) days from notice thereof.
WHEREFORE, the writ of certiorari prayed for is hereby
granted SETTING ASIDE the impugned resolutions and
ORDERING that the present reliefs sought in these cases by
petitioner be allowed and given due course by respondent
Sandiganbayan.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, petitioner, vs.
HONORABLE SANDIGANBAYAN, MANSUETO V.
HONRADA, CEFERINO S. PAREDES, JR. and
GENEROSO S. SANSAET, respondents.
DECISION
REGALADO, J.:
Through the special civil action for certiorari at bar,
petitioner seeks the annulment of the resolution of respondent
Sandiganbayan, promulgated on December 22, 1993, which
denied petitioners motion for the discharge of respondent
Generoso S. Sansaet to be utilized as a state witness, and its
resolution of March 7, 1994 denying the motion for
reconsideration of its preceding disposition.[1]
The records show that during the dates material to this
case, respondent Honrada was the Clerk of Court and Acting
Stenographer of the First Municipal Circuit Trial Court, San
Francisco-Bunawan-Rosario in Agusan del Sur. Respondent
Paredes was successively the Provincial Attorney of Agusan del
Sur, then Governor of the same province, and is at present a
Congressman. Respondent Sansaet was a practicing attorney
who served as counsel for Paredes in several instances
pertinent to the criminal charges involved in the present
recourse.
The same records also represent that sometime in 1976,
respondent Paredes applied for a free patent over Lot No. 3097-
A, Pls-67 of the Rosario Public Land Subdivision Survey. His
application was approved and, pursuant to a free patent granted
to him, an original certificate of title was issued in his favor for
that lot which is situated in the poblacion of San Francisco,
Agusan del Sur.
However, in 1985, the Director of Lands filed an action[2] for
the cancellation of respondent Paredes patent and certificate of
title since the land had been designated and reserved as a
school site in the aforementioned subdivision survey. The trial
court rendered judgment[3] nullifying said patent and title after
finding that respondent Paredes had obtained the same through
fraudulent misrepresentations in his application. Pertinently,
respondent Sansaet served as counsel of Paredes in that civil
case.[4]
Consequent to the foregoing judgment of the trial court,
upon the subsequent complaint of the Sangguniang Bayan and
the preliminary investigation conducted thereon, an information
for perjury[5] was filed against respondent Paredes in the
Municipal Circuit Trial Court.[6] On November 27, 1985, the
Provincial Fiscal was, however, directed by the Deputy Minister
of Justice to move for the dismissal of the case on the
ground inter alia of prescription, hence the proceedings were
terminated.[7] In this criminal case, respondent Paredes was
likewise represented by respondent Sansaet as counsel.
Nonetheless, respondent* Paredes was thereafter haled
before the Tanodbayan for preliminary investigation on the
charge that, by using his former position as Provincial Attorney
to influence and induce the Bureau of Lands officials to
favorably act on his application for free patent, he had violated
Section 3(a) of Republic Act No. 3019, as amended. For the
third time, respondent Sansaet was Paredes counsel of record
therein.
On August 29, 1988, the Tanodbayan, issued a
resolution[8] recommending the criminal prosecution of
respondent Paredes. Atty. Sansaet, as counsel for his
aforenamed co-respondent, moved for reconsideration and,
because of its legal significance in this case, we quote some of
his allegations in that motion:
x x x respondent had been charged already by the
complainants before the Municipal Circuit Court of San
Francisco, Agusan del Sur, went to jail on detention in 1984
under the same set of factsand the same evidence x x x but
said case after arraignment, was ordered dismissed by the
court upon recommendation of the Department of
Justice. Copy of the dismissal order, certificate of
arraignment and the recommendation of the Department of
Justice are hereto attached for ready reference; thus the filing
of this case will be a case of double jeopardy for respondent
herein x x x.[9] (Italics supplied.)
A criminal case was subsequently filed with the
Sandiganbayan[10] charging respondent Paredes with a
violation of Section 3(a) of Republic Act No. 3019, as
amended.However, a motion to quash filed by the defense was
later granted in respondent courts resolution of August 1,
1991[11] and the case was dismissed on the ground of
prescription.
On January 23, 1990, one Teofilo Gelacio, a taxpayer who
had initiated the perjury and graft charges against respondent
Paredes, sent a letter to the Ombudsman seeking the
investigation of the three respondents herein for falsification of
public documents.[12] He claimed that respondent Honrada, in
conspiracy with his herein co-respondents, simulated and
certified as true copies certain documents purporting to be a
notice of arraignment, dated July 1, 1985, and transcripts of
stenographic notes supposedly taken during the arraignment of
Paredes on the perjury charge.[13] These falsified documents
were annexed to respondent Paredes motion for
reconsideration of the Tanodbayan resolution for the filing of a
graft charge against him, in order to support his contention that
the same would constitute double jeopardy.
In support of his claim, Gelacio attached to his letter a
certification that no notice of arraignment was ever received by
the Office of the Provincial Fiscal of Agusan del Sur in
connection with that perjury case; and a certification of
Presiding Judge Ciriaco Ario that said perjury case in his court
did not reach the arraignment stage since action thereon was
suspended pending the review of the case by the Department
of Justice.[14]
Respondents filed their respective counter-affidavits, but
Sansaet subsequently discarded and repudiated the
submissions he had made in his counter-affidavit. In a so-called
Affidavit of Explanations and Rectifications,[15] respondent
Sansaet revealed that Paredes contrived to have the graft case
under preliminary investigation dismissed on the ground of
double jeopardy by making it that the perjury case had been
dismissed by the trial court after he had been arraigned therein.
For that purpose, the documents which were later filed by
respondent Sansaet in the preliminary investigation were
prepared and falsified by his co-respondents in this case in the
house of respondent Paredes. To evade responsibility for his
own participation in the scheme, he claimed that he did so upon
the instigation and inducement of respondent Paredes. This
was intended to pave the way for his discharge as a government
witness in the consolidated cases, as in fact a motion therefor
was filed by the prosecution pursuant to their agreement.
Withal, in a resolution[16] dated February 24, 1992, the
Ombudsman approved the filing of falsification charges against
all the herein private respondents. The proposal for the
discharge of respondent Sansaet as a state witness was
rejected by the Ombudsman on this evaluative legal position:
x x x Taking his explanation, it is difficult to believe that a
lawyer of his stature, in the absence of deliberate intent to
conspire, would be unwittingly induced by another to commit a
crime. As counsel for the accused in those criminal cases,
Atty. Sansaet had control over the case theory and the
evidence which the defense was going to present. Moreover,
the testimony or confession of Atty. Sansaet falls under the
mantle of privileged communication between the lawyer and
his client which may be objected to, if presented in the trial.
The Ombudsman refused to reconsider that
resolution[17] and, ostensibly to forestall any further controversy,
he decided to file separate informations for falsification of public
documents against each of the herein respondents. Thus, three
criminal cases,[18] each of which named one of the three private
respondents here as the accused therein, were filed in the graft
court. However, the same were consolidated for joint trial in the
Second Division of the Sandiganbayan.
As stated at the outset, a motion was filed by the People on
July 27, 1993 for the discharge of respondent Sansaet as a
state witness. It was submitted that all the requisites therefor,
as provided in Section 9, Rule 119 of the Rules of Court, were
satisfied insofar as respondent Sansaet was concerned. The
basic postulate was that, except for the eyewitness testimony of
respondent Sansaet, there was no other direct evidence to
prove the confabulated falsification of documents by
respondents Honrada and Paredes.
Unfortunately for the prosecution, respondent
Sandiganbayan, hewing to the theory of the attorney-client
privilege adverted to by the Ombudsman and invoked by the
two other private respondents in their opposition to the
prosecutions motion, resolved to deny the desired discharge on
this ratiocination:
From the evidence adduced, the opposition was able to
establish that client and lawyer relationship existed between
Atty. Sansaet and Ceferino Paredes, Jr., before, during and
after the period alleged in the information. In view of such
relationship, the facts surrounding the case, and other
confidential matter must have been disclosed by accused
Paredes, as client, to accused Sansaet, as his lawyer in his
professional capacity. Therefore, the testimony of Atty.
Sansaet on the facts surrounding the offense charged in the
information is privileged.[19]
Reconsideration of said resolution having been likewise
denied,[20] the controversy was elevated to this Court by the
prosecution in an original action for the issuance of the
extraordinary writ of certiorari against respondent
Sandiganbayan.
The principal issues on which the resolution of the petition
at bar actually turns are therefore (1) whether or not the
projected testimony of respondent Sansaet, as proposed state
witness, is barred by the attorney-client privilege; and (2)
whether or not, as a consequence thereof, he is eligible for
discharge to testify as a particeps criminis.
I
As already stated, respondent Sandiganbayan ruled that
due to the lawyer-client relationship which existed between
herein respondents Paredes and Sansaet during the relevant
periods, the facts surrounding the case and other confidential
matters must have been disclosed by respondent Paredes, as
client, to respondent Sansaet, as his lawyer. Accordingly, it
found no reason to discuss it further since Atty. Sansaet cannot
be presented as a witness against accused Ceferino S.
Paredes, Jr. without the latters consent.[21]
The Court is of a contrary persuasion. The attorney-client
privilege cannot apply in these cases, as the facts thereof and
the actuations of both respondents therein constitute an
exception to the rule. For a clearer understanding of that
evidential rule, we will first sweep aside some distracting mental
cobwebs in these cases.
1. It may correctly be assumed that there was a confidential
communication made by Paredes to Sansaet in connection with
Criminal Cases Nos. 17791-93 for falsification before
respondent court, and this may reasonably be expected since
Paredes was the accused and Sansaet his counsel
therein. Indeed, the fact that Sansaet was called to witness the
preparation of the falsified documents by Paredes and Honrada
was as eloquent a communication, if not more, than verbal
statements being made to him by Paredes as to the fact and
purpose of such falsification. It is significant that the evidentiary
rule on this point has always referred to any communication,
without distinction or qualification.[22]
In the American jurisdiction from which our present
evidential rule was taken, there is no particular mode by which
a confidential communication shall be made by a client to his
attorney. The privilege is not confined to verbal or written
communications made by the client to his attorney but extends
as well to information communicated by the client to the attorney
by other means.[23]
Nor can it be pretended that during the entire process,
considering their past and existing relations as counsel and
client and, further, in view of the purpose for which such falsified
documents were prepared, no word at all passed between
Paredes and Sansaet on the subject matter of that criminal
act. The clincher for this conclusion is the undisputed fact that
said documents were thereafter filed by Sansaet in behalf of
Paredes as annexes to the motion for reconsideration in the
preliminary investigation of the graft case before the
Tanodbayan.[24] Also, the acts and words of the parties during
the period when the documents were being falsified were
necessarily confidential since Paredes would not have invited
Sansaet to his house and allowed him to witness the same
except under conditions of secrecy and confidence.
2. It is postulated that despite such complicity of Sansaet at
the instance of Paredes in the criminal act for which the latter
stands charged, a distinction must be made between
confidential communications relating to past crimes already
committed, and future crimes intended to be committed, by the
client. Corollarily, it is admitted that the announced intention of
a client to commit a crime is not included within the confidences
which his attorney is bound to respect. Respondent court
appears, however, to believe that in the instant case it is dealing
with a past crime, and that respondent Sansaet is set to testify
on alleged criminal acts of respondents Paredes and Honrada
that have already been committed and consummated.
The Court reprobates the last assumption which is flawed
by a somewhat inaccurate basis. It is true that by now, insofar
as the falsifications to be testified to in respondent court are
concerned, those crimes were necessarily committed in the
past. But for the application of the attorney-client privilege,
however, the period to be considered is the date when the
privileged communication was made by the client to the attorney
in relation to either a crime committed in the past or with respect
to a crime intended to be committed in the future. In other
words, if the client seeks his lawyers advice with respect to a
crime that the former has theretofore committed, he is given the
protection of a virtual confessional seal which the attorney-client
privilege declares cannot be broken by the attorney without the
clients consent. The same privileged confidentiality, however,
does not attach with regard to a crime which a client intends to
commit thereafter or in the future and for purposes of which he
seeks the lawyers advice.
Statements and communications regarding the
commission of a crime already committed, made by a party who
committed it, to an attorney, consulted as such,
are privileged communications. Contrarily, the unbroken
stream of judicial dicta is to the effect that communications
between attorney and client having to do with the
clients contemplated criminal acts, or in aid or furtherance
thereof, are not covered by the cloak of privileges ordinarily
existing in reference to communications between attorney and
client.[25] (Emphases supplied.)
3. In the present cases, the testimony sought to be elicited
from Sansaet as state witness are the communications made to
him by physical acts and/or accompanying words of Paredes at
the time he and Honrada, either with the active or passive
participation of Sansaet, were about to falsify, or in the process
of falsifying, the documents which were later filed in the
Tanodbayan by Sansaet and culminated in the criminal charges
now pending in respondent Sandiganbayan. Clearly, therefore,
the confidential communications thus made by Paredes to
Sansaet were for purposes of and in reference to the crime of
falsification which had not yet been committed in the past by
Paredes but which he, in confederacy with his present co-
respondents, later committed. Having been made for purposes
of a future offense, those communications are outside the pale
of the attorney-client privilege.
4. Furthermore, Sansaet was himself a conspirator in the
commission of that crime of falsification which he, Paredes and
Honrada concocted and foisted upon the authorities. It is well
settled that in order that a communication between a lawyer and
his client may be privileged, it must be for a lawful purpose or in
furtherance of a lawful end. The existence of an unlawful
purpose prevents the privilege from attaching.[26] In fact, it has
also been pointed out to the Court that the prosecution of the
honorable relation of attorney and client will not be permitted
under the guise of privilege, and every communication made to
an attorney by a client for a criminal purpose is a conspiracy or
attempt at a conspiracy which is not only lawful to divulge, but
which the attorney under certain circumstances may be bound
to disclose at once in the interest of justice.[27]
It is evident, therefore, that it was error for respondent
Sandiganbayan to insist that such unlawful communications
intended for an illegal purpose contrived by conspirators are
nonetheless covered by the so-called mantle of privilege. To
prevent a conniving counsel from revealing the genesis of a
crime which was later committed pursuant to a conspiracy,
because of the objection thereto of his conspiring client, would
be one of the worst travesties in the rules of evidence and
practice in the noble profession of law.
II
On the foregoing premises, we now proceed to the
consequential inquiry as to whether respondent Sansaet
qualifies, as a particeps criminis, for discharge from the criminal
prosecution in order to testify for the State. Parenthetically,
respondent court, having arrived at a contrary conclusion on the
preceding issue, did not pass upon this second aspect and the
relief sought by the prosecution which are now submitted for our
resolution in the petition at bar. We shall, however, first dispose
likewise of some ancillary questions requiring preludial
clarification.
1. The fact that respondent Sandiganbayan did not fully
pass upon the query as to whether or not respondent Sansaet
was qualified to be a state witness need not prevent this Court
from resolving that issue as prayed for by petitioner. Where the
determinative facts and evidence have been submitted to this
Court such that it is in a position to finally resolve the dispute, it
will be in the pursuance of the ends of justice and the
expeditious administration thereof to resolve the case on the
merits, instead of remanding it to the trial court.[28]
2. A reservation is raised over the fact that the three private
respondents here stand charged in three separate
informations. It will be recalled that in its resolution of February
24, 1992, the Ombudsman recommended the filing of criminal
charges for falsification of public documents against all the
respondents herein. That resolution was affirmed but,
reportedly in order to obviate further controversy, one
information was filed against each of the three respondents
here, resulting in three informations for the same acts of
falsification.
This technicality was, however, sufficiently explained away
during the deliberations in this case by the following discussion
thereof by Mr. Justice Davide, to wit:
Assuming no substantive impediment exists to block Sansaets
discharge as state witness, he can, nevertheless, be
discharged even if indicted under a separate information. I
suppose the three cases were consolidated for joint trial since
they were all raffled to the Second Division of the
Sandiganbayan. Section 2, Rule XV of the Revised Rules of
the Sandiganbayan allows consolidation in only one Division of
cases arising from the same incident or series of incidents, or
involving common questions of law and fact. Accordingly, for
all legal intents and purposes, Sansaet stood as co-accused
and he could be discharged as state witness. It is of no
moment that he was charged separately from his co-
accused. While Section 9 of Rule 119 of the 1985 Rules of
Criminal Procedure uses the word jointly, which was absent in
the old provision, the consolidated and joint trial has the effect
of making the three accused co-accused or joint defendants,
especially considering that they are charged for the same
offense. In criminal law, persons indicted for the same offense
and tried together are called joint defendants.
As likewise submitted therefor by Mr. Justice Francisco
along the same vein, there having been a consolidation of the
three cases, the several actions lost their separate identities
and became a single action in which a single judgment is
rendered, the same as if the different causes of action involved
had originally been joined in a single action.[29]
Indeed, the former provision of the Rules referring to the
situation (w)hen two or more persons are charged with the
commission of a certain offense was too broad and indefinite;
hence the word joint was added to indicate the identity of the
charge and the fact that the accused are all together charged
therewith substantially in the same manner in point of
commission and time. The word joint means common to two or
more, as involving the united activity of two or more, or done or
produced by two or more working together, or shared by or
affecting two or more.[30] Had it been intended that all the
accused should always be indicted in one and the same
information, the Rules could have said so with facility, but it did
not so require in consideration of the circumstances obtaining
in the present case and the problems that may arise from
amending the information.After all, the purpose of the Rule can
be achieved by consolidation of the cases as an alternative
mode.
2. We have earlier held that Sansaet was a conspirator in
the crime of falsification, and the rule is that since in a
conspiracy the act of one is the act of all, the same penalty shall
be imposed on all members of the conspiracy. Now, one of the
requirements for a state witness is that he does not appear to
be the most guilty.[31] not that he must be the least guilty[32] as is
so often erroneously framed or submitted. The query would
then be whether an accused who was held guilty by reason of
membership in a conspiracy is eligible to be a state witness.
To be sure, in People vs. Ramirez, et al.[33] we find this
obiter:
It appears that Apolonio Bagispas was the real mastermind. It
is believable that he persuaded the others to rob Paterno, not
to kill him for a promised fee. Although he did not actually
commit any of the stabbings, it was a mistake to discharge
Bagispas as a state witness. All the perpetrators of the
offense, including him, were bound in a conspiracy that made
them equally guilty.
However, prior thereto, in People vs. Roxas, et al.,[34] two
conspirators charged with five others in three separate
informations for multiple murder were discharged and used as
state witnesses against their confederates. Subsequent
thereto, in Lugtu, et al. vs. Court of Appeals, et al.,[35] one of the
co-conspirators was discharged from the information charging
him and two others with the crime of estafa. The trial court found
that he was not the most guilty as, being a poor and ignorant
man, he was easily convinced by his two co-accused to open
the account with the bank and which led to the commission of
the crime.
On appeal, this Court held that the finding of respondent
appellate court that Lugtu was just as guilty as his co-accused,
and should not be discharged as he did not appear to be not the
most guilty, is untenable. In other words, the Court took into
account the gravity or nature of the acts committed by the
accused to be discharged compared to those of his co-accused,
and not merely the fact that in law the same or equal penalty is
imposable on all of them.
Eventually, what was just somehow assumed but not
explicitly articulated found expression in People vs. Ocimar, et
al.,[36] which we quote in extenso:
Ocimar contends that in the case at bar Bermudez does not
satisfy the conditions for the discharge of a co-accused to
become a state witness. He argues that no accused in a
conspiracy can lawfully be discharged and utilized as a state
witness, for not one of them could satisfy the requisite of
appearing not to be the most guilty. Appellant asserts that
since accused Bermudez was part of the conspiracy, he is
equally guilty as the others.
We do not agree. First, there is absolute necessity for the
testimony of Bermudez. For, despite the presentation of four
(4) other witnesses, none of them could positively identify the
accused except Bermudez who was one of those who pulled
the highway heist which resulted not only in the loss of cash,
jewelry and other valuables, but even the life of Capt. Caeba,
Jr. It was in fact the testimony of Bermudez that clinched the
case for the prosecution. Second, without his testimony, no
other direct evidence was available for the prosecution to
prove the elements of the crime.Third, his testimony could be,
as indeed it was, substantially corroborated in its material
points as indicated by the trial court in its well-reasoned
decision. Fourth, he does not appear to be the most guilty. As
the evidence reveals, he was only invited to a drinking party
without having any prior knowledge of the plot to stage a
highway robbery. But even assuming that he later became part
of the conspiracy, he does not appear to be the most
guilty. What the law prohibits is that the most guilty will be set
free while his co-accused who are less guilty will be sent to
jail. And by most guilty we mean the highest degree of
culpability in terms of participation in the commission of the
offense and not necessarily the severity of the penalty
imposed. While all the accused may be given the same
penalty by reason of conspiracy, yet one may be considered
least guilty if We take into account his degree of participation
in the perpetration of the offense. Fifth, there is no evidence
that he has at any time been convicted of any offense
involving moral turpitude.
xxx
Thus, We agree with the observations of the Solicitor General
that the rule on the discharge of an accused to be utilized as
state witness clearly looks at his actual and individual
participation in the commission of the crime, which may or may
not have been perpetrated in conspiracy with the other
accused. Since Bermudez was not individually responsible for
the killing committed on the occasion of the robbery except by
reason of conspiracy, it cannot be said then that Bermudez
appears to be the most guilty. Hence, his discharge to be a
witness for the government is clearly warranted. (Italics ours.)
The rule of equality in the penalty to be imposed upon
conspirators found guilty of a criminal offense is based on the
concurrence of criminal intent in their minds and translated into
concerted physical action although of varying acts or degrees
of depravity. Since the Revised Penal Code is based on the
classical school of thought, it is the identity of the mens
rea which is considered the predominant consideration and,
therefore, warrants the imposition of the same penalty on the
consequential theory that the act of one is thereby the act of all.
Also, this is an affair of substantive law which should not be
equated with the procedural rule on the discharge of particeps
criminis. This adjective device is based on other considerations,
such as the need for giving immunity to one of them in order
that not all shall escape, and the judicial experience that the
candid admission of an accused regarding his participation is a
guaranty that he will testify truthfully. For those reasons, the
Rules provide for certain qualifying criteria which, again, are
based on judicial experience distilled into a judgmental policy.
III
The Court is reasonably convinced, and so holds, that the
other requisites for the discharge of respondent Sansaet as a
state witness are present and should have been favorably
appreciated by the Sandiganbayan.
Respondent Sansaet is the only cooperative eyewitness to
the actual commission of the falsification charged in the criminal
cases pending before respondent court, and the prosecution is
faced with the formidable task of establishing the guilt of the two
other co-respondents who steadfastly deny the charge and
stoutly protest their innocence. There is thus no other direct
evidence available for the prosecution of the case, hence there
is absolute necessity for the testimony of Sansaet whose
discharge is sought precisely for that purpose. Said respondent
has indicated his conformity thereto and has, for the purposes
required by the Rules, detailed the substance of his projected
testimony in his Affidavit of Explanations and Rectifications.
His testimony can be substantially corroborated on its
material points by reputable witnesses, identified in the basic
petition with a digest of their prospective testimonies, as follows:
Judge Ciriaco C. Ario, Municipal Circuit Trial Court in San
Francisco, Agusan del Sur; Provincial Prosecutor and
Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo
Gelacio, private complainant who initiated the criminal cases
through his letter-complaint; Alberto Juvilan of the Sangguniang
Bayan of San Fernando, Agusan del Sur, who participated in
the resolution asking their Provincial Governor to file the
appropriate case against respondent Paredes, and Francisco
Macalit, who obtained the certification of non-arraignment from
Judge Ario.
On the final requirement of the Rules, it does not appear
that respondent Sansaet has at any time been convicted of any
offense involving moral turpitude. Thus, with the confluence of
all the requirements for the discharge of this respondent, both
the Special Prosecutor and the Solicitor General strongly urge
and propose that he be allowed to testify as a state witness.
This Court is not unaware of the doctrinal rule that, on this
procedural aspect, the prosecution may propose but it is for the
trial court, in the exercise of its sound discretion, to determine
the merits of the proposal and make the corresponding
disposition. It must be emphasized, however, that such
discretion should have been exercised, and the disposition
taken on a holistic view of all the facts and issues herein
discussed, and not merely on the sole issue of the applicability
of the attorney-client privilege.
This change of heart and direction respondent
Sandiganbayan eventually assumed, after the retirement of two
members of its Second Division [37]and the reconstitution
thereof. In an inversely anticlimactic Manifestation and
Comment [38] dated June 14, 1995, as required by this Court in
its resolution on December 5, 1994, the chairman and new
members thereof [39] declared:
4) That the questioned Resolutions of December 22, 1993 and
March 7, 1994 upon which the Petition for Certiorari filed by
the prosecution are based, was penned by Associate Justice
Narciso T. Atienza and concurred in by the undersigned and
Associate Justice Augusto M. Amores;
5) That while the legal issues involved had been already
discussed and passed upon by the Second Division in the
aforesaid Resolution, however, after going over the arguments
submitted by the Solicitor-General and re-assessing Our
position on the matter, We respectfully beg leave of the
Honorable Supreme Court to manifest that We are amenable
to setting aside the questioned Resolutions and to grant the
prosecutions motion to discharge accused Generoso Sansaet
as state witness, upon authority of the Honorable Supreme
Court for the issuance of the proper Resolution to that effect
within fifteen (15) days from notice thereof.
WHEREFORE, the writ of certiorari prayed for is hereby
granted SETTING ASIDE the impugned resolutions and
ORDERING that the present reliefs sought in these cases by
petitioner be allowed and given due course by respondent
Sandiganbayan.
SO ORDERED.
RUPERTO TAULE, petitioner,
vs.
SECRETARY LUIS T. SANTOS and GOVERNOR LEANDRO
VERCELES, respondents.
Balgos & Perez and Bugaring, Tugonon & Associates Law
Offices for petitioner.
Juan G. Atencia for private respondent.
GANCAYCO, J.:
The extent of authority of the Secretary of Local Government
over the katipunan ng mga barangay or the barangay councils
is brought to the fore in this case.
On June 18,1989, the Federation of Associations of Barangay
Councils (FABC) of Catanduanes, composed of eleven (11)
members, in their capacities as Presidents of the Association
of Barangay Councils in their respective municipalities,
convened in Virac, Catanduanes with six members in
attendance for the purpose of holding the election of its
officers.
Present were petitioner Ruperto Taule of San Miguel, Allan
Aquino of Viga, Vicente Avila of Virac, Fidel Jacob of
Panganiban, Leo Sales of Caramoran and Manuel Torres of
Baras. The Board of Election Supervisors/Consultants was
composed of Provincial Government Operation Officer
(PGOO) Alberto P. Molina, Jr. as Chairman with Provincial
Treasurer Luis A. Manlapaz, Jr. and Provincial Election
Supervisor Arnold Soquerata as members.
When the group decided to hold the election despite the
absence of five (5) of its members, the Provincial Treasurer
and the Provincial Election Supervisor walked out.
The election nevertheless proceeded with PGOO Alberto P.
Molina, Jr. as presiding officer. Chosen as members of the
Board of Directors were Taule, Aquino, Avila, Jacob and
Sales.
Thereafter, the following were elected officers of the FABC:
President — Ruperto Taule
Vice-President — Allan Aquino
Secretary — Vicente Avila
Treasurer — Fidel Jacob
Auditor — Leo Sales1
On June 19, 1989, respondent Leandro I. Verceles, Governor
of Catanduanes, sent a letter to respondent Luis T. Santos,
the Secretary of Local Government, * protesting the election of
the officers of the FABC and seeking its nullification in view of
several flagrant irregularities in the manner it was conducted.2
In compliance with the order of respondent Secretary,
petitioner Ruperto Taule as President of the FABC, filed his
comment on the letter-protest of respondent Governor denying
the alleged irregularities and denouncing said respondent
Governor for meddling or intervening in the election of FABC
officers which is a purely non-partisan affair and at the same
time requesting for his appointment as a member of the
Sangguniang Panlalawigan of the province being the duly
elected President of the FABC in Catanduanes.3
On August 4, 1989, respondent Secretary issued a resolution
nullifying the election of the officers of the FABC in
Catanduanes held on June 18, 1989 and ordering a new one
to be conducted as early as possible to be presided by the
Regional Director of Region V of the Department of Local
Government.4
Petitioner filed a motion for reconsideration of the resolution of
August 4, 1989 but it was denied by respondent Secretary in
his resolution of September 5, 1989.5
In the petition for certiorari before Us, petitioner seeks the
reversal of the resolutions of respondent Secretary dated
August 4, 1989 and September 5, 1989 for being null and void.
Petitioner raises the following issues:
1) Whether or not the respondent Secretary has jurisdiction to
entertain an election protest involving the election of the
officers of the Federation of Association of Barangay Councils;
2) Whether or not the respondent Governor has the legal
personality to file an election protest;
3) Assuming that the respondent Secretary has jurisdiction
over the election protest, whether or not he committed grave
abuse of discretion amounting to lack of jurisdiction in
nullifying the election;
The Katipunan ng mga Barangay is the organization of
all sangguniang barangays in the following levels: in
municipalities to be known as katipunang bayan; in
cities, katipunang panlungsod; in provinces, katipunang
panlalawigan; in regions, katipunang pampook; and on the
national level, katipunan ng mga barangay.6
The Local Government Code provides for the manner in which
the katipunan ng mga barangay at all levels shall be
organized:
Sec. 110. Organization. — (1) The katipunan at all
levels shall be organized in the following manner:
(a) The katipunan in each level shall elect a board of
directors and a set of officers. The president of each
level shall represent the katipunan concerned in the
next higher level of organization.
(b) The katipunan ng mga barangay shall be composed
of the katipunang pampook, which shall in turn be
composed of the presidents of the katipunang
panlalawigan and the katipunang panlungsod. The
presidents of the katipunang bayan in each province
shall constitute the katipunang panlalawigan. The
katipunang panlungsod and the katipunang bayan shall
be composed of the punong barangays of cities and
municipalities, respectively.
 xxx xxx xxx
The respondent Secretary, acting in accordance with the
provision of the Local Government Code empowering him to
"promulgate in detail the implementing circulars and the rules
and regulations to carry out the various administrative actions
required for the initial implementation of this Code in such a
manner as will ensure the least disruption of on-going
programs and projects7 issued Department of Local
Government Circular No. 89-09 on April 7, 1989,8 to provide
the guidelines for the conduct of the elections of officers of
the Katipunan ng mga Barangay at the municipal, city,
provincial, regional and national levels.
It is now the contention of petitioner that neither the
constitution nor the law grants jurisdiction upon the respondent
Secretary over election contests involving the election of
officers of the FABC, the katipunan ng mga barangay at the
provincial level. It is petitioner's theory that under Article IX, C,
Section 2 of the 1987 Constitution, it is the Commission on
Elections which has jurisdiction over all contests involving
elective barangay officials.
On the other hand, it is the opinion of the respondent
Secretary that any violation of the guidelines as set forth in
said circular would be a ground for filing a protest and would
vest upon the Department jurisdiction to resolve any protest
that may be filed in relation thereto.
Under Article IX, C, Section 2(2) of the 1987 Constitution, the
Commission on Elections shall exercise "exclusive original
jurisdiction over all contests relating to the elections, returns,
and qualifications of all elective regional, provincial, and city
officials, and appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials decided by
trial courts of limited jurisdiction." The 1987 Constitution
expanded the jurisdiction of the COMELEC by granting it
appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction
or elective barangay officials decided by trial courts of limited
jurisdiction.9
The jurisdiction of the COMELEC over contests involving
elective barangay officials is limited to appellate jurisdiction
from decisions of the trial courts. Under the law,10 the sworn
petition contesting the election of a barangay officer shall be
filed with the proper Municipal or Metropolitan Trial Court by
any candidate who has duly filed a certificate of candidacy and
has been voted for the same office within 10 days after the
proclamation of the results. A voter may also contest the
election of any barangay officer on the ground of ineligibility or
of disloyalty to the Republic of the Philippines by filing a sworn
petition for quo warranto with the Metropolitan or Municipal
Trial Court within 10 days after the proclamation of the results
of the election.11 Only appeals from decisions of inferior courts
on election matters as aforestated may be decided by the
COMELEC.
The Court agrees with the Solicitor General that the jurisdiction
of the COMELEC is over popular elections, the elected
officials of which are determined through the will of the
electorate. An election is the embodiment of the popular will,
the expression of the sovereign power of the people.12 It
involves the choice or selection of candidates to public office
by popular vote.13 Specifically, the term "election," in the
context of the Constitution, may refer to the conduct of the
polls, including the listing of voters, the holding of the electoral
campaign, and the casting and counting of the votes14 which
do not characterize the election of officers in the Katipunan ng
mga barangay. "Election contests" would refer to adversary
proceedings by which matters involving the title or claim of title
to an elective office, made before or after proclamation of the
winner, is settled whether or not the contestant is claiming the
office in dispute15 and in the case of elections of barangay
officials, it is restricted to proceedings after the proclamation of
the winners as no pre-proclamation controversies are
allowed.16
The jurisdiction of the COMELEC does not cover protests over
the organizational set-up of the katipunan ng mga barangay
composed of popularly elected punong barangays as
prescribed by law whose officers are voted upon by their
respective members. The COMELEC exercises only appellate
jurisdiction over election contests involving elective barangay
officials decided by the Metropolitan or Municipal Trial Courts
which likewise have limited jurisdiction. The authority of the
COMELEC over the katipunan ng mga barangay is limited by
law to supervision of the election of the representative of
the katipunan concerned to the sanggunian in a particular level
conducted by their own respective organization.17
However, the Secretary of Local Government is not vested
with jurisdiction to entertain any protest involving the election
of officers of the FABC.
There is no question that he is vested with the power to
promulgate rules and regulations as set forth in Section 222 of
the Local Government Code.
Likewise, under Book IV, Title XII, Chapter 1, See. 3(2) of the
Administrative Code of 1987, ** the respondent Secretary has
the power to "establish and prescribe rules, regulations and
other issuances and implementing laws on the general
supervision of local government units and on the promotion of
local autonomy and monitor compliance thereof by said units."
Also, the respondent Secretary's rule making power is
provided in See. 7, Chapter II, Book IV of the Administrative
Code, to wit:
(3) Promulgate rules and regulations necessary to
carry out department objectives, policies, functions,
plans, programs and projects;
Thus, DLG Circular No. 89-09 was issued by respondent
Secretary in pursuance of his rule-making power conferred by
law and which now has the force and effect of law.18
Now the question that arises is whether or not a violation of
said circular vests jurisdiction upon the respondent Secretary,
as claimed by him, to hear a protest filed in relation thereto
and consequently declare an election null and void.
It is a well-settled principle of administrative law that unless
expressly empowered, administrative agencies are bereft of
quasi- judicial powers.19 The jurisdiction of administrative
authorities is dependent entirely upon the provisions of the
statutes reposing power in them; they cannot confer it upon
themselves.20 Such jurisdiction is essential to give validity to
their determinations.21
There is neither a statutory nor constitutional provision
expressly or even by necessary implication conferring upon
the Secretary of Local Government the power to assume
jurisdiction over an election protect involving officers of
the katipunan ng mga barangay. An understanding of the
extent of authority of the Secretary over local governments is
therefore necessary if We are to resolve the issue at hand.
Presidential power over local governments is limited by the
Constitution to the exercise of general supervision22 "to ensure
that local affairs are administered according to law."23 The
general supervision is exercised by the President through the
Secretary of Local Government.24
In administrative law, supervision means overseeing or the
power or authority of an officer to see that the subordinate
officers perform their duties. If the latter fails or neglects to
fulfill them the former may take such action or step as
prescribed by law to make them perform their duties. Control,
on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the
judgment of the former for that of the latter. The fundamental
law permits the Chief Executive to wield no more authority
than that of checking whether said local government or the
officers thereof perform their duties as provided by statutory
enactments. Hence, the President cannot interfere with local
governments so long as the same or its officers act within the
scope of their authority.25 Supervisory power, when contrasted
with control, is the power of mere oversight over an inferior
body; it does not include any restraining authority over such
body.26
Construing the constitutional limitation on the power of general
supervision of the President over local governments, We hold
that respondent Secretary has no authority to pass upon the
validity or regularity of the election of the officers of the
katipunan. To allow respondent Secretary to do so will give
him more power than the law or the Constitution grants. It will
in effect give him control over local government officials for it
will permit him to interfere in a purely democratic and non-
partisan activity aimed at strengthening the barangay as the
basic component of local governments so that the ultimate
goal of fullest autonomy may be achieved. In fact, his order
that the new elections to be conducted be presided by the
Regional Director is a clear and direct interference by the
Department with the political affairs of the barangays which is
not permitted by the limitation of presidential power to general
supervision over local governments.27
Indeed, it is the policy of the state to ensure the autonomy of
local governments.28 This state policy is echoed in the Local
Government Code wherein it is declared that "the State shall
guarantee and promote the autonomy of local government
units to ensure their fullest development as self-reliant
communities and make them more effective partners in the
pursuit of national development and social progress."29 To
deny the Secretary of Local Government the power to review
the regularity of the elections of officers of the katipunan would
be to enhance the avowed state policy of promoting the
autonomy of local governments.
Moreover, although the Department is given the power to
prescribe rules, regulations and other issuances, the
Administrative Code limits its authority to merely "monitoring
compliance" by local government units of such issuances.30 To
monitor means "to watch, observe or check.31 This is
compatible with the power of supervision of the Secretary over
local governments which as earlier discussed is limited to
checking whether the local government unit concerned or the
officers thereof perform their duties as provided by statutory
enactments. Even the Local Government Code which grants
the Secretary power to issue implementing circulars, rules and
regulations is silent as to how these issuances should be
enforced. Since the respondent Secretary exercises only
supervision and not control over local governments, it is truly
doubtful if he could enforce compliance with the DLG
Circular.32 Any doubt therefore as to the power of the
Secretary to interfere with local affairs should be resolved in
favor of the greater autonomy of the local government.
Thus, the Court holds that in assuming jurisdiction over the
election protest filed by respondent Governor and declaring
the election of the officers of the FABC on June 18, 1989 as
null and void, the respondent Secretary acted in excess of his
jurisdiction. The respondent Secretary not having the
jurisdiction to hear an election protest involving officers of the
FABC, the recourse of the parties is to the ordinary courts. The
Regional Trial Courts have the exclusive original jurisdiction to
hear the protest.33
The provision in DLG Circular No. 89-15 amending DLG
Circular No. 89-09 which states that "whenever the guidelines
are not substantially complied with, the election shall be
declared null and void by the Department of Local Government
and an election shall conduct and being invoked by the
Solicitor General cannot be applied. DLG Circular No. 89-15
was issued on July 3, 1989 after the June 18, 1989 elections
of the FABC officers and it is the rule in statutory construction
that laws, including circulars and regulations34 cannot be
applied retrospectively.35Moreover, such provision is null and
void for having been issued in excess of the respondent
Secretary's jurisdiction, inasmuch as an administrative
authority cannot confer jurisdiction upon itself.
As regards the second issue raised by petitioner, the Court
finds that respondent Governor has the personality to file the
protest. Under Section 205 of the Local Government Code, the
membership of the sangguniang panlalawiganconsists of the
governor, the vice-governor, elective members of the
said sanggunian and the presidents of the katipunang
panlalawigan and the kabataang barangay provincial
federation. The governor acts as the presiding officer of
the sangguniang panlalawigan.36
As presiding officer of the sagguniang panlalawigan, the
respondent governor has an interest in the election of the
officers of the FABC since its elected president becomes a
member of the assembly. If the president of the FABC
assumes his presidency under questionable circumstances
and is allowed to sit in the sangguniang panlalawiganthe
official actions of the sanggunian may be vulnerable to attacks
as to their validity or legality. Hence, respondent governor is a
proper party to question the regularity of the elections of the
officers of the FABC.
As to the third issue raised by petitioner, the Court has already
ruled that the respondent Secretary has no jurisdiction to hear
the protest and nullify the elections.
Nevertheless, the Court holds that the issue of the validity of
the elections should now be resolved in order to prevent any
unnecessary delay that may result from the commencement of
an appropriate action by the parties.
The elections were declared null and void primarily for failure
to comply with Section 2.4 of DLG Circular No. 89-09 which
provides that "the incumbent FABC President or the Vice-
President shall preside over the reorganizational meeting,
there being a quorum." The rule specifically provides that it is
the incumbent FABC President or Vice-President who shall
preside over the meeting. The word "shall" should be taken in
its ordinary signification, i.e., it must be imperative or
mandatory and not merely
permissive,37 as the rule is explicit and requires no other
interpretation. If it had been intended that any other official
should preside, the rules would have provided so, as it did in
the elections at the town and city levels38 as well as the
regional level..39
It is admitted that neither the incumbent FABC President nor
the Vice-President presided over the meeting and elections
but Alberto P. Molina, Jr., the Chairman of the Board of
Election Supervisors/Consultants. Thus, there was a clear
violation of the aforesaid mandatory provision. On this ground,
the elections should be nullified.
Under Sec. 2.3.2.7 of the same circular it is provided that a
Board of Election Supervisors/Consultants shall be constituted
to oversee and/or witness the canvassing of votes and
proclamation of winners. The rules confine the role of the
Board of Election Supervisors/Consultants to merely
overseeing and witnessing the conduct of elections. This is
consistent with the provision in the Local Government Code
limiting the authority of the COMELEC to the supervision of the
election.40
In case at bar, PGOO Molina, the Chairman of the Board,
presided over the elections. There was direct participation by
the Chairman of the Board in the elections contrary to what is
dictated by the rules. Worse, there was no Board of Election
Supervisors to oversee the elections in view of the walk out
staged by its two other members, the Provincial COMELEC
Supervisor and the Provincial Treasurer. The objective of
keeping the election free and honest was therefore
compromised.
The Court therefore finds that the election of officers of the
FABC held on June 18, 1989 is null and void for failure to
comply with the provisions of DLG Circular No. 89-09.
Meanwhile, pending resolution of this petition, petitioner filed a
supplemental petition alleging that public respondent Local
Government Secretary, in his memorandum dated June 7,
1990, designated Augusto Antonio as temporary
representative of the Federation to the sangguniang
panlalawigan of Catanduanes.41 By virtue of this
memorandum, respondent governor swore into said office
Augusto Antonio on June 14, 1990.42
The Solicitor General filed his comment on the supplemental
petition43 as required by the resolution of the Court dated
September 13,1990.
In his comment, the Solicitor General dismissed the
supervening event alleged by petitioner as something
immaterial to the petition. He argues that Antonio's
appointment was merely temporary "until such time that the
provincial FABC president in that province has been elected,
appointed and qualified."44 He stresses that Antonio's
appointment was only a remedial measure designed to cope
with the problems brought about by the absence of a
representative of the FABC to the "sanggunian ang
panlalawigan."
Sec. 205 (2) of the Local Government Code (B.P. Blg. 337)
provides-
(2) The sangguniang panlalawigan shall be composed
of the governor, the vice-governor, elective members of
the said sanggunian and the presidents of the
katipunang panlalawigan and the kabataang barangay
provincial federation who shall be appointed by the
President of the Philippines. (Emphasis supplied.)
Batas Pambansa Blg. 51, under Sec. 2 likewise states:
xxx xxx xxx
The sangguniang panlalawigan of each province shall
be composed of the governor as chairman and
presiding officer, the vice-governor as presiding officer
pro tempore, the elective sangguniang panlalawigan
members, and the appointive members consisting of
the president of the provincial association of barangay
 councils, and the president of the provincial federation
of the kabataang barangay. (Emphasis supplied.)
In Ignacio vs. Banate Jr.45 the Court, interpreting similarly
worded provisions of Batas Pambansa Blg. 337 and Batas
Pambansa Blg. 51 on the composition of the sangguniang
panlungsod,46 declared as null and void the appointment of
private respondent Leoncio Banate Jr. as member of
the Sangguniang Panlungsod of the City of Roxas
representing the katipunang panlungsod ng mga barangay for
he lacked the elegibility and qualification required by law, not
being a barangay captain and for not having been elected
president of the association of barangay councils. The Court
held that an unqualified person cannot be appointed a member
of the sanggunian, even in an acting capacity. In Reyes vs.
Ferrer,47 the appointment of Nemesio L. Rasgo Jr. as
representative of the youth sector to the sangguniang
panlungsod of Davao City was declared invalid since he was
never the president of the kabataang barangay city federation
as required by Sec. 173, Batas Pambansa Blg. 337.
In the present controversy involving the sangguniang
panlalawigan, the law is likewise explicit. To be appointed by
the President of the Philippines to sit in the sangguniang
panlalawigan is the president of the katipunang panlalawigan.
The appointee must meet the qualifications set by law.48 The
appointing power is bound by law to comply with the
requirements as to the basic qualifications of the appointee to
the sangguniang panlalawigan. The President of the
Philippines or his alter ego, the Secretary of Local
Government, has no authority to appoint anyone who does not
meet the minimum qualification to be the president of the
federation of barangay councils.
Augusto Antonio is not the president of the federation. He is a
member of the federation but he was not even present during
the elections despite notice. The argument that Antonio was
appointed as a remedial measure in the exigency of the
service cannot be sustained. Since Antonio does not meet the
basic qualification of being president of the federation, his
appointment to the sangguniang panlalawigan is not justified
notwithstanding that such appointment is merely in a
temporary capacity. If the intention of the respondent
Secretary was to protect the interest of the federation in
the sanggunian, he should have appointed the incumbent
FABC President in a hold-over capacity. For even under the
guidelines, the term of office of officers of the katipunan at all
levels shall be from the date of their election until their
successors shall have been duly elected and qualified, without
prejudice to the terms of their appointments as members of the
sanggunian to which they may be correspondingly
appointed.49 Since the election is still under protest such that
no successor of the incumbent has as yet qualified, the
respondent Secretary has no choice but to have the incumbent
FABC President sit as member of the sanggunian. He could
even have appointed petitioner since he was elected the
president of the federation but not Antonio. The appointment of
Antonio, allegedly the protege of respondent Governor, gives
credence to petitioner's charge of political interference by
respondent Governor in the organization. This should not be
allowed. The barangays should be insulated from any partisan
activity or political intervention if only to give true meaning to
local autonomy.
WHEREFORE, the petition is GRANTED in that the resolution
of respondent Secretary dated August 4, 1989 is hereby SET
ASIDE for having been issued in excess of jurisdiction.
The election of the officials of the ABC Federation held on
June 18, 1989 is hereby annulled.1âwphi1 A new election of
officers of the federation is hereby ordered to be conducted
immediately in accordance with the governing rules and
regulations.
The Supplemental petition is hereby GRANTED. The
appointment of Augusto Antonio as representative to
the Sangguniang Panlalawigan in a temporary capacity is
declared null and void.
No costs.
SO ORDERED.
AYOR EULOGIO E. BORRES, Petitioner, vs. HON. MATEO
CANONOY, Presiding Judge, Court of First Instance of
Cebu, Branch III, 114th Judicial District, and SILVERIO
PARAGES, Respondents.chanrobles virtual law library
DE CASTRO, * J.:chanrobles virtual law library
In 1968, herein petitioner Eulogio Borres was then the acting
mayor of Cebu City, while private respondent Silverio Parages
was a detective in the Cebu Police Department holding such
position in a permanent capacity being a civil service eligible.
He was assigned to the Homicide and General Investigation
Section of the Investigation Branch of said department,
particularly to the Missing Persons
Section.chanroblesvirtualawlibrary chanrobles virtual law
library
On November 14, 1968, acting on verbal complaints that
respondent Parages had been molesting Chinese
businessman in Cebu and the fact that his performance was
not satisfactory, petitioner Borres issued a memorandum
ordering the detail of respondent to his office. 1chanrobles
virtual law library
On November 21, 1968, after the said detail order was
endorsed by the Chief of Police, Parages was served with a
copy thereof, but he refused to receive it and to comply with
said order. He informed petitioner that he was declining the
detail because the order was illegal 2 and continued to report
to his unit. 3 chanrobles virtual law library
On December 7, 1968, Parages filed a petition for prohibition
and injunction in the court a quo against petitioner. The court,
however, did not issue the writ of preliminary injunction as
prayed for, but preferred to hear the evidence before taking
any action. 4chanrobles virtual law library
Meanwhile, in view of respondent's refusal to comply with the
detail order, petitioner charged him with insubordination and
neglect of duty in the Police Commission through the City
Board of Investigators. At the same time, he ordered the
suspension of respondent. 5 Respondent thus amended his
petition for prohibition and injunction, with the additional prayer
that his suspension be declared
illegal.chanroblesvirtualawlibrary chanrobles virtual law library
After trial on the merits, the trial court rendered its decision
dated February 4, 1969 declaring the detail order of November
14, 1968 illegal and therefore null and void, for being contrary
to Section 90 of Republic A.ct No. 3857, otherwise known as
Revised Charter of the City of Cebu and to the constitutional
protection of security of tenure. Consequently, it held the order
of suspension dated December 16, 1968 likewise illegal, and
ordered the immediate reinstatement of private respondent to
the service and the payment of his back
salaries.chanroblesvirtualawlibrary chanrobles virtual law
library
In the order of March 3, 1969, the lower court denied
petitioner's motion for reconsideration of the decision and
granted the immediate execution of the judgment pending
appeal upon filing by private respondent of a bond in the sum
of P 3,000.00. 6 chanrobles virtual law library
Hence, petitioner filed the present petition for review on
certiorari, raising principally the issue of whether or not it is
within the power of the Mayor to order the detail of private
respondent under the Revised Charter of the City of Cebu and
the latter's suspension for refusing to comply with the
order.chanroblesvirtualawlibrary chanrobles virtual law library
It is the contention of herein petitioner that although Section 90
of the Revised Charter of Cebu, which provides:
Section 90. Power and Duties of the Chief of Police. - There
shall be a Chief of Police with a salary of seven thousand eight
hundred pesos per annum who shall have charge of the police
department and everything pertaining thereto including the
organization, administration, discipline, and disposition of, and
the transfer of, members from and to the city police and
detective bureau; ... and shall promptly and faithfully execute
an orders of the Mayor, including assignments and transfer of
personnel.
is applicable, it should, however, be read in the light of section
20 of the said law, which reads:
Section 20. General Powers and Duties of the Mayor. -The
Mayor shall have the following general powers and
duties: chanrobles virtual law library
xxx xxx xxxchanrobles virtual law library
e. To see that executive officers and employees of the city are
properly discharging their respective duties. The Mayor may,
in the interest of the service, transfer officers and employees
not appointed by the President of the Philippines from one
section, division, service, or department to another section,
division, service, or department without changing the
compensation they receive.
Petitioner likewise cites Section 19 of the City Charter which
provides: chanrobles virtual law library
Section 19. Nature of Office; Qualifications, compensations. -
The Mayor shall be the Chief executive of the city and as such
shall have immediate control over the executive functions of
the different departments and agencies of the city, subject to
the general supervision of the President as may be provided
for by law ... .
and Section 32 which enumerates the departments on which
the mayor may exercise supervision and control and reads:
Section 32. City Departments.- There shall be the following
city departments over which the Mayor shall have direct
supervision and con trol any existing law to the contrary
notwithstanding: chanrobles virtual law library
xxx xxx xxxchanrobles virtual law library
(6) Police Department chanrobles virtual law library
xxx xxx xxx
Private respondent, on the other hand, claims that pursuant to
Administrative Order No. 42, Series of 1937, issued by the
Civil Service Commission "whenever the Head of any
Department or Dependency of the National Government
deems it necessary to assign any employee outside of the
Bureau or office where he is regularly employed, or to perform
within the same Bureau or office a kind of work which is
different from that for which the position he occupies has been
provided, the said Department or Dependency shall issue an
order stating the necessity for such special assignment and a
copy of the older shall be furnished to the Budget Office, but
no such special assignment shall be made for more than 30
days." He also claims that in addition to the foregoing
requirement, Memorandum Circular Nos. 45 and 29 of the Civil
Service Commission dated September 24, 1964 and July 29,
1965, respectively require that all assignments and
reassignments to positions of a grade or character not
contemplated by the examination from the results of which
appointment was made ... should also be submitted to the
Commission for prior
approval.chanroblesvirtualawlibrary chanrobles virtual law
library
Aside from the aforementioned administrative order and
circulars, private respondent likewise cites Section 684 of the
Revised Administrative Code which provides: chanrobles
virtual law library
No person appointed to a position in the classified service
shall, without the approval of the Commission of Civil Service,
be assigned, to or employed in a position of a grade or
character not contemplated by the examination from the result
of which appointment was made, unless otherwise provided by
law.
Private respondent also disputes the validity of his suspension,
claiming that contrary to Section 16 of Republic Act No. 4864,
he was suspended even before the filing of an administrative
complaint against him. Section 16 provides:
Section 16. Suspension of Members of the Police Force or
Agency. - When an administrative charge is filed under oath
against any member of the local police agency, the city mayor
or municipal mayor, as the case may be, may suspend the
respondent: Provided, That the charge involves disloyalty to
the government, dishonesty, oppression, grave misconduct,
serious irregularities, or serious neglect of duty, if there are
strong reasons to believe that the respondent is probably guilty
thereof which would warrant his suspension or removal from
the service. ... .
He further contends that the suspension order is a premature
conclusion considering that the detail order was then already
subject of a judicial determination as to its
validity.chanroblesvirtualawlibrary chanrobles virtual law library
Under the foregoing facts and the pertinent laws cited, the
power of petitioner, as Mayor of Cebu City, to detail
respondent cannot be denied. Such power to detail must
necessarily be deemed included in his power of control and
supervision over different departments, among which is the
Police Department, as expressly so provided in Sections 19
and 32 of the Revised Charter of
Cebu.chanroblesvirtualawlibrary chanrobles virtual law library
In the case of Mondano vs. Silvosa, 97 Phil. 143, this Court
had the occasion to define "Supervision" and "control",
thus: chanrobles virtual law library
Supervision means overseeing of the power or authority of an
officer to see that subordinate officers perform their duties;
control on the other hand, means the power of an officer to
alter, modify or nullify or set aside what subordinate officer had
done in the performance of his duties and to substitute the
judgment of the former for that of the latter.
In Rodriguez, et al. vs. Montinola, et al., 94 Phil. 964, 972, We
had earlier said: chanrobles virtual law library
To supervise is to oversee, to have oversight of, to
superintend the execution of or the performance of a thing, or
the movements or work of a person, to inspect with authority:
to inspect and direct the work of others. It is to be noted that
there are two senses in which the term "supervision" has been
understood. In one it means superintending alone or the
oversight of the performance of a thing without power to
control or to direct. In the other, the inspection is coupled with
the right to direct or even to annul. The decisions of courts in
the United States distinguish between supervision exercised
by an official of a department, and supervision for the purpose
of preventing and punishing abuses, discrimination and so
forth.
If by the grant of the power of control and supervision, the
Mayor can nullify or set aside what a subordinate had done in
the performance of his duties, it is evident that he can order
the detail of private respondent to correct or prevent him from
committing any abuse in the performance of his duties;
otherwise, said Sections 19 and 32 of the city charter would
just be stale and meaningless
provisions.chanroblesvirtualawlibrary chanrobles virtual law
library
The power to detail may also be gleaned from the fact that
Section 20 of the same charter provides that the Mayor has
the power to see to it that executive officers and employees
are properly discharging their respective duties. It should be
recalled that the Mayor issued the questioned detail order after
he has received reports that Parages' efficiency is far from
satisfactory and had been molesting Chinese businessmen.
Hence, in this desire to gain information of actual facts and
closely look at his activities, he ordered the detail of private
respondent to his office. There is no effective way by which the
Mayor can see to it that private respondent properly
discharged his duties.chanroblesvirtualawlibrary chanrobles
virtual law library
Furthermore, the same Section 20 authorizes the Mayor, in the
interest of the service, to transfer officers and employees from
one section, division, service or department without changing
the compensation. A transfer is a movement of personnel,
more or less permanent in nature, while detail is merely
temporary. In the former, the employee concerned loses
position, while in the latter he does not. 7 It would be illogical to
hold that a Mayor can transfer employees from one station to
another which action involves permanency and severance of
official connection of the transferee with his former position,
but cannot order the detail of private respondent which is for a
more or less brief period, and is therefore only temporary in
character.chanroblesvirtualawlibrary chanrobles virtual law
library
The power of the Mayor in the disposition and transfer of
members of the Police Department is not by any means limited
by the provision of Section 90 of the Revised Charter of the
City of Cebu which refers expressly to the powers and duties
of the Chief of Police of Cebu which are thereby enumerated.
Among such duties is to execute promptly and faithfully all
orders of the Mayor "including assignments and transfers of
personnel." Section 90 of the said charter, therefore, far from
supporting private respondent's claim of illegality of his detail
order issued by the Mayor, expressly recognizes the latter's
powers to make transfer of personnel in the police department,
under the more general grant of power to him under Section
20 of the Charter of Cebu City which gives him very broad
power to make transfer of officers and employees from one
section, division, service or department to another section,
division, service or department without changing the
compensation they
receive.chanroblesvirtualawlibrary chanrobles virtual law
library
The administrative order and circulars cited by private
respondent are totally inapplicable to the case at bar.
Administrative Order No. 42, Series 1937, refers to Head of
any Department or Dependency of the National Government
assigning any employee outside of the bureau or office, where
he is regularly employed. Moreover, they are in the nature of
general laws which cannot prevail over the charter of Cebu
which is a special law granting the City Mayor exclusive power
of control and supervision over city employees. Public service
and the practical necessities of efficient and honest
government demand immediate action from the Mayor. The
stability and efficiency of the city government may be
jeopardized if the Mayor has to secure prior approval of the
Commissioner of Civil Service in order that he may validly
detail and closely supervise an employee. As was aptly said in
Pineda vs. Claudio, 28 SCRA 34, it is the local executive,
more than anybody else, who is primarily responsible for
efficient (and honest) governmental administration in the
locality and the effective maintenance of peace and order
therein, and is directly answerable to the people who elected
him. Nowhere is this more true than in the sensitive area of
police administration.chanroblesvirtualawlibrary chanrobles
virtual law library
Similarly, the case of Lejano vs. Garcia, 109 Phil. 117. which
held that an office cannot be detailed or transferred even
temporarily without his consent has no application in the
instant case. In that case, the transfer of petitioner Lejano
already amounted to removal, for as found by this Court, such
transfer was not a mere temporary assignment but a veritable
new appointment which he had declined, and that respondents
had already appointed another to take Lejano's
place.chanroblesvirtualawlibrary chanrobles virtual law library
Likewise not in point is the constitutional provision on security
of tenure. A temporary detail is neither removal, suspension or
transfer when made in the interest of public service 8 and
absent a showing of manifest abuse of discretion or that the
detail is due to some improper motive or purpose. 9 As found
by the respondent court, the alleged bad faith of the petitioner
in ordering the detail of respondent to his office is not clear
and the doubt should be resolved in his favor. Be that as it
may, it should also be stressed that the constitutional provision
on removal or suspension except for cause as provided by law
gives in to the fundamental postulate that a public office is a
public trust. 10chanrobles virtual law library
As regards the order of suspension dated December 16, 1968,
We are also constrained to reject the contention of private
respondent that his suspension is invalid because it was made
before the filing of the complaint. For while it is true that the
complaint dated December 16, 1968 was forwarded by the
Office of the Mayor and filed before the Police Commission
only in the morning of December 17, 1968, 11the said
suspension order was expressly made to take effect only upon
receipt of the same by petitioner. 12 it was not shown when
petitioner received said order of suspension, but in all
likelihood it must have been not before the filing of the
complaint.chanroblesvirtualawlibrary chanrobles virtual law
library
Neither does the filing of the petition for prohibition and
injunction render the suspension order invalid. The mere filing
of the petition did not, ipso facto, make the detail order illegal,
nor did it authorize private respondent to ignore the said order,
the implementation of which had not been restrained by the
lower court. Noteworthy is the fact that the issuance of the
detail order carries with it the presumption of
regularity. 13 chanrobles virtual law library
The suspension order was predicated on his obstinate refusal
to obey the detail, and although the charge involved was
denominated by petitioner as neglect of duty it cannot be
doubted that such refusal properly constitutes grave
misconduct which is one of the grounds for suspending an
officer under Section 16 of the Polcom
Law.chanroblesvirtualawlibrary chanrobles virtual law library
WHEREFORE, the decision of the lower court dated February
4, 1969 is hereby set aside and another one is entered
declaring legal and with full force and effect petitioner's
questioned detail and suspension orders. Without
cost.chanroblesvirtualawlibrary chanrobles virtual law library
SO ORDERED.
SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial
Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis-
à-vis the vast and overwhelming powers of government. His
only guarantee against oppression and tyranny are his
fundamental liberties under the Bill of Rights which shield him
in times of need. The Court is now called to decide whether to
uphold a citizen's basic due process rights, or the
government's ironclad duties under a treaty. The bugle sounds
and this Court must once again act as the faithful guardian of
the fundamental writ.
The petition at our doorstep is cast against the following
factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos
issued Presidential Decree No. 1069 "Prescribing the
Procedure for the Extradition of Persons Who Have
Committed Crimes in a Foreign Country". The Decree is
founded on: the doctrine of incorporation under the
Constitution; the mutual concern for the suppression of crime
both in the state where it was committed and the state where
the criminal may have escaped; the extradition treaty with the
Republic of Indonesia and the intention of the Philippines to
enter into similar treaties with other interested countries; and
the need for rules to guide the executive department and the
courts in the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M.
Drilon, representing the Government of the Republic of the
Philippines, signed in Manila the "Extradition Treaty Between
the Government of the Republic of the Philippines and the
Government of the United States of America" (hereinafter
referred to as the RP-US Extradition Treaty). The Senate, by
way of Resolution No. 11, expressed its concurrence in the
ratification of said treaty. It also expressed its concurrence in
the Diplomatic Notes correcting Paragraph (5)(a), Article 7
thereof (on the admissibility of the documents accompanying
an extradition request upon certification by the principal
diplomatic or consular officer of the requested state resident in
the Requesting State).
On June 18, 1999, the Department of Justice received from
the Department of Foreign Affairs U.S. Note Verbale No. 0522
containing a request for the extradition of private respondent
Mark Jimenez to the United States. Attached to the Note
Verbale were the Grand Jury Indictment, the warrant of arrest
issued by the U.S. District Court, Southern District of Florida,
and other supporting documents for said extradition. Based on
the papers submitted, private respondent appears to be
charged in the United States with violation of the following
provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to
defraud the United States; two [2] counts; Maximum
Penalty — 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four
[4] counts; Maximum Penalty — 5 years on each
count);
C) 18 USC 1343 (Fraud by wire, radio, or television;
two [2] counts; Maximum Penalty — 5 years on each
count);
D) 18 USC 1001 (False statement or entries; six [6]
counts; Maximum Penalty — 5 years on each count);
E) 2 USC 441f (Election contributions in name of
another; thirty-three [33] counts; Maximum Penalty —
less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249
designating and authorizing a panel of attorneys to take
charge of and to handle the case pursuant to Section 5(1) of
Presidential Decree No. 1069. Accordingly, the panel began
with the "technical evaluation and assessment" of the
extradition request and the documents in support thereof. The
panel found that the "official English translation of some
documents in Spanish were not attached to the request and
that there are some other matters that needed to be
addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents,
private respondent, through counsel, wrote a letter dated July
1, 1999 addressed to petitioner requesting copies of the official
extradition request from the U.S. Government, as well as all
documents and papers submitted therewith; and that he be
given ample time to comment on the request after he shall
have received copies of the requested papers. Private
respondent also requested that the proceedings on the matter
be held in abeyance in the meantime.
Later, private respondent requested that preliminary, he be
given at least a copy of, or access to, the request of the United
States Government, and after receiving a copy of the
Diplomatic Note, a period of time to amplify on his request.
In response to private respondent's July 1, 1999 letter,
petitioner, in a reply-letter dated July 13, 1999 (but received by
private respondent only on August 4, 1999), denied the
foregoing requests for the following reasons:
1. We find it premature to furnish you with copies of the
extradition request and supporting documents from the
United States Government, pending evaluation by this
Department of the sufficiency of the extradition
documents submitted in accordance with the provisions
of the extradition treaty and our extradition law. Article
7 of the Extradition Treaty between the Philippines and
the United States enumerates the documentary
requirements and establishes the procedures under
which the documents submitted shall be received and
admitted as evidence. Evidentiary requirements under
our domestic law are also set forth in Section 4 of P.D.
No. 1069.
Evaluation by this Department of the aforementioned
documents is not a preliminary investigation nor akin to
preliminary investigation of criminal cases. We merely
determine whether the procedures and requirements
under the relevant law and treaty have been complied
with by the Requesting Government. The
constitutionally guaranteed rights of the accused in all
criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition
when the person sought to be extradited will be
furnished by the court with copies of the petition,
request and extradition documents and this
Department will not pose any objection to a request for
ample time to evaluate said documents.
2. The formal request for extradition of the United
States contains grand jury information and documents
obtained through grand jury process covered by strict
secrecy rules under United States law. The United
States had to secure orders from the concerned District
Courts authorizing the United States to disclose certain
grand jury information to Philippine government and
law enforcement personnel for the purpose of
extradition of Mr. Jimenez. Any further disclosure of the
said information is not authorized by the United States
District Courts. In this particular extradition request the
United States Government requested the Philippine
Government to prevent unauthorized disclosure of the
subject information. This Department's denial of your
request is consistent with Article 7 of the RP-US
Extradition Treaty which provides that the Philippine
Government must represent the interests of the United
States in any proceedings arising out of a request for
extradition. The Department of Justice under P.D. No.
1069 is the counsel of the foreign governments in all
extradition requests.
3. This Department is not in a position to hold in
abeyance proceedings in connection with an
extradition request. Article 26 of the Vienna Convention
on the Law of Treaties, to which we are a party
provides that "[E]very treaty in force is binding upon the
parties to it and must be performed by them in good
faith". Extradition is a tool of criminal law enforcement
and to be effective, requests for extradition or
surrender of accused or convicted persons must be
processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private
respondent filed with the Regional Trial Court of the National
Capital Judicial Region a petition against the Secretary of
Justice, the Secretary of Foreign Affairs, and the Director of
the National Bureau of Investigation, for mandamus (to compel
herein petitioner to furnish private respondent the extradition
documents, to give him access thereto, and to afford him an
opportunity to comment on, or oppose, the extradition request,
and thereafter to evaluate the request impartially, fairly and
objectively); certiorari(to set aside herein petitioner's letter
dated July 13, 1999); and prohibition (to restrain petitioner
from considering the extradition request and from filing an
extradition petition in court; and to enjoin the Secretary of
Foreign Affairs and the Director of the NBI from performing
any act directed to the extradition of private respondent to the
United States), with an application for the issuance of a
temporary restraining order and a writ of preliminary injunction
(pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No.
99-94684 and thereafter raffled to Branch 25 of said regional
trial court stationed in Manila which is presided over by the
Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August
9, 1999. Petitioner, who appeared in his own behalf, moved
that he be given ample time to file a memorandum, but the
same was denied.
On August 10, 1999, respondent judge issued an order dated
the previous day, disposing:
WHEREFORE, this Court hereby Orders the
respondents, namely: the Secretary of Justice, the
Secretary of Foreign Affairs and the Director of the
National Bureau of Investigation, their agents and/or
representatives to maintain the status quo by refraining
from committing the acts complained of; from
conducting further proceedings in connection with the
request of the United States Government for the
extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and
from performing any act directed to the extradition of
the petitioner to the United States, for a period of
twenty (20) days from service on respondents of this
Order, pursuant to Section 5, Rule 58 of the 1997
Rules of Court.
The hearing as to whether or not this Court shall issue
the preliminary injunction, as agreed upon by the
counsels for the parties herein, is set on August 17,
1999 at 9:00 o'clock in the morning. The respondents
are, likewise, ordered to file their written comment
and/or opposition to the issuance of a Preliminary
Injunction on or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing
that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN
EXCESS OF JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN ISSUING THE
TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN
FROM COMMITTING THE ACTS COMPLAINED
OF, I.E., TO DESIST FROM REFUSING PRIVATE
RESPONDENT ACCESS TO THE OFFICIAL
EXTRADITION REQUEST AND DOCUMENTS AND
FROM DENYING PRIVATE RESPONDENT AN
OPPORTUNITY TO FILE A COMMENT ON, OR
OPPOSITION TO, THE REQUEST, THE MAIN
PRAYER FOR A WRIT OF MANDAMUS IN THE
PETITION FOR MANDAMUS, CERTIORARI AND
PROHIBITION WAS, IN EFFECT, GRANTED SO AS
TO CONSTITUTE AN ADJUDICATION ON THE
MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED
FROM PERFORMING LEGAL DUTIES UNDER THE
EXTRADITION TREATY AND THE PHILIPPINE
EXTRADITION LAW;
III.
 THE PETITION FOR (MANDAMUS),
CERTIORARI AND PROHIBITION IS, ON ITS FACE,
FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN
ESSE THAT NEEDS PROTECTION AND
ENFORCEMENT, AND WILL NOT SUFFER ANY
IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to
file his comment. Also issued, as prayed for, was a temporary
restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and
continuing until further orders from this Court, You,
Respondent Judge Ralph C. Lantion, your agents,
representatives or any person or persons acting in your
place or stead are hereby ORDERED to CEASE and
DESIST from enforcing the assailed order dated
August 9, 1999 issued by public respondent in Civil
Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR.,
Chief Justice, Supreme Court of the Philippines, this
17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999,
after which the parties, as directed, filed their respective
memoranda.
From the pleadings of the opposing parties, both procedural
and substantive issues are patent. However, a review of these
issues as well as the extensive arguments of both parties,
compel us to delineate the focal point raised by the pleadings:
During the evaluation stage of the extradition proceedings, is
private respondent entitled to the two basic due process rights
of notice and hearing? An affirmative answer would
necessarily render the proceedings at the trial court, moot and
academic (the issues of which are substantially the same as
those before us now), while a negative resolution would call for
the immediate lifting of the TRO issued by this Court dated
August 24, 1999, thus allowing petitioner to fast-track the
process leading to the filing of the extradition petition with the
proper regional trial court. Corollarily, in the event that private
respondent is adjudged entitled to basic due process rights at
the evaluation stage of the extradition proceedings, would this
entitlement constitute a breach of the legal commitments and
obligations of the Philippine Government under the RP-US
Extradition Treaty? And assuming that the result would indeed
be a breach, is there any conflict between private respondent's
basic due process rights and the provisions of the RP-US
Extradition Treaty?
The issues having transcendental importance, the Court has
elected to go directly into the substantive merits of the case,
brushing aside peripheral procedural matters which concern
the proceedings in Civil Case No. 99-94684, particularly the
propriety of the filing of the petition therein, and of the
issuance of the TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition
procedure. The RP-US Extradition Treaty which was executed
only on November 13, 1994, ushered into force the
implementing provisions of Presidential Decree No. 1069, also
called as the Philippine Extradition Law. Section 2(a) thereof
defines extradition as "the removal of an accused from the
Philippines with the object of placing him at the disposal of
foreign authorities to enable the requesting state or
government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty
imposed on him under the penal or criminal law of the
requesting state or government." The portions of the Decree
relevant to the instant case which involves a charged and not
convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the
Requesting State, addressed to the Secretary of Foreign
Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal
charge and the warrant of arrest issued by the authority
of the Requesting State having jurisdiction over the
matter, or some other instruments having equivalent
legal force;
2. A recital of the acts for which extradition is
requested, with the fullest particulars as to the name
and identity of the accused, his whereabouts in the
Philippines, if known, the acts or omissions complained
of, and the time and place of the commission of these
acts;
3. The text of the applicable law or a statement of the
contents of said law, and the designation or description
of the offense by the law, sufficient for evaluation of the
request; and
4. Such other documents or information in support of
the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of
the Secretary of Foreign Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign
Affairs that the request fails to meet the requirements
of this law and the relevant treaty or convention, he
shall forward the request together with the related
documents to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his
office to take charge of the case.
The above provision shows only too clearly that the executive
authority given the task of evaluating the sufficiency of the
request and the supporting documents is the Secretary of
Foreign Affairs. What then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US
Extradition Treaty, the executive authority must ascertain
whether or not the request is supported by:
1. Documents, statements, or other types of
information which describe the identity and probable
location of the person sought;
2. A statement of the facts of the offense and the
procedural history of the case;
3. A statement of the provisions of the law describing
the essential elements of the offense for which
extradition is requested;
4. A statement of the provisions of law describing the
punishment for the offense;
 5. A statement of the provisions of the law describing
any time limit on the prosecution or the execution of
punishment for the offense;
6. Documents, statements, or other types of
information specified in paragraph 3 or paragraph 4 of
said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No.
1069.)
7. Such evidence as, according to the law of the
Requested State, would provide probable cause for his
arrest and committal for trial if the offense had been
committed there;
8. A copy of the warrant or order of arrest issued by a
judge or other competent authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must
also see to it that the accompanying documents received in
support of the request had been certified by the principal
diplomatic or consular officer of the Requested State resident
in the Requesting State (Embassy Note No. 052 from U. S.
Embassy; Embassy Note No. 951309 from the Department of
Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that
"[e]xtradition shall not be granted if the executive authority of
the Requested State determines that the request is politically
motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that
the extradition request and its supporting documents are
sufficient and complete in form and substance, he shall deliver
the same to the Secretary of Justice, who shall immediately
designate and authorize an attorney in his office to take
charge of the case (Paragraph [1], Section 5, P.D. No. 1069).
The lawyer designated shall then file a written petition with the
proper regional trial court of the province or city, with a prayer
that the court take the extradition request under consideration
(Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of
the petition for extradition, shall, as soon as practicable, issue
an order summoning the prospective extraditee to appear and
to answer the petition on the day and hour fixed in the order.
The judge may issue a warrant of arrest if it appears that the
immediate arrest and temporary detention of the accused will
best serve the ends of justice (Paragraph [1], Section 6, ibid.),
particularly to prevent the flight of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the
extradition proceeding is criminal, civil, or a special
proceeding. Nevertheless, Paragraph [1], Section 9 thereof
provides that in the hearing of the extradition petition, the
provisions of the Rules of Court, insofar as practicable and not
inconsistent with the summary nature of the proceedings, shall
apply. During the hearing, Section 8 of the Decree provides
that the attorney having charge of the case may, upon
application by the Requesting State, represent the latter
throughout the proceedings.
Upon conclusion of the hearing, the court shall render a
decision granting the extradition and giving the reasons
therefor upon a showing of the existence of a prima facie case,
or dismiss the petition (Section 10, ibid.). Said decision is
appealable to the Court of Appeals, whose decision shall be
final and immediately executory (Section 12, ibid.). The
provisions of the Rules of Court governing appeal in criminal
cases in the Court of Appeals shall apply in the
aforementioned appeal, except for the required 15-day period
to file brief (Section 13, ibid.).
The trial court determines whether or not the offense
mentioned in the petition is extraditable based on the
application of the dual criminality rule and other conditions
mentioned in Article 2 of the RP-US Extradition Treaty. The
trial court also determines whether or not the offense for which
extradition is requested is a political one (Paragraph [1], Article
3, RP-US Extradition Treaty).1âwphi1.nêt
With the foregoing abstract of the extradition proceedings as
backdrop, the following query presents itself: What is the
nature of the role of the Department of Justice at the
evaluation stage of the extradition proceedings?
A strict observance of the Extradition Law indicates that the
only duty of the Secretary of Justice is to file the extradition
petition after the request and all the supporting papers are
forwarded to him by the Secretary of Foreign Affairs. It is the
latter official who is authorized to evaluate the extradition
papers, to assure their sufficiency, and under Paragraph [3],
Article 3 of the Treaty, to determine whether or not the request
is politically motivated, or that the offense is a military offense
which is not punishable under non-military penal
legislation. Ipso facto, as expressly provided in Paragraph [1],
Section 5 of the Extradition Law, the Secretary of Justice has
the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it
would appear that there was failure to abide by the provisions
of Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign
Affairs on June 17, 1999, the following day or less than 24
hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs
discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant
secretary at the Department of Foreign Affairs that his
Department, in this regard, is merely acting as a post office, for
which reason he simply forwarded the request to the
Department of Justice, indicates the magnitude of the error of
the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it
upon itself to determine the completeness of the documents
and to evaluate the same to find out whether they comply with
the requirements laid down in the Extradition Law and the RP-
US Extradition Treaty. Petitioner ratiocinates in this connection
that although the Department of Justice had no obligation to
evaluate the extradition documents, the Department also had
to go over them so as to be able to prepare an extradition
petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also
at this stage where private respondent insisted on the
following; (1) the right to be furnished the request and the
supporting papers; (2) the right to be heard which consists in
having a reasonable period of time to oppose the request, and
to present evidence in support of the opposition; and (3) that
the evaluation proceedings be held in abeyance pending the
filing of private respondent's opposition to the request.
The two Departments seem to have misread the scope of their
duties and authority, one abdicating its powers and the other
enlarging its commission. The Department of Foreign Affairs,
moreover, has, through the Solicitor General, filed a
manifestation that it is adopting the instant petition as its own,
indirectly conveying the message that if it were to evaluate the
extradition request, it would not allow private respondent to
participate in the process of evaluation.
Plainly then, the record cannot support the presumption of
regularity that the Department of Foreign Affairs thoroughly
reviewed the extradition request and supporting documents
and that it arrived at a well-founded judgment that the request
and its annexed documents satisfy the requirements of law.
The Secretary of Justice, eminent as he is in the field of law,
could not privately review the papers all by himself. He had to
officially constitute a panel of attorneys. How then could the
DFA Secretary or his undersecretary, in less than one day,
make the more authoritative determination?
The evaluation process, just like the extradition proceedings
proper, belongs to a class by itself. It is sui generis. It is not a
criminal investigation, but it is also erroneous to say that it is
purely an exercise of ministerial functions. At such stage, the
executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the
extradition papers; (b) to outrightly deny the request if on its
face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination
whether or not the request is politically motivated, or that the
offense is a military one which is not punishable under non-
military penal legislation (tsn, August 31, 1999, pp. 28-29;
Article 2 & and Paragraph [3], Article 3, RP-US Extradition
Treaty). Hence, said process may be characterized as an
investigative or inquisitorial process in contrast to a proceeding
conducted in the exercise of an administrative body's quasi-
judicial power.
In administrative law, a quasi-judicial proceeding involves: (a)
taking and evaluation of evidence; (b) determining facts based
upon the evidence presented; and (c) rendering an order or
decision supported by the facts proved (De Leon,
Administrative Law: Text and Cases, 1993 ed., p. 198, citing
Morgan vs. United States, 304 U.S. 1). Inquisitorial power,
which is also known as examining or investigatory power, is
one or the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority
(Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power
allows the administrative body to inspect the records and
premises, and investigate the activities, of persons or entities
coming under its jurisdiction (Ibid., p. 27), or to require
disclosure of information by means or accounts, records,
reports, testimony of witnesses, production of documents, or
otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing,
and analyzing evidence, which is a useful aid or tool in an
administrative agency's performance of its rule-making or
quasi-judicial functions. Notably, investigation is indispensable
to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the
Court had occasion to rule on the functions of an investigatory
body with the sole power of investigation. It does not exercise
judicial functions and its power is limited to investigating the
facts and making findings in respect thereto. The Court laid
down the test of determining whether an administrative body is
exercising judicial functions or merely investigatory functions:
Adjudication signifies the exercise of power and authority to
adjudicate upon the rights and obligations of the parties before
it. Hence, if the only purpose for investigation is to evaluate
evidence submitted before it based on the facts and
circumstances presented to it, and if the agency is not
authorized to make a final pronouncement affecting the
parties, then there is an absence of judicial discretion and
judgment.
The above description in Ruperto applies to an administrative
body authorized to evaluate extradition documents. The body
has no power to adjudicate in regard to the rights and
obligations of both the Requesting State and the prospective
extraditee. Its only power is to determine whether the papers
comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition.
Such finding is thus merely initial and not final. The body has
no power to determine whether or not the extradition should be
effected. That is the role of the court. The body's power is
limited to an initial finding of whether or not the extradition
petition can be filed in court.
It is to be noted, however, that in contrast to ordinary
investigations, the evaluation procedure is characterized by
certain peculiarities. Primarily, it sets into motion the wheels of
the extradition process. Ultimately, it may result in the
deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional
arrest of the prospective extraditee pending the submission of
the request. This is so because the Treaty provides that in
case of urgency, a contracting party may request the
provisional arrest of the person sought pending presentation of
the request (Paragraph [1], Article 9, RP-US Extradition
Treaty), but he shall be automatically discharged after 60 days
if no request is submitted (Paragraph 4). Presidential Decree
No. 1069 provides for a shorter period of 20 days after which
the arrested person could be discharged (Section 20[d]).
Logically, although the Extradition Law is silent on this respect,
the provisions only mean that once a request is forwarded to
the Requested State, the prospective extraditee may be
continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will
only be discharged if no request is submitted. Practically, the
purpose of this detention is to prevent his possible flight from
the Requested State. Second, the temporary arrest of the
prospective extraditee during the pendency of the extradition
petition in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective
extraditee's liberty as early as during the evaluation stage. It is
not only an imagined threat to his liberty, but a very imminent
one.
Because of these possible consequences, we conclude that
the evaluation process is akin to an administrative agency
conducting an investigative proceeding, the consequences of
which are essentially criminal since such technical assessment
sets off or commences the procedure for, and ultimately, the
deprivation of liberty of a prospective extraditee. As described
by petitioner himself, this is a "tool" for criminal law
enforcement (p. 78, Rollo). In essence, therefore, the
evaluation process partakes of the nature of a criminal
investigation. In a number of cases, we had occasion to make
available to a respondent in an administrative case or
investigation certain constitutional rights that are ordinarily
available only in criminal prosecutions. Further, as pointed out
by Mr. Justice Mendoza during the oral arguments, there are
rights formerly available only at the trial stage that had been
advanced to an earlier stage in the proceedings, such as the
right to counsel and the right against self-incrimination (tsn,
August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478;
Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona,
384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344
[1969]), we held that the right against self-incrimination under
Section 17, Article III of the 1987 Constitution which is
ordinarily available only in criminal prosecutions, extends to
administrative proceedings which possess a criminal or penal
aspect, such as an administrative investigation of a licensed
physician who is charged with immorality, which could result in
his loss of the privilege to practice medicine if found guilty. The
Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA
1059 [1962]), pointed out that the revocation of one's license
as a medical practitioner, is an even greater deprivation than
forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge
of unexplained wealth against a respondent which was filed
under Republic Act No. 1379, or the Anti-Graft Law. Again, we
therein ruled that since the investigation may result in forfeiture
of property, the administrative proceedings are deemed
criminal or penal, and such forfeiture partakes the nature of a
penalty. There is also the earlier case of Almeda,
Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing
American jurisprudence, laid down the test to determine
whether a proceeding is civil or criminal: If the proceeding is
under a statute such that if an indictment is presented the
forfeiture can be included in the criminal case, such
proceeding is criminal in nature, although it may be civil in
form; and where it must be gathered from the statute that the
action is meant to be criminal in its nature, it cannot be
considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense
charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of
deprivation of one's property or property right. No less is this
true, but even more so in the case before us, involving as it
does the possible deprivation of liberty, which, based on the
hierarchy of constitutionally protected rights, is placed second
only to life itself and enjoys precedence over property, for
while forfeited property can be returned or replaced, the time
spent in incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request
exposes a person to eventual extradition to a foreign country,
thus saliently exhibiting the criminal or penal aspect of the
process. In this sense, the evaluation procedure is akin to a
preliminary investigation since both procedures may have the
same result — the arrest and imprisonment of the respondent
or the person charged. Similar to the evaluation stage of
extradition proceedings, a preliminary investigation, which may
result in the filing of an information against the respondent,
can possibly lead to his arrest, and to the deprivation of his
liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235
SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the
extradition treaty is neither a piece of criminal legislation nor a
criminal procedural statute is not well-taken. Wright is not
authority for petitioner's conclusion that his preliminary
processing is not akin to a preliminary investigation. The
characterization of a treaty in Wright was in reference to the
applicability of the prohibition against an ex post factolaw. It
had nothing to do with the denial of the right to notice,
information, and hearing.
As early as 1884, the United States Supreme Court ruled that
"any legal proceeding enforced by public authority, whether
sanctioned by age or custom, or newly devised in the
discretion of the legislative power, in furtherance of the general
public good, which regards and preserved these principles of
liberty and justice, must be held to be due process of law"
(Hurtado vs. California, 110 U.S. 516). Compliance with due
process requirements cannot be deemed non-compliance with
treaty commitments.
The United States and the Philippines share a mutual concern
about the suppression and punishment of crime in their
respective jurisdictions. At the same time, both States accord
common due process protection to their respective citizens.
The due process clauses in the American and Philippine
Constitutions are not only worded in exactly identical language
and terminology, but more importantly, they are alike in what
their respective Supreme Courts have expounded as the spirit
with which the provisions are informed and impressed, the
elasticity in their interpretation, their dynamic and resilient
character which make them capable of meeting every modern
problem, and their having been designed from earliest time to
the present to meet the exigencies of an undefined and
expanding future. The requirements of due process are
interpreted in both the United States and the Philippines as not
denying to the law the capacity for progress and improvement.
Toward this effect and in order to avoid the confines of a legal
straitjacket, the courts instead prefer to have the meaning of
the due process clause "gradually ascertained by the process
of inclusion and exclusion in the course of the decisions of
cases as they arise" (Twining vs. New Jersey, 211 U.S. 78).
Capsulized, it refers to "the embodiment of the sporting idea of
fair play" (Ermita-Malate Hotel and Motel Owner's Association
vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to
certain immutable principles of justice which inhere in the very
idea of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components — substantive
due process which requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty, or
property, and procedural due process which consists of the
two basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and competent
tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic
rights of notice and hearing pervade not only in criminal and
civil proceedings, but in administrative proceedings as well.
Non-observance of these rights will invalidate the proceedings.
Individuals are entitled to be notified of any pending case
affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the
position of the opposing parties (Cruz, Phil. Administrative
Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative
investigatory proceeding, Section 3, Rule 112 of the Rules of
Court guarantees the respondent's basic due process rights,
granting him the right to be furnished a copy of the complaint,
the affidavits, and other supporting documents, and the right to
submit counter-affidavits and other supporting documents
within ten days from receipt thereof. Moreover, the respondent
shall have the right to examine all other evidence submitted by
the complainant.
These twin rights may, however, be considered dispensable in
certain instances, such as:
1. In proceeding where there is an urgent need for
immediate action, like the summary abatement of a
nuisance per se (Article 704, Civil Code), the
preventive suspension of a public servant facing
administrative charges (Section 63, Local Government
Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like
establishments which are immediate threats to public
health and decency, and the cancellation of a passport
of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative
action, that is, where the respondent is not precluded
from enjoying the right to notice and hearing at a later
time without prejudice to the person affected, such as
the summary distraint and levy of the property of a
delinquent taxpayer, and the replacement of a
temporary appointee; and
 3. Where the twin rights have previously been offered
but the right to exercise them had not been claimed.
Applying the above principles to the case at bar, the query
may be asked: Does the evaluation stage of the extradition
proceedings fall under any of the described situations
mentioned above?
Let us take a brief look at the nature of American extradition
proceedings which are quite noteworthy considering that the
subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate
rendition or extradition which is based on the Extradition
Clause in the U.S. Constitution (Art. IV, §2 cl 2), and
international extradition proceedings. In interstate rendition or
extradition, the governor of the asylum state has the duty to
deliver the fugitive to the demanding state. The Extradition
Clause and the implementing statute are given a liberal
construction to carry out their manifest purpose, which is to
effect the return as swiftly as possible of persons for trial to the
state in which they have been charged with crime (31A Am
Jur 2d 754-755). In order to achieve extradition of an alleged
fugitive, the requisition papers or the demand must be in
proper form, and all the elements or jurisdictional facts
essential to the extradition must appear on the face of the
papers, such as the allegation that the person demanded was
in the demanding state at the time the offense charged was
committed, and that the person demanded is charged with the
commission of the crime or that prosecution has been begun
in the demanding state before some court or magistrate (35
C.J.S. 406-407). The extradition documents are then filed with
the governor of the asylum state, and must contain such
papers and documents prescribed by statute, which essentially
include a copy of the instrument charging the person
demanded with a crime, such as an indictment or an affidavit
made before a magistrate. Statutory requirements with respect
to said charging instrument or papers are mandatory since
said papers are necessary in order to confer jurisdiction on the
government of the asylum state to effect extradition (35 C.J.S.
408-410). A statutory provision requiring duplicate copies of
the indictment, information, affidavit, or judgment of conviction
or sentence and other instruments accompanying the demand
or requisitions be furnished and delivered to the fugitive or his
attorney is directory. However, the right being such a basic
one has been held to be a right mandatory on demand (Ibid.,
p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr.
407 and Ex parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally
provide for the presentation to the executive authority of the
Requested State of a requisition or demand for the return of
the alleged offender, and the designation of the particular
officer having authority to act in behalf of the demanding
nation (31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he
attached thereto a letter dated September 13, 1999 from the
Criminal Division of the U.S. Department of Justice,
summarizing the U.S. extradition procedures and principles,
which are basically governed by a combination of treaties (with
special reference to the RP-US Extradition Treaty), federal
statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through
the diplomatic channel. In urgent cases, requests for
the provincial arrest of an individual may be made
directly by the Philippine Department of Justice to the
U.S. Department of Justice, and vice-versa. In the
event of a provisional arrest, a formal request for
extradition is transmitted subsequently through the
diplomatic channel.
2. The Department of State forwards the incoming
Philippine extradition request to the Department of
Justice. Before doing so, the Department of State
prepares a declaration confirming that a formal request
has been made, that the treaty is in full force and
effect, that under Article 17 thereof the parties provide
reciprocal legal representation in extradition
proceedings, that the offenses are covered as
extraditable offenses under Article 2 thereof, and that
the documents have been authenticated in accordance
with the federal statute that ensures admissibility at any
subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a
warrant for the arrest of the prospective extraditee (18
U.S.C. §3184). Said judge or magistrate is authorized
to hold a hearing to consider the evidence offered in
support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the
person arrested is extraditable to the foreign country.
The court must also determine that (a) it has
jurisdiction over the defendant and jurisdiction to
conduct the hearing; (b) the defendant is being sought
for offenses for which the applicable treaty permits
extradition; and (c) there is probable cause to believe
that the defendant is the person sought and that he
committed the offenses charged (Ibid.)
5. The judge or magistrate judge is vested with
jurisdiction to certify extraditability after having received
a "complaint made under oath, charging any person
found within his jurisdiction" with having committed any
of the crimes provided for by the governing treaty in the
country requesting extradition (Ibid.) [In this regard, it is
noted that a long line of American decisions pronounce
that international extradition proceedings partake of the
character of a preliminary examination before a
committing magistrate, rather than a trial of the guilt or
innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for
extradition are present, it incorporates its
determinations in factual findings and conclusions of
law and certifies the person's extraditability. The court
then forwards this certification of extraditability to the
Department of State for disposition by the Secretary of
State. The ultimate decision whether to surrender an
individual rests with the Secretary of State (18 U.S.C.
§3186).
7. The subject of an extradition request may not litigate
questions concerning the motives of the requesting
government in seeking his extradition. However, a
person facing extradition may present whatever
information he deems relevant to the Secretary of
State, who makes the final determination whether to
surrender an individual to the foreign government
concerned.
From the foregoing, it may be observed that in the United
States, extradition begins and ends with one entity — the
Department of State — which has the power to evaluate the
request and the extradition documents in the beginning, and,
in the person of the Secretary of State, the power to act or not
to act on the court's determination of extraditability. In the
Philippine setting, it is the Department of Foreign Affairs which
should make the initial evaluation of the request, and having
satisfied itself on the points earlier mentioned (see pp. 10-12),
then forwards the request to the Department of Justice for the
preparation and filing of the petition for extradition. Sadly,
however, the Department of Foreign Affairs, in the instant
case, perfunctorily turned over the request to the Department
of Justice which has taken over the task of evaluating the
request as well as thereafter, if so warranted, preparing, filing,
and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the
U.S. Government should the person sought to be extradited be
given due process rights by the Philippines in the evaluation
stage. He emphasizes that petitioner's primary concern is the
possible delay in the evaluation process.
We agree with private respondent's citation of an American
Supreme Court ruling:
The establishment of prompt efficacious procedures to
achieve legitimate state ends is a proper state interest
worthy of cognizance in constitutional adjudication. But
the Constitution recognizes higher values than speed
and efficiency. Indeed, one might fairly say of the Bill of
Rights in general, and the Due Process Clause, in
particular, that they were designed to protect the fragile
values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may
characterize praiseworthy government officials no less,
and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the
Philippine Government that no right — that of liberty —
secured not only by the Bills of Rights of the Philippines
Constitution but of the United States as well, is sacrificed at
the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is
that where the rights of the individual are concerned,
the end does not justify the means. It is not enough
that there be a valid objective; it is also necessary that
the means employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not
even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions,
will excuse the bypassing of an individual's rights. It is
no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation
who would deny him that right (Association of Small
Landowners in the Philippines, Inc. vs. Secretary of
Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioner's argument that
extradition is a tool of criminal law enforcement. To be
effective, requests for extradition or the surrender of accused
or convicted persons must be processed expeditiously.
Nevertheless, accelerated or fast-tracked proceedings and
adherence to fair procedures are, however, not always
incompatible. They do not always clash in discord. Summary
does not mean precipitous haste. It does not carry a disregard
of the basic principles inherent in "ordered liberty."
Is there really an urgent need for immediate action at the
evaluation stage? At that point, there is no extraditee yet in the
strict sense of the word. Extradition may or may not occur. In
interstate extradition, the governor of the asylum state may
not, in the absence of mandatory statute, be compelled to act
favorably (37 C.J.S. 387) since after a close evaluation of the
extradition papers, he may hold that federal and statutory
requirements, which are significantly jurisdictional, have not
been met (31 Am Jur 2d 819). Similarly, under an extradition
treaty, the executive authority of the requested state has the
power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition
documents the Secretary of Foreign Affairs finds that the
request fails to meet the requirements of the law and the
treaty, he shall not forward the request to the Department of
Justice for the filing of the extradition petition since non-
compliance with the aforesaid requirements will not vest our
government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of
Justice exerted notable efforts in assuring compliance with the
requirements of the law and the treaty since it even informed
the U.S. Government of certain problems in the extradition
papers (such as those that are in Spanish and without the
official English translation, and those that are not properly
authenticated). In fact, petitioner even admits that consultation
meetings are still supposed to take place between the lawyers
in his Department and those from the U.S. Justice
Department. With the meticulous nature of the evaluation,
which cannot just be completed in an abbreviated period of
time due to its intricacies, how then can we say that it is a
proceeding that urgently necessitates immediate and prompt
action where notice and hearing can be dispensed with?
Worthy of inquiry is the issue of whether or not there is
tentativeness of administrative action. Is private respondent
precluded from enjoying the right to notice and hearing at a
later time without prejudice to him? Here lies the peculiarity
and deviant characteristic of the evaluation procedure. On one
hand there is yet no extraditee, but ironically on the other, it
results in an administrative if adverse to the person involved,
may cause his immediate incarceration. The grant of the
request shall lead to the filing of the extradition petition in
court. The "accused" (as Section 2[c] of Presidential Decree
No. 1069 calls him), faces the threat of arrest, not only after
the extradition petition is filed in court, but even during the
evaluation proceeding itself by virtue of the provisional arrest
allowed under the treaty and the implementing law. The
prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative
due process cannot be dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private
respondent likewise invokes Section 7 of Article III which
reads:
Sec. 7. The right of the people to information on
matters of public concern shall be recognized. Access
to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for
policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
The above provision guarantees political rights which are
available to citizens of the Philippines, namely: (1) the right to
information on matters of public concern, and (2) the corollary
right of access to official records documents. The general right
guaranteed by said provision is the right to information on
matters of public concern. In its implementation, the right of
access to official records is likewise conferred. These cognate
or related rights are "subject to limitations as may be provided
by law" (Bernas, The 1987 Phil. Constitution A Reviewer-
Primer, 1997 ed., p. 104) and rely on the premise that
ultimately it is an informed and critical public opinion which
alone can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private
respondent's letter-request dated July 1, 1999 do not fall under
the guarantee of the foregoing provision since the matters
contained in the documents requested are not of public
concern. On the other hand, private respondent argues that
the distinction between matters vested with public interest and
matters which are of purely private interest only becomes
material when a third person, who is not directly affected by
the matters requested, invokes the right to information.
However, if the person invoking the right is the one directly
affected thereby, his right to information becomes absolute.
The concept of matters of public concerns escapes exact
definition. Strictly speaking, every act of a public officer in the
conduct of the governmental process is a matter of public
concern (Bernas, The 1987 Constitution of the Republic of the
Philippines, 1996 ed., p. 336). This concept embraces a broad
spectrum of subjects which the public may want to know,
either because these directly affect their lives or simply
because such matters arouse the interest of an ordinary
citizen (Legaspi v. Civil Service Commission, 150 SCRA 530
[1987]). Hence, the real party in interest is the people and any
citizen has "standing".
When the individual himself is involved in official government
action because said action has a direct bearing on his life, and
may either cause him some kind of deprivation or injury, he
actually invokes the basic right to be notified under Section 1
of the Bill of Rights and not exactly the right to information on
matters of public concern. As to an accused in a criminal
proceeding, he invokes Section 14, particularly the right to be
informed of the nature and cause of the accusation against
him.
The right to information is implemented by the right of access
to information within the control of the government (Bernas,
The 1987 Constitution of the Republic of the Philippines, 1996
ed., p. 337). Such information may be contained in official
records, and in documents and papers pertaining to official
acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent
pertain to official government action from the U.S.
Government. No official action from our country has yet been
taken. Moreover, the papers have some relation to matters of
foreign relations with the U.S. Government. Consequently, if a
third party invokes this constitutional provision, stating that the
extradition papers are matters of public concern since they
may result in the extradition of a Filipino, we are afraid that the
balance must be tilted, at such particular time, in favor of the
interests necessary for the proper functioning of the
government. During the evaluation procedure, no official
governmental action of our own government has as yet been
done; hence the invocation of the right is premature. Later,
and in contrast, records of the extradition hearing would
already fall under matters of public concern, because our
government by then shall have already made an official
decision to grant the extradition request. The extradition of a
fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject
matter of the instant controversy: Would private respondent's
entitlement to notice and hearing during the evaluation stage
of the proceedings constitute a breach of the legal duties of
the Philippine Government under the RP-Extradition Treaty?
Assuming the answer is in the affirmative, is there really a
conflict between the treaty and the due process clause in the
Constitution?
First and foremost, let us categorically say that this is not the
proper time to pass upon the constitutionality of the provisions
of the RP-US Extradition Treaty nor the Extradition Law
implementing the same. We limit ourselves only to the effect of
the grant of the basic rights of notice and hearing to private
respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most
fundamental maxims of international law, requires the parties
to a treaty to keep their agreement therein in good faith. The
observance of our country's legal duties under a treaty is also
compelled by Section 2, Article II of the Constitution which
provides that "[t]he Philippines renounces war as an
instrument of national policy, 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 nations." Under the doctrine of
incorporation, rules of international law form part of the law of
the and land no further legislative action is needed to make
such rules applicable in the domestic sphere (Salonga & Yap,
Public International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal
tribunals (or local courts) are confronted with situations in
which there appears to be a conflict between a rule of
international law and the provisions of the constitution or
statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard
for the generally accepted principles of international law in
observance of the observance of the Incorporation Clause in
the above-cited constitutional provision (Cruz, Philippine
Political Law, 1996 ed., p. 55). In a situation, however, where
the conflict is irreconcilable and a choice has to be made
between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by
the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155
[1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re:
Garcia, 2 SCRA 984 [1961]) for the reason that such courts
are organs of municipal law and are accordingly bound by it in
all circumstances (Salonga & Yap, op. cit., p. 13). The fact that
international law has been made part of the law of the land
does not pertain to or imply the primacy of international law
over national or municipal law in the municipal sphere. The
doctrine of incorporation, as applied in most countries, decrees
that rules of international law are given equal standing with,
but are not superior to, national legislative enactments.
Accordingly, the principle lex posterior derogat priori takes
effect — a treaty may repeal a statute and a statute may
repeal a treaty. In states where the constitution is the highest
law of the land, such as the Republic of the Philippines, both
statutes and treaties may be invalidated if they are in conflict
with the constitution (Ibid.).
In the case at bar, is there really a conflict between
international law and municipal or national law? En contrario,
these two components of the law of the land are not pined
against each other. There is no occasion to choose which of
the two should be upheld. Instead, we see a void in the
provisions of the RP-US Extradition Treaty, as implemented by
Presidential Decree No. 1069, as regards the basic due
process rights of a prospective extraditee at the evaluation
stage of extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and during
the judicial determination of the propriety of extradition, the
rights of notice and hearing are clearly granted to the
prospective extraditee. However, prior thereto, the law is silent
as to these rights. Reference to the U.S. extradition
procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these
rights. Consequently, he describes the evaluation procedure
as an "ex parte technical assessment" of the sufficiency of the
extradition request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the
rules of fair play. An application of the basic twin due process
rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law
precludes these rights from a prospective extraditee. Similarly,
American jurisprudence and procedures on extradition pose
no proscription. In fact, in interstate extradition proceedings as
explained above, the prospective extraditee may even request
for copies of the extradition documents from the governor of
the asylum state, and if he does, his right to be supplied the
same becomes a demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the
Philippine Government to prevent unauthorized disclosure of
confidential information. Hence, the secrecy surrounding the
action of the Department of Justice Panel of Attorneys. The
confidentiality argument is, however, overturned by petitioner's
revelation that everything it refuses to make available at this
stage would be obtainable during trial. The Department of
Justice states that the U.S. District Court concerned has
authorized the disclosure of certain grand jury information. If
the information is truly confidential, the veil of secrecy cannot
be lifted at any stage of the extradition proceedings. Not even
during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the
Extradition Law, as well as American jurisprudence and
procedures on extradition, for any prohibition against the
conferment of the two basic due process rights of notice and
hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in
jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the
evaluation process and a preliminary investigation since both
procedures may result in the arrest of the respondent or the
prospective extraditee. In the evaluation process, a provisional
arrest is even allowed by the Treaty and the Extradition Law
(Article 9, RP-US Extradition Treaty; Sec. 20, Presidential
Decree No. 1069). Following petitioner's theory, because there
is no provision of its availability, does this imply that for a
period of time, the privilege of the writ of habeas corpus is
suspended, despite Section 15, Article III of the Constitution
which states that "[t]he privilege of the writ or habeas
corpus shall not be suspended except in cases of invasion or
rebellion when the public safety requires it"? Petitioner's theory
would also infer that bail is not available during the arrest of
the prospective extraditee when the extradition petition has
already been filed in court since Presidential Decree No. 1069
does not provide therefor, notwithstanding Section 13, Article
III of the Constitution which provides that "[a]ll persons, except
those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail
shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. . ." Can petitioner validly
argue that since these contraventions are by virtue of a treaty
and hence affecting foreign relations, the aforestated
guarantees in the Bill of Rights could thus be subservient
thereto?
The basic principles of administrative law instruct us that "the
essence of due process in administrative proceeding is an
opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano
vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA
457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate,
Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs.
Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA
632 [1997]). In essence, procedural due process refers to the
method or manner by which the law is enforced (Corona vs.
United Harbor Pilots Association of the Phils., 283 SCRA 31
[1997]). This Court will not tolerate the least disregard of
constitutional guarantees in the enforcement of a law or treaty.
Petitioner's fears that the Requesting State may have valid
objections to the Requested State's non-performance of its
commitments under the Extradition Treaty are insubstantial
and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do
we limit ourselves to the four corners of Presidential Decree
No. 1069?
Of analogous application are the rulings in Government
Service Insurance System vs. Court of Appeals (201 SCRA
661 [1991]) and Go vs. National Police Commission (271
SCRA 447 [1997]) where we ruled that in summary
proceedings under Presidential Decree No. 807 (Providing for
the Organization of the Civil Service Commission in
Accordance with Provisions of the Constitution, Prescribing its
Powers and Functions and for Other Purposes), and
Presidential Decree No. 971 (Providing Legal Assistance for
Members of the Integrated National Police who may be
charged for Service-Connected Offenses and Improving the
Disciplinary System in the Integrated National Police,
Appropriating Funds Therefor and for other purposes), as
amended by Presidential Decree No. 1707, although summary
dismissals may be effected without the necessity of a formal
investigation, the minimum requirements of due process still
operate. As held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of
Section 40 is saying is that an employee may be
removed or dismissed even without formal
investigation, in certain instances. It is equally clear to
us that an employee must be informed of the charges
preferred against him, and that the normal way by
which the employee is so informed is by furnishing him
with a copy of the charges against him. This is a basic
procedural requirement that a statute cannot dispense
with and still remain consistent with the constitutional
provision on due process. The second minimum
requirement is that the employee charged with some
misfeasance or malfeasance must have a reasonable
opportunity to present his side of the matter, that is to
say, his defenses against the charges levelled against
him and to present evidence in support of his defenses.
...
(at p. 671)
Said summary dismissal proceedings are also non-litigious in
nature, yet we upheld the due process rights of the
respondent.
In the case at bar, private respondent does not only face a
clear and present danger of loss of property or employment,
but of liberty itself, which may eventually lead to his forcible
banishment to a foreign land. The convergence of petitioner's
favorable action on the extradition request and the deprivation
of private respondent's liberty is easily comprehensible.
We have ruled time and again that this Court's equity
jurisdiction, which is aptly described as "justice outside
legality," may be availed of only in the absence of, and never
against, statutory law or judicial pronouncements (Smith Bell &
Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-
Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The
constitutional issue in the case at bar does not even call for
"justice outside legality," since private respondent's due
process rights, although not guaranteed by statute or by treaty,
are protected by constitutional guarantees. We would not be
true to the organic law of the land if we choose strict
construction over guarantees against the deprivation of liberty.
That would not be in keeping with the principles of democracy
on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and

opposing currents of liberty and government authority, he must
ever hold the oar of freedom in the stronger arm, lest an errant
and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant

petition is hereby DISMISSED for lack of merit. Petitioner is
ordered to furnish private respondent copies of the extradition
request and its supporting papers, and to grant him a
reasonable period within which to file his comment with
supporting evidence. The incidents in Civil Case No. 99-94684
having been rendered moot and academic by this decision, the
same is hereby ordered dismissed.

SO ORDERED.