Sources of International Law

SECTION 2. The 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 all nations.
Treaties and executive agreement

Sec 2. International Law and Philippine Municipal Law: Adoption of International Law and the Doctrine of
Incorporation as applied to treaties and agreements
GR No. 159618 – Bayan Muna respresented by Rep. Satur Ocampo, Rep. Crispin Beltran and Rep. Liza Maza v.
Romulo as Executive Secretary and Blas F. Ople as Secretary of Foreign Affiars
Velasco, Jr. J.

FACTS
1. The PH attempted to bind itself under the Rome Statute of the International Criminal Court (ICC). The ICC has the
power to exercise its jurisdiction over persons for the most serious crimes of international concern (genocide, crimes
against humanity, war crimes and crimes of aggression) shall be COMPLEMENTARY to the national criminal
jurisdictions.
2. As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification,
approval and concurrence process. The PH is NOT among the 92.
3. The Ambassador Ricciardone of the US Embassy in Note No. 0470 proposed terms with the Department of Foreign
Affairs (DFA) of a non-surrender bilateral agreement called RP-US Non-Surrender Agreement.
4. Via and exchange of notes, DFA Sec Ople agreed with and accepted the US proposals embodied under the US
Embassy note and put in effect the agreement with the US government.
5. The Agreement aims to protect what it refers to and defines as “persons” (defined as Government officials, employees
including contractors or military personnel or nationals of one party) of PH and US from frivolous and harassment suits
that might be brought against them in international tribunals.
6. Under the agreement, US or PH SHALL NOT, absent the express consent of the first party, surrender or transfer any
of the people of the other party to:
a. International tribunal for any purpose, unless such tribunal has been established by the UN Security Council
b. Other entity or third country or expelled to a third country for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security council

ISSUE with HOLDING

1. WON petitioners have standing
-Yes
-Petitioners have complied with the qualifying conditions under locus standi rule.
-AS citizens, their interest in the subject matter is direct and personal.
-At the very least their assertions questioning the agreement are made of a public right that the agreement does not
go against national policies.
2. WON the Agreement was contracted validly which resolves itself into the question of whether or not
respondents gravely abused their discretion in concluding it.
- Yes.
-Exchange of notes is a valid form of inter-governmental agreements
-International agreements may be in the form of:
a. Treaties that require legislative concurrence after executive ratification
b. Executive agreements that are similar to treaties except that they do not require legislative concurrence and
are usually less formal and deal with a narrower range of subject matters than treaties.
-Treaties and Executive agreements have the same binding force
3. WON the Agreement which has not been submitted to the Senate for concurrence, contravenes and undermines
the Rome Statute and other treaties.
-NO
-The court believes that the agreement does not undermine the Rome Statue. IN fact both complement each other.
-The ICC shall be complementary to national criminal jurisdiction. It recognizes that the state has primary jurisdiction to
the first instance of the so called crime that was committed.
-The ICC does not put a person into trial without undergoing first a trial in domestic courts. Thus the jurisdiction of ICC
will come into play only when the states are unwilling to unable to prosecute.

1
 -PH is only a signatory state (only precluded from acts that would defeat the object and purpose of the Rome Statute
as opposed to state-party wherein it is legally obliged to follow all the provisions of treaty in good faith) since the Senate
did not ratify yet the treaty. US is neither a state party or signatory to Rome Statute
4. WON the Agreement made PH abdicate its sovereignty by bargaining away the jurisdiction of the ICC to
prosecute US nationals, government employees or military personnel who commit crimes of international concern.
-NO
-The agreement is but an affirmation of the PH’s national criminal Jurisdiction. Thus RP has a choice to try “persons”
of the US
-It may refuse to prosecute and the country would in effect accord discretion to the US or to give its consent to the
referral of the matter to the ICC for trial.
-This shows that PH specifically under RA 9851 (PH Acts on Crimes against International Humanitarian Law,
Genocide and Other Crimes Against Humanity) does not depend on US consent to put into trial a suspect.
-The agreement though prevents the PH (without the consent of US) from surrendering to any international tribunal
US national accused of crimes of RA 9851.
5. WON the agreement is repugnant to RA 9851
-NO
-The provision in this law provides discretion to the PH state on whether to surrender or not a person accused of
the crimes under it.
-The statutory provio uses the word MAY. ‘May’ denotes discretion
-Since the PH and US already have an existing extradition treaty ie RP-US Extradition Treaty, thus the agreement
in conjunction with the RP-US Extradition Treaty would neither violate nor run counter to Sec. 17 of RA 9851.
6. WON the Rome Statute is a declaratory of customary international law thus the ICC embodies principles of
international law that are treated as part of the law of the land thus any derogation from the Rome Statue principles
cannot be undertaken via a mere executive agreement.
-Rome Statute was only ratified by 114 States out of 194 by the time of its force. Since around 58.76% only ratified
it, then it is doubtful how could it asserts its customary character.
-To add, FR. Bernas mentions 2 factors to make a customary law:
a. Material factor or the way states behave
b. Psychological factor the rational why they behave.
-Since it is not customary law, the executive agreement can still take effect.
DISPOSITIVE PORTION
WHEREFORE, the petition is hereby dismissed.

DISSENTING OPINION

Carpio, J.

1. RP-US Non-surrender Agreement violates existing municipal laws on the PH State’s obligation to prosecute persons responsible for
any of the international crimes of genocide, war crimes and other crimes against humanity. Being a mere executive agreement that is
indisputably inferior to municipal law, the Agreement cannot prevail over a prior or subsequent municipal law inconsistent with it.

2. Believes the agreement should be ratified by SENATE.

3. Any derogation from the surrender option of the PH under Sec 17 of RA 9851 must be embodied in an applicable extradition law or
treaty and not in a mere executive agreement because such derogation violates RA 9851 which is SUPERIOR to and prevails over a
prior executive agreement allowing suhc derogation.

2
Ordinances - Validity

G.R. No. 122846 January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT
CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.

DECISION

Tinga, J.:

With another city ordinance of Manila also principally involving the tourist district as subject, the Court is confronted
anew with the incessant clash between government power and individual liberty in tandem with the archetypal
tension between law and morality.

In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the operation of motels
and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a similarly-
motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as
pro-rated or "wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance against our
sacred constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the
present petition.

This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the Decision3in
C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City Ordinance No. 7774
entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate
Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of
Manila" (the Ordinance).

I.

The facts are as follows:

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance.4 The Ordinance is
reproduced in full, hereunder:

SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best
interest, health and welfare, and the morality of its constituents in general and the youth in particular.

SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in hotels, motels,
lodging houses, pension houses and similar establishments in the City of Manila.

SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted
terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in
the City of Manila.

SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than
twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be
concocted by owners or managers of said establishments but would mean the same or would bear the same
meaning.

SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon
conviction thereof be punished by a fine of Five Thousand (₱5,000.00) Pesos or imprisonment for a period of not
exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of

3
[a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty
party shall automatically be cancelled.

SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure or
any portion hereof are hereby deemed repealed.

SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.

Enacted by the city Council of Manila at its regular session today, November 10, 1992.

Approved by His Honor, the Mayor on December 3, 1992.

On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory
relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO)5 with the Regional
Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City)
represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of
the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a
short time basis as well as to charge customers wash up rates for stays of only three hours.

On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa
Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-
intervention7 on the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels
and motels in Manila.8 The three companies are components of the Anito Group of Companies which owns and
operates several hotels and motels in Metro Manila.9

On December 23, 1992, the RTC granted the motion to intervene.10 The RTC also notified the Solicitor General of
the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC moved to
withdraw as plaintiff.11

On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The RTC issued a TRO on January 14,
1993, directing the City to cease and desist from enforcing the Ordinance.13 The City filed an Answer dated January
22, 1993 alleging that the Ordinance is a legitimate exercise of police power.14

On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the enforcement
of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his Comment arguing that the
Ordinance is constitutional.

During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the
case involved a purely legal question.16 On October 20, 1993, the RTC rendered a decision declaring the Ordinance
null and void. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared null and
void.

Accordingly, the preliminary injunction heretofor issued is hereby made permanent.

SO ORDERED.17

The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and jealously guarded
by the Constitution."18 Reference was made to the provisions of the Constitution encouraging private enterprises and
the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the
observation that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by
simply paying for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v. Intermediate

4
Appellate Court,19 where the legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be
effected through an inter-province ban on the transport of carabaos and carabeef.

The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was docketed as G.R.
No. 112471. However in a resolution dated January 26, 1994, the Court treated the petition as a petition
for certiorari and referred the petition to the Court of Appeals.21

Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to
Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the
power:

[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns,
pension houses, lodging houses and other similar establishments, including tourist guides and transports.22

The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the
Revised Manila Charter, thus:

"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the
prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the
city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties
conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred
pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense.23

Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the
freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive
interference in their business.

The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance.24First, it
held that the Ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the
owners or operators of establishments that admit individuals for short time stays. Second, the virtually limitless
reach of police power is only constrained by having a lawful object obtained through a lawful method. The lawful
objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the
establishments are still allowed to operate. Third, the adverse effect on the establishments is justified by the well-
being of its constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of
Manila, liberty is regulated by law.

TC, WLC and STDC come to this Court via petition for review on certiorari.25 In their petition and Memorandum,
petitioners in essence repeat the assertions they made before the Court of Appeals. They contend that the assailed
Ordinance is an invalid exercise of police power.

II.

We must address the threshold issue of petitioners’ standing. Petitioners allege that as owners of establishments
offering "wash-up" rates, their business is being unlawfully interfered with by the Ordinance. However, petitioners
also allege that the equal protection rights of their clients are also being interfered with. Thus, the crux of the matter
is whether or not these establishments have the requisite standing to plead for protection of their patrons' equal
protection rights.

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from
the law or action challenged to support that party's participation in the case. More importantly, the doctrine of
standing is built on the principle of separation of powers,26 sparing as it does unnecessary interference or
invalidation by the judicial branch of the actions rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the Constitution.27The
constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of
precise definition.28 In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious
5
cause, as well as the standard test for a petitioner's standing.29 In a similar vein, the United States Supreme Court
reviewed and elaborated on the meaning of the three constitutional standing requirements of injury, causation, and
redressability in Allen v. Wright.30

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer
suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.31

For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are
appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote that: "We have recognized the right of
litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must
have suffered an ‘injury-in-fact,’ thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in
dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third
party's ability to protect his or her own interests."33 Herein, it is clear that the business interests of the petitioners are
likewise injured by the Ordinance. They rely on the patronage of their customers for their continued viability which
appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of
such special interest groups in our nation such as the American Civil Liberties Union in the United States may also
be construed as a hindrance for customers to bring suit.34

American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or
invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by
state action. In Griswold v. Connecticut,35 the United States Supreme Court held that physicians had standing to
challenge a reproductive health statute that would penalize them as accessories as well as to plead the
constitutional protections available to their patients. The Court held that:

"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are
considered in a suit involving those who have this kind of confidential relation to them."36

An even more analogous example may be found in Craig v. Boren,37 wherein the United States Supreme Court held
that a licensed beverage vendor has standing to raise the equal protection claim of a male customer challenging a
statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18. The
United States High Court explained that the vendors had standing "by acting as advocates of the rights of third
parties who seek access to their market or function."38

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of
the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government
action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally
guaranteed rights.39 In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right
to liberty of their clients. We can see that based on the allegations in the petition, the Ordinance suffers from
overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their
establishments for a "wash-rate" time frame.

III.

To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our
1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila.40 Ermita-
Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such
as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or
lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public
morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns
and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-
Malate was sustained by the Court.

6
The common thread that runs through those decisions and the case at bar goes beyond the singularity of the
localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating
public morals including particular illicit activity in transient lodging establishments. This could be described as the
middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these
establishments have been severely restricted. At its core, this is another case about the extent to which the State
can intrude into and regulate the lives of its citizens.

The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an
ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass
according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1)
must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy;
and (6) must not be unreasonable.41

The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a
room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local
government units by the Local Government Code through such implements as the general welfare clause.

A.

Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the
conditions warrant.42 Police power is based upon the concept of necessity of the State and its corresponding right to
protect itself and its people.43 Police power has been used as justification for numerous and varied actions by the
State. These range from the regulation of dance halls,44 movie theaters,45 gas stations46 and cockpits.47 The
awesome scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our
nation’s legal system, its use has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit
sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the
ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their
achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and,
sometimes even, the political majorities animated by his cynicism.

Even as we design the precedents that establish the framework for analysis of due process or equal protection
questions, the courts are naturally inhibited by a due deference to the co-equal branches of government as they
exercise their political functions. But when we are compelled to nullify executive or legislative actions, yet another
form of caution emerges. If the Court were animated by the same passing fancies or turbulent emotions that
motivate many political decisions, judicial integrity is compromised by any perception that the judiciary is merely the
third political branch of government. We derive our respect and good standing in the annals of history by acting as
judicious and neutral arbiters of the rule of law, and there is no surer way to that end than through the development
of rigorous and sophisticated legal standards through which the courts analyze the most fundamental and far-
reaching constitutional questions of the day.

B.

The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article
III of the Constitution. Due process evades a precise definition.48 The purpose of the guaranty is to prevent arbitrary
governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as
a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the
guaranty insofar as their property is concerned.

The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on
government, "procedural due process" and "substantive due process." Procedural due process refers to the
procedures that the government must follow before it deprives a person of life, liberty, or property.49 Procedural due

7
process concerns itself with government action adhering to the established process when it makes an intrusion into
the private sphere. Examples range from the form of notice given to the level of formality of a hearing.

If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary
government action, provided the proper formalities are followed. Substantive due process completes the protection
envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a
person of life, liberty, or property.50

The question of substantive due process, moreso than most other fields of law, has reflected dynamism in
progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally
awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality
though of constitutional due process has not been predicated on the frequency with which it has been utilized to
achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State.
Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged
to determine the proper metes and bounds for its application.

C.

The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed
with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products.51Footnote 4 of
the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a
discrimination against a "discrete and insular" minority or infringement of a "fundamental right."52Consequently, two
standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting
the political process, and the rational basis standard of review for economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court
for evaluating classifications based on gender53 and legitimacy.54 Immediate scrutiny was adopted by the U.S.
Supreme Court in Craig,55 after the Court declined to do so in Reed v. Reed.56 While the test may have first been
articulated in equal protection analysis, it has in the United States since been applied in all substantive due process
cases as well.

We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges.57Using the
rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental
interest.58 Under intermediate review, governmental interest is extensively examined and the availability of less
restrictive measures is considered.59 Applying strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality
and the amount of governmental interest brought to justify the regulation of fundamental freedoms.60Strict scrutiny is
used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal protection.61 The United States Supreme Court
has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage,62 judicial access63 and
interstate travel.64

If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the
petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act
upon is the injury to property sustained by the petitioners, an injury that would warrant the application of the most
deferential standard – the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to
invoke as well the constitutional rights of their patrons – those persons who would be deprived of availing short time
access or wash-up rates to the lodging establishments in question.

Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn
of political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel
the people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial"
yet fundamental freedoms – which the people reflexively exercise any day without the impairing awareness of their
constitutional consequence – that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally
incorporated as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what may
8
or what may not be done; but rather an atmosphere of freedom where the people do not feel labored under a Big
Brother presence as they interact with each other, their society and nature, in a manner innately understood by them
as inherent, without doing harm or injury to others.

D.

The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v. Hon.
Laguio, Jr. We expounded on that most primordial of rights, thus:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right
to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint
of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been
endowed by his Creator, subject only to such restraint as are necessary for the common welfare."[65] In accordance
with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will;
to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of
liberty.[66]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of "liberty." It said:

While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and Fourteenth
Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy
those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution
for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed.67 [Citations omitted]

It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City
asserts before this Court that the subject establishments "have gained notoriety as venue of ‘prostitution, adultery
and fornications’ in Manila since they ‘provide the necessary atmosphere for clandestine entry, presence and exit
and thus became the ‘ideal haven for prostitutes and thrill-seekers.’"68 Whether or not this depiction of a mise-en-
scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting
single adults which is constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our
holding therein retains significance for our purposes:

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect.
As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible;
indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon
the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of
that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the
will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in
any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be
justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its
identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop
short of certain intrusions into the personal life of the citizen.70

We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very
legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to
choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers
who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels.
Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with
purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a
convenient alternative.

9
 E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of
lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power
measure. It must appear that the interests of the public generally, as distinguished from those of a particular class,
require an interference with private rights and the means must be reasonably necessary for the accomplishment of
the purpose and not unduly oppressive of private rights.71 It must also be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation
must exist between the purposes of the measure and the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights and those pertaining to private property will not be
permitted to be arbitrarily invaded.72

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into
private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or
property is affected.73 However, this is not in any way meant to take it away from the vastness of State police power
whose exercise enjoys the presumption of validity.74

Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this Ordinance is
a blunt and heavy instrument.75 The Ordinance makes no distinction between places frequented by patrons engaged
in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit
activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification
of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the
unjustified prohibition.

The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime home,76 and it is
skeptical of those who wish to depict our capital city – the Pearl of the Orient – as a modern-day Sodom or
Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams of the grandeur of Old Manila will
have to accept that Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities
such as Manila, and vice is a common problem confronted by the modern metropolis wherever in the world. The
solution to such perceived decay is not to prevent legitimate businesses from offering a legitimate product. Rather,
cities revive themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of
individuals that would bring a new grandeur to Manila.

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished
simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug
dealers through active police work would be more effective in easing the situation. So would the strict enforcement
of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion
on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can
easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit
activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging
their customers a portion of the rent for motel rooms and even apartments.

IV.

We reiterate that individual rights may be adversely affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from
needlessly intruding into the lives of its citizens. However well-intentioned the Ordinance may be, it is in effect an
arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance
needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons
without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a
day with immorality without accommodating innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the
judiciary provided that such measures do not trample rights this Court is sworn to protect.77 The notion that the
promotion of public morality is a function of the State is as old as Aristotle.78 The advancement of moral relativism as
a school of philosophy does not de-legitimize the role of morality in law, even if it may foster wider debate on which
particular behavior to penalize. It is conceivable that a society with relatively little shared morality among its citizens
10
could be functional so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation
of different interests.79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately illegitimate as
a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts
to legislate morality will fail if they are widely at variance with public attitudes about right and wrong.80 Our penal
laws, for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions
between right and wrong, they will remain so oriented.

Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong distinction,
but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest. Our democracy is
distinguished from non-free societies not with any more extensive elaboration on our part of what is moral and
immoral, but from our recognition that the individual liberty to make the choices in our lives is innate, and protected
by the State. Independent and fair-minded judges themselves are under a moral duty to uphold the Constitution as
the embodiment of the rule of law, by reason of their expression of consent to do so when they take the oath of
office, and because they are entrusted by the people to uphold the law.81

Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative
is hardly absolute, especially in the face of the norms of due process of liberty. And while the tension may often be
left to the courts to relieve, it is possible for the government to avoid the constitutional conflict by employing more
judicious, less drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the Decision of
the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared
UNCONSTITUTIONAL. No pronouncement as to costs.

11
Administrative issuances, rules and regulations

CHAPTER 11
ADMINISTRATIVE ISSUANCES

Section 50. General Classification of Issuances. - The administrative issuances of Secretaries and heads of
bureaus, offices or agencies shall be in the form of circulars or orders.

(1) Circulars shall refer to issuances prescribing policies, rules and regulations, and procedures promulgated
pursuant to law, applicable to individuals and organizations outside the Government and designed to
supplement provisions of the law or to provide means for carrying them out, including information relating
thereto; and

(2) Orders shall refer to issuances directed to particular offices, officials, or employees, concerning specific
matters including assignments, detail and transfer of personnel, for observance or compliance by all
concerned.

Section 51. Numbering System of Issuances. - Every circular or order issued pursuant to the preceding section
shall properly be identified as such and chronologically numbered. Each class of issuance shall begin with number 1
of each calendar year .

Section 52. Official Logbook. - Each department, bureau, office or agency shall keep and preserve a logbook in
which shall be recorded in chronological order, all final official acts, decisions, transactions or contracts, pertaining
to the department, bureau, office or agency. Whenever the performance of an official act is in issue, the date and
the time record in the logbook shall be controlling. The logbook shall be in the custody of the chief Administrative
Officer concerned and shall be open to the public for inspection.

Section 53. Government-wide Application of the Classification of Issuances. -

(1) The Records Management and Archives Office in the General Services Administration shall provide such
assistance as may be necessary to effect general adherence to the foregoing classification of issuances,
including the conduct of studies for developing sub-classifications and guidelines to meet peculiar needs;
and

(2) All administrative issuances of a general or permanent character shall be compiled, indexed and
published pursuant to the provisions of this Code.

CHAPTER 6
POWERS AND DUTIES OF HEADS OF BUREAUS OR OFFICES

Section 29. Powers and Duties in General. - The head of bureau or office shall be its chief executive officer. He
shall exercise overall authority in matters within the jurisdiction of the bureau, office or agency, including those
relating to its operations, and enforce all laws and regulations pertaining to it.

Section 30. Authority to Appoint and Discipline. - The head of bureau or office shall appoint personnel to all
positions in his bureau or office, in accordance with law. In the case of the line bureau or office, the head shall also
appoint the second level personnel of the regional offices, unless such power has been delegated. He shall have the
authority to discipline employees in accordance with the Civil Service Law.

Section 31. Duties of Assistant Heads and Subordinates. -

(1) Assistant heads and other subordinates in every bureau or office shall perform such duties as may be
required by law or regulations, or as may be specified by their superiors not otherwise inconsistent with law;

12
 (2) The head of bureau or office may, in the interest of economy, designate the assistant head to act as chief
of any division or unit within the organization, in addition to his duties, without additional compensation; and

(3) In the absence of special restriction prescribed by law, nothing shall prevent a subordinate officer or
employee from being assigned additional duties by proper authority, when not inconsistent with the
performance of the duties imposed by law.

Section 32. Acting Head of Bureau or Office. - In case of the absence or disability of the head of a bureau or office,
his duties shall be performed by the assistant head. When there are two or more assistant heads, the Secretary
shall make the designation. In the absence of an assistant head, the Secretary may designate any officer or
employee of the bureau or office as acting head without additional compensation.

Section 33. Performance of Duties of Subordinate Officers Temporarily Absent. - In case of the temporary absence
or disability of any subordinate officer or employee in any bureau or office, its head may, subject to existing laws,
rules and regulations, designate any other subordinate officer or employee within the organization to perform
temporarily the duties of the absent or disabled person.

Section 34. Filling of Vacancies. - Vacancies caused by death, resignation or removal of any officer or subordinate
may be temporarily filled in the same manner as in the case of temporary absence or disability. The vacancies shall
not be filled by permanent appointment, until the expiration of any leave allowable to the predecessor, unless the
exigencies of the service require that the appointment be made immediately.

Section 35. Power to Require Bonds. -

(1) The head of each bureau or office shall, consistent with law, rules and regulations, prescribe the form
and fix the amount of all bonds executed by private parties to the government under the laws pertaining to
his bureau or office. He shall pass on the sufficiency of the security and retain possession of the bond.

(2) When it appears that any such bond is insufficient, the head may require additional security. He may
withdraw the privilege secured by the bond upon failure of the party to give additional security within the
period fixed in the notice, but such an action shall be without prejudice to the liability of any person or
property already obligated.

Section 36. Authority to Prescribe Forms and Issue Regulations. -

(1) The head of a bureau or office shall prescribe forms and issue circulars or orders to secure the
harmonious and efficient administration of his bureau or office and to carry into full effect the laws relating to
matters within his jurisdiction. Penalties shall not be prescribed in any circular or order for its violation,
except as expressly allowed by law;

(2) Heads of bureaus or offices are authorized to issue orders regarding the administration of their internal
affairs for the guidance of or compliance by their officers and employees;

(3) Regional directors are authorized to issue circulars of purely information or implementing nature and
orders relating to the administration of the internal affairs of regional offices and units within their
supervision; and

(4) Issuances under paragraphs (2) and (3) hereof shall not require, for their effectivity, approval by the
Secretary or other authority.

Section 37. Annual Reports. -

(1) All heads of bureaus or offices of the national government shall render annual reports to their respective
Secretaries on or before the last day of February of each year.

13
 (2) The reports shall contain concise statements of accomplishments and assessment of the progress
attained in terms of approved programs and projects, including pertinent financial statements on
expenditures incurred in their implementation during the calendar year. Broad recommendations and plans
for undertaking work during the ensuing period shall be included together with matters specifically required
by law or regulation to be incorporated therein.

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused
by disuse, or custom or practice to the contrary.

When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall
govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or
the Constitution. (5a)

14
G.R. No. L-63915 December 29, 1986

LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in
his capacity as Deputy Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, ETC., ET
AL., respondents.

RESOLUTION

CRUZ, J.:

Due process was invoked by the petitioners in demanding the disclosure of a number of presidential decrees which
they claimed had not been published as required by law. The government argued that while publication was
necessary as a rule, it was not so when it was "otherwise provided," as when the decrees themselves declared that
they were to become effective immediately upon their approval. In the decision of this case on April 24, 1985, the
Court affirmed the necessity for the publication of some of these decrees, declaring in the dispositive portion as
follows:

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no binding
force and effect.

The petitioners are now before us again, this time to move for reconsideration/clarification of that
decision. 1Specifically, they ask the following questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and laws which are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of general
applicability and those which are not; that publication means complete publication; and that the publication must be
made forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request for an
advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise
provided" in Article 2 of the Civil Code meant that the publication required therein was not always imperative; that
publication, when necessary, did not have to be made in the Official Gazette; and that in any case the subject
decision was concurred in only by three justices and consequently not binding. This elicited a Reply 4 refuting these
arguments. Came next the February Revolution and the Court required the new Solicitor General to file a Rejoinder
in view of the supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that
issuances intended only for the internal administration of a government agency or for particular persons did not have
to be 'Published; that publication when necessary must be in full and in the Official Gazette; and that, however, the
decision under reconsideration was not binding because it was not supported by eight members of this Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:

15
 ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.

After a careful study of this provision and of the arguments of the parties, both on the original petition and on the
instant motion, we have come to the conclusion and so hold, that the clause "unless it is otherwise provided" refers
to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This
clause does not mean that the legislature may make the law effective immediately upon approval, or on any other
date, without its previous publication.

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day
period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his separate
concurrence in the original decision, 6 is the Civil Code which did not become effective after fifteen days from its
publication in the Official Gazette but "one year after such publication." The general rule did not apply because it
was "otherwise provided. "

It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason. is
that such omission would offend due process insofar as it would deny the public knowledge of the laws that are
supposed to govern the legislature could validly provide that a law e effective immediately upon its approval
notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that
persons not aware of it would be prejudiced as a result and they would be so not because of a failure to comply with
but simply because they did not know of its existence, Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be
communicated to the persons they may affect before they can begin to operate.

We note at this point the conclusive presumption that every person knows the law, which of course presupposes
that the law has been published if the presumption is to have any legal justification at all. It is no less important to
remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public
concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of the
government.

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws
relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It
surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to
all the people. The subject of such law is a matter of public interest which any member of the body politic may
question in the political forums or, if he is a proper party, even in the courts of justice. In fact, a law without any
bearing on the public would be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the
legislature. To be valid, the law must invariably affect the public interest even if it might be directly applicable only to
one individual, or some of the people only, and t to the public as a whole.

We hold therefore that all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed
by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by
the Constitution. administrative rules and regulations must a also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the
national territory and directly affects only the inhabitants of that place. All presidential decrees must be published,
including even, say, those naming a public place after a favored individual or exempting him from certain
16
prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not
merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case
studies to be made in petitions for adoption or the rules laid down by the head of a government agency on the
assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances
are not covered by this rule but by the Local Government Code.

We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the
contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential
decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and
in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial
compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential
decree undeniably of general applicability and interest, was "published" by the Marcos administration. 7 The evident
purpose was to withhold rather than disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for publication in the Official
Gazette 8 and that six others felt that publication could be made elsewhere as long as the people were sufficiently
informed. 9 One reserved his vote 10 and another merely acknowledged the need for due publication without
indicating where it should be made. 11 It is therefore necessary for the present membership of this Court to arrive at a
clear consensus on this matter and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette, considering its
erratic releases and limited readership. Undoubtedly, newspapers of general circulation could better perform the
function of communicating, the laws to the people as such periodicals are more easily available, have a wider
readership, and come out regularly. The trouble, though, is that this kind of publication is not the one required or
authorized by existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code. The
Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it obviously has
not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it
impractical. That is not our function. That function belongs to the legislature. Our task is merely to interpret and
apply the law as conceived and approved by the political departments of the government in accordance with the
prescribed procedure. Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code, the
publication of laws must be made in the Official Gazett and not elsewhere, as a requirement for their effectivity after
fifteen days from such publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as possible, to give effect to the law
pursuant to the said Article 2. There is that possibility, of course, although not suggested by the parties that a law
could be rendered unenforceable by a mere refusal of the executive, for whatever reason, to cause its publication as
required. This is a matter, however, that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is
untenable, to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all the
acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if our
country is to remain democratic, with sovereignty residing in the people and all government authority emanating
from them.

Although they have delegated the power of legislation, they retain the authority to review the work of their delegates
and to ratify or reject it according to their lights, through their freedom of expression and their right of suffrage. This
they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep
secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and

17
contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people.
The furtive law is like a scabbarded saber that cannot feint parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon
thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from
their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code.

SO ORDERED.

18
G.R. No. 179579 February 1, 2012

COMMISSIONER OF CUSTOMS and the DISTRICT COLLECTOR OF THE PORT OF SUBIC, Petitioners,
vs.
HYPERMIX FEEDS CORPORATION, Respondent.

DECISION

SERENO, J.:

Before us is a Petition for Review under Rule 45,1 assailing the Decision2 and the Resolution3 of the Court of Appeals
(CA), which nullified the Customs Memorandum Order (CMO) No. 27-20034 on the tariff classification of wheat
issued by petitioner Commissioner of Customs.

The antecedent facts are as follows:

On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-2003. Under the Memorandum, for tariff
purposes, wheat was classified according to the following: (1) importer or consignee; (2) country of origin; and (3)
port of discharge.5 The regulation provided an exclusive list of corporations, ports of discharge, commodity
descriptions and countries of origin. Depending on these factors, wheat would be classified either as food grade or
feed grade. The corresponding tariff for food grade wheat was 3%, for feed grade, 7%.

CMO 27-2003 further provided for the proper procedure for protest or Valuation and Classification Review
Committee (VCRC) cases. Under this procedure, the release of the articles that were the subject of protest required
the importer to post a cash bond to cover the tariff differential.6

A month after the issuance of CMO 27-2003, on 19 December 2003, respondent filed a Petition for Declaratory
Relief7 with the Regional Trial Court (RTC) of Las Piñas City. It anticipated the implementation of the regulation on its
imported and perishable Chinese milling wheat in transit from China.8 Respondent contended that CMO 27-2003
was issued without following the mandate of the Revised Administrative Code on public participation, prior notice,
and publication or registration with the University of the Philippines Law Center.

Respondent also alleged that the regulation summarily adjudged it to be a feed grade supplier without the benefit of
prior assessment and examination; thus, despite having imported food grade wheat, it would be subjected to the 7%
tariff upon the arrival of the shipment, forcing them to pay 133% more than was proper.

Furthermore, respondent claimed that the equal protection clause of the Constitution was violated when the
regulation treated non-flour millers differently from flour millers for no reason at all.

Lastly, respondent asserted that the retroactive application of the regulation was confiscatory in nature.

On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO) effective for twenty (20) days from
notice.9

Petitioners thereafter filed a Motion to Dismiss.10 They alleged that: (1) the RTC did not have jurisdiction over the
subject matter of the case, because respondent was asking for a judicial determination of the classification of wheat;
(2) an action for declaratory relief was improper; (3) CMO 27-2003 was an internal administrative rule and not
legislative in nature; and (4) the claims of respondent were speculative and premature, because the Bureau of
Customs (BOC) had yet to examine respondent’s products. They likewise opposed the application for a writ of
preliminary injunction on the ground that they had not inflicted any injury through the issuance of the regulation; and
that the action would be contrary to the rule that administrative issuances are assumed valid until declared
otherwise.

On 28 February 2005, the parties agreed that the matters raised in the application for preliminary injunction and the
Motion to Dismiss would just be resolved together in the main case. Thus, on 10 March 2005, the RTC rendered its
Decision11 without having to resolve the application for preliminary injunction and the Motion to Dismiss.
19
The trial court ruled in favor of respondent, to wit:

WHEREFORE, in view of the foregoing, the Petition is GRANTED and the subject Customs Memorandum Order 27-
2003 is declared INVALID and OF NO FORCE AND EFFECT. Respondents Commissioner of Customs, the District
Collector of Subic or anyone acting in their behalf are to immediately cease and desist from enforcing the said
Customs Memorandum Order 27-2003.

SO ORDERED.12

The RTC held that it had jurisdiction over the subject matter, given that the issue raised by respondent concerned
the quasi-legislative powers of petitioners. It likewise stated that a petition for declaratory relief was the proper
remedy, and that respondent was the proper party to file it. The court considered that respondent was a regular
importer, and that the latter would be subjected to the application of the regulation in future transactions.

With regard to the validity of the regulation, the trial court found that petitioners had not followed the basic
requirements of hearing and publication in the issuance of CMO 27-2003. It likewise held that petitioners had
"substituted the quasi-judicial determination of the commodity by a quasi-legislative predetermination."13 The lower
court pointed out that a classification based on importers and ports of discharge were violative of the due process
rights of respondent.

Dissatisfied with the Decision of the lower court, petitioners appealed to the CA, raising the same allegations in
defense of CMO 27-2003.14 The appellate court, however, dismissed the appeal. It held that, since the regulation
affected substantial rights of petitioners and other importers, petitioners should have observed the requirements of
notice, hearing and publication.

Hence, this Petition.

Petitioners raise the following issues for the consideration of this Court:

I. THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE WHICH IS NOT IN ACCORD

WITH THE LAW AND PREVAILING JURISPRUDENCE.

II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE TRIAL COURT HAS
JURISDICTION OVER THE CASE.

The Petition has no merit.

We shall first discuss the propriety of an action for declaratory relief.

Rule 63, Section 1 provides:

Who may file petition. – Any person interested under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may,
before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question
of construction or validity arising, and for a declaration of his rights or duties, thereunder.

The requirements of an action for declaratory relief are as follows: (1) there must be a justiciable controversy; (2) the
controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must
have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination.15We find
that the Petition filed by respondent before the lower court meets these requirements.

First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by petitioner Commissioner of
Customs. In Smart Communications v. NTC,16 we held:

20
The determination of whether a specific rule or set of rules issued by an administrative agency contravenes the law
or the constitution is within the jurisdiction of the regular courts. Indeed, the Constitution vests the power of judicial
review or the power to declare a law, treaty, international or executive agreement, presidential decree, order,
instruction, ordinance, or regulation in the courts, including the regional trial courts. This is within the scope of
judicial power, which includes the authority of the courts to determine in an appropriate action the validity of the acts
of the political departments. Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government. (Emphasis supplied)

Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary,17 we said:

xxx [A] legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by
providing the details thereof. xxx

In addition such rule must be published. On the other hand, interpretative rules are designed to provide guidelines to
the law which the administrative agency is in charge of enforcing.

Accordingly, in considering a legislative rule a court is free to make three inquiries: (i) whether the rule is within the
delegated authority of the administrative agency; (ii) whether it is reasonable; and (iii) whether it was issued
pursuant to proper procedure. But the court is not free to substitute its judgment as to the desirability or wisdom of
the rule for the legislative body, by its delegation of administrative judgment, has committed those questions to
administrative judgments and not to judicial judgments. In the case of an interpretative rule, the inquiry is not into the
validity but into the correctness or propriety of the rule. As a matter of power a court, when confronted with an
interpretative rule, is free to (i) give the force of law to the rule; (ii) go to the opposite extreme and substitute its
judgment; or (iii) give some intermediate degree of authoritative weight to the interpretative rule. (Emphasis
supplied)

Second, the controversy is between two parties that have adverse interests. Petitioners are summarily imposing a
tariff rate that respondent is refusing to pay.

Third, it is clear that respondent has a legal and substantive interest in the implementation of CMO 27-2003.
Respondent has adequately shown that, as a regular importer of wheat, on 14 August 2003, it has actually made
shipments of wheat from China to Subic. The shipment was set to arrive in December 2003. Upon its arrival, it
would be subjected to the conditions of CMO 27-2003. The regulation calls for the imposition of different tariff rates,
depending on the factors enumerated therein. Thus, respondent alleged that it would be made to pay the 7% tariff
applied to feed grade wheat, instead of the 3% tariff on food grade wheat. In addition, respondent would have to go
through the procedure under CMO 27-2003, which would undoubtedly toll its time and resources. The lower court
correctly pointed out as follows:

xxx As noted above, the fact that petitioner is precisely into the business of importing wheat, each and every
importation will be subjected to constant disputes which will result into (sic) delays in the delivery, setting aside of
funds as cash bond required in the CMO as well as the resulting expenses thereof. It is easy to see that business
uncertainty will be a constant occurrence for petitioner. That the sums involved are not minimal is shown by the
discussions during the hearings conducted as well as in the pleadings filed. It may be that the petitioner can later on
get a refund but such has been foreclosed because the Collector of Customs and the Commissioner of Customs are
bound by their own CMO. Petitioner cannot get its refund with the said agency. We believe and so find that
Petitioner has presented such a stake in the outcome of this controversy as to vest it with standing to file this
petition.18 (Emphasis supplied)

Finally, the issue raised by respondent is ripe for judicial determination, because litigation is inevitable19 for the
simple and uncontroverted reason that respondent is not included in the enumeration of flour millers classified as
food grade wheat importers. Thus, as the trial court stated, it would have to file a protest case each time it imports
food grade wheat and be subjected to the 7% tariff.

It is therefore clear that a petition for declaratory relief is the right remedy given the circumstances of the case.

21
Considering that the questioned regulation would affect the substantive rights of respondent as explained above, it
therefore follows that petitioners should have applied the pertinent provisions of Book VII, Chapter 2 of the Revised
Administrative Code, to wit:

Section 3. Filing. – (1) Every agency shall file with the University of the Philippines Law Center three (3) certified
copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within
three (3) months from that date shall not thereafter be the bases of any sanction against any party of persons.

xxx xxx xxx

Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as practicable, publish
or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the
adoption of any rule.

(2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been
published in a newspaper of general circulation at least two (2) weeks before the first hearing thereon.

(3) In case of opposition, the rules on contested cases shall be observed.

When an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare
issuance, for it gives no real consequence more than what the law itself has already prescribed. When, on the other
hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least
cumbersome the implementation of the law but substantially increases the burden of those governed, it behooves
the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed,
before that new issuance is given the force and effect of law.20

Likewise, in Tañada v. Tuvera,21 we held:

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws
which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a
constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital
significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely
by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the
Batasan Pambansa – and for the diligent ones, ready access to the legislative records – no such publicity
accompanies the law-making process of the President. Thus, without publication, the people have no means of
knowing what presidential decrees have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. (Emphasis supplied)

Because petitioners failed to follow the requirements enumerated by the Revised Administrative Code, the assailed
regulation must be struck down.

Going now to the content of CMO 27-3003, we likewise hold that it is unconstitutional for being violative of the equal
protection clause of the Constitution.

The equal protection clause means that no person or class of persons shall be deprived of the same protection of
laws enjoyed by other persons or other classes in the same place in like circumstances. Thus, the guarantee of the
equal protection of laws is not violated if there is a reasonable classification. For a classification to be reasonable, it
must be shown that (1) it rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not
limited to existing conditions only; and (4) it applies equally to all members of the same class.22

Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the quality of wheat is affected
by who imports it, where it is discharged, or which country it came from.
22
Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported food grade wheat, the
product would still be declared as feed grade wheat, a classification subjecting them to 7% tariff. On the other hand,
even if the importers listed under CMO 27-2003 have imported feed grade wheat, they would only be made to pay
3% tariff, thus depriving the state of the taxes due. The regulation, therefore, does not become disadvantageous to
respondent only, but even to the state.

It is also not clear how the regulation intends to "monitor more closely wheat importations and thus prevent their
misclassification." A careful study of CMO 27-2003 shows that it not only fails to achieve this end, but results in the
opposite. The application of the regulation forecloses the possibility that other corporations that are excluded from
the list import food grade wheat; at the same time, it creates an assumption that those who meet the criteria do not
import feed grade wheat. In the first case, importers are unnecessarily burdened to prove the classification of their
wheat imports; while in the second, the state carries that burden.

Petitioner Commissioner of Customs also went beyond his powers when the regulation limited the customs officer’s
duties mandated by Section 1403 of the Tariff and Customs Law, as amended. The law provides:

Section 1403. – Duties of Customs Officer Tasked to Examine, Classify, and Appraise Imported Articles. – The
customs officer tasked to examine, classify, and appraise imported articles shall determine whether the packages
designated for examination and their contents are in accordance with the declaration in the entry, invoice and other
pertinent documents and shall make return in such a manner as to indicate whether the articles have been truly and
correctly declared in the entry as regard their quantity, measurement, weight, and tariff classification and not
imported contrary to law. He shall submit samples to the laboratory for analysis when feasible to do so and when
such analysis is necessary for the proper classification, appraisal, and/or admission into the Philippines of imported
articles.

Likewise, the customs officer shall determine the unit of quantity in which they are usually bought and sold, and
appraise the imported articles in accordance with Section 201 of this Code.

Failure on the part of the customs officer to comply with his duties shall subject him to the penalties prescribed
under Section 3604 of this Code. 1âwphi 1

The provision mandates that the customs officer must first assess and determine the classification of the imported
article before tariff may be imposed. Unfortunately, CMO 23-2007 has already classified the article even before the
customs officer had the chance to examine it. In effect, petitioner Commissioner of Customs diminished the powers
granted by the Tariff and Customs Code with regard to wheat importation when it no longer required the customs
officer’s prior examination and assessment of the proper classification of the wheat.

It is well-settled that rules and regulations, which are the product of a delegated power to create new and additional
legal provisions that have the effect of law, should be within the scope of the statutory authority granted by the
legislature to the administrative agency. It is required that the regulation be germane to the objects and purposes of
the law; and that it be not in contradiction to, but in conformity with, the standards prescribed by law.23

In summary, petitioners violated respondent’s right to due process in the issuance of CMO 27-2003 when they failed
to observe the requirements under the Revised Administrative Code. Petitioners likewise violated respondent’s right
to equal protection of laws when they provided for an unreasonable classification in the application of the regulation.
Finally, petitioner Commissioner of Customs went beyond his powers of delegated authority when the regulation
limited the powers of the customs officer to examine and assess imported articles.

WHEREFORE, in view of the foregoing, the Petition is DENIED.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

23
Presidential Issuances

BOOK III

OFFICE OF THE PRESIDENT

Title I

POWERS OF THE PRESIDENT

CHAPTER 1
POWER OF CONTROL

Section 1. Power of Control. - The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

CHAPTER 2
ORDINANCE POWER

Section 2. Executive Orders. - Acts of the President providing for rules of a general or permanent character in
implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.

Section 3. Administrative Orders. - Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

Section 4. Proclamations. - Acts of the President fixing a date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.

Section 5. Memorandum Orders. - Acts of the President on matters of administrative detail or of subordinate or
temporary interest which only concern a particular officer or office of the Government shall be embodied in
memorandum orders.

Section 6. Memorandum Circulars. - Acts of the President on matters relating to internal administration, which the
President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in memorandum circulars.

Section 7. General or Special Orders. - Acts and commands of the President in his capacity as Commander-in-
Chief of the Armed Forces of the Philippines shall be issued as general or special orders.

24
Lack of applicable law
Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of
the laws. (6)

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female. (Genesis
5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the
bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then
twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and
the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful).
(The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by
a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition
for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name
and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case
No. 02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and
Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his
certificate of live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female"
and that he had always identified himself with girls since childhood.1 Feeling trapped in a man’s body, he consulted
several doctors in the United States. He underwent psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent
sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a
plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner)
had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name
in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a newspaper of general
circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor
General (OSG) and the civil registrar of Manila.
25
On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was
made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard
P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any
unlawful motive but solely for the purpose of making his birth records compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles
of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like
a woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped in a man’s body is
not his own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community
in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on
the part of the petitioner and her [fiancé] and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition despite due
notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any
[o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of
Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioner’s
first name from "Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the
Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of
sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial
court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of
birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republic’s petition,
set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407
to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the
trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any
unlawful motive but solely for the purpose of making his birth records compatible with his present
sex. (emphasis supplied)

26
Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil
registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of
name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article
376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048
provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. –
No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and
its implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of
first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction
over applications for change of first name is now primarily lodged with the aforementioned administrative officers.
The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of
Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first
name are primarily administrative in nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or
nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult
to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has
been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first
name compatible with the sex he thought he transformed himself into through surgery. However, a change of name
does not alter one’s legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground
of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may
only create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any compelling
reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and
official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using
his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that
court’s primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it
could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that
provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil
Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and
27
official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed
petitioner’s petition in so far as the change of his first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the
statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of
Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work
in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or
obvious to the understanding, and can be corrected or changed only by reference to other existing
record or records: Provided, however, That no correction must involve the change ofnationality,
age, status or sex of the petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical
error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are
those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the
civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural
children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur
after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to
replace something with something else of the same kind or with something that serves as a substitute."26 The birth
certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and
sex, were all correct. No correction is necessary.

28
Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and
deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages,
adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and
changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal
capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities)
of a person in view of his age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less permanent in
nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being
married or not. The comprehensive term status… include such matters as the beginning and end of legal
personality, capacity to have rights in general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28(emphasis
supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil
status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to
petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance at
the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and
shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in
attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of
birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is
not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such
other data as may be required in the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of
birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex
reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error,30is
immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of
a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary
usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities
of structure and function that distinguish a male from a female"32 or "the distinction between male and
female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at

29
the time a well-known meaning are presumed to have been used in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains
unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason.
Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It
believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First,
even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his
male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent
union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties
who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and
greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which
apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies
under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the
Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be
substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in
judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should
govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly
important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of
entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented
and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex
reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact
legislation laying down the guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything
else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal
branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of
their dreams." No argument about that. The Court recognizes that there are people whose preferences and
orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for
them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be
addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

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G.R. No. 134241 August 11, 2003

DAVID REYES (Substituted by Victoria R. Fabella), petitioner,

vs.
JOSE LIM, CHUY CHENG KENG and HARRISON LUMBER, INC., respondents.

CARPIO, J.:

The Case

This is a petition for review on certiorari of the Decision1 dated 12 May 1998 of the Court of Appeals in CA-G.R. SP
No. 46224. The Court of Appeals dismissed the petition for certiorari assailing the Orders dated 6 March 1997, 3
July 1997 and 3 October 1997 of the Regional Trial Court of Paranaque, Branch 2602 ("trial court") in Civil Case No.
95-032.

The Facts

On 23 March 1995, petitioner David Reyes ("Reyes") filed before the trial court a complaint for annulment of contract
and damages against respondents Jose Lim ("Lim"), Chuy Cheng Keng ("Keng") and Harrison Lumber, Inc.
("Harrison Lumber").

The complaint3 alleged that on 7 November 1994, Reyes as seller and Lim as buyer entered into a contract to sell
("Contract to Sell") a parcel of land ("Property") located along F.B. Harrison Street, Pasay City. Harrison Lumber
occupied the Property as lessee with a monthly rental of P35,000. The Contract to Sell provided for the following
terms and conditions:

1. The total consideration for the purchase of the aforedescribed parcel of land together with the perimeter
walls found therein is TWENTY EIGHT MILLION (P28,000,000.00) PESOS payable as follows:

(a) TEN MILLION (P10,000,000.00) PESOS upon signing of this Contract to Sell;

(b) The balance of EIGHTEEN MILLION (P18,000,000.00) PESOS shall be paid on or before March 8, 1995
at 9:30 A.M. at a bank to be designated by the Buyer but upon the complete vacation of all the tenants or
occupants of the property and execution of the Deed of Absolute Sale. However, if the tenants or occupants
have vacated the premises earlier than March 8, 1995, the VENDOR shall give the VENDEE at least one
week advance notice for the payment of the balance and execution of the Deed of Absolute Sale.

2. That in the event, the tenants or occupants of the premises subject of this sale shall not vacate the
premises on March 8, 1995 as stated above, the VENDEE shall withhold the payment of the balance of
P18,000,000.00 and the VENDOR agrees to pay a penalty of Four percent (4%) per month to the herein
VENDEE based on the amount of the downpayment of TEN MILLION (P10,000,000.00) PESOS until the
complete vacation of the premises by the tenants therein.4

The complaint claimed that Reyes had informed Harrison Lumber to vacate the Property before the end of January
1995. Reyes also informed Keng5 and Harrison Lumber that if they failed to vacate by 8 March 1995, he would hold
them liable for the penalty of P400,000 a month as provided in the Contract to Sell. The complaint further alleged
that Lim connived with Harrison Lumber not to vacate the Property until the P400,000 monthly penalty would have
accumulated and equaled the unpaid purchase price of P18,000,000.

On 3 May 1995, Keng and Harrison Lumber filed their Answer6 denying they connived with Lim to defraud Reyes.
Keng and Harrison Lumber alleged that Reyes approved their request for an extension of time to vacate the
Property due to their difficulty in finding a new location for their business. Harrison Lumber claimed that as of March
1995, it had already started transferring some of its merchandise to its new business location in Malabon.7

On 31 May 1995, Lim filed his Answer8 stating that he was ready and willing to pay the balance of the purchase
price on or before 8 March 1995. Lim requested a meeting with Reyes through the latter’s daughter on the signing of
31
the Deed of Absolute Sale and the payment of the balance but Reyes kept postponing their meeting. On 9 March
1995, Reyes offered to return the P10 million down payment to Lim because Reyes was having problems in
removing the lessee from the Property. Lim rejected Reyes’ offer and proceeded to verify the status of Reyes’ title to
the Property. Lim learned that Reyes had already sold the Property to Line One Foods Corporation ("Line One") on
1 March 1995 for P16,782,840. After the registration of the Deed of Absolute Sale, the Register of Deeds issued to
Line One TCT No. 134767 covering the Property. Lim denied conniving with Keng and Harrison Lumber to defraud
Reyes.

On 2 November 1995, Reyes filed a Motion for Leave to File Amended Complaint due to supervening facts. These
included the filing by Lim of a complaint for estafa against Reyes as well as an action for specific performance and
nullification of sale and title plus damages before another trial court.9 The trial court granted the motion in an Order
dated 23 November 1995.

In his Amended Answer dated 18 January 1996,10 Lim prayed for the cancellation of the Contract to Sell and for the
issuance of a writ of preliminary attachment against Reyes. The trial court denied the prayer for a writ of preliminary
attachment in an Order dated 7 October 1996.

On 6 March 1997, Lim requested in open court that Reyes be ordered to deposit the P10 million down payment with
the cashier of the Regional Trial Court of Parañaque. The trial court granted this motion.

On 25 March 1997, Reyes filed a Motion to Set Aside the Order dated 6 March 1997 on the ground the Order
practically granted the reliefs Lim prayed for in his Amended Answer.11 The trial court denied Reyes’ motion in an
Order12 dated 3 July 1997. Citing Article 1385 of the Civil Code, the trial court ruled that an action for rescission
could prosper only if the party demanding rescission can return whatever he may be obliged to restore should the
court grant the rescission.

The trial court denied Reyes’ Motion for Reconsideration in its Order13 dated 3 October 1997. In the same order, the
trial court directed Reyes to deposit the P10 million down payment with the Clerk of Court on or before 30 October
1997.

On 8 December 1997, Reyes14 filed a Petition for Certiorari15 with the Court of Appeals. Reyes prayed that the
Orders of the trial court dated 6 March 1997, 3 July 1997 and 3 October 1997 be set aside for having been issued
with grave abuse of discretion amounting to lack of jurisdiction. On 12 May 1998, the Court of Appeals dismissed
the petition for lack of merit.

Hence, this petition for review.

The Ruling of the Court of Appeals

The Court of Appeals ruled the trial court could validly issue the assailed orders in the exercise of its equity
jurisdiction. The court may grant equitable reliefs to breathe life and force to substantive law such as Article
138516 of the Civil Code since the provisional remedies under the Rules of Court do not apply to this case.

The Court of Appeals held the assailed orders merely directed Reyes to deposit the P10 million to the custody of the
trial court to protect the interest of Lim who paid the amount to Reyes as down payment. This did not mean the
money would be returned automatically to Lim.

The Issues

Reyes raises the following issues:

1. Whether the Court of Appeals erred in holding the trial court could issue the questioned Orders dated
March 6, 1997, July 3, 1997 and October 3, 1997, requiring petitioner David Reyes to deposit the amount of
Ten Million Pesos (P10,000,000.00) during the pendency of the action, when deposit is not among the
provisional remedies enumerated in Rule 57 to 61 of the 1997 Rules on Civil Procedure.

32
 2. Whether the Court of Appeals erred in finding the trial court could issue the questioned Orders on grounds
of equity when there is an applicable law on the matter, that is, Rules 57 to 61 of the 1997 Rules on Civil
Procedure.17

The Court’s Ruling

Reyes’ contentions are without merit.

Reyes points out that deposit is not among the provisional remedies enumerated in the 1997 Rules of Civil
Procedure. Reyes stresses the enumeration in the Rules is exclusive. Not one of the provisional remedies in Rules
57 to 6118 applies to this case. Reyes argues that a court cannot apply equity and require deposit if the law already
prescribes the specific provisional remedies which do not include deposit. Reyes invokes the principle that equity is
"applied only in the absence of, and never against, statutory law or x x x judicial rules of procedure."19 Reyes adds
the fact that the provisional remedies do not include deposit is a matter of dura lex sed lex.20

The instant case, however, is precisely one where there is a hiatus in the law and in the Rules of Court. If left alone,
the hiatus will result in unjust enrichment to Reyes at the expense of Lim. The hiatus may also imperil restitution,
which is a precondition to the rescission of the Contract to Sell that Reyes himself seeks. This is not a case of equity
overruling a positive provision of law or judicial rule for there is none that governs this particular case. This is a case
of silence or insufficiency of the law and the Rules of Court. In this case, Article 9 of the Civil Code expressly
mandates the courts to make a ruling despite the "silence, obscurity or insufficiency of the laws."21 This calls for the
application of equity,22 which "fills the open spaces in the law."23

Thus, the trial court in the exercise of its equity jurisdiction may validly order the deposit of the P10 million down
payment in court. The purpose of the exercise of equity jurisdiction in this case is to prevent unjust enrichment and
to ensure restitution. Equity jurisdiction aims to do complete justice in cases where a court of law is unable to adapt
its judgments to the special circumstances of a case because of the inflexibility of its statutory or legal
jurisdiction.24 Equity is the principle by which substantial justice may be attained in cases where the prescribed or
customary forms of ordinary law are inadequate.25

Reyes is seeking rescission of the Contract to Sell. In his amended answer, Lim is also seeking cancellation of the
Contract to Sell. The trial court then ordered Reyes to deposit in court the P10 million down payment that Lim made
under the Contract to Sell. Reyes admits receipt of the P10 million down payment but opposes the order to deposit
the amount in court. Reyes contends that prior to a judgment annulling the Contract to Sell, he has the "right to use,
possess and enjoy"26 the P10 million as its "owner"27 unless the court orders its preliminary attachment.28

To subscribe to Reyes’ contention will unjustly enrich Reyes at the expense of Lim. Reyes sold to Line One the
Property even before the balance of P18 million under the Contract to Sell with Lim became due on 8 March 1995.
On 1 March 1995, Reyes signed a Deed of Absolute Sale29 in favor of Line One. On 3 March 1995, the Register of
Deeds issued TCT No. 13476730 in the name of Line One.31 Reyes cannot claim ownership of the P10 million down
payment because Reyes had already sold to another buyer the Property for which Lim made the down payment. In
fact, in his Comment32 dated 20 March 1996, Reyes reiterated his offer to return to Lim the P10 million down
payment.

On balance, it is unreasonable and unjust for Reyes to object to the deposit of the P10 million down payment. The
application of equity always involves a balancing of the equities in a particular case, a matter addressed to the
sound discretion of the court. Here, we find the equities weigh heavily in favor of Lim, who paid the P10 million down
payment in good faith only to discover later that Reyes had subsequently sold the Property to another buyer.

In Eternal Gardens Memorial Parks Corp. v. IAC,33 this Court held the plaintiff could not continue to benefit from
the property or funds in litigation during the pendency of the suit at the expense of whomever the court might
ultimately adjudge as the lawful owner. The Court declared:

In the case at bar, a careful analysis of the records will show that petitioner admitted among others in its complaint
in Interpleader that it is still obligated to pay certain amounts to private respondent; that it claims no interest in such
amounts due and is willing to pay whoever is declared entitled to said amounts. x x x

33
Under the circumstances, there appears to be no plausible reason for petitioner’s objections to the deposit of the
amounts in litigation after having asked for the assistance of the lower court by filing a complaint for interpleader
where the deposit of aforesaid amounts is not only required by the nature of the action but is a contractual obligation
of the petitioner under the Land Development Program (Rollo, p. 252).

There is also no plausible or justifiable reason for Reyes to object to the deposit of the P10 million down payment in
court. The Contract to Sell can no longer be enforced because Reyes himself subsequently sold the Property to Line
One. Both Reyes and Lim are now seeking rescission of the Contract to Sell. Under Article 1385 of the Civil Code,
rescission creates the obligation to return the things that are the object of the contract. Rescission is possible only
when the person demanding rescission can return whatever he may be obliged to restore. A court of equity will not
rescind a contract unless there is restitution, that is, the parties are restored to the status quo ante.34

Thus, since Reyes is demanding to rescind the Contract to Sell, he cannot refuse to deposit the P10 million down
payment in court.35 Such deposit will ensure restitution of the P10 million to its rightful owner. Lim, on the other
hand, has nothing to refund, as he has not received anything under the Contract to Sell.36

In Government of the Philippine Islands v. Wagner and Cleland Wagner,37 the Court ruled the refund of
amounts received under a contract is a precondition to the rescission of the contract. The Court declared:

The Government, having asked for rescission, must restore to the defendants whatever it has received
under the contract. It will only be just if, as a condition to rescission, the Government be required to refund to
the defendants an amount equal to the purchase price, plus the sums expended by them in improving the
land. (Civil Code, art. 1295.)

The principle that no person may unjustly enrich himself at the expense of another is embodied in Article 2238 of the
Civil Code. This principle applies not only to substantive rights but also to procedural remedies. One condition for
invoking this principle is that the aggrieved party has no other action based on contract, quasi-contract, crime, quasi-
delict or any other provision of law.39 Courts can extend this condition to the hiatus in the Rules of Court where the
aggrieved party, during the pendency of the case, has no other recourse based on the provisional remedies of the
Rules of Court.

Thus, a court may not permit a seller to retain, pendente lite, money paid by a buyer if the seller himself seeks
rescission of the sale because he has subsequently sold the same property to another buyer.40 By seeking
rescission, a seller necessarily offers to return what he has received from the buyer. Such a seller may not take
back his offer if the court deems it equitable, to prevent unjust enrichment and ensure restitution, to put the money in
judicial deposit.

There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a person retains
money or property of another against the fundamental principles of justice, equity and good conscience.41 In this
case, it was just, equitable and proper for the trial court to order the deposit of the P10 million down payment to
prevent unjust enrichment by Reyes at the expense of Lim.42

WHEREFORE, we AFFIRM the Decision of the Court of Appeals.

SO ORDERED.

34
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