Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-26702 October 18, 1979

JUAN AUGUSTO B. PRIMICIAS, plaintiff-appellee,

vs.
THE MUNICIPALITY OF URDANETA, PANGASINAN, ET AL., defendants-appellants.

Ambrosio Padilla Law Offices for appellee.

Primicias, Castillo & Macaraeg for appellants.

DE CASTRO, J.:

The main issue in this appeal is the validity of Ordinance No. 3, Series of 1964, enacted on March 13,1964 by the
Municipal Council of Urdaneta, Pangasinan, which was declared null and void by the Court of First Instance of Lingayen,
Pangasinan, in its decision dated June 29, 1966, the dispositive portion of which reads as follows:

WHEREFORE, this Court renders decision declaring Ordinance No, 3, Series of 1964, to be null and
void; making the writ of preliminary injunction heretofore issued against the defendant, Felix D. Soriano
definite and permanent; and further restraining the defendants, Amadeo R. Perez, Jr., Lorenzo G. Suyat
and Estanislao Andrada, from enforcing the said ordinance all throughout Urdaneta; and ordering the said
defendants to return to the plaintiff his drivers (sic) license CIN 017644, a copy of which is Exhibit D-1,
and to pay the costs of suit. 1

From the aforecited decision, defendants appealed to this Court. The antecedent facts of this case are as follows: 2

On February 8, 1965, Juan Augusta B. Primacias plaintiff appellee, was driving his car within the jurisdiction of Urdaneta
when a member of Urdaneta's Municipal Police asked him to stop. He was told, upon stopping, that he had violated
Municipal Ordinance No. 3, Series of 1964, "and more particularly, for overtaking a truck." The policeman then asked for
plaintiff's license which he surrendered, and a temporary operator's permit was issued to him. This incident took place
about 200 meters away from a school building, at Barrio Nancamaliran, Urdaneta.

Thereafter, a criminal complaint was filed in the Municipal Court of Urdaneta against Primicias for violation of Ordinance
No. 3, Series of 1964. Due to the institution of the criminal case, plaintiff Primicias initiated an action for the annulment
of said ordinance with prayer for the issuance of preliminary injunction for the purpose of restraining defendants
Municipality of Urdaneta, Mayor Perez, Police Chief Suyat, Judge Soriano and Patrolman Andrada from enforcing the
ordinance. The writ was issued and Judge Soriano was enjoined from further proceeding in the criminal case.

After trial, the Court of First Instance rendered the questioned decision holding that the ordinance was null and void and
had been repealed by Republic Act No. 4136, otherwise known as the Land Transportation and Traffic Code. Now,
defendants, appellants herein, allege that the lower court erred in: 3

1. declaring that Municipal Ordinance No. 3 (Series of 1964) of Urdaneta is null and void;

2. requiring the municipal council of Urdaneta in the enactment of said ordinance to give maximum
allowable speed and to make classification of highways;

3. holding that said ordinance is in conflict with section 35 par. b(4) of Republic Act 4136;

4. requiring that said ordinance be approved by the Land Transportation Commissioner;

 5. holding that said ordinance is not clear and definite in its terms;

6. issuing ex-parte a writ of injunction to restrain the proceedings in criminal case no. 3140.

The ordinance in question provides: 4

SECTION 1 - That the following speed limits for vehicular traffic along the National Highway and the
Provincial Roads within the territorial limits of Urdaneta shall be as follows:

a. Thru crowded streets approaching intersections at 'blind corners, passing school zones
or thickly populated areas, duly marked with sign posts, the maximum speed limit
allowable shall be 20 kph.

SECTION 2 - That any person or persons caught driving any motor vehicle violating the provisions of
this ordinance shall be fined P10.00 for the first offense; P20.00 for the second offense; and P30.00 for
the third and succeeding offenses, the Municipal Judge shall recommend the cancellation of the license of
the offender to the Motor Vehicle's Office (MVO); or failure to pay the fine imposed, he shall suffer a
subsidiary imprisonment in accordance with law.

Appellants contend that the Ordinance is valid, being "patterned after and based on Section 53, 5 par. 4 of Act No. 3992,
as amended (Revised Motor Vehicle Law)." In so arguing, appellants fail to note that Act No. 3992 has been superseded
by Republic Act No. 4136, the Land Transportation and 'Traffic Code, which became effective on June 20, 1964, about
three months after the questioned ordinance was approved by Urdaneta's Municipal Council. The explicit repeal of the
aforesaid Act is embodied in Section 63, Republic Act No. 4136, to wit:

Act Numbered thirty-nine hundred ninety-two (3992) as amended, and all laws, executive orders,
ordinance, resolutions, regulations or paints thereof in conflict with the provisions of this Act are
repealed.

By this express repeal, and the general rule that a later law prevails over an earlier law, 6 appellants are in error in
contending that "a later enactment of the law relating to the same subject matter as that of an earlier statute is not
sufficient to cause an implied repeal of the original law." Pursuant to Section 63, Republic Act No. 4136, the ordinance at
bar is thus placed within the ambit of Republic Act No. 4136, and not Act No. 3992. The validity of Ordinance No. 3,
Series of 1964, must therefore be determined vis-a-vis Republic Act No. 4136, the "mother statute" so to speak, which
was in force at the time the criminal case was brought against Primicias for the violation of the said ordinance.

An essential requisite for a valid ordinance is, among others, that is "must not contravene . . . the statute," 7 for it is a
"fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the
state." 8Following this general rule, whenever there is a conflict between an ordinance and a statute, the ordinance "must
give way. 9

Since the Ordinance is aimed at regulating traffic, Chapter IV Traffic Rules), Article I (Speed Limits and Keeping to the
Right), consisting of sections 35, to 38 of Republic Act No. 4136, particularly Sections 35, 36, 38 contain the provisions
material to its validity. Section 35 (b), Republic Act No. 4136, which took the place of Section 53, par. (4), Act No. 3992,
provides restrictions as to speed thus:

MAXIMUM ALLOWABLE SPEEDS

Passenger cars and Motor trucks

motorcycle and buses

1. On open country roads, with

"blind corners" not closely bordered

by habitation. 80 km. 50 km.

2. On through streets or per hour per hour

boulevards, clear of traffic, with "no

blind corners" when so designated. 40 km. 30 km.

3. On city and municipal per hour per hour

streets, with light traffic, when not

designated "through streets." 30 km. 30 km.

4. Through crowded streets ap per hour per hour

proaching intersection at "blind cor

ners," passing school zones, passing

other vehicles which are stationary, or

for similar circumstances. 20 km. 20 km.

per hour per hour

A look at the aforecited section and Section 1, par. (a) of the Ordinance shows that the latter is more or less a restatement
only of number (4), par. (b), Section 35. As observed by the trial court, the Ordinance "refers to only one of the four
classifications mentioned in paragraph (b), Section 35." 10 limiting the rates of speed for

vehicular traffic along the national highway and The provincial roads within the territorial limits of
Urdaneta to 20 kilometers per hour without regard to whether the road is an open country roads (six), or
through streets or boulevards, or city or municipal streets with light traffic. 11

As also found correctly by the lower court, the Municipal Council of Urdaneta did not make any classification of its
thoroughfares, contrary to the explicit requirement laid down by Section 38, Republic Act No. 4136, which provides:

Classification of highways. - Public highways shall be properly classified for traffic purposes by the
provincial board or city council having jurisdiction over them, and said provincial board, municipal board
or city council shall provide appropriate signs therefor, subject to the approval of the Commissioner. It
shall be the duty of every provincial, city and municipal secretary to certify to the Commissioner the
names, locations, and limits of all "through streets" designated as such by the provincial board, municipal
board or council.

Under this section, a local legislative body intending to control traffic in public highways 12 is supposed to classify, first,
and then mark them with proper signs, all to be approved by the Land Transportation Commissioner. To hold that the
provisions of Section 38 are mandatory is sanctioned by a ruling 13 that

statutes which confer upon a public body or officer . . . power to perform acts which concern the public
interests or rights of individuals, are generally, regarded as mandatory although the language is
permissive only since the are construed as imposing duties rather than conferring privileges.

The classifications which must be based on Section 35 are necessary in view of Section 36 which states that "no
provincial, city or municipal authority shall enact or enforce any ordinance or resolution specifying maximum allowable
speeds other than those provided in this Act." In this case, however, there is no showing that the marking of the streets and
areas falling under Section 1, par. (a), Ordinance No. 3, Series of 1964, was done with the approval of the Land
Transportation Commissioner. Thus, on this very ground alone, the Ordinance becomes invalid. Since it lacks the
requirement imposed by Section 38, the provincial, city, or municipal board or council is enjoined under Section 62 of the
Land Transportation and Traffic Code from "enacting or enforcing any ordinance or resolution in conflict with the
provisions of this Act."

Regarding the contention that the lower court erred in holding that said "Ordinance is not clear and definite in its terms."
We agree with the Court a quo that when the Municipal Council of Urdaneta used the phrase "vehicular traffic" (Section
1, Ordinance) it "did not distinguish between passenger cars and motor vehicles and motor trucks and buses." 14 This
conclusion is bolstered by the fact that nowhere in the Ordinance is "vehicular traffic" defined. Considering that this is a
regulatory ordinance, its clearness, definiteness and certainty are all the more important so that "an average man should be
able with due care, after reading it,, to understand and ascertain whether he will incur a penalty for particular acts or
courses of conduct." 15 In comparison, Section 35(b), Republic Act No. 4136 on which Section 1 of the Ordinance must be
based, stated that the rates of speed enumerated therein refer to motor vehicle, 16 specifying the speed for each kind of
vehicle. At the same time, to avoid vagueness, Art. 11, Section 3 defines what a motor vehicle is and passenger
automobiles are.

On the issue of whether a writ of injunction can restrain the proceedings in Criminal Case No. 3140, the general rule is
that "ordinarily, criminal prosecution may not be blocked by court prohibition or injunction." 17 Exceptions however are
allowed in the following instances:

1. for the orderly administration of justice;

2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner;

3. to avoid multiplicity of actions;

4. to afford adequate protection to constitutional rights;

5. in proper cases, because the statute relied upon is unconstitutional or was held invalid. 18

The local statute or ordinance at bar being invalid, the exception just cited obtains in this case. Hence, the lower court did
not err in issuing the writ of injunction against defendants. Moreover, considering that "our law on municipal corporations
is in principle patterned after that of the United States, " 19 it would not be amiss for Us to adopt in this instance the ruling
that to enjoin the enforcement of a void ordinance, "injunction has frequently been sustained in order to prevent a
multiplicity of prosecutions under it." 20

In view of the foregoing, the appealed decision is hereby affirmed.

SO ORDERED.

Teehankee, Acting C.J., Barredo, Makasiar, Concepcion Jr., Santos, Fernandez, Guerrero, and Melencio-Herrera, JJ.,
concur.

Aquino, J., took no part.

Antonio, J., is on leave.

Separate Opinions

ABAD SANTOS, J., concurring:

The ordinance in question was in effect a speed trap for unwary motorists for which Urdaneta had become notorious.

# Separate Opinions
ABAD SANTOS, J., concurring:

The ordinance in question was in effect a speed trap for unwary motorists for which Urdaneta had become notorious.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-24670 December 14, 1979

ORTIGAS & CO., LIMITED PARTNERSHIP, plaintiff-appellant,

vs.
FEATI BANK AND TRUST CO., defendant-appellee.

Ramirez & Ortigas for appellant.

Tañada, Teehankee & Carreon for appellee.

SANTOS, J.:

An appeal interposed on June 23, 1965 by plaintiff-appellant, Ortigas & Co., Limited Partnership, from the decision of the
Court of First Instance of Rizal, Branch VI, at Pasig, Hon. Andres Reyes presiding, which dismissed its complaint in Civil
Case No. 7706, entitled, "Ortigas & Company, Limited Partnership, plaintiff, v. Feati Bank and Trust Company,
defendant," for lack of merit.

The following facts — a reproduction of the lower court's findings, which, in turn, are based on a stipulation of facts
entered into by the parties are not disputed. Plaintiff (formerly known as "Ortigas, Madrigal y Cia") is a limited
partnership and defendant Feati Bank and Trust Co., is a corporation duly organized and existing in accordance with the
laws of the Philippines. Plaintiff is engaged in real estate business, developing and selling lots to the public, particularly
the Highway Hills Subdivision along Epifanio de los Santos Avenue, Mandaluyong, Rizal. 1

On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y Angeles and Natividad Angeles, as vendees, entered into
separate agreements of sale on installments over two parcels of land, known as Lots Nos. 5 and 6, Block 31, of the
Highway Hills Subdivision, situated at Mandaluyong, Rizal. On July 19, 1962, the said vendees transferred their rights
and interests over the aforesaid lots in favor of one Emma Chavez. Upon completion of payment of the purchase price, the
plaintiff executed the corresponding deeds of sale in favor of Emma Chavez. Both the agreements (of sale on installment)
and the deeds of sale contained the stipulations or restrictions that:

1. The parcel of land subject of this deed of sale shall be used the Buyer exclusively for residential
purposes, and she shall not be entitled to take or remove soil, stones or gravel from it or any other lots
belonging to the Seller.

2. All buildings and other improvements (except the fence) which may be constructed at any time in said
lot must be, (a) of strong materials and properly painted, (b) provided with modern sanitary installations
connected either to the public sewer or to an approved septic tank, and (c) shall not be at a distance of less
than two (2) meters from its boundary lines. 2

The above restrictions were later annotated in TCT Nos. 101509 and 101511 of the Register of Deeds of Rizal, covering
the said lots and issued in the name of Emma Chavez.3

Eventually, defendant-appellee acquired Lots Nos. 5 and 6, with TCT Nos. 101613 and 106092 issued in its name,
respectively and the building restrictions were also annotated therein. 4 Defendant-appellee bought Lot No. 5 directly from
Emma Chavez, "free from all liens and encumbrances as stated in Annex 'D', 5 while Lot No. 6 was acquired from
Republic Flour Mills through a "Deed of Exchange," Annex "E". 6 TCT No. 101719 in the name of Republic Flour Mills
likewise contained the same restrictions, although defendant-appellee claims that Republic Flour Mills purchased the said
Lot No. 6 "in good faith. free from all liens and encumbrances," as stated in the Deed of Sale, Annex "F" 7 between it and
Emma Chavez.

Plaintiff-appellant claims that the restrictions annotated on TCT Nos. 101509, 101511, 101719, 101613, and 106092 were
imposed as part of its general building scheme designed for the beautification and development of the Highway Hills
Subdivision which forms part of the big landed estate of plaintiff-appellant where commercial and industrial sites are also
designated or established. 8

Defendant-appellee, upon the other hand, maintains that the area along the western part of Epifanio de los Santos Avenue
(EDSA) from Shaw Boulevard to Pasig River, has been declared a commercial and industrial zone, per Resolution No. 27,
dated February 4, 1960 of the Municipal Council of Mandaluyong, Rizal. 9 It alleges that plaintiff-appellant 'completely
sold and transferred to third persons all lots in said subdivision facing Epifanio de los Santos Avenue" 10 and the subject
lots thereunder were acquired by it "only on July 23, 1962 or more than two (2) years after the area ... had been declared a
commercial and industrial zone ... 11

On or about May 5, 1963, defendant-appellee began laying the foundation and commenced the construction of a building
on Lots Nos. 5 and 6, to be devoted to banking purposes, but which defendant-appellee claims could also be devoted to,
and used exclusively for, residential purposes. The following day, plaintiff-appellant demanded in writing that defendant-
appellee stop the construction of the commerical building on the said lots. The latter refused to comply with the demand,
contending that the building was being constructed in accordance with the zoning regulations, defendant-appellee having
filed building and planning permit applications with the Municipality of Mandaluyong, and it had accordingly obtained
building and planning permits to proceed with the construction.12

On the basis of the foregoing facts, Civil Case No. 7706, supra, was submitted in the lower court for decision. The
complaint sought, among other things, the issuance of "a writ of preliminary injunction ... restraining and enjoining
defendant, its agents, assigns, and those acting on its or their behalf from continuing or completing the construction of a
commercial bank building in the premises ... involved, with the view to commanding the defendant to observe and comply
with the building restrictions annotated in the defendant's transfer certificate of title."

In deciding the said case, the trial court considered, as the fundamental issue, whether or not the resolution of the
Municipal Council of Mandaluyong declaring Lots Nos. 5 and 6, among others, as part of the commercial and industrial
zone of the municipality, prevailed over the building restrictions imposed by plaintiff-appellant on the lots in
question. 13 The records do not show that a writ of preliminary injunction was issued.

The trial court upheld the defendant-appellee and dismissed the complaint, holding that the subject restrictions were
subordinate to Municipal Resolution No. 27, supra. It predicated its conclusion on the exercise of police power of the said
municipality, and stressed that private interest should "bow down to general interest and welfare. " In short, it upheld the
classification by the Municipal Council of the area along Epifanio de los Santos Avenue as a commercial and industrial
zone, and held that the same rendered "ineffective and unenforceable" the restrictions in question as against defendant-
appellee.14 The trial court decision further emphasized that it "assumes said resolution to be valid, considering that there is
no issue raised by either of the parties as to whether the same is null and void. 15

On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of the above decision, 16 which motion was
opposed by defendant-appellee on March 17, 1965.17 It averred, among others, in the motion for reconsideration that
defendant- appellee "was duty bound to comply with the conditions of the contract of sale in its favor, which conditions
were duly annotated in the Transfer Certificates of Title issued in her (Emma Chavez) favor." It also invited the trial
court's attention to its claim that the Municipal Council had (no) power to nullify the contractual obligations assumed by
the defendant corporation." 18

The trial court denied the motion for reconsideration in its order of March 26, 1965. 19

On April 2, 1965 plaintiff-appellant filed its notice of appeal from the decision dismissing the complaint and from the
order of March 26, 1965 denying the motion for reconsideration, its record on appeal, and a cash appeal bond." 20On April
14, the appeal was given due course 21 and the records of the case were elevated directly to this Court, since only
questions of law are raised. 22
Plaintiff-appellant alleges in its brief that the trial court erred —

I. When it sustained the view that Resolution No. 27, series of 1960 of the Municipal Council of
Mandaluyong, Rizal declaring Lots Nos. 5 and 6, among others, as part of the commercial and industrial
zone, is valid because it did so in the exercise of its police power; and

II. When it failed to consider whether or not the Municipal Council had the power to nullify the
contractual obligations assumed by defendant-appellee and when it did not make a finding that the
building was erected along the property line, when it should have been erected two meters away from said
property line. 23

The defendant-appellee submitted its counter-assignment of errors. In this connection, We already had occasion to hold
in Relativo v. Castro 24 that "(I)t is not incumbent on the appellee, who occupies a purely defensive position, and is
seeking no affirmative relief, to make assignments of error, "

The only issues to be resolved, therefore, are: (1) whether Resolution No. 27 s-1960 is a valid exercise of police power;
and (2) whether the said Resolution can nullify or supersede the contractual obligations assumed by defendant-appellee.

1. The contention that the trial court erred in sustaining the validity of Resolution No. 27 as an exercise of police power is
without merit. In the first place, the validity of the said resolution was never questioned before it. The rule is that the
question of law or of fact which may be included in the appellant's assignment of errors must be those which have been
raised in the court below, and are within the issues framed by the parties. 25 The object of requiring the parties to present
all questions and issues to the lower court before they can be presented to the appellate court is to enable the lower court
to pass thereon, so that the appellate court upon appeal may determine whether or not such ruling was erroneous. The
requirement is in furtherance of justice in that the other party may not be taken by surprise. 26 The rule against the practice
of blowing "hot and cold" by assuming one position in the trial court and another on appeal will, in the words of Elliot,
prevent deception. 27 For it is well-settled that issues or defenses not raised 28 or properly litigated 29 or pleaded 30 in the
Court below cannot be raised or entertained on appeal.

In this particular case, the validity of the resolution was admitted at least impliedly, in the stipulation of facts below. when
plaintiff-appellant did not dispute the same. The only controversy then as stated by the trial court was whether or not the
resolution of the Municipal Council of Mandaluyong ... which declared lots Nos. 4 and 5 among others, as a part of the
commercial and industrial zone of the municipality, prevails over the restrictions constituting as encumbrances on the lots
in question. 31 Having admitted the validity of the subject resolution below, even if impliedly, plaintiff-appellant cannot
now change its position on appeal.

But, assuming arguendo that it is not yet too late in the day for plaintiff-appellant to raise the issue of the invalidity of the
municipal resolution in question, We are of the opinion that its posture is unsustainable. Section 3 of R.A. No. 2264,
otherwise known as the Local Autonomy Act," 32 empowers a Municipal Council "to adopt zoning and subdivision
ordinances or regulations"; 33 for the municipality. Clearly, the law does not restrict the exercise of the power through an
ordinance. Therefore, granting that Resolution No. 27 is not an ordinance, it certainly is a regulatory measure within the
intendment or ambit of the word "regulation" under the provision. As a matter of fact the same section declares that the
power exists "(A)ny provision of law to the contrary notwithstanding ... "

An examination of Section 12 of the same law 34 which prescribes the rules for its interpretation likewise reveals that the
implied power of a municipality should be "liberally construed in its favor" and that "(A)ny fair and reasonable doubt as
to the existence of the power should be interpreted in favor of the local government and it shall be presumed to exist." The
same section further mandates that the general welfare clause be liberally interpreted in case of doubt, so as to give more
power to local governments in promoting the economic conditions, social welfare and material progress of the people in
the community. The only exceptions under Section 12 are existing vested rights arising out of a contract between "a
province, city or municipality on one hand and a third party on the other," in which case the original terms and provisions
of the contract should govern. The exceptions, clearly, do not apply in the case at bar.

2. With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the defendant-
appellee – referring to the restrictions incorporated in the deeds of sale and later in the corresponding Transfer Certificates
of Title issued to defendant-appellee – it should be stressed, that while non-impairment of contracts is constitutionally
guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., "the
power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare
of the people. 35 Invariably described as "the most essential, insistent, and illimitable of powers" 36 and "in a sense, the
greatest and most powerful attribute of government, 37 the exercise of the power may be judicially inquired into and
corrected only if it is capricious, 'whimsical, unjust or unreasonable, there having been a denial of due process or a
violation of any other applicable constitutional guarantee. 38 As this Court held through Justice Jose P. Bengzon
in Philippine Long Distance Company vs. City of Davao, et al. 39 police power "is elastic and must be responsive to
various social conditions; it is not, confined within narrow circumscriptions of precedents resting on past conditions; it
must follow the legal progress of a democratic way of life." We were even more emphatic in Vda. de Genuino vs. The
Court of Agrarian Relations, et al., 40 when We declared: "We do not see why public welfare when clashing with the
individual right to property should not be made to prevail through the state's exercise of its police power.

Resolution No. 27, s-1960 declaring the western part of highway 54, now E. de los Santos Avenue (EDSA, for short) from
Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by the Municipal Council
of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and
general welfare of the people in the locality, Judicial notice may be taken of the conditions prevailing in the area,
especially where lots Nos. 5 and 6 are located. The lots themselves not only front the highway; industrial and commercial
complexes have flourished about the place. EDSA, a main traffic artery which runs through several cities and
municipalities in the Metro Manila area, supports an endless stream of traffic and the resulting activity, noise and
pollution are hardly conducive to the health, safety or welfare of the residents in its route. Having been expressly granted
the power to adopt zoning and subdivision ordinances or regulations, the municipality of Mandaluyong, through its
Municipal 'council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution.

The scope of police power keeps expanding as civilization advances, stressed this Court, speaking thru Justice Laurel in
the leading case of Calalang v. Williams et al., 41 Thus-

As was said in the case of Dobbins v. Los Angeles (195 US 223, 238 49 L. ed. 169), 'the right to exercise
the police power is a continuing one, and a business lawful today may in the future, because of changed
situation, the growth of population or other causes, become a menace to the public health and welfare,
and be required to yield to the public good.' And in People v. Pomar (46 Phil. 440), it was observed
that 'advancing civilization is bringing within the scope of police power of the state today things which
were not thought of as being with in such power yesterday. The development of civilization), the rapidly
increasing population, the growth of public opinion, with an increasing desire on the part of the masses
and of the government to look after and care for the interests of the individuals of the state, have brought
within the police power many questions for regulation which formerly were not so
considered. 42 (Emphasis, supplied.)

Thus, the state, in order to promote the general welfare, may interfere with personal liberty, with property, and with
business and occupations. Persons may be subjected to all kinds of restraints and burdens, in order to secure the general
comfort health and prosperity of the state 43 and to this fundamental aim of our Government, the rights of the individual
are subordinated. 44

The need for reconciling the non-impairment clause of the Constitution and the valid exercise of police power may also be
gleaned from Helvering v. Davis 45 wherein Mr. Justice Cardozo, speaking for the Court, resolved the conflict "between
one welfare and another, between particular and general, thus —

Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may
be interwoven in our day with the well-being of the nation What is critical or urgent changes with the
times. 46

The motives behind the passage of the questioned resolution being reasonable, and it being a " legitimate response to a felt
public need," 47 not whimsical or oppressive, the non-impairment of contracts clause of the Constitution will not bar the
municipality's proper exercise of the power. Now Chief Justice Fernando puts it aptly when he declared: "Police power
legislation then is not likely to succumb to the challenge that thereby contractual rights are rendered nugatory." 48
Furthermore, We restated in Philippine American Life Ins. Co. v. Auditor General49 that laws and reservation of essential
attributes of sovereign power are read into contracts agreed upon by the parties. Thus —

Not only are existing laws read into contracts in order to fix obligations as between the parties, but the
reservation of essential attributes of sovereign power is also read into contracts as a postulate of the
legal order. The policy of protecting contracts against impairments presupposes the maintenance of a
government by virtue of which contractual relations are worthwhile – a government which retains
adequate authority to secure the peace and good order of society.

Again, We held in Liberation Steamship Co., Inc. v. Court of Industrial Relations, 50 through Justice J.B.L. Reyes, that ...
the law forms part of, and is read into, every contract, unless clearly excluded therefrom in those cases where such
exclusion is allowed." The decision in Maritime Company of the Philippines v. Reparations Commission, 51 written for the
Court by Justice Fernando, now Chief Justice, restates the rule.

One last observation. Appellant has placed unqualified reliance on American jurisprudence and authorities 52 to bolster its
theory that the municipal resolution in question cannot nullify or supersede the agreement of the parties embodied in the
sales contract, as that, it claims, would impair the obligation of contracts in violation of the Constitution. Such reliance is
misplaced.

In the first place, the views set forth in American decisions and authorities are not per se controlling in the Philippines, the
laws of which must necessarily be construed in accordance with the intention of its own lawmakers and such intent may
be deduced from the language of each law and the context of other local legislation related thereto. 53 and Burgess, et al v.
Magarian, et al., 55 two Of the cases cited by plaintiff-appellant, lend support to the conclusion reached by the trial court,
i.e. that the municipal resolution supersedes/supervenes over the contractual undertaking between the parties. Dolan v.
Brown, states that "Equity will not, as a rule, enforce a restriction upon the use of property by injunction where the
property has so changed in character and environment as to make it unfit or unprofitable for use should the restriction be
enforced, but will, in such a case, leave the complainant to whatever remedy he may have at law. 56 (Emphasis supplied.)
Hence, the remedy of injunction in Dolan vs. Brown was denied on the specific holding that "A grantor may lawfully
insert in his deed conditions or restrictions which are not against public policy and do not materially impair the beneficial
enjoyment of the estate. 57 Applying the principle just stated to the present controversy, We can say that since it is now
unprofitable, nay a hazard to the health and comfort, to use Lots Nos. 5 and 6 for strictly residential purposes, defendants-
appellees should be permitted, on the strength of the resolution promulgated under the police power of the municipality, to
use the same for commercial purposes. In Burgess v. Magarian et al. it was, held that "restrictive covenants running with
the land are binding on all subsequent purchasers ... " However, Section 23 of the zoning ordinance involved therein
contained a proviso expressly declaring that the ordinance was not intended "to interfere with or abrogate or annul any
easements, covenants or other agreement between parties." 58 In the case at bar, no such proviso is found in the subject
resolution.

It is, therefore, clear that even if the subject building restrictions were assumed by the defendant-appellee as vendee of
Lots Nos. 5 and 6, in the corresponding deeds of sale, and later, in Transfer Certificates of Title Nos. 101613 and 106092,
the contractual obligations so assumed cannot prevail over Resolution No. 27, of the Municipality of Mandaluyong, which
has validly exercised its police power through the said resolution. Accordingly, the building restrictions, which declare
Lots Nos. 5 and 6 as residential, cannot be enforced.

IN VIEW OF THE FOREGOING, the decision appealed from, dismissing the complaint, is hereby AFFIRMED. "without
pronouncement as to costs.

SO ORDERED.

Makasiar, Antonio, Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.

Teehankee * and Aquino,JJ., took no part.

Separate Opinions

BARREDO, J., concurring:

I hold it is a matter of public knowledge that the place in question is commercial. It would be worse if the same were to be
left as residential and all around are already commercial.

FERNANDO, C.J., concurring:

The exhaustive and lucid opinion of the Court penned by Justice Guillermo S. Santos commends itself for approval. I feel
no hesitancy, therefore, in yielding concurrence, The observation, however, in the dissent of Justice Vicente Abad Santos
relative to restrictive covenants calls, to my mind, for further reflection as to the respect to which they are entitled
whenever police power legislation, whether on the national or local level, is assailed. Before doing so, however, it may
not be amiss to consider further the effect of such all-embracing attribute on existing contracts.

1. Reference was made in the opinion of the Court to Philippine American Life Insurance Company v. Auditor
General. 1 The ponente in that case was Justice Sanchez. A concurrence came from me. It contained this qualification: "It
cannot be said, without rendering nugatory the constitutional guarantee of non-impairment, and for that matter both the
equal protection and due process clauses which equally serve to protect property rights, that at the mere invocation of the
police power, the objection on non-impairment grounds automatically loses force. Here, as in other cases where
governmental authority may trench upon property rights, the process of balancing, adjustment or harmonization is called
for. 2 After referring to three leading United States Supreme Court decisions, Home Building and Loan Association v.
Blaisdell, 3 Nebbia v. New York, 4 and Norman v. Baltimore and Ohio Railroad Co., 5 I stated: "All of the above decisions
reflect the view that an enactment of a police power measure does not per se call for the overruling of objections based on
either due process or non-impairment based on either due process or non-impairment grounds. There must be that
balancing, or adjustment, or harmonization of the conflicting claims posed by an exercise of state regulatory power on the
one hand and assertion of rights to property, whether of natural or of juridical persons, on the other. 'That is the only way
by which the constitutional guarantees may serve the high ends that call for their inclusion in the Constitution and thus
effectively preclude ally abusive exercise of governmental authority." 6 Nor did my concurrence stop there: "In the
opinion of the Blaisdell case, penned by the then Chief Justice Hughes, there was this understandable stress on balancing
or harmonizing, which is called for in litigations of this character: 'The policy of protecting contracts against impairment
presupposes the maintenance of a government by virtue of which contractual relations are worthwhile a government
which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the
constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of
this Court.' Also to the same effect: 'Undoubtedly, whatever is reserved of state power must be consistent with the fair
intent of the constitutional limitation of that power. The reserve power cannot be construed so as to destroy the limitation,
nor is the limitation to be construed to destroy the reserved power in its essential aspects. 'They must be construed in
harmony with each other. This principle precludes a construction which would permit the State to adopt as its policy the
repudiation of debts or the destruction of contracts or the denial of means to enforce them. But it does not follow that
conditions may not arise in which a temporary restraint of enforcement may be consistent with the spirit and purpose of
the constitutional provision and thus be found to be within the range of the reserved power of the State to protect the vital
interests of the community.' Further on, Chief Justice Hughes likewise stated: 'It is manifest from this review of our
decisions that there has been a growing appreciation of public needs and of the necessity of finding ground for a rational
compromise between individual rights and public welfare. " 7 This is the concluding paragraph of my concurrence in the
Philippine American Life Insurance Co. case: "If emphasis be therefore laid, as this concurring opinion does, on the
pressing and inescapable need for such an approach whenever a possible collision between state authority and an assertion
of constitutional right to property may exist, it is not to depart from what sound constitutional orthodoxy dictates. It is
rather to abide by what is compels. In litigations of this character then, perhaps much more so than in other disputes,
where there is a reliance on a constitutional provision, the judiciary cannot escape what Holmes fitly referred to as the
sovereign prerogative of choice, the exercise of which might possibly be impugned if there be no attempt, however slight,
at such an effort of adjusting or reconciling the respective claims of state regulatory power and constitutionally protected
rights." 8
I adhere to such a view. This is not to say that there is a departure therefrom in the able and scholarly opinion of Justice
Santos. It is merely to stress what to my mind is a fundamental postulate of our Constitution. The only point I would wish
to add is that in the process of such balancing and adjustment, the present Constitution, the Philippine American Life
Insurance Co. decision having been promulgated under the 1935 Charter, leaves no doubt that the claim to property rights
based on the non-impairment clause has a lesser weight. For as explicitly provided by our present fundamental law: "The
State shall promote social Justice to ensure the dignity, welfare, and security of all the people. Towards this end, the

State shall regulate the acquisition, ownership, use, enjoyment, and disposition of private property, and equitably diffuse
property ownership and profits. 9

2. Now as to restrictive convenants, accurately included by Hart and Sacks under the category of "private directive
arrangements. " 10 Through them people are enable to agree on how to order their affairs. They could be utilized to govern
their affairs. They could be utilized to govern their future conduct. It is a well-known fact that the common law relies to a
great extent on such private directive arrangements to attain a desirable social condition. More specifically, such
covenants are an important means of ordering one aspect of property relationships. Through them, there could be
delimitation of land use rights. It is quite understandable why the law should ordinarily accord them deference, It does so,
it has been said, both on grounds of morality and utility. Nonetheless, there are limits to the literal enforcement of their
terms. To the extent that they ignore technological or economic progress, they are not automatically entitled to judicial
protection. Clearly, they must "speak from one point of time to another." 11 The parties, like all mortal, do not have the
power of predicting the future with unfailing certainty. In cases therefore where societal welfare calls for police power
legislation, the parties adversely affected should realize that arrangements dealing with property rights are not impressed
with sanctity. That approach, in my view, was the guiding principle of the opinion of the Court. f fence my full and entire
concurrence.

ABAD SANTOS, J:, dissenting:

Although Resolution No. 27, series of 1960, of the Municipal Council of Mandaluyong, Rizal, is valid until otherwise
declared, I do not believe that its enactment was by virtue of the police power of that municipality. I do not here dispute
the concept of police power as stated in Primicias vs. Fugoso, 80 Phil. 77 (1948) for as a matter of fact I accept it. And I
agree also that it is elastic and must be responsive to various social conditions, etc. as ruled in PLDT vs. City of Davao, L-
23080, Oct. 26, 1965, 15 SCRA 244. But Resolution No. 27, cannot be described as promotive of the health, morals,
peace, education, good order or safety and general welfare of the people of Mandaluyong. On the contrary, its effect is the
opposite. For the serenity, peace and quite of a residential section would by the resolution be replaced by the chaos,
turmoil and frenzy of commerce and industry. Where there would be no industrial and noise pollution these bane of so-
called progress would now pervade and suffocate the environment to the detriment of the ecology. To characterize the
ordinance as an exercise of police power would be retrogressive. It will set back all the efforts of the Ministry of Human
Settlements to improve the quality of life especially in Metro Manila. It will make Metro Manila, not the city of man as
envisioned by its Governor but a city of commerce and industry.

Considering, therefore, that Resolution No, 2-1 was not enacted in the legitimate exercise of police power, it cannot
impair the restrictive covenants which go with the lands that were sold by the plaintiff-appellant. I vote for the reversal of
the appealed decision.

# Separate Opinions

BARREDO, J., concurring:

I hold it is a matter of public knowledge that the place in question is commercial. It would be worse if the same were to be
left as residential and all around are already commercial.

FERNANDO, C.J., concurring:

The exhaustive and lucid opinion of the Court penned by Justice Guillermo S. Santos commends itself for approval. I feel
no hesitancy, therefore, in yielding concurrence, The observation, however, in the dissent of Justice Vicente Abad Santos
relative to restrictive covenants calls, to my mind, for further reflection as to the respect to which they are entitled
whenever police power legislation, whether on the national or local level, is assailed. Before doing so, however, it may
not be amiss to consider further the effect of such all-embracing attribute on existing contracts.

1. Reference was made in the opinion of the Court to Philippine American Life Insurance Company v. Auditor
General. 1 The ponente in that case was Justice Sanchez. A concurrence came from me. It contained this qualification: "It
cannot be said, without rendering nugatory the constitutional guarantee of non-impairment, and for that matter both the
equal protection and due process clauses which equally serve to protect property rights, that at the mere invocation of the
police power, the objection on non-impairment grounds automatically loses force. Here, as in other cases where
governmental authority may trench upon property rights, the process of balancing, adjustment or harmonization is called
for. 2 After referring to three leading United States Supreme Court decisions, Home Building and Loan Association v.
Blaisdell, 3 Nebbia v. New York, 4 and Norman v. Baltimore and Ohio Railroad Co., 5 I stated: "All of the above decisions
reflect the view that an enactment of a police power measure does not per se call for the overruling of objections based on
either due process or non-impairment based on either due process or non-impairment grounds. There must be that
balancing, or adjustment, or harmonization of the conflicting claims posed by an exercise of state regulatory power on the
one hand and assertion of rights to property, whether of natural or of juridical persons, on the other. 'That is the only way
by which the constitutional guarantees may serve the high ends that call for their inclusion in the Constitution and thus
effectively preclude ally abusive exercise of governmental authority." 6 Nor did my concurrence stop there: "In the
opinion of the Blaisdell case, penned by the then Chief Justice Hughes, there was this understandable stress on balancing
or harmonizing, which is called for in litigations of this character: 'The policy of protecting contracts against impairment
presupposes the maintenance of a government by virtue of which contractual relations are worthwhile a government
which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the
constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of
this Court.' Also to the same effect: 'Undoubtedly, whatever is reserved of state power must be consistent with the fair
intent of the constitutional limitation of that power. The reserve power cannot be construed so as to destroy the limitation,
nor is the limitation to be construed to destroy the reserved power in its essential aspects. 'They must be construed in
harmony with each other. This principle precludes a construction which would permit the State to adopt as its policy the
repudiation of debts or the destruction of contracts or the denial of means to enforce them. But it does not follow that
conditions may not arise in which a temporary restraint of enforcement may be consistent with the spirit and purpose of
the constitutional provision and thus be found to be within the range of the reserved power of the State to protect the vital
interests of the community.' Further on, Chief Justice Hughes likewise stated: 'It is manifest from this review of our
decisions that there has been a growing appreciation of public needs and of the necessity of finding ground for a rational
compromise between individual rights and public welfare. " 7 This is the concluding paragraph of my concurrence in the
Philippine American Life Insurance Co. case: "If emphasis be therefore laid, as this concurring opinion does, on the
pressing and inescapable need for such an approach whenever a possible collision between state authority and an assertion
of constitutional right to property may exist, it is not to depart from what sound constitutional orthodoxy dictates. It is
rather to abide by what is compels. In litigations of this character then, perhaps much more so than in other disputes,
where there is a reliance on a constitutional provision, the judiciary cannot escape what Holmes fitly referred to as the
sovereign prerogative of choice, the exercise of which might possibly be impugned if there be no attempt, however slight,
at such an effort of adjusting or reconciling the respective claims of state regulatory power and constitutionally protected
rights." 8

I adhere to such a view. This is not to say that there is a departure therefrom in the able and scholarly opinion of Justice
Santos. It is merely to stress what to my mind is a fundamental postulate of our Constitution. The only point I would wish
to add is that in the process of such balancing and adjustment, the present Constitution, the Philippine American Life
Insurance Co. decision having been promulgated under the 1935 Charter, leaves no doubt that the claim to property rights
based on the non-impairment clause has a lesser weight. For as explicitly provided by our present fundamental law: "The
State shall promote social Justice to ensure the dignity, welfare, and security of all the people. Towards this end, the
State shall regulate the acquisition, ownership, use, enjoyment, and disposition of private property, and equitably diffuse
property ownership and profits. 9

2. Now as to restrictive convenants, accurately included by Hart and Sacks under the category of "private directive
arrangements. " 10 Through them people are enable to agree on how to order their affairs. They could be utilized to govern
their affairs. They could be utilized to govern their future conduct. It is a well-known fact that the common law relies to a
great extent on such private directive arrangements to attain a desirable social condition. More specifically, such
covenants are an important means of ordering one aspect of property relationships. Through them, there could be
delimitation of land use rights. It is quite understandable why the law should ordinarily accord them deference, It does so,
it has been said, both on grounds of morality and utility. Nonetheless, there are limits to the literal enforcement of their
terms. To the extent that they ignore technological or economic progress, they are not automatically entitled to judicial
protection. Clearly, they must "speak from one point of time to another." 11 The parties, like all mortal, do not have the
power of predicting the future with unfailing certainty. In cases therefore where societal welfare calls for police power
legislation, the parties adversely affected should realize that arrangements dealing with property rights are not impressed
with sanctity. That approach, in my view, was the guiding principle of the opinion of the Court. f fence my full and entire
concurrence.

ABAD SANTOS, J:, dissenting:

Although Resolution No. 27, series of 1960, of the Municipal Council of Mandaluyong, Rizal, is valid until otherwise
declared, I do not believe that its enactment was by virtue of the police power of that municipality. I do not here dispute
the concept of police power as stated in Primicias vs. Fugoso, 80 Phil. 77 (1948) for as a matter of fact I accept it. And I
agree also that it is elastic and must be responsive to various social conditions, etc. as ruled in PLDT vs. City of Davao, L-
23080, Oct. 26, 1965, 15 SCRA 244. But Resolution No. 27, cannot be described as promotive of the health, morals,
peace, education, good order or safety and general welfare of the people of Mandaluyong. On the contrary, its effect is the
opposite. For the serenity, peace and quite of a residential section would by the resolution be replaced by the chaos,
turmoil and frenzy of commerce and industry. Where there would be no industrial and noise pollution these bane of so-
called progress would now pervade and suffocate the environment to the detriment of the ecology. To characterize the
ordinance as an exercise of police power would be retrogressive. It will set back all the efforts of the Ministry of Human
Settlements to improve the quality of life especially in Metro Manila. It will make Metro Manila, not the city of man as
envisioned by its Governor but a city of commerce and industry.

Considering, therefore, that Resolution No, 2-1 was not enacted in the legitimate exercise of police power, it cannot
impair the restrictive covenants which go with the lands that were sold by the plaintiff-appellant. I vote for the reversal of
the appealed decision.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19190 November 29, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
VENANCIO CONCEPCION, defendant-appellant.

Recaredo Ma. Calvo for appellant.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

By telegrams and a letter of confirmation to the manager of the Aparri branch of the Philippine National Bank, Venancio
Concepcion, President of the Philippine National Bank, between April 10, 1919, and May 7, 1919, authorized an
extension of credit in favor of "Puno y Concepcion, S. en C." in the amount of P300,000. This special authorization was
essential in view of the memorandum order of President Concepcion dated May 17, 1918, limiting the discretional power
of the local manager at Aparri, Cagayan, to grant loans and discount negotiable documents to P5,000, which, in certain
cases, could be increased to P10,000. Pursuant to this authorization, credit aggregating P300,000, was granted the firm of
"Puno y Concepcion, S. en C.," the only security required consisting of six demand notes. The notes, together with the
interest, were taken up and paid by July 17, 1919.

"Puno y Concepcion, S. en C." was a copartnership capitalized at P100,000. Anacleto Concepcion contributed P5,000;
Clara Vda. de Concepcion, P5,000; Miguel S. Concepcion, P20,000; Clemente Puno, P20,000; and Rosario San Agustin,
"casada con Gral. Venancio Concepcion," P50,000. Member Miguel S. Concepcion was the administrator of the company.

On the facts recounted, Venancio Concepcion, as President of the Philippine National Bank and as member of the board
of directors of this bank, was charged in the Court of First Instance of Cagayan with a violation of section 35 of Act No.
2747. He was found guilty by the Honorable Enrique V. Filamor, Judge of First Instance, and was sentenced to
imprisonment for one year and six months, to pay a fine of P3,000, with subsidiary imprisonment in case of insolvency,
and the costs.

Section 35 of Act No. 2747, effective on February 20, 1918, just mentioned, to which reference must hereafter repeatedly
be made, reads as follows: "The National Bank shall not, directly or indirectly, grant loans to any of the members of the
board of directors of the bank nor to agents of the branch banks." Section 49 of the same Act provides: "Any person who
shall violate any of the provisions of this Act shall be punished by a fine not to exceed ten thousand pesos, or by
imprisonment not to exceed five years, or by both such fine and imprisonment." These two sections were in effect in 1919
when the alleged unlawful acts took place, but were repealed by Act No. 2938, approved on January 30, 1921.

Counsel for the defense assign ten errors as having been committed by the trial court. These errors they have argued
adroitly and exhaustively in their printed brief, and again in oral argument. Attorney-General Villa-Real, in an
exceptionally accurate and comprehensive brief, answers the proposition of appellant one by one.

The question presented are reduced to their simplest elements in the opinion which follows:

I. Was the granting of a credit of P300,000 to the copartnership "Puno y Concepcion, S. en C." by Venancio Concepcion,
President of the Philippine National Bank, a "loan" within the meaning of section 35 of Act No. 2747?

Counsel argue that the documents of record do not prove that authority to make a loan was given, but only show the
concession of a credit. In this statement of fact, counsel is correct, for the exhibits in question speak of a "credito" (credit)
and not of a " prestamo" (loan).
The "credit" of an individual means his ability to borrow money by virtue of the confidence or trust reposed by a lender
that he will pay what he may promise. (Donnell vs. Jones [1848], 13 Ala., 490; Bouvier's Law Dictionary.) A "loan"
means the delivery by one party and the receipt by the other party of a given sum of money, upon an agreement, express
or implied, to repay the sum loaned, with or without interest. (Payne vs. Gardiner [1864], 29 N. Y., 146, 167.) The
concession of a "credit" necessarily involves the granting of "loans" up to the limit of the amount fixed in the "credit,"

II. Was the granting of a credit of P300,000 to the copartnership "Puno y Concepcion, S. en C.," by Venancio Concepcion,
President of the Philippine National Bank, a "loan" or a "discount"?

Counsel argue that while section 35 of Act No. 2747 prohibits the granting of a "loan," it does not prohibit what is
commonly known as a "discount."

In a letter dated August 7, 1916, H. Parker Willis, then President of the National Bank, inquired of the Insular Auditor
whether section 37 of Act No. 2612 was intended to apply to discounts as well as to loans. The ruling of the Acting
Insular Auditor, dated August 11, 1916, was to the effect that said section referred to loans alone, and placed no restriction
upon discount transactions. It becomes material, therefore, to discover the distinction between a "loan" and a "discount,"
and to ascertain if the instant transaction comes under the first or the latter denomination.

Discounts are favored by bankers because of their liquid nature, growing, as they do, out of an actual, live, transaction.
But in its last analysis, to discount a paper is only a mode of loaning money, with, however, these distinctions: (1) In a
discount, interest is deducted in advance, while in a loan, interest is taken at the expiration of a credit; (2) a discount is
always on double-name paper; a loan is generally on single-name paper.

Conceding, without deciding, that, as ruled by the Insular Auditor, the law covers loans and not discounts, yet the
conclusion is inevitable that the demand notes signed by the firm "Puno y Concepcion, S. en C." were not discount paper
but were mere evidences of indebtedness, because (1) interest was not deducted from the face of the notes, but was paid
when the notes fell due; and (2) they were single-name and not double-name paper.

The facts of the instant case having relation to this phase of the argument are not essentially different from the facts in the
Binalbagan Estate case. Just as there it was declared that the operations constituted a loan and not a discount, so should we
here lay down the same ruling.

III. Was the granting of a credit of P300,000 to the copartnership, "Puno y Concepcion, S. en C." by Venancio
Concepcion, President of the Philippine National Bank, an "indirect loan" within the meaning of section 35 of Act No.
2747?

Counsel argue that a loan to the partnership "Puno y Concepcion, S. en C." was not an "indirect loan." In this connection,
it should be recalled that the wife of the defendant held one-half of the capital of this partnership.

In the interpretation and construction of statutes, the primary rule is to ascertain and give effect to the intention of the
Legislature. In this instance, the purpose of the Legislature is plainly to erect a wall of safety against temptation for a
director of the bank. The prohibition against indirect loans is a recognition of the familiar maxim that no man may serve
two masters — that where personal interest clashes with fidelity to duty the latter almost always suffers. If, therefore, it is
shown that the husband is financially interested in the success or failure of his wife's business venture, a loan to
partnership of which the wife of a director is a member, falls within the prohibition.

Various provisions of the Civil serve to establish the familiar relationship called a conjugal partnership. (Articles 1315,
1393, 1401, 1407, 1408, and 1412 can be specially noted.) A loan, therefore, to a partnership of which the wife of a
director of a bank is a member, is an indirect loan to such director.

That it was the intention of the Legislature to prohibit exactly such an occurrence is shown by the acknowledged fact that
in this instance the defendant was tempted to mingle his personal and family affairs with his official duties, and to permit
the loan P300,000 to a partnership of no established reputation and without asking for collateral security.
In the case of Lester and Wife vs. Howard Bank ([1870], 33 Md., 558; 3 Am. Rep., 211), the Supreme Court of Maryland
said:

What then was the purpose of the law when it declared that no director or officer should borrow of the bank, and
"if any director," etc., "shall be convicted," etc., "of directly or indirectly violating this section he shall be
punished by fine and imprisonment?" We say to protect the stockholders, depositors and creditors of the bank,
against the temptation to which the directors and officers might be exposed, and the power which as such they
must necessarily possess in the control and management of the bank, and the legislature unwilling to rely upon the
implied understanding that in assuming this relation they would not acquire any interest hostile or adverse to the
most exact and faithful discharge of duty, declared in express terms that they should not borrow, etc., of the bank.

In the case of People vs. Knapp ([1912], 206 N. Y., 373), relied upon in the Binalbagan Estate decision, it was said:

We are of opinion the statute forbade the loan to his copartnership firm as well as to himself directly. The loan
was made indirectly to him through his firm.

IV. Could Venancio Concepcion, President of the Philippine National Bank, be convicted of a violation of section 35 of
Act No. 2747 in relation with section 49 of the same Act, when these portions of Act No. 2747 were repealed by Act No.
2938, prior to the finding of the information and the rendition of the judgment?

As noted along toward the beginning of this opinion, section 49 of Act No. 2747, in relation to section 35 of the same Act,
provides a punishment for any person who shall violate any of the provisions of the Act. It is contended, however, by the
appellant, that the repeal of these sections of Act No. 2747 by Act No. 2938 has served to take away the basis for criminal
prosecution.

This same question has been previously submitted and has received an answer adverse to such contention in the cases
of United Stated vs. Cuna ([1908], 12 Phil., 241); People vs. Concepcion ([1922], 43 Phil., 653); and Ong Chang Wing
and Kwong Fok vs. United States ([1910], 218 U. S., 272; 40 Phil., 1046). In other words, it has been the holding, and it
must again be the holding, that where an Act of the Legislature which penalizes an offense, such repeals a former Act
which penalized the same offense, such repeal does not have the effect of thereafter depriving the courts of jurisdiction to
try, convict, and sentenced offenders charged with violations of the old law.

V. Was the granting of a credit of P300,000 to the copartnership "Puno y Concepcion, S. en C." by Venancio Concepcion,
President of the Philippine National Bank, in violation of section 35 of Act No. 2747, penalized by this law?

Counsel argue that since the prohibition contained in section 35 of Act No. 2747 is on the bank, and since section 49 of
said Act provides a punishment not on the bank when it violates any provisions of the law, but on a personviolating any
provisions of the same, and imposing imprisonment as a part of the penalty, the prohibition contained in said section 35 is
without penal sanction.lawph!l.net

The answer is that when the corporation itself is forbidden to do an act, the prohibition extends to the board of directors,
and to each director separately and individually. (People vs. Concepcion, supra.)

VI. Does the alleged good faith of Venancio Concepcion, President of the Philippine National Bank, in extending the
credit of P300,000 to the copartnership "Puno y Concepcion, S. en C." constitute a legal defense?

Counsel argue that if defendant committed the acts of which he was convicted, it was because he was misled by rulings
coming from the Insular Auditor. It is furthermore stated that since the loans made to the copartnership "Puno y
Concepcion, S. en C." have been paid, no loss has been suffered by the Philippine National Bank.

Neither argument, even if conceded to be true, is conclusive. Under the statute which the defendant has violated, criminal
intent is not necessarily material. The doing of the inhibited act, inhibited on account of public policy and public interest,
constitutes the crime. And, in this instance, as previously demonstrated, the acts of the President of the Philippine
National Bank do not fall within the purview of the rulings of the Insular Auditor, even conceding that such rulings have
controlling effect.
Morse, in his work, Banks and Banking, section 125, says:

It is fraud for directors to secure by means of their trust, and advantage not common to the other stockholders.
The law will not allow private profit from a trust, and will not listen to any proof of honest intent.

JUDGMENT

On a review of the evidence of record, with reference to the decision of the trial court, and the errors assigned by the
appellant, and with reference to previous decisions of this court on the same subject, we are irresistibly led to the
conclusion that no reversible error was committed in the trial of this case, and that the defendant has been proved guilty
beyond a reasonable doubt of the crime charged in the information. The penalty imposed by the trial judge falls within the
limits of the punitive provisions of the law.

Judgment is affirmed, with the costs of this instance against the appellant. So ordered.

Araullo, C. J., Johnson, Street, Avanceña, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 72873 May 28, 1987

CARLOS ALONZO and CASIMIRA ALONZO, petitioners,

vs.
INTERMEDIATE APPELLATE COURT and TECLA PADUA, respondents.

Perpetuo L.B. Alonzo for petitioners.

Luis R. Reyes for private respondent.

CRUZ, J.:

The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of law or a court of
justice. Do we apply the law even if it is unjust or do we administer justice even against the law? Thus queried, we do not
equivocate. The answer is that we do neither because we are a court both of law and of justice. We apply the
law with justice for that is our mission and purpose in the scheme of our Republic. This case is an illustration.

Five brothers and sisters inherited in equal pro indiviso shares a parcel of land registered in 'the name of their deceased
parents under OCT No. 10977 of the Registry of Deeds of Tarlac. 1

On March 15, 1963, one of them, Celestino Padua, transferred his undivided share of the herein petitioners for the sum of
P550.00 by way of absolute sale. 2 One year later, on April 22, 1964, Eustaquia Padua, his sister, sold her own share to the
same vendees, in an instrument denominated "Con Pacto de Retro Sale," for the sum of P 440.00. 3

By virtue of such agreements, the petitioners occupied, after the said sales, an area corresponding to two-fifths of the said
lot, representing the portions sold to them. The vendees subsequently enclosed the same with a fence. In 1975, with their
consent, their son Eduardo Alonzo and his wife built a semi-concrete house on a part of the enclosed area.4

On February 25, 1976, Mariano Padua, one of the five coheirs, sought to redeem the area sold to the spouses Alonzo, but
his complaint was dismissed when it appeared that he was an American citizen .5 On May 27, 1977, however, Tecla
Padua, another co-heir, filed her own complaint invoking the same right of redemption claimed by her brother. 6

The trial court * also dismiss this complaint, now on the ground that the right had lapsed, not having been exercised
within thirty days from notice of the sales in 1963 and 1964. Although there was no written notice, it was held
that actual knowledge of the sales by the co-heirs satisfied the requirement of the law. 7

In truth, such actual notice as acquired by the co-heirs cannot be plausibly denied. The other co-heirs, including Tecla
Padua, lived on the same lot, which consisted of only 604 square meters, including the portions sold to the petitioners
. 8 Eustaquia herself, who had sold her portion, was staying in the same house with her sister Tecla, who later claimed
redemption petition. 9 Moreover, the petitioners and the private respondents were close friends and neighbors whose
children went to school together. 10

It is highly improbable that the other co-heirs were unaware of the sales and that they thought, as they alleged, that the
area occupied by the petitioners had merely been mortgaged by Celestino and Eustaquia. In the circumstances just
narrated, it was impossible for Tecla not to know that the area occupied by the petitioners had been purchased by them
from the other. co-heirs. Especially significant was the erection thereon of the permanent semi-concrete structure by the
petitioners' son, which was done without objection on her part or of any of the other co-heirs.
The only real question in this case, therefore, is the correct interpretation and application of the pertinent law as invoked,
interestingly enough, by both the petitioners and the private respondents. This is Article 1088 of the Civil Code, providing
as follows:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they were notified in writing of the sale
by the vendor.

In reversing the trial court, the respondent court ** declared that the notice required by the said article was written notice
and that actual notice would not suffice as a substitute. Citing the same case of De Conejero v. Court of
Appeals 11 applied by the trial court, the respondent court held that that decision, interpreting a like rule in Article 1623,
stressed the need for written notice although no particular form was required.

Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court, furnishing the co-heirs with a copy of the deed
of sale of the property subject to redemption would satisfy the requirement for written notice. "So long, therefore, as the
latter (i.e., the redemptioner) is informed in writing of the sale and the particulars thereof," he declared, "the thirty days
for redemption start running. "

In the earlier decision of Butte v. UY, 12 " the Court, speaking through the same learned jurist, emphasized that the written
notice should be given by the vendor and not the vendees, conformably to a similar requirement under Article 1623,
reading as follows:

Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days
from the notice in writing by the prospective vendor, or by the vendors, as the case may be. The deed of
sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor
that he has given written notice thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of the adjoining owners.

As "it is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular method of giving
notice, and that notice must be deemed exclusive," the Court held that notice given by the vendees and not
the vendor would not toll the running of the 30-day period.

The petition before us appears to be an illustration of the Holmes dictum that "hard cases make bad laws" as the
petitioners obviously cannot argue against the fact that there was really no written notice given by the vendors to their co-
heirs. Strictly applied and interpreted, Article 1088 can lead to only one conclusion, to wit, that in view of such
deficiency, the 30 day period for redemption had not begun to run, much less expired in 1977.

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal
rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the in tent
of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never
within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the
legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable,
and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied
in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature
and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance
between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots
to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the
words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond
them." 13 While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to
reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the
right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that
vivifieth," to give effect to the law maker's will.

The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read
according to its spirit or intent. For what is within the spirit is within the letter but although it is not within
the letter thereof, and that which is within the letter but not within the spirit is not within the statute.
Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as if
within the letter; and a thing which is within the letter of the statute is not within the statute unless within
the intent of the lawmakers. 14

In requiring written notice, Article 1088 seeks to ensure that the redemptioner is properly notified of the
sale and to indicate the date of such notice as the starting time of the 30-day period of redemption.
Considering the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise
date it is supposed to begin, to obviate any problem of alleged delays, sometimes consisting of only a day
or two.

The instant case presents no such problem because the right of redemption was invoked not days but years after the sales
were made in 1963 and 1964. The complaint was filed by Tecla Padua in 1977, thirteen years after the first sale and
fourteen years after the second sale. The delay invoked by the petitioners extends to more than a decade, assuming of
course that there was a valid notice that tolled the running of the period of redemption.

Was there a valid notice? Granting that the law requires the notice to be written, would such notice be necessary in this
case? Assuming there was a valid notice although it was not in writing. would there be any question that the 30-day period
for redemption had expired long before the complaint was filed in 1977?

In the face of the established facts, we cannot accept the private respondents' pretense that they were unaware of the sales
made by their brother and sister in 1963 and 1964. By requiring written proof of such notice, we would be closing our
eyes to the obvious truth in favor of their palpably false claim of ignorance, thus exalting the letter of the law over its
purpose. The purpose is clear enough: to make sure that the redemptioners are duly notified. We are satisfied that in this
case the other brothers and sisters were actually informed, although not in writing, of the sales made in 1963 and 1964,
and that such notice was sufficient.

Now, when did the 30-day period of redemption begin?

While we do not here declare that this period started from the dates of such sales in 1963 and 1964, we do say that
sometime between those years and 1976, when the first complaint for redemption was filed, the other co-heirs were
actually informed of the sale and that thereafter the 30-day period started running and ultimately expired. This could have
happened any time during the interval of thirteen years, when none of the co-heirs made a move to redeem the properties
sold. By 1977, in other words, when Tecla Padua filed her complaint, the right of redemption had already been
extinguished because the period for its exercise had already expired.

The following doctrine is also worth noting:

While the general rule is, that to charge a party with laches in the assertion of an alleged right it is
essential that he should have knowledge of the facts upon which he bases his claim, yet if the
circumstances were such as should have induced inquiry, and the means of ascertaining the truth were
readily available upon inquiry, but the party neglects to make it, he will be chargeable with laches, the
same as if he had known the facts. 15

It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo, who were not among them, should
enclose a portion of the inherited lot and build thereon a house of strong materials. This definitely was not the act of a
temporary possessor or a mere mortgagee. This certainly looked like an act of ownership. Yet, given this unseemly
situation, none of the co-heirs saw fit to object or at least inquire, to ascertain the facts, which were readily available. It
took all of thirteen years before one of them chose to claim the right of redemption, but then it was already too late.
We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law, which the respondent
court understandably applied pursuant to existing jurisprudence. The said court acted properly as it had no competence to
reverse the doctrines laid down by this Court in the above-cited cases. In fact, and this should be clearly stressed, we
ourselves are not abandoning the De Conejero and Buttle doctrines. What we are doing simply is adopting an exception to
the general rule, in view of the peculiar circumstances of this case.

The co-heirs in this case were undeniably informed of the sales although no notice in writing was given them. And there is
no doubt either that the 30-day period began and ended during the 14 years between the sales in question and the filing of
the complaint for redemption in 1977, without the co-heirs exercising their right of redemption. These are the
justifications for this exception.

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render every one his
due." 16 That wish continues to motivate this Court when it assesses the facts and the law in every case brought to it for
decision. Justice is always an essential ingredient of its decisions. Thus when the facts warrants, we interpret the law in a
way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed
with justice. So we have done in this case.

WHEREFORE, the petition is granted. The decision of the respondent court is REVERSED and that of the trial court is
reinstated, without any pronouncement as to costs. It is so ordered.

Teehankee, C.J., Yap, Narvasa, Melencio-Herrera Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Sarmiento and Cortes,
JJ., concur.

Fernan and Feliciano, JJ., are on leave.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a
doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference between life and death. In this sense, the doctor plays God on
his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made
liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned the
decision 4 of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from
negligence in the performance of their professional duties towards petitioner Erlinda Ramos resulting in her comatose
condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman
(TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly
caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal
as any other woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone
Company, she has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought professional advice. She
was advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13,
1988, p. 5). She underwent a series of examinations which included blood and urine tests (Exhs. "A" and
"C") which indicated she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her
husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20,
1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed that their date at the
operating table at the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka
decided that she should undergo a "cholecystectomy" operation after examining the documents (findings
from the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos,
however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that
he will get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the
anesthesiologist's fee and which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-
23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC,
located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by
the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the
Capitol Medical Center, was also there for moral support. She reiterated her previous request for
Herminda to be with her even during the operation. After praying, she was given injections. Her hands
were held by Herminda as they went down from her room to the operating room (TSN, January 13, 1988,
pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating
room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was
to administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself as
Dean of the College of Nursing at the Capitol Medical Center who was to provide moral support to the
patient, to them. Herminda was allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in
(TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect
of a delay in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, "Mindy, wala
pa ba ang Doctor"? The former replied, "Huwag kang mag-alaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband, Rogelio, that
the doctor was not yet around (id., p. 13). When she returned to the operating room, the patient told her,
"Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she went out again and told Rogelio
about what the patient said (id., p. 15). Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the doctor"
even as he did his best to find somebody who will allow him to pull out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside the
operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who
remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking
to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down to the lobby
and waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard
somebody say that "Dr. Hosaka is already here." She then saw people inside the operating room "moving,
doing this and that, [and] preparing the patient for the operation" (TSN, January 13, 1988, p. 16). As she
held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter
heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan"
(id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was
doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless Erlinda
even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to call Dr.
Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw
this anesthesiologist trying to intubate the patient. The patient's nailbed became bluish and the patient was
placed in a trendelenburg position — a position where the head of the patient is placed in a position lower
than her feet which is an indication that there is a decrease of blood supply to the patient's brain (Id., pp.
19-20). Immediately thereafter, she went out of the operating room, and she told Rogelio E. Ramos "that
something wrong was . . . happening" (Ibid.). Dr. Calderon was then able to intubate the patient (TSN,
July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed
towards the door of the operating room. He also saw several doctors rushing towards the operating room.
When informed by Herminda Cruz that something wrong was happening, he told her (Herminda) to be
back with the patient inside the operating room (TSN, October 19, 1989, pp. 25-28).
 Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the
Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the
former that something went wrong during the intubation. Reacting to what was told to him, Rogelio
reminded the doctor that the condition of his wife would not have happened, had he (Dr. Hosaka) looked
for a good anesthesiologist (TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient.
The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985,
the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which is
the subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a comatose condition. She cannot
do anything. She cannot move any part of her body. She cannot see or hear. She is living on mechanical
means. She suffered brain damage as a result of the absence of oxygen in her brain for four to five
minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the hospital, she has been
staying in their residence, still needing constant medical attention, with her husband Rogelio incurring a
monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was
also diagnosed to be suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN,
December 21, 1989,
p. 6). 5

Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of Quezon City against
herein private respondents alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack of
oxygen in her brain caused by the faulty management of her airway by private respondents during the anesthesia phase.
On the other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist,
to the effect that the cause of brain damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at bar, this Court finds and so holds that defendants are
liable to plaintiffs for damages. The defendants were guilty of, at the very least, negligence in the
performance of their duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not
only intubating the patient, but also in not repeating the administration of atropine (TSN, August 20,
1991, pp. 5-10), without due regard to the fact that the patient was inside the operating room for almost
three (3) hours. For after she committed a mistake in intubating [the] patient, the patient's nailbed became
bluish and the patient, thereafter, was placed in trendelenburg position, because of the decrease of blood
supply to the patient's brain. The evidence further shows that the hapless patient suffered brain damage
because of the absence of oxygen in her (patient's) brain for approximately four to five minutes which, in
turn, caused the patient to become comatose.
 On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez
whom he had chosen to administer anesthesia on the patient as part of his obligation to provide the patient
a good anesthesiologist', and for arriving for the scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the
doctors in their "practice of medicine" in the operating room. Moreover, the hospital is liable for failing
through its responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusably failed to
arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with due care
and prudence in rendering medical services to plaintiff-patient. For if the patient was properly intubated
as claimed by them, the patient would not have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the patient after her (the patient's) nailbed turned bluish,
belie their claim. Furthermore, the defendants should have rescheduled the operation to a later date. This,
they should have done, if defendants acted with due care and prudence as the patient's case was an
elective, not an emergency case.

xxx xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against
the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the following
sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos
reckoned from November 15, 1985 or in the total sum of P632,000.00 as of April 15,
1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000,00
by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decision,
dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of the appellate court
reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of appellant De
Los Santos Medical Center is GRANTED but only insofar as appellees are hereby ordered to pay the
unpaid hospital bills amounting to P93,542.25, plus legal interest for justice must be tempered with
mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly
addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by the Coronel Law Office,
then counsel on record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for extension of time to file a
motion for reconsideration. The motion for reconsideration was submitted on 4 July 1995. However, the appellate court
denied the motion for extension of time in its Resolution dated 25 July 1995. 9Meanwhile, petitioners engaged the services
of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the
motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel
on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a
motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted
in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court of Appeals already on July 4, necessarily, the 15-day
period already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty.
Sillano filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The
Court granted the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the
fifteen-day (15) period counted from the receipt of the resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given
by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ,

DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE
UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in
relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due course since the motion for
reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for
having been filed beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is
attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the
Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner
Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel on
record. Thus, no copy of the decision of the counsel on record. Petitioner, not being a lawyer and unaware of the
prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at his given
address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present
case, since a copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no
sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against
petitioner. Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we
believed that the receipt of the former should be considered in determining the timeliness of the filing of the present
petition. Based on this, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa loquiturto the
instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquiturdoctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase "res
ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima facie case,
and present a question of fact for defendant to meet with an explanation. 13 Where the thing which caused the injury
complained of is shown to be under the management of the defendant or his servants and the accident is such as in
ordinary course of things does not happen if those who have its management or control use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the
defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person
who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged
with negligence. 15 It is grounded in the superior logic of ordinary human experience and on the basis of such experience
or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa
loquitur is applied in conjunction with the doctrine of common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or
constitute an independent or separate ground of liability. 17 Instead, it is considered as merely evidentiary or in the nature
of a procedural rule. 18 It is regarded as a mode of proof, or a mere procedural of convenience since it furnishes a
substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. 19 In other words, mere
invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a
step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the
attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place
on the defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine may be allowed, the
following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someone's
negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant or

defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage. 22Such
element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a
plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the
essential elements of the doctrine were present in a particular incident. 23

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when
the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as
the cause of that harm. 25 The application of res ipsa loquitur in medical negligence cases presents a question of law since
it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given
inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed
by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of
negligence. 27 The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly
within the domain of medical science, and not to matters that are within the common knowledge of mankind which may
be testified to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care.
However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by non-expert witnesses. 29 Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper
standard of care. 30 Where common knowledge and experience teach that a resulting injury would not have occurred to the
patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but
how and why it occurred. 31 When the doctrine is appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while under the custody and management of the
defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for
injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the
body of the patient after an operation, 32 injuries sustained on a healthy part of the body which was not under, or in the
area, of treatment, 33 removal of the wrong part of the body when another part was intended, 34 knocking out a tooth while
a patient's jaw was under anesthetic for the removal of his tonsils, 35 and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an operation for appendicitis, 36 among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically
apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is
not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a
rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of something more
unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that
particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a
physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. 38 The physician or surgeon is
not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment
did not produce the desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is
that the desired result of an operation or treatment was not accomplished. 40The real question, therefore, is whether or not
in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred
which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. 41 If there
was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to
explain the matter, by evidence of exculpation, if he could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa
loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in applying the res
ipsa loquitur stated:
 The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care,
custody and control of his physician who had complete and exclusive control over him, but the operation
was never performed. At the time of submission he was neurologically sound and physically fit in mind
and body, but he suffered irreparable damage and injury rendering him decerebrate and totally
incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid operation or
in the absence of negligence in the administration of an anesthetic, and in the use and employment of an
endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in the absence of negligence. Upon these facts and under
these circumstances a layman would be able to say, as a matter of common knowledge and observation,
that the consequences of professional treatment were not as such as would ordinarily have followed if due
care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was under the
influence of anesthetics and unconscious, and the circumstances are such that the true explanation of
event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is
stated under the doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On that
fateful day she delivered her person over to the care, custody and control of private respondents who exercised complete
and exclusive control over her. At the time of submission, Erlinda was neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and body. However, during the administration of anesthesia and prior to
the performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing surgery, she
went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of
situation does not in the absence of negligence of someone in the administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents,
who are the physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control of the physicians, we hold that a practical administration of
justice dictates the application of res ipsa loquitur. Upon these facts and under these circumstances the Court would be
able to say, as a matter of common knowledge and observation, if negligence attended the management and care of the
patient. Moreover, the liability of the physicians and the hospital in this case is not predicated upon an alleged failure to
secure the desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no
operation or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases.
Each case must be viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein, the
Court now comes to the issue of whether the Court of Appeals erred in finding that private respondents were not negligent
in the care of Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged
negligence was the proximate cause of Erlinda's comatose condition. Corollary thereto, we shall also determine if the
Court of Appeals erred in relying on the testimonies of the witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra. Gutierrez, Dra.
Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she
was candid enough to admit that she experienced some difficulty in the endotracheal intubation 45 of the patient and thus,
cannot be said to be covering her negligence with falsehood. The appellate court likewise opined that private respondents
were able to show that the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was due
to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on
by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz
offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful insertion of the tube since
the latter, being a nurse, was allegedly not knowledgeable in the process of intubation. In so holding, the appellate court
returned a verdict in favor of respondents physicians and hospital and absolved them of any liability towards Erlinda and
her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous
condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of the
injury but also in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private
respondents' own testimonies which are reflected in the transcript of stenographic notes are replete of signposts indicative
of their negligence in the care and management of Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by the
records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by Prof. Herminda
Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating room
right beside the patient when the tragic event occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered by Dra.

Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding the left hand of
the patient and all of a sudden heard some remarks coming from Dra. Perfecta Gutierrez
herself. She was saying "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.

xxx xxx xxx

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

 Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of
the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's nailbed
became bluish and I saw the patient was placed in trendelenburg position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in that trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood supply
to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part
of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and
cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a patient
is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the patient.
(TSN, July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated the patient
or that she conducted any type of examination to check if the endotracheal tube was in its proper place,
and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra.
Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the
process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can
very well testify upon matters on which she is capable of observing such as, the statements and acts of the physician and
surgeon, external appearances, and manifest conditions which are observable by any one. 48 This is precisely allowed
under the doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that
expert testimony is not necessary for the proof of negligence in non-technical matters or those of which an ordinary
person may be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render expert
testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube
was properly inserted. This kind of observation, we believe, does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led
to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable of determining whether or
not the intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff
nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo
City; and then Dean of the Capitol Medical Center School of Nursing. 50Reviewing witness Cruz' statements, we find that
the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which
would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced
difficulty in inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your first attempt (sic),
you did not immediately see the trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said "mahirap yata ito," what were you referring to?

A: "Mahirap yata itong i-intubate," that was the patient.

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away. 51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in the
insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the normal
anatomy of a person) 52 making it harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it
made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demonstrating
that they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even if this
would mean postponing the procedure. From their testimonies, it appears that the observation was made only as an
afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the
possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical records and visits with the patient, traditionally, the day before elective
surgery. 53 It includes taking the patient's medical history, review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination performed by the anesthesiologist is directed primarily
toward the central nervous system, cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's
airway normally involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent
central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental distance. 56Thus, physical
characteristics of the patient's upper airway that could make tracheal intubation difficult should be studied. 57 Where the
need arises, as when initial assessment indicates possible problems (such as the alleged short neck and protruding teeth of
Erlinda) a thorough examination of the patient's airway would go a long way towards decreasing patient morbidity and
mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation
itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by
her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of
Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the first time only an hour before the
scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician's centuries-old
Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court's
ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the
difference between an elective surgery and an emergency surgery just so her failure to perform the required pre-operative
evaluation would escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a day
before so you can introduce yourself to establish good doctor-patient relationship and
gain the trust and confidence of the patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedure of the

anesthesiologist and in my case, with elective cases and normal cardio-pulmonary
clearance like that, I usually don't do it except on emergency and on cases that have an
abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious
demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before
surgery, if at all. Elective procedures, on the other hand, are operative procedures that can wait for days, weeks or even
months. Hence, in these cases, the anesthesiologist possesses the luxury of time to be at the patient's beside to do a proper
interview and clinical evaluation. There is ample time to explain the method of anesthesia, the drugs to be used, and their
possible hazards for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed and cooperative.

Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make a
thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia. However, she never saw the
patient at the bedside. She herself admitted that she had seen petitioner only in the operating room, and only on the actual
date of the cholecystectomy. She negligently failed to take advantage of this important opportunity. As such, her attempt
to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient which, in turn,
resulted to a wrongful intubation, we now determine if the faulty intubation is truly the proximate cause of Erlinda's
comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was due to
bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system. Towards
this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the Philippine
Specialty Board of Internal Medicine, who advanced private respondents' theory that the oxygen deprivation which led to
anoxic encephalopathy, 60 was due to an unpredictable drug reaction to the short-acting barbiturate. We find the theory of
private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the court
about anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist and could not
therefore properly advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and, as
such, could not have been capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of
the supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the anesthetic practice of
Pentothal administration is further supported by his own admission that he formulated his opinions on the drug not from
the practical experience gained by a specialist or expert in the administration and use of Sodium Pentothal on patients, but
only from reading certain references, to wit:

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal
as a method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to intubate our

patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what you have read
from books and not by your own personal application of the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my appendectomy.

Q: And because they have used it on you and on account of your own personal
experience you feel that you can testify on pentothal here with medical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal
medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology.
While admittedly, many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr.
Jamora's field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the disciplines
of anesthesiology, allergology and pharmacology. On the basis of the foregoing transcript, in which the pulmonologist
himself admitted that he could not testify about the drug with medical authority, it is clear that the appellate court erred in
giving weight to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to possess, may be received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he
or she is to testify, either by the study of recognized authorities on the subject or by practical experience. 63Clearly, Dr.
Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill,
and training in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field,
private respondents' intentionally avoided providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an
allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing — some of the
more common accompanying signs of an allergic reaction — appears on record. No laboratory data were ever presented to
the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm happens only
very rarely. If courts were to accept private respondents' hypothesis without supporting medical proof, and against the
weight of available evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy
theory vigorously asserted by private respondents was a mere afterthought. Such an explanation was advanced in order to
advanced in order to absolve them of any and all responsibility for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation which was the
proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the result would not have occurred. 64 An injury or damage is
proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission
played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was
either a direct result or a reasonably probable consequence of the act or omission. 65 It is the dominant, moving or
producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlinda's brain damage and, ultimately, her comatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was likewise
observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda.
The development of abdominal distention, together with respiratory embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In other words, instead of the intended endotracheal intubation what
actually took place was an esophageal intubation. During intubation, such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus would
certainly cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That
abdominal distention had been observed during the first intubation suggests that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay
in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the
lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed on Erlinda and this one was successfully done. We do not
think so. No evidence exists on record, beyond private respondents' bare claims, which supports the contention that the
second intubation was successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the
trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was
again observed immediately after the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda already
suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-
third (1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast
majority of difficult intubations may be anticipated by performing a thorough evaluation of the patient's airway prior to
the operation. 70 As stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which
could have prevented this unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-
operative evaluation, respondent physician could have been much more prepared to meet the contingency brought about
by the perceived anatomic variations in the patient's neck and oral area, defects which would have been easily overcome
by a prior knowledge of those variations together with a change in technique. 71 In other words, an experienced
anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have had little difficulty going around
the short neck and protruding teeth. 72 Having failed to observe common medical standards in pre-operative management
and intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the so-called
"captain of the ship," 73 it is the surgeon's responsibility to see to it that those under him perform their task in the proper
manner. Respondent Dr. Hosaka's negligence can be found in his failure to exercise the proper authority (as the "captain"
of the operative team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence
on record exists to show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient.
Furthermore, it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at
the same time as Erlinda's cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this,
he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he was
remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the events which resulted in
Erlinda's condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals)
of filling up specialist staff with attending and visiting "consultants," 74 who are allegedly not hospital employees, presents
problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are required to submit
proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate
board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by
members of the hospital administration or by a review committee set up by the hospital who either accept or reject the
application. 75 This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-
pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital,
and/or for the privilege of admitting patients into the hospital. In addition to these, the physician's performance as a
specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls
short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff.
While "consultants" are not, technically employees, a point which respondent hospital asserts in denying all responsibility
for the patient's condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the
purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the
Civil Code which considers a person accountable not only for his own acts but also for those of others based on the
former's responsibility under a relationship of patria potestas. 77 Such responsibility ceases when the persons or entity
concerned prove that they have observed the diligence of a good father of the family to prevent damage. 78 In other words,
while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of
a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed
to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the
latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden
under the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily
responsible with its physicians for Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents were unable to
rebut the presumption of negligence. Upon these disquisitions we hold that private respondents are solidarily liable for
damages under Article 2176 79 of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (should be
P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated" covering the period from 15
November 1985 up to 15 April 1992, based on monthly expenses for the care of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for a comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced to bring home the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the care of the
chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of care. In the instant
case for instance, Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia.
Feeding is done by nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the
correct daily caloric requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which
can lead to respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least
reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at
home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with
some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly
proved. The Civil Code provides:

Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate compensation
only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as
actual or compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible
future complications directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the
injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one
which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with
certainty. 80 In other words, temperate damages can and should be awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility
arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct
phases.

As it would not be equitable — and certainly not in the best interests of the administration of justice — for the victim in
such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages
previously awarded — temperate damages are appropriate. The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having premised our award for compensatory damages on the amount
provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the
value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility
which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care
at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an
award of P1,500,000.00 in temperate damages would therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by the plaintiff
would have led to expenses which were difficult to estimate because while they would have been a direct result of the
injury (amputation), and were certain to be incurred by the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived
of the full ambulatory functions of her left extremity, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which was paid for by Li), she will be required to
undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the process of
healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During the lifetime, the prosthetic devise will have to be replaced and
readjusted to changes in the size of her lower limb effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels
observed in the bones of all post-menopausal women. In other words, the damage done to her would not
only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic
changes which her body would normally undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and occupational therapy. All of these
adjustments, it has been documented, are painful.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional
restoration of the motor functions of the lower limb. The sensory functions are forever lost. The resultant
anxiety, sleeplessness, psychological injury, mental and physical pain are inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious than
the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state for over
fourteen years now. The burden of care has so far been heroically shouldered by her husband and children, who, in the
intervening years have been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to
quantify. Even the temperate damages herein awarded would be inadequate if petitioner's condition remains unchanged
for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface of the
resulting moral damage because it would be highly speculative to estimate the amount of emotional and moral pain,
psychological damage and injury suffered by the victim or those actually affected by the victim's condition. 84 The
husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patient's
illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the respondents,
are charged with the moral responsibility of the care of the victim. The family's moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the
length and nature of the instant suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and,
they rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases
because where negligence exists and is proven, the same automatically gives the injured a right to reparation for the
damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of preventing
complications. A physician's experience with his patients would sometimes tempt him to deviate from established
community practices, and he may end a distinguished career using unorthodox methods without incident. However, when
failure to follow established procedure results in the evil precisely sought to be averted by observance of the procedure
and a nexus is made between the deviation and the injury or damage, the physician would necessarily be called to account
for it. In the case at bar, the failure to observe pre-operative assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages
computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that
petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.

Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that
the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated
her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals,
good customs and public policy."1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees
and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at
the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the
confrontation made by petitioner.2 The transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung
paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko
sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang
10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply
ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo,
kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel.

Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok
dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan
na kita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
 ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit
alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka
papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba
makukuha ka dito kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka
puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga
magulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng
hindi pumasok, okey yan nasaloob ka umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok
kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo
ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na.
Magsumbong ka.3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was
illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic
Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication,
and other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted
herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No.
4200, committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro Manila,
Philippines, and within the jurisdiction of this honorable court, the above-named accused,
 Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's
conversation with said accused, did then and there willfully, unlawfully and feloniously,
with the use of a tape recorder secretly record the said conversation and thereafter
communicate in writing the contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA
Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts
charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted
the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and
that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a person other than a participant
to the communication.4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which
forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of
May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals
denied in its Resolution6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of Republic Act 4200 does
not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision
merely refers to the unauthorized taping of a private conversation by a party other than those involved in the
communication.8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in
the Information, otherwise the facts charged would not constitute a violation of R.A. 4200.9 Finally, petitioner agues that
R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act
of secretly taping her conversation with private respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear
and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a
literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private
Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however
otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any
private communication to secretly record such communication by means of a tape recorder. The law makes no distinction
as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved
in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is
underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private conversation with another without the knowledge of the latter
(will) qualify as a violator" 13 under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting
R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or
communications taken either by the parties themselves or by third persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be
material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and
involved not criminal cases that would be mentioned under section 3 but would cover, for example civil
cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by
some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous
even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a
recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or
outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be
used in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without the
authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose;
Your honor, is to record the intention of the parties. I believe that all the parties should know that the
observations are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a
tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people
whose remarks and observations are being made should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand. Now, in
spite of that warning, he makes damaging statements against his own interest, well, he cannot complain
any more. But if you are going to take a recording of the observations and remarks of a person without
him knowing that it is being taped or recorded, without him knowing that what is being recorded may be
used against him, I think it is unfair.
 xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
party secretly records a public speech, he would be penalized under Section 1? Because the speech is
public, but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person — not between a speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the
Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to
penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be
specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or
recording private communications by means of the devices enumerated therein. The mere allegation that an individual
made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense
under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court:
"Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as
well as its communication to a third person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include
"private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word
communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or
imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals
through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include
verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the
emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the
latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore,
put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Tañada in
his Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from their conversations being overheard. But
this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all,
civilized people have some aspects of their lives they do not wish to expose. Free conversationsare often
characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires
of views not intended to be taken seriously. The right to the privacy of communication, among others, has
expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must
have recognized the nature of conversations between individuals and the significance of man's spiritual
nature, of his feelings and of his intellect. They must have known that part of the pleasures and
satisfactions of life are to be found in the unaudited, and free exchange of communication between
individuals — free from every unjustifiable intrusion by whatever means.17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that
the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not
violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)"
enumerated therein, 19 following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The
instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200
suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private
communications with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no
discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner.

SO ORDERED.

Padilla, Davide, Jr. and Bellosillo JJ., concur.

Hermosisima, Jr., J., is on leave.

EN BANC
G.R. No. 168338 (February 15, 2008)

FRANCISCO CHAVEZ,
Petitioner,- versus - RAUL M. GONZALES, in his capacity as the Secretary of the
Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC),Respondents.
DECISION

PUNO, C.J.:

A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free
speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger
that is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and
issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v.
COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing
more than a naked means to prevent the free exercise of speech, it must be nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005,
Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by
releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria
Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation
was audiotaped allegedly through wire-tapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced
two versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered
version, which would suggest that the President had instructed the COMELEC official to manipulate the election
results in the Presidents favor. [6] It seems that Secretary Bunye admitted that the voice was that of President
Arroyo, but subsequently made a retraction. [7]

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released
an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the
President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator
Barbers.[8]

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those
who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable
under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that
persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who
had personal knowledge if the crime was committed or was being committed in their presence.[9]

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation
(NBI) to go after media organizations found to have caused the spread, the playing and the printing of the
contents of a tape of an alleged wiretapped conversation involving the President about fixing votes in the 2004
national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine
Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to
disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and
managers of Inq7.net and GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a tactical
interrogation of all concerned. [10]
5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO
OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM
STANDARDS
 xxx xxx xxx

Taking into consideration the countrys unusual situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio stations and television network owners/operators
that the conditions of the authorization and permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall
not use [their] stations for the broadcasting or telecasting of false information or willful
misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain
personalities are in possession of alleged taped conversations which they claim involve the
President of the Philippines and a Commissioner of the COMELEC regarding supposed violation
of election laws.

These personalities have admitted that the taped conversations are products of illegal wiretapping
operations.

Considering that these taped conversations have not been duly authenticated nor could it be said at
this time that the tapes contain an accurate or truthful representation of what was recorded therein,
it is the position of the [NTC] that the continuous airing or broadcast of the said taped
conversations by radio and television stations is a continuing violation of the Anti-Wiretapping
Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these
radio and television stations. It has been subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and
television companies are hereby warned that their broadcast/airing of such false information
and/or willful misrepresentation shall be just cause for the suspension, revocation and/or
cancellation of the licenses or authorizations issued to the said companies.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to
be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly
states, among others, that all radio broadcasting and television stations shall, during any broadcast
or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or
telecast the tendency thereof is to disseminate false information or such other willful
misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing
directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition
thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast
or telecast any speech, language or scene disseminating false information or willful
misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts.

The [NTC] will not hesitate, after observing the requirements of due process, to apply with
full force the provisions of said Circulars and their accompanying sanctions on erring radio
and television stations and their owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa
Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom
of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint
Press Statement which states, among others, that: [12]

NTC respects and will not hinder freedom of the press and the right to information on matters of
public concern. KBP & its members have always been committed to the exercise of press
freedom with high sense of responsibility and discerning judgment of fairness and honesty.

NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press
freedom or censorship. The NTC further denies and does not intend to limit or restrict the
interview of members of the opposition or free expression of views.

What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
 KBP has program standards that KBP members will observe in the treatment of news and public
affairs programs. These include verification of sources, non-airing of materials that would
constitute inciting to sedition and/or rebellion.

The KBP Codes also require that no false statement or willful misrepresentation is made in the
treatment of news or commentaries.

The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving
due consideration to the process being undertaken to verify and validate the authenticity and
actual content of the same.

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and
the NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents. [13]

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of
the people to information on matters of public concern,[14] petitioner specifically asked this Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6,
2005 until the present that curtail the publics rights to freedom of expression and of the press, and to
information on matters of public concern specifically in relation to information regarding the
controversial taped conversion of President Arroyo and for prohibition of the further commission of such
acts, and making of such issuances, and orders by respondents. [15]

Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners legal standing to file
the petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that
broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to
the NTCs mandate to regulate the telecommunications industry. [17] It was also stressed that most of the [television] and
radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC
and KBP. [18]

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a
member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of
the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come
forwardneither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with
respondent NTC that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the Court so largely depends for illumination of difficult constitutional questions. [19]

But as early as half a century ago, we have already held that where serious constitutional questions are involved, the
transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing
aside if we must, technicalities of procedure. [20] Subsequently, this Court has repeatedly and consistently refused to wield
procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public
interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance
to our society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition, [23] seeing as it
involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues
like the extent of the right to information of the public. It is fundamental, however, that we need not address all
issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge
freedom of speech and of the press.

But aside from the primordial issue of determining whether free speech and freedom of the press have been
infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of
the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their
differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-
based regulations and their constitutional standard of review; (4) to examine the historical difference in the
treatment of restraints between print and broadcast media and stress the standard of review governing both; and
(5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media.

E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,

OF EXPRESSION AND OF THE PRESS

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.[24]

Freedom of expression has gained recognition as a fundamental principle of every democratic government, and
given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate
rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S.
Bill of Rights,[25] were considered the necessary consequence of republican institutions and the complement of free
speech.[26] This preferred status of free speech has also been codified at the international level, its recognition now
enshrined in international law as a customary norm that binds all nations.[27]

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our
constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions,
reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for
nearly every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech,
expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other
freedoms.[30] For it is only when the people have unbridled access to information and the press that they will be capable of
rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

E.1. ABSTRACTION OF FREE SPEECH

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our
own Bill of Rights provision on this basic freedom.[31] What is embraced under this provision was discussed exhaustively
by the Court in Gonzales v. Commission on Elections, [32] in which it was held:

At the very least, free speech and free press may be identified with the liberty to discuss publicly and
truthfully any matter of public interest without censorship and punishment. There is to be no previous
restraint on the communication of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. [33]

Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is
undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by
the people in social, including political, decision-making; and of maintaining the balance between stability and
change.[34] As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the
broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound
commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open. [35]
 Freedom of speech and of the press means something more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any
matter of public consequence.[36] When atrophied, the right becomes meaningless.[37] The right belongs as well -- if not
more to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are
confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech
and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or
derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the
thought that agrees with us. [40]

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects
speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of
human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which
information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The
constitutional protection assures the broadest possible exercise of free speech and free press for religious, political,
economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate
ideas is not confined to the expression of ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends
to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting
Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the
broad protection of the clause on freedom of speech and of expression.

While all forms of communication are entitled to the broad protection of freedom of expression clause, the
freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to
newspapers and other print media, as will be subsequently discussed.

E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH

From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is
not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the
provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an
absolute, [42] nor is it an unbridled license that gives immunity for every possible use of language and prevents the
punishment of those who abuse this freedom.

Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under
its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or
society.[43] The difference in treatment is expected because the relevant interests of one type of speech, e.g., political
speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment,
analysis, and evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for
example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words are not entitled to
constitutional protection and may be penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have
been applied differently to each category, either consciously or unconsciously.[46] A study of free speech
jurisprudencewhether here or abroadwill reveal that courts have developed different tests as to specific types or categories
of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the
traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic
speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. [47]

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three
tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been
established between the speech restrained and the danger contemplated; [48] (b) the balancing of interests tests, used as a
standard when courts need to balance conflicting social values and individual interests, and requires a conscious and
detailed consideration of the interplay of interests observable in a given situation of type of situation; [49] and(c) the clear
and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that
the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences
sought to be prevented must be substantive, extremely serious and the degree of imminence extremely high. [50]
 As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and
present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered
to the clear and present danger test. [51]

E.3. IN FOCUS: FREEDOM OF THE PRESS

Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion
and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current
affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by
which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest
weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every
administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52]

The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear
conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits
from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who
interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they
private individuals or public officials.

E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT-BASED

REGULATIONS
Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom
of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; [53] (3)
freedom of access to information; [54] and (4) freedom of circulation.[55]

Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior restraint,
a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-
neutral) regulations.

At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This
presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions
on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the
determinations were always about whether the restraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech
has always been based on the circumstances of each case, including the nature of the restraint. And in its application in
our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by
scrutinizing the governmental issuance or act against the circumstances in which they operate, and then
determining the appropriate test with which to evaluate.

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination.[56] Freedom from prior restraint is largely freedom from government censorship of
publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or
judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish;
licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and
even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting
in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. [57] Any law or
official that requires some form of permission to be had before publication can be made, commits an infringement of the
constitutional right, and remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that
restrains speech is presumed invalid,[58] and any act that restrains speech is hobbled by the presumption of invalidity and
should be greeted with furrowed brows, [59] it is important to stress not all prior restraints on speech are invalid. Certain
previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the
challenged act as against the appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech.
A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the
incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; [60] or (2)
a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or
speech. [61] The cast of the restriction determines the test by which the challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they are
not subject to the strictest form of judicial scrutiny but an intermediate approachsomewhere between the mere
rationality that is required of any other law and the compelling interest standard applied to content-based
restrictions.[63] The test is called intermediate because the Court will not merely rubberstamp the validity of a law but
also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is
unrelated to the suppression of expression. The intermediate approach has been formulated in this manner:

A governmental regulation is sufficiently justified if it is within the constitutional power of the

Government, if it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incident restriction on alleged
[freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [64]

On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given
the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear
and present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the
presumed unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66]
With respect to content-based restrictions, the government must also show the type of harm the speech sought to be
restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint
will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by
showing a substantive and imminent evil that has taken the life of a reality already on ground. [67] As formulated, the
question in every case is whether the words used are used in such circumstances and are of such a nature as
to createa clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is
a question of proximity and degree.[68]

The regulation which restricts the speech content must also serve an important or substantial government interest, which is
unrelated to the suppression of free expression. [69]

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. [70] A
restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be
invalidated. [71] The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the
least restrictive means undertaken. [72]

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review.
A content-based regulation,[73] however, bears a heavy presumption of invalidity and is measured against the clear and
present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague. [74]

Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present
danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one objecta specific
content fixed as these were on the alleged taped conversations between the President and a COMELEC official.
Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or
expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents argument that the challenged act is valid on the ground that broadcast media enjoys
free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument,
insofar as it has been invoked to validate a content-based restriction on broadcast media.

The regimes presently in place for each type of media differ from one other. Contrasted with the regime in
respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected
to regulatory schemes.

The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio
and television have been held to have limited First Amendment protection,[75]and U.S. Courts have excluded broadcast
media from the application of the strict scrutiny standard that they would otherwise apply to content-based
restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from print media
are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print
medium may be limitless]; [77] (b) its pervasiveness as a medium; and (c) its unique accessibility to children.[78] Because
cases involving broadcast media need not follow precisely the same approach that [U.S. courts] have applied to other
media, nor go so far as to demand that such regulations serve compelling government interests, [79] they are decided on
whether the governmental restriction is narrowly tailored to further a substantial governmental interest, [80] or the
intermediate test.

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between
broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show thatas we
have deviated with the American conception of the Bill of Rights [81] we likewise did not adopt en masse the U.S.
conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based
prior restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the
regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to
unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government
interest that also has constitutional protection, such as national security or the electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held
that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to
traditional print or broadcast media.

The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation
(DYRE) v. Dans,[82] wherein it was held that [a]ll forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to
be the clear and present danger rule[83]

Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of
national security. Although the issue had become moot and academic because the owners were no longer interested to
reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior
courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs
be considered in cases involving broadcast media. Thus:[84]

xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of
speech and expression clause. The test for limitations on freedom of expression continues to
be the clear and present danger rule, that words are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about the substantive evils that
the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-
 570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test.
More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-
Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself
to a simplistic and all embracing interpretation applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users.
A broadcast corporation cannot simply appropriate a certain frequency without regard for
government regulation or for the rights of others.
All forms of communication are entitled to the broad protection of the freedom of expression
clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat
lesser in scope than the freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S.
726), confronted with a patently offensive and indecent regular radio program, explained why
radio broadcasting, more than other forms of communications, receives the most limited
protection from the free expression clause. First, broadcast media have established a uniquely
pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the
citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely
accessible to children. Bookstores and motion picture theaters may be prohibited from making
certain material available to children, but the same selectivity cannot be done in radio or
television, where the listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there are
low income masses who find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also becoming
universal. Their message may be simultaneously received by a national or regional audience of
listeners including the indifferent or unwilling who happen to be within reach of a blaring radio
or television set. The materials broadcast over the airwaves reach every person of every age,
persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental
capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to
monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of
the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the
utterance.
(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media
into account. The supervision of radio stations-whether by government or through self-regulation
by the industry itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the listeners to
violently overthrow it. Radio and television may not be used to organize a rebellion or to signal
the start of widespread uprising. At the same time, the people have a right to be informed. Radio
and television would have little reason for existence if broadcasts are limited to bland,
obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular
means of disseminating varying views on public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In
the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and dignity of the individual be
exalted.
(7) Broadcast stations deserve the special protection given to all forms of media by the due process and
freedom of expression clauses of the Constitution. [Citations omitted]
It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation
of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that
the test for limitations on freedom of expression continues to be the clear and present danger rule, for all forms of
media, whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the
differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as unprotected
speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme
necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared
in Dans that the freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to newspaper
and print media, it was not as to what test should be applied, but the context by which requirements of licensing,
allocation of airwaves, and application of norms to unprotected speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to determine
free expression challenges was the clear and present danger, again without distinguishing the media. [87] Katigbak, strictly
speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as
applied to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal approach would
be used to resolve obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to
motion pictures. It is the consensus of this Court that where television is concerned, a less liberal
approach calls for observance. This is so because unlike motion pictures where the patrons have to pay
their way, television reaches every home where there is a set.Children then will likely be among the
avid viewers of the programs therein shown..It cannot be denied though that the State as parens
patriae is called upon to manifest an attitude of caring for the welfare of the young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast
company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve
freedoms of speech and of the press.[89]

This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the
broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based
regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90] which also
involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time
and manner of advertising of political advertisements because the challenged restriction was content-neutral.[91] And in a
case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the
Philippines v. COMELEC[92] treated a restriction imposed on a broadcast media as a reasonable condition for the grant of
the medias franchise, without going into which test would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where
the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies,
and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a number
of respects, but have a common historical basis. The stricter system of controls seems to have been
adopted in answer to the view that owing to their particular impact on audiences, films, videos and
broadcasting require a system of prior restraints, whereas it is now accepted that books and other
printed media do not. These media are viewed as beneficial to the public in a number of respects, but
are also seen as possible sources of harm.[93]

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to
provide a rationale. However, cable and satellite television have enormously increased the number of actual and
potential channels. Digital technology will further increase the number of channels available. But still, the argument
persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time
is spent watching television. Since it has a unique impact on people and affects children in a way that the print media
normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a
significant main threat to free expressionin terms of diversitycomes not from government, but from private corporate
bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of
broadcast media regulation. [94]

The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the
computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be
appropriate in the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the
broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply equally to the
Internet.[97] Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must
agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential
treatment. [98]

F. The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the
case at bar. To recapitulate, a governmental action that restricts freedom of speech
or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming
the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of
media, including broadcast media.

This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the
presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On
the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom
of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which
government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records
of the case at bar, however, are confused and confusing, and respondents evidence falls short of satisfying the clear and
present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two
versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the
respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different
versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of
the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing
would violate the anti-wiretapping law.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the
press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated
have only an adverse effect on a persons private comfort but does not endanger national security. There are laws of great
significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In
fine, violation of law is just a factor, a vital one to be sure, which should be
weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the
violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and
by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated
measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the
Court should not be misinterpreted as devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to
repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a
preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy
the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is
no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of
the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed
the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents
were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were
made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his
statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done,
such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior
restraint. The concept of an act does not limit itself to acts already converted to a formal order or official
circular.Otherwise, the non formalization of an act into an official order or circular will result in the easy
circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as
they constitute impermissible forms of prior restraints on the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came
from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media.
They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute
those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing
an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom
of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the
subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light
of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions,
and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided
on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged
acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per
se. A blow too soon struck for freedom is preferred than a blow too late.

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying
the official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped
conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise
of freedom of speech and of the press

SO ORDERED.
 EN BANC

[A.M. No. CA-05-18-P. April 12, 2005]

ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO, respondent.

DECISION
PER CURIAM:

What brings our judicial system into disrepute are often the actuations of a few erring court personnel peddling influence
to party-litigants, creating the impression that decisions can be bought and sold, ultimately resulting in the disillusionment
of the public. This Court has never wavered in its vigilance in eradicating the so-called bad eggs in the judiciary. And
whenever warranted by the gravity of the offense, the supreme penalty of dismissal in an administrative case is meted to
erring personnel.[1]
The above pronouncement of this Court in the case of Mendoza vs. Tiongson[2] is applicable to the case at bar.
This is an administrative case for Dishonesty and Grave Misconduct [3] against Elvira Cruz-Apao (Respondent),
Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15 th) Division, Court of Appeals (CA). The
complaint arose out of respondents solicitation of One Million Pesos (P1,000,000.00) from Zaldy Nuez (Complainant) in
exchange for a speedy and favorable decision of the latters pending case in the CA, [4] more particularly, CA-G.R. SP No.
73460 entitled PAGCOR vs. Zaldy Nuez.[5] Complainant initially lodged a complaint with the Action Center of the
Television program Imbestigador of GMA Network,[6] the crew of which had accompanied him to the Presidential Anti-
Organized Crime CommissionSpecial Projects Group (PAOCC-SPG) in Malacaang where he filed a complaint for
extortion[7]against respondent. This led to the conduct of an entrapment operation by elements of the Presidential Anti-
Organized Crime Task Force (PAOCTF) on 28 September 2004 at the Jollibee Restaurant, 2 nd Floor, Times Plaza Bldg.,
corner Taft and United Nations Avenue, Manila,[8] the place where the supposed hand-over of the money was going to
take place.
Respondents apprehension by agents of the PAOCTF in the course of the entrapment operation prompted then CA
Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office Order No. 297-04-CG[9] (Order)
which created an ad-hoc investigating committee (Committee).[10] The Committee was specifically tasked among others to
conduct a thorough and exhaustive investigation of respondents case and to recommend the proper administrative
sanctions against her as the evidence may warrant.[11]
In accordance with the mandate of the Order, the Committee conducted an investigation of the case and issued
a Resolution[12] dated 18 October 2004 where it concluded that a prima facie case of Dishonesty and Serious Misconduct
against respondent existed. The Committee thus recommended respondents preventive suspension for ninety (90) days
pending formal investigation of the charges against her.[13] On 28 January 2005, the Committee submitted a Report[14] to
the new CA Presiding Justice Romeo A. Brawner with its recommendation that respondent be dismissed from service.
Based on the hearings conducted and the evidence received by the Committee, the antecedent facts are as follows:
Complainants case referred to above had been pending with the CA for more than two years.[15] Complainant filed an
illegal dismissal case against PAGCOR before the Civil Service Commission (CSC). The CSC ordered complainants
reinstatement but a writ of preliminary injunction and a temporary restraining order was issued by the CA in favor of
PAGCOR, thus complainant was not reinstated to his former job pending adjudication of the case. [16] Desiring an
expeditious decision of his case, complainant sought the assistance of respondent sometime in July 2004 after learning of
the latters employment with the CA from her sister, Magdalena David. During their first telephone conversation[17] and
thereafter through a series of messages they exchanged via SMS,[18] complainant informed respondent of the particulars of
his pending case. Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early
resolution of his case.
However, a week after their first telephone conversation, respondent allegedly told complainant that a favorable and
speedy decision of his case was attainable but the person who was to draft the decision was in return asking for One
Million Pesos (P1,000,000.00).[19]
 Complainant expostulated that he did not have that kind of money since he had been jobless for a long time, to which
respondent replied, Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na.[20] Complainant then
tried to ask for a reduction of the amount but respondent held firm asserting that the price had been set, not by her but by
the person who was going to make the decision.[21]Respondent even admonished complainant with the words Wala tayo sa
palengke iho![22] when the latter bargained for a lower amount.[23]
Complainant then asked for time to determine whether or not to pay the money in exchange for the decision. Instead,
in August of 2004, he sought the assistance of Imbestigador.[24] The crew of the TV program accompanied him to
PAOCCF-SPG where he lodged a complaint against respondent for extortion.[25] Thereafter, he communicated with
respondent again to verify if the latter was still asking for the money[26] and to set up a meeting with her.[27] Upon learning
that respondents offer of a favorable decision in exchange for One Million Pesos (P1,000,000.00) was still standing, the
plan for the entrapment operation was formulated by Imbestigador in cooperation with the PAOCC.
On 24 September 2004, complainant and respondent met for the first time in person at the 2 nd Floor of Jollibee,
Times Plaza Bldg.,[28] the place where the entrapment operation was later conducted. Patricia Siringan (Siringan), a
researcher of Imbestigador, accompanied complainant and posed as his sister-in-law.[29] During the meeting, complainant
clarified from respondent that if he gave the amount of One Million Pesos (P1,000,000.00), he would get a favorable
decision. This was confirmed by the latter together with the assurance that it would take about a month for the decision to
come out.[30] Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable
decision only in the CA but did not extend to the Supreme Court should the case be appealed later.[31]
When respondent was asked where the money will go, she claimed that it will go to a male researcher whose name
she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5 th) Division where complainant case was
pending.[32] She also claimed that she will not get any part of the money unless the researcher decides to give her some.[33]
Complainant tried once again to bargain for a lower amount during the meeting but respondent asserted that the
amount was fixed. She even explained that this was their second transaction and the reason why the amount was closed at
One Million Pesos (P1,000,000.00) was because on a previous occasion, only Eight Hundred Thousand Pesos
(P800,000.00) was paid by the client despite the fact that the amount had been pegged at One Million Three Hundred
Thousand Pesos (P1,300,000.00).[34] Complainant then proposed that he pay a down payment of Seven Hundred Thousand
Pesos (P700,000.00) while the balance of Three Hundred Thousand Pesos (P300,000.00) will be paid once the decision
had been released.[35] However, respondent refused to entertain the offer, she and the researcher having learned their
lesson from their previous experience for as then, the client no longer paid the balance of Five Hundred Thousand Pesos
(P500,000.00) after the decision had come out.[36]
Complainant brought along copies of the documents pertinent to his case during the first meeting. After reading
through them, respondent allegedly uttered, Ah, panalo ka.[37] The parties set the next meeting date at lunchtime on 28
September 2004 and it was understood that the money would be handed over by complainant to respondent then.[38]
On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang (Maclang) as team
leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and PO2 Edgar delos
Reyes[39] arrived at around 11:30 in the morning at Jollibee.[40] Nuez and Siringan arrived at past noon and seated
themselves at the table beside the one occupied by the two (2) agents, Banay and Villena. Complainant had with him an
unsealed long brown envelope containing ten (10) bundles of marked money and paper money which was to be given to
respondent.[41] The envelope did not actually contain the One Million Pesos (P1,000,000.00) demanded by respondent, but
instead contained paper money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos (P500.00) and
One Thousand Pesos (P1,000.00), as well as newspaper cut-outs.[42] There were also ten (10) authentic One Hundred Peso
(P100.00) bills which had been previously dusted with ultra-violet powder by the PAOCTF.[43] The three other PAOCTF
agents were seated a few tables away[44] and there were also three (3) crew members from Imbestigador at another table
operating a mini DV camera that was secretly recording the whole transaction.[45]
Respondent arrived at around 1:00 p.m.[46] She appeared very nervous and suspicious during the
meeting.[47] Ironically, she repeatedly said that complainant might entrap her, precisely like those that were shown
on Imbestigador.[48] She thus refused to receive the money then and there. What she proposed was for complainant and
Siringan to travel with her in a taxi and drop her off at the CA where she would receive the money.[49]
More irony ensued. Respondent actually said that she felt there were policemen around and she was afraid that once
she took hold of the envelope complainant proffered, she would suddenly be arrested and handcuffed.[50] At one point, she
even said, Ayan o, tapos na silang kumain, bakit hindi pa sila umaalis?,[51] referring to Banay and Villena at the next
table. To allay respondents suspicion, the two agents stood up after a few minutes and went near the staircase where they
could still see what was going on.[52]
Complainant, respondent and Siringan negotiated for almost one hour.[53] Complainant and Siringan bargained for a
lower price but respondent refused to accede. When respondent finally touched the unsealed envelope to look at the
money inside, the PAOCTF agents converged on her and invited her to the Western Police District (WPD) Headquarters
at United Nations Avenue for questioning.[54]Respondent became hysterical as a commotion ensued inside the
restaurant.[55]
On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the restaurant. The
latter replied that she went there to get the One Million Pesos (P1,000,000.00).[56]
Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found positive for ultra-
violet powder that was previously dusted on the money.[57] She was later detained at the WPD Headquarters.
At seven oclock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes Encarnacion Gepty
(Atty. Gepty), her immediate superior in the CA at the latters house. [58] She tearfully confessed to Atty. Gepty that she
asked for money for a case and was entrapped by police officers and the media.[59] Enraged at the news, Atty. Gepty asked
why she had done such a thing to which respondent replied, Wala lang maam, sinubukan ko lang baka
makalusot.[60] Respondent claimed that she was ashamed of what she did and repented the same. She also asked for Atty.
Geptys forgiveness and help. The latter instead reminded respondent of the instances when she and her co-employees at
the CA were exhorted during office meetings never to commit such offenses.[61]
Atty. Gepty rendered a verbal report[62] of her conversation with their divisions chairman, Justice Martin S.
Villarama. She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29 September
2004.[63] She also later testified as to the contents of her report to the Committee.
During the hearing of this case, respondent maintained that what happened was a case of instigation and not an
entrapment. She asserted that the offer of money in exchange for a favorable decision came not from her but from
complainant. To support her contention, she presented witnesses who testified that it was complainant who allegedly
offered money to anyone who could help him with his pending case. She likewise claimed that she never touched the
money on 28 September 2004, rather it was Capt. Maclang who forcibly held her hands and pressed it to the envelope
containing the money. She thus asked that the administrative case against her be dismissed.
This Court is not persuaded by respondents version. Based on the evidence on record, what happened was a clear
case of entrapment, and not instigation as respondent would like to claim.
In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the law-breakers in the
execution of their criminal plan. On the other hand, in instigation, the instigator practically induces the would-be
defendant into the commission of the offense, and he himself becomes a co-principal.[64]
In this case, complainant and the law enforcers resorted to entrapment precisely because respondent demanded the
amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision of the latters
pending case. Complainants narration of the incidents which led to the entrapment operation are more in accord with the
circumstances that actually transpired and are more credible than respondents version.
Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly
presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in exchange for a favorable
decision of the formers pending case with the CA. The text messages were properly admitted by the Committee since the
same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence[65] which provides:

Ephemeral electronic communication refers to telephone conversations, text messages . . . and other electronic forms of
communication the evidence of which is not recorded or retained.
Under Section 2, Rule 11 of the Rules on Electronic Evidence, Ephemeral electronic communications shall be proven
by the testimony of a person who was a party to the same or who has personal knowledge thereof . . . . In this case,
complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their
contents and import. Respondent herself admitted that the cellphone number reflected in complainants cellphone from
which the messages originated was hers.[66] Moreover, any doubt respondent may have had as to the admissibility of the
text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages
between her and complainant.[67] It is also well to remember that in administrative cases, technical rules of procedure and
evidence are not strictly applied.[68] We have no doubt as to the probative value of the text messages as evidence in
determining the guilt or lack thereof of respondent in this case.
Complainants testimony as to the discussion between him and respondent on the latters demand for One Million
Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness, Siringan, the reporter
of Imbestigador who was present when the parties met in person. Siringan was privy to the parties actual conversation
since she accompanied complainant on both meetings held on 24 and 28 of September 2004 at Jollibee.
Respondents evidence was comprised by the testimony of her daughter and sister as well as an acquaintance who
merely testified on how respondent and complainant first met. Respondents own testimony consisted of bare denials and
self-serving claims that she did not remember either the statements she herself made or the contents of the messages she
sent. Respondent had a very selective memory made apparent when clarificatory questions were propounded by the
Committee.
When she was asked if she had sent the text messages contained in complainants cellphone and which reflected her
cellphone number, respondent admitted those that were not incriminating but claimed she did not remember those that
clearly showed she was transacting with complainant. Thus, during the 17 November 2004 hearing, where respondent was
questioned by Justice Salazar-Fernando, the following transpired:

Q: After reading those text messages, do you remember having made those text messages?

(Respondent)

A: Only some of these, your honors.

Justice Salazar-Fernando: Which one?

A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your Honors.

Q: What else?

A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si Len David.

Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which was around 1:09 in
the afternoon and you said di me pwede punta na lang kayo dito sa office Thursday 4:45 p.m. Room 107
Centennial Building.

A: Yes, your Honors.

Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again texted Zaldy Nuez
and you said Sige bukas nang tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue. Magdala ka ng
I.D. para makilala kita o isama mo si Len David.

A: Opo, your Honors.

Q: How about on September 23 at 5:05 in the afternoon when you said Di pwede kelan mo gusto fixed price na
iyon.

A: I dont remember that, your Honors.

Q: Again on September 23 at 5:14 p.m. you said Alam mo di ko iyon price and nagbigay noon yung gagawa.
Wala ako doon. You dont also remember this?

A: Yes, your Honors.

Q: September 27 at 1:42 p.m. Oo naman ayusin nyo yung hindi halatang pera. You also dont remember that?
A: Yes Your Honors.

Q: September 27 at 1:30 in the afternoon, Di na pwede sabi sa akin. Pinakaiusapan ko na nga ulit iyon. You
dont remember that?

A: No, your Honors.[69]

Respondent would like this Court to believe that she never had any intention of committing a crime, that the offer of
a million pesos for a favorable decision came from complainant and that it was complainant and the law enforcers who
instigated the whole incident.
Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting her, not to get
the One Million Pesos (P1,000,000.00) as pre-arranged.
This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come from
complainant and had she really intended to stop the latter from corrupting her, she could have simply refused to answer
the latters messages and calls. This she did not do. She answered those calls and messages though she later claimed she
did not remember having sent the same messages to complainant. She could also have reported the matter to the CA
Presiding Justice, an action which respondent admitted during the hearing was the proper thing to do under the
circumstances.[70] But this course of action she did not resort to either, allegedly because she never expected things to end
this way.[71]
While claiming that she was not interested in complainants offer of a million pesos, she met with him not only once
but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling complainant to stop pestering her
would be more effective if she did it in person, the same would have been accomplished with a single meeting. There was
no reason for her to meet with complainant again on 28 September 2004 unless there was really an understanding between
them that the One Million Pesos (P1,000,000.00) will be handed over to her then. Respondent even claimed that she
became afraid of complainant when she learned that the latter had been dismissed by PAGCOR for using illegal
drugs.[72] This notwithstanding, she still met with him on 28 September 2004.
Anent complainants narration of respondents refusal to reduce the amount of One Million Pesos (P1,000.000.00)
based on the lesson learned from a previous transaction, while admitting that she actually said the same, respondent wants
this Court to believe that she said it merely to have something to talk about. [73] If indeed, respondent had no intention of
committing any wrongdoing, it escapes the Court why she had to make up stories merely to test if complainant could
make good on his alleged boast that he could come up with a million pesos. It is not in accord with ordinary human
experience for an honest government employee to make up stories that would make party-litigants believe that court
decisions may be bought and sold. Time and again this Court has declared, thus:

Everyone in the judiciary bears a heavy burden of responsibility for the proper discharge of his duty and it behooves
everyone to steer clear of any situations in which the slightest suspicion might be cast on his conduct. Any misbehavior on
his part, whether true or only perceived, is likely to reflect adversely on the administration of justice.[74]
Respondent having worked for the government for twenty four (24) years, nineteen (19) of which have been in the
CA,[75] should have known very well that court employees are held to the strictest standards of honesty and integrity. Their
conduct should at all times be above suspicion. As held by this Court in a number of cases, The conduct or behavior of all
officials of an agency involved in the administration of justice, from the Presiding Judge to the most junior clerk, should
be circumscribed with the heavy burden of responsibility.[76] Their conduct must, at all times be characterized by among
others, strict propriety and decorum in order to earn and maintain the respect of the public for the judiciary.[77]
Respondents actuations from the time she started communicating with complainant in July 2004 until the entrapment
operation on 28 September 2004 show a lack of the moral fiber demanded from court employees. Respondents avowals of
innocence notwithstanding, the evidence clearly show that she solicited the amount of One Million Pesos (P1,000,000.00)
from complainant in exchange for a favorable decision. The testimony of Atty. Gepty, the recipient of respondents
confession immediately after the entrapment operation, unmistakably supports the finding that respondent did voluntarily
engage herself in the activity she is being accused of.
Respondents solicitation of money from complainant in exchange for a favorable decision violates Canon I of the
Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to A.M. No. 03-06-13-SC. Sections 1
and 2, Canon I of the Code of Conduct for Court Personnel expressly provide:
SECTION 1. Court personnel shall not use their official position to secure unwarranted benefits, privileges or
exemption for themselves or for others.

SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit
understanding that such gift, favor or benefit shall influence their official actions. (Underscoring supplied)
It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel specifically provides:

INCORPORATION OF OTHER RULES

SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing the conduct of
public officers and employees applicable to the judiciary are deemed incorporated into this Code.
By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent committed an act of
impropriety which immeasurably affects the honor and dignity of the judiciary and the peoples confidence in it.
In the recent case of Aspiras vs. Abalos,[78] complainant charged respondent, an employee of the Records Section,
Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him into giving her money in the total
amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for his acquittal in a murder case on appeal before the
Supreme Court. It turned out that respondents representation was false because complainant was subsequently convicted
of murder and sentenced to suffer the penalty of reclusion perpetua by the Supreme Court.[79]
The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her dismissal from
the service. This Court aptly held thus:

In Mirano vs. Saavedra,[80] this Court emphatically declared that a public servant must exhibit at all times the highest
sense of honesty and integrity. The administration of justice is a sacred task, and by the very nature of their duties and
responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the principle that public
office is a public trust, solemnly enshrined in the Constitution.[81]
Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Sharia Circuit Court, Bengo,
Tawi-Tawi,[82] this Court stated:

No position demands greater moral righteousness and uprightness from the occupant than the judicial office. Those
connected with the dispensation of justice bear a heavy burden of responsibility. Court employees in particular, must be
individuals of competence, honesty and probity charged as they are with safeguarding the integrity of the court . . . . The
High Court has consistently held that persons involved in the administration of justice ought to live up to the strictest
standards of honesty and integrity in the public service. He should refrain from financial dealings which would interfere
with the efficient performance of his duties.[83] The conduct required of court personnel must always be beyond
reproach.[84]
The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC Branch 14 Cebu
City[85] is also worth remembering:

Court employees bear the burden of observing exacting standards of ethics and morality. This is the price one pays for the
honor of working in the judiciary. Those who are part of the machinery dispensing justice from the lowliest clerk to the
presiding judge must conduct themselves with utmost decorum and propriety to maintain the publics faith and respect for
the judiciary. Improper behavior exhibits not only a paucity of professionalism at the workplace but also a great disrespect
to the court itself. Such demeanor is a failure of circumspection demanded of every public official and employee. [86]
In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the Committee in
their Report[87] recommended that respondent be dismissed from government service for GRAVE MISCONDUCT and
violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court Personnel.[88]
Finding the Committees recommendation to be supported by more than substantial evidence and in accord with the
applicable laws and jurisprudence, the recommendation is well taken.
WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE MISCONDUCT
and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and is accordingly
DISMISSED from government service, with prejudice to re-employment in any branch, instrumentality or agency of the
government, including government-owned and controlled corporations. Her retirement and all benefits except accrued
leave credits are hereby FORFEITED.
SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga and Chico-Nazario, JJ., concur. Garcia, J., No
part.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-Wiretapping
Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1 of the Act, such that its
use to overhear a private conversation would constitute unlawful interception of communications between the two parties using
a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in the
living room of complainant's residence discussing the terms for the withdrawal of the complaint for direct
assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. After they had
decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp.
3-5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise him on
the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a business
trip. According to the request, appellant went to the office of Laconico where he was briefed about the
problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation
through a telephone extension so as to hear personally the proposed conditions for the settlement. Appellant
heard complainant enumerate the following conditions for withdrawal of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A breakdown
of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer for the teacher
Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the case for Direct Assault
against Atty. Laconico before the Cebu City Fiscal's Office;

(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High
School;
 (e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel Montebon
at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct Assault Case against
Atty. Laconico to be filed later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions.
Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the
money. (tsn, March 10, 1983, pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his wife at the office of the then
Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal
Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the
money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant, complainant
was arrested by agents of the Philippine Constabulary.

Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for
the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the complainant for
robbery/extortion which he filed against complainant. Since appellant listened to the telephone conversation
without complainant's consent, complainant charged appellant and Laconico with violation of the Anti-
Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of
violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not
satisfied with the decision, the petitioner appealed to the appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication
between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the
petitioner overheard such communication without the knowledge and consent of the complainant; and that the extension
telephone which was used by the petitioner to overhear the telephone conversation between complainant and Laconico is
covered in the term "device' as provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether
or not the telephone conversation between the complainant and accused Laconico was private in nature; (b) whether or not an
extension telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner
had authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and,
therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding
sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured either before or after the effective date of this Act in
the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate
the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or
partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any civil,
 criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this
prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the
admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person
called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences
simply because the extension was used to enable them to both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was
"private" in the sense that the words uttered were made between one person and another as distinguished from words between a
speaker and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listen to and overhear
the caller's message with the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar,
would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct
assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening.
We have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a
telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the
word of the caller against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone
cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines". An unwary citizzen
who happens to pick up his telephone and who overhears the details of a crime might hesitate to inform police authorities if he
knows that he could be accused under Rep. Act 4200 of using his own telephone to secretly overhear the private
communications of the would be criminals. Surely the law was never intended for such mischievous results.

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or
arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user to imprisonment
ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a public officer or
deportation for an alien? Private secretaries with extension lines to their bosses' telephones are sometimes asked to use
answering or recording devices to record business conversations between a boss and another businessman. Would transcribing a
recorded message for the use of the boss be a proscribed offense? or for that matter, would a "party line" be a device or
arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known"
listening or recording devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He
maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and
extension telephones were already widely used instruments, probably the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when
the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a
dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described." The omission was not
a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of
the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and
distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not forming part of a main telephone set
which can be detached or removed and can be transferred away from one place to another and to be plugged or attached to a
main telephone line to get the desired communication corning from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing,
intercepting, or recording the communication. There must be either a physical interruption through a wiretap or
the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in
Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The
telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule
in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the
statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in
fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:

Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be, they
shall not be understood to comprehend things that are distinct and cases that are different from those upon
which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that 'the various
stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may
result from all of them taken jointly.

xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should
be then restricted only to those listed in the Inventory and should not be construed as to comprehend all other
obligations of the decedent. The rule that 'particularization followed by a general expression will ordinarily be
restricted to the former' is based on the fact in human experience that usually the minds of parties are
addressed specially to the particularization, and that the generalities, though broad enough to comprehend
other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are
centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco,
Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein,
should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be
tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed
by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is
precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended unit does not have to be
connected by wire to the main telephone but can be moved from place ' to place within a radius of a kilometer or more. A
person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he
runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. As was
held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause the bell to ring in more
than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party
may have an extension telephone and may allow another to overhear the conversation. When such takes place
there has been no violation of any privacy of which the parties may complain. Consequently, one element of
605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message
he held out his hand-set so that another could hear out of it and that there is no distinction between that sort of action and
permitting an outsider to use an extension telephone for the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as
in the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute
must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained
the rationale behind the rule:

American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of
individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the
discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v.
Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109
VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro, 20
A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184).
In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primary rule is
to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not
only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited device or arrangement" but of
greater importance, they were more concerned with penalizing the act of recording than the act of merely listening to a
telephone conversation.

xxx xxx xxx

Senator Tañada. Another possible objection to that is entrapment which is certainly

objectionable. It is made possible by special amendment which Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the
amendment than without it, because with the amendment the evidence of entrapment would
only consist of government testimony as against the testimony of the defendant. With this
amendment, they would have the right, and the government officials and the person in fact
would have the right to tape record their conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record and,
therefore, the court would be limited to saying: "Okay, who is more credible, the police
officers or the defendant?" In these cases, as experienced lawyers, we know that the Court go
with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

xxx xxx xxx

Senator Diokno. The point I have in mind is that under these conditions, with an agent outside
listening in, he could falsify the testimony and there is no way of checking it. But if you allow
him to record or make a recording in any form of what is happening, then the chances of
falsifying the evidence is not very much.

Senator Tañada. Your Honor, this bill is not intended to prevent the presentation of false
testimony. If we could devise a way by which we could prevent the presentation of false
testimony, it would be wonderful. But what this bill intends to prohibit is the use of tape
record and other electronic devices to intercept private conversations which later on will be
used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities
or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate,
blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be
punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the
view that an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is
ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200,
otherwise known as the Anti-Wiretapping Act.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

 EN BANC

[A.M. No. MTJ-96-1110. June 25, 2001]

CONG. MANUEL N. MAMBA, M.D. ATTY, FRANCISCO N. MAMBA, JR., HON. GUILLERMO SUMIGAD,
HON. CALIXTO GENOVEZA, HON. MARTIN SORIANO, HON. LOURDES FAUSTO, HON.
LORENZO FERMIN, HON. ADORACION RAQUINIO, HON. LEONIDES FAUSTO, HON. DIOGENES
BALIGOD, HON. LORETO MABBORANG, HON. PETER SY, HON. NICCOLO MAMBA, LORETO
MAMBA, JUAN TAGUBA, DOMINGO CAMARAT, SEVERINO BUCAYU, CASIANO CHAVENTE,
ILLUMINADO BALIGOD, FELICIANO SERRANO, TEOFILO URMA, REMIGIO DE LA CRUZ,
ABELARDO BAUIT, MARIANO MIRANDA, JR., ROMULO SERAFICA, CARLOS MANANGUIT,
ERNESTO FERMIN, ROGELIO FERNANDEZ, ERNESTO CENABRE, TRINIDAD BALUNSAT,
MIGUEL PASON, GIL BALORAN, DOMINGO CALLUENG, BERNARDO BENITO, JUAN
TURINGAN, MARCELINO CORPUZ, IGNACIO PASCUA, JR., LEONIDES FAUSTO, TEODORICO
PASTOR, DOMINADOR CORSINO, GENEROSO AGLAUA, ZACARIAS MAGGAY, SIMEON
BENZON, PATRICIO TAGUIAM, LUCAS TAGUINOD, MA. GLORIA G. BALIGOD, LAURO N.
FAUSTO, EDGAR AGGABAO, RODOLFO CARDENAS, TERESITA ESPINOSA, PACIFICO C.
BINULUAN, ROGELIO SORIANO, ARTURO MAMBA, DR. EXSUPERIOR YUAGA, VIVIAN DE
GUZMAN, EX-CONG. FRANCISCO K. MAMBA, CRISTINA MAMBA, EDWIN LIU, PABLO DANGA,
ALICE LOA, VICENTE TOLENTINO, NUMERIANO MACAPULAY, ROLLY SEDANO, complainants,
vs. JUDGE DOMINADOR L. GARCIA, MTC, TUAO, CAGAYAN, respondent.

DECISION
PER CURIAM:
This is a resolution, which is more accurately a manifesto or a petition of concerned citizens of Tuao, Cagayan,
denouncing certain acts of Judge Dominador L. Garcia, Municipal Trial Court, Tuao, Cagayan, in connection with his
handling of Criminal Case No. 399, entitled People vs. Renato Bulatao. The complainants are then Representative of the
Third District of Cagayan, the mayor and vicemayor, ten (10) members of the Sangguniang Bayan, thirty-two (32) barrio
captains, ten (10) LGU department heads of Tuao, Cagayan, and eight (8) heads of non-governmental organizations or
NGOs in the municipality of Tuao.
The resolution, dated November 4, 1996, was presented to this Court. It was adopted at an assembly led by Rep.
Manuel N. Mamba which picketed the municipal trial court on that day.[1] The "resolution" was treated as an
administrative complaint and respondent Judge Dominador L. Garcia was required to answer. The matter was referred to
Executive Judge Orlando D. Beltran, Jr. of the Regional Trial Court of Tuao, Cagayan, for investigation, report, and
recommendation.[2]
Thereafter, an investigation was held during which the affidavits and sworn statements of NBI Special Investigator
Ablezer Rivera, the joint affidavit of NBI agents, Raul A. Ancheta and Paul D. Rivera, the sworn statement of the accused
in Criminal Case No. 699, Renato Bulatao, and the testimonies of Abner P. Cardenas, clerk of court, MTC, Tuao,
Cagayan and Tomas Latauan, Jr., interpreter of the same court, were presented. The gist of the evidence for the
complainants is as follows:
On August 23, 1996, a complaint for violation of Presidential Decree No.1866 (illegal possession of firearms) was
filed against a certain Renato Bulatao by the Cagayan Provincial Police Command before the sala of respondent Judge
Dominador L. Garcia of the Municipal Trial Court, Tuao, Cagayan.[3] Respondent set the preliminary investigation on
September 4, 1996, but the same was subsequently postponed and reset to October 23, 1996 as respondent was not
present, although the complaining officer, P/Sr. Inspector Danny F. Salvador, appeared in court. On October 23, 1996, the
preliminary investigation was again reset to October 30, 1996. On October 29, 1996, the accused, Renato Bulatao,
complained to the NBI that at the scheduled preliminary investigation on September 4, 1996, P/Sr. Inspector Salvador
demanded P30,000.00 from him in consideration of the withdrawal of the criminal case against him. According to
Bulatao, the demand was reiterated by Salvador and respondent judge on October 23, 1996. As Bulatao told them that he
could not afford it, the amount was reduced to P6,000.00.
 Based on Bulataos report, the NBI set out to entrap Salvador and respondent judge. The NBI gave Bulatao 12 pieces
of P500.00 marked bills amounting to P6,000.00, which the latter would give to Salvador and respondent the next day.[4]
Accordingly, at about 7 o'clock in the morning of the following day, October 30, Bulatao met the NBI operatives in
the house of Francisco Mamba, Sr., former representative of the 3rd District of Cagayan, where the entrapment was
planned. Bulatao was given a tape recorder to record his conversation with whoever will receive the money. At 9 a.m.,
Bulatao went to the Municipal Trial Court and waited for his case to be called. At 10:30 a.m., respondent went out of his
chambers and talked to SPO2 Jonathan Santos and SPO4 Carlos Poli, representatives of P/Sr. Inspector Salvador in the
preliminary investigation. Respondent then called Bulatao and led him and the two police officers to the office of the
MTC court personnel. Inside, respondent asked Bulatao if he had the money with him. When he answered in the
affirmative, respondent took them to his chambers and left them there as he proceeded to his sala. After handing the
money to the police officers, Bulatao went out of respondent's chambers. Upon his signal, the NBI operatives waiting
outside respondent's court then rushed to the judge's chambers and arrested the two police officers after recovering 11
pieces of P500.00 marked bills in their possession.[5]
After the matter was referred by this Court to Executive Judge Orlando Beltran for investigation, the latter scheduled
several hearings for the reception of evidence for the respondent. The records show that hearings were set on different
dates (December 10, 1997, January 30, 1998, February 10, 1998, March 3, 1998, March 10, 1998, September 10, 1998,
October 9, 1998, November 11, 1998, January 5, 1999, February 9, 1999, March 4, 1999, and April 5, 1999), but
respondent did not appear despite due notice. Accordingly, he was deemed to have waived the right to present evidence
and the case was submitted for decision. Hence only his counter-affidavit was considered, in which respondent claimed
that it was Bulatao who asked permission to talk to the two police officers. He denied that he took the three to his
chambers.[6]
On the basis of these facts, the Investigating Judge made the following recommendation:

"The foregoing facts indisputably show that the respondent Judge allowed the use of his chambers by the two (2) police
officers SPOII Jonathan Santos and SPOIV Carlos Poli and Renato Bulatao, the accused in the criminal case for illegal
possession of firearms, so that they could talk about the "settlement" of Bulatao's case which was then pending
preliminary investigation by the respondent Judge. Although the two (2) witnesses, Abner Cardenas and Tomas Latauan,
Jr., claimed that they did not hear the subject of the conversation between Bulatao, on one hand, and the two (2)
policemen and the respondent Judge Dominador L. Garcia, on the other, before the three first-named persons went inside
the chambers of the respondent Judge, it is not difficult to conclude that they must have talked about the criminal case of
Bulatao and its "settlement." For if the subject-matter of their conversation were other than said "settlement" there appears
no reason or purpose to allow the policemen and the accused to go inside the judge's chambers and there to continue their
conversation. Simply stated, the respondent judge allowed the two (2) policemen and the accused Renato Bulatao to use
his chambers so that they could consummate the arrangements for the dismissal of the case, particularly the payment of
the sum of money being demanded as consideration for such dismissal.

"In this connection, the undersigned Investigating Judge cannot help but refer to the taped conversation between the two
(2) policemen and Renato Bulatao inside the chamber of the respondent Judge. A portion of the translated dialogue
between Poli and Bulatao, which was in Ilocano, tends to show that the P6,000.00 pay-off handed by Bulatao to the
policemen was not intended for the respondent Judge but solely for the policemen and their superior, P/Sr. Inspector
Salvador. However, it is not easy to disregard the implication obvious from the said conversation that the respondent
Judge was privy to the entire transaction. SPOIV Poli pointedly told Bulatao "to take care of the Judge" which implies that
the Judge knew of the pay-off being made and was willing to abide by the "deal" provided he would be "taken care of" by
Bulatao.

"Such acts of the respondent Judge are improper, to say the least. He, therefore, violated the duty of every Judge to uphold
the integrity of the judiciary and to avoid impropriety and the appearance of impropriety in all activities.(Mortel vs. Leido,
Jr. 44 SCAD 567). It cannot be over-emphasized that a judge's official conduct should be free from the appearance of
impropriety, and his personal behavior, not only upon the bench and in the performance of official duties but also in his
every day life, should be beyond reproach. (Marcos, Sr. vs. Arcangel, 72 SCAD 1). Canon 2 of the Code of Judicial
Conduct enjoins judges to avoid not just impropriety in their conduct but even the mere appearance of impropriety. This is
true not only in the performance of their official duties but in all their activities, including their private life. They must
conduct themselves in such a manner that they give no ground for reproach. (Pedro San Juan vs. Judge Lore V. Bagalsera,
RTC, BR. 23, Naga City, A. M. No. RTJ-97-1395, December 22, 1997). In this case, the acts of the respondent judge
were clearly improper as he facilitated, if not participated in, the obviously unauthorized/illegal transaction between the
two (2) police officers and the accused Renato Bulatao for the settlement/dismissal of the latter's criminal case, in
consideration of a sum of money, particularly since the offense charged against Bulatao is a grievous one and that it is one
which is not allowed by law to be compromised.

"In view of all the foregoing, the undersigned Investigating Judge respectfully recommends that the respondent Judge
Dominador L. Garcia be found guilty of improper conduct and be punished accordingly.[7]"
The Investigating Judge's reliance on the tape-recorded conversation between Bulatao and the two police officers is
erroneous. The recording of private conversations without the consent of the parties contravenes the provisions of Rep.
Act. No. 4200, otherwise known as the Anti-Wire Tapping Law, and renders the same inadmissible in evidence in any
proceeding.[8] The law covers even those recorded by persons privy to the private communications, as in this case.[9] Thus,
the contents of the tape recorder cannot be relied upon to determine the culpability of respondent judge.
In all other respects, however, the findings of the Investigating Judge are in accordance with the evidence. We hold,
however, that respondent judge is guilty not just of improper conduct but of serious misconduct. Serious misconduct is
such conduct which affects a public officer's performance of his duties as such officer and not only that which affects his
character as a private individual. For serious misconduct to warrant a dismissal from the service, there must be reliable
evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law. It must
(1) be serious, important, weighty, momentary, and not trifling; (2) imply wrongful intention and not mere error of
judgment; and (3) have a direct relation to and be connected with the performance of his official duties.[10]
In the case at bar, it is clear that the crime of bribery was committed. Although the evidence may not be sufficient to
support a conviction in a criminal case, it is adequate for the purpose of these proceedings. The standards of integrity
required of members of the Bench are not satisfied by conduct which merely allows one to escape the penalties of the
criminal law.[11] In an administrative proceeding, such as this case, only substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to support a conclusion, is required.[12]
To constitute bribery, the following must be shown: (1) the offender is a public officer within the scope of Art. 203;
(2) the offender accepts an offer or a promise or receives a gift or present by himself or through another; (3) such offer or
promise is accepted, or gift received by the public officer, (a) with a view to committing some crime; (b) in consideration
of the execution of an act which does not constitute a crime, but which is unjust; or (c) to refrain from doing something
which it is his official duty to do; and (4) the act which he agrees to perform is connected with the performance of his
official duties.[13] From the records, it is evident that P/Sr. Inspector Salvador, a public officer, solicited money from
Bulatao in consideration of the withdrawal of the case against the latter. The former categorically told the latter that he
would withdraw the criminal case against Bulatao if Bulatao gives him P30,000.00, which was later lowered to
P6,000.00. The fact that two of his men came for the preliminary investigation and, without hesitation, followed
respondent judge to his chambers after hearing that Bulatao had the money, bears out Bulatao's allegations. Although
these circumstances do not show conclusively that respondent judge was privy to the crime of bribery, there is substantial
evidence showing that he was at least an accomplice to the crime who cooperated in the execution of the offense by
previous or simultaneous acts.[14] The following circumstances, as corroborated by the report of the NBI and the
testimonies of two employees of the MTC, who were disinterested witnesses, show that respondent judge knowingly and
voluntarily cooperated with P/Sr. Inspector Salvador in consummating the crime:
(1) On the day of the entrapment, respondent judge asked Bulatao if he had the money, and when he received an
affirmative answer, he took Bulatao and the two police officers to his chambers, told the police officers to receive
whatever Bulatao would give them,[15] and then left; and
(2) When Bulatao left respondent's chambers and gave the signal to the NBI operatives waiting outside, the marked
bills were found by the agents in the possession of SPO2 Jonathan Santos, as the latter was leaving the chambers of
respondent judge with SPO4 Carlos Poli. As the Investigating Judge observed, respondent willingly allowed his chambers
to be used for the consummation of the illegal transaction. The actions of respondent implies a wrongful intention to
commit an unlawful act while in the performance of his official duties.
Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not only impropriety but even the appearance of
impropriety in all their conduct. This includes not taking an undue interest in the settlement of criminal cases pending
before them as this may compromise the integrity and impartiality of their office. [16] As the visible representation of the
law and of justice, their conduct must be above reproach and suspicion.[17] By acting as an accomplice to P/Sr. Inspector
Salvador, respondent judge violated not only the law but also the Code of Judicial Conduct.
 Nor does the fact that respondent committed misconduct during a preliminary investigation, which is non-judicial in
character, exempt him from the disciplinary power of this Court as the conduct of a preliminary investigation is only an
addition to his judicial functions.[18]
In Cabrera vs. Pajares,[19] where the payment of the money to respondent judge in his chambers was witnessed by an
NBI agent, this Court ordered his dismissal from the service. Likewise, in Court Administrator vs. Hermoso,[20] where the
judge received money from a party to a case pending before his sala and was entrapped by an NBI agent, this Court
ordered his dismissal. In addition, the erring judge is liable to the forfeiture of his leave credits and retirement benefits and
his dismissal shall be with prejudice to reemployment in any branch of the government or any of its agencies or
instrumentalities, including government-owned and controlled corporations, as provided by Section 9, Rule 14 of the
Omnibus Rules Implementing Book V of Executive Order No. 292 (Administrative Code of 1987) and our current
rulings.[21]
Respondent judge was previously convicted in two administrative cases filed before this Court. In A.M. No. MTJ-91-
616, entitled "Clodualdo Escobar vs. Garcia," the Court, in a resolution dated September l, 1992, found respondent guilty
of palpable ignorance of Rule 114, section 8 resulting in the denial of due process to the prosecution in a criminal
case. Respondent was fined an amount equivalent to 15 days salary with warning that a repetition of the same would be
dealt with more severely. In another case, A.M. No. MTJ-95-1049, entitled Eloisa Bernardo v. Garcia, the Court, in a
resolution dated June 28, 1995, found respondent guilty of deliberately delaying his decision in a civil case and falsifying
certificates of service. He was reprimanded and ordered to pay a fine of P5,000.00 with warning that a repetition of the
same or similar acts will be dealt with more severely.
WHEREFORE, the Court finds respondent Judge Dominador L. Garcia guilty of serious misconduct and
accordingly orders his DISMISSAL from the service and the forfeiture of his leave credits and retirement benefits, with
prejudice to reemployment in any branch of the government or any of its agencies or instrumentalities, including
government-owned and controlled corporations.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.
 SECOND DIVISION
[G.R. No. 107383. February 20, 1996.]
CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of
Manila (Branch X) which ordered petitioner to return documents and papers taken by her from private respondents clinic
without the latters knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the
clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondents secretary,
forcibly opened the drawers and cabinet in her husbands clinic and took 157 documents consisting of private
correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martins
passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and
for disqualification from the practice of medicine which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner.
The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private
respondent, Dr. Alfredo Martin, declaring him the capital/exclusive owner of the properties described in paragraph 3 of
plaintiffs Complaint or those further described in the Motion to Return and Suppress and ordering Cecilia Zulueta and any
person acting in her behalf to immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal
damages; P5,000.00, as moral damages and attorneys fees; and to pay the costs of the suit. The writ of preliminary
injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined
from using or submitting/admitting as evidence the documents and papers in question. On appeal, the Court of Appeals
affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and
that they were taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court
declared the documents and papers to be properties of private respondent, ordered petitioner to return them to private
respondent and enjoined her from using them in evidence. In appealing from the decision of the Court of Appeals
affirming the trial courts decision, petitioners only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled
that the documents and papers (marked as Annexes A-i to J-7 of respondents comment in that case) were admissible in
evidence and, therefore, their use by petitioners attorney, Alfonso Felix, Jr., did not constitute malpractice or gross
misconduct. For this reason it is contended that the Court of Appeals erred in affirming the decision of the trial court
instead of dismissing private respondents complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private
respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix,
Jr. committed malpractice or gross misconduct because of the injunctive order of the trial court. In dismissing the
complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix, Jr. which it found to be
impressed with merit:2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:
xxx xxx xxx

4. When respondent refiled Cecilias case for legal separation before the Pasig Regional Trial Court, there was admittedly
an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex A-I to J-7. On
September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this Court issued a
restraining order on aforesaid date which order temporarily set aside the order of the trial court. Hence, during the
enforceability of this Courts order, respondents request for petitioner to admit the genuineness and authenticity of the
subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and
authenticity of the questioned annexes. At that point in time, would it have been malpractice for respondent to use
petitioners admission as evidence against him in the legal separation case pending in the Regional Trial Court of Makati?
Respondent submits it is- not malpractice.
Significantly, petitioners admission was done not thru his counsel but by Dr. Martin himself under oath. Such
verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound by
his admission. For Cecilia to avail herself of her husbands admission and use the same in her action for legal separation
cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of
the documents and papers for the purpose of securing Dr. Martins admission as to their genuiness and authenticity did not
constitute a violation of the injunctive order of the trial court. By no means does the decision in that case establish the
admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary
injunction issued by the trial court, it was only because, at the time he used the documents and papers, enforcement of the
order of the trial court was temporarily restrained by this Court. The TRO issued by this Court was eventually lifted as the
petition for certiorari filed by petitioner against the trial courts order was dismissed and, therefore, the prohibition against
the further use of the documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring the
privacy of communication and correspondence [to be] inviolable3 is no less applicable simply because it is the wife (who
thinks herself aggrieved by her husbands infidelity) who is the party against whom the constitutional provision is to be
enforced. The only exception to the prohibition in the Constitution is if there is a lawful order [from a] court or when
public safety or order requires otherwise, as prescribed by law.4 Any violation of this provision renders the evidence
obtained inadmissible for any purpose in any proceeding.5
The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the
other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not
shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to
her.
The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband
nor wife may testify for or against the other without the consent of the affected spouse while the marriage
subsists.6 Neither may be examined without the consent of the other as to any communication received in confidence by
one from the other during the marriage, save for specified exceptions. 7 But one thing is freedom of communication; quite
another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of
fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
Regalado (Chairman), Romero, and Puno, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-45168 September 25, 1979

DIRECTOR OF LANDS, petitioner,

vs.
COURT OF APPEALS, ET AL., respondents, GREENFIELD DEVELOPMENT CORP., intervenor, ALABANG
DEVELOPMENT CORPORATION and RAMON D. BAGATSING, intervenors.

RESOLUTION

GUERRERO, J.:

Two motions for leave of court to intervene in the above entitled case are before Us, the first by Greenfield Development
Corporation, claiming to be the registered owner of seven (7) parcels of land adjoining that of private respondent, situated
in the Barrio of Cupang, Municipality of Muntinlupa, Province of Rizal (now portion of Metro Manila), with an aggregate
area of 783,367 square meters with TCT Nos. 366292, S-38660, S-38661, S-43229, 43230 and 93980 in the name of the
movant, which land was originally registered on September 20, 1913 in the registration book of the Office of the Register
of Deeds of Rizal, Vol. A-7, page 84, as Original Certificate of Title No. 684, pursuant to Decree No. 4552 issued on
August 27, 1910 in the name of the "Government of the Phil. Island" covering and embracing the land otherwise known as
the "Muntinlupa Estate."

Movant alleges that upon comparison of the technical descriptions set forth in TCT No. 42449 sought to be reconstituted
by the private respondent Demetria Sta. Maria Vda. de Bernal consisting of two parcels of land located in Barrio San
Dionisio, Paranaque Rizal with an aggregate area of 143 hectares, more or less, and designated as Lots 1 and 3 of Plan 11-
4374, with those described in the certificates of title of the movant, it appears that the land supposedly covered by the
certificate sought to be reconstituted overlapped and included substantial portions of movant's land, the location and
extent of the overlapping having been platted on the basis of the respective technical descriptions referred to in the plan
marked Annex 8 attached to the motion; that movant therefore claims a substantial, material, proprietary and legal interest
in the subject matter of the instant petition which will directly and adversely affect the petition for reconstitution of the
respondent.

Movant also alleges that among those overlapped by and adjacent to the land supposedly covered by the title to be
reconstituted aside from the movant are the residences within the Alabang Hills Subdivision, Cielito Homes Subdivision,
Tahanan Village, portion of the South Super Highway, Meralco Substation, factories as well as roads and infrastructures
which respondent allegedly omitted to name and to give notice of her petition for reconstitution.

It is further contended that if re-constitution is granted, other title holders and possessors overlapped by the land covered
by the title sought to be reconstituted stand to be deprived of their property rights and that greater injury shall be inflicted
to the Torrens system of registration for there will be two holders of certificates of title overlapping each other thereby
negating the very purpose of the Torrens system and imperiling the indefeasibility and stability of the same such that
when this happens "the chaos that it will create will be unimaginable."

The second motion for intervention filed by Alabang Development Corporation and Ramon D. Bagatsing likewise prays
for leave of court to intervene on substantially the same grounds: I. That the Honorable Court a quo has no jurisdiction to
grant the petition for reconstitution; II. That granting arguendo, that the title sought to be reconstituted is valid which it is
not, the same cannot prevail over the earlier title of herein intervenors or their predecessors-in- interest; and III. That
intervenors stand to be divested of their property and thereby suffer special, immediate, direct and irreparable injury in
their proprietary rights if reconstitution is granted.
These second movants allege that they are the registered owners of parcels of land located at Cupang, Muntinlupa, Metro
Manila covered and evidenced by Transfer Certificates of Title issued by the Register of Deeds of the Province of Rizal
which were transfers from Original Certificate, of Title No. 684 registered in the name of "The Government of the Phil.
Islands" originally registered on Sept. 20, 1913, per survey in 1907 pursuant to Decree No. 4552 issued on August 27,
1910; that being registered owners and persons in actual possession and as adjoining owners they were not personally
notified of the petition for reconstitution and that copies of the notices of hearing were not posted on Lots 1 and 3 of the
respondent before the hearing as required by the trial court so that if reconstitution will be carried out, they stand to be
divested of their property by the overlapping of the area of the title sought to be reconstituted on the land owned and
actually in the possession of the movants and their successors-in-.interest, which overlapping are shown in the certified
plans, Annexes 1 and 2 of the motion.

Movants further allege that a portion of the land in dispute was covered by TCT No. 45397 (Lot 398-B) and 45398 (Lot
398A) in the name of movant Ramon D. Bagatsing and Toribio G. Reyes with an area of 815,317 sq. meters and 201,591
sq. meters. respectively, the same being transfers from TCT No. 14812 in the name of Toribio G. Reyes which in turn was
a transfer from OCT No. 684 in the name of "The Government of the Phil. Islands" originally registered on Sept. 20, 1913
pursuant to Decree No. 4552 issued on August 27, 1910; that subsequent transfers by movant Ramon D. Bagatsing of
portions of the land were made to Meralco, to Alabang Development Corporation which in turn sold to some 36 innocent
purchasers for value in the Alabang Hills Subdivision.

It is also averred that movant Alabang Development Corporation obtained from the Court of First instance of Rizal,
Branch XIII an order dated April 19, 1969 for the issuance of certificates of title numbering 92 titles over said parcels of
land now surrounded by a high perimeter wall on its boundaries which were sold to innocent purchasers in good faith for
valuable consideration who were not personally notified of the pendency of the reconstitution case not only as adjoining
owners but as actual possessors thereof .

Private respondent separately opposed both motions, the, first motion on the ground that the supposed TOTs of the
intervenor are of the 1972 vintage so that if same are true that titles are the ones that overlap that of private respondent
which was procured as early as November 13, 1942 and that of her mother-predecessor issued on Sept. 29, 1942; that the
motion to intervene constitutes a mere annoyance tending merely to derail and delay the proceedings; that petitioner is
guilty of laches and that to grant the motion after trial and judgment rendered comes out of time as an abuse of judicial
discretion and that whatever interest or right movants are supposed to have may be fully protected by a separate
proceeding.

Before resolving both motions for intervention, a brief recital of the antecedent facts is necessary.

In an amended petition filed on November 12, 1970 before the Court of First Instance of Rizal, private respondent
Demetria Sta. Maria Vda. de Bernal sought the reconstitution of her Transfer Certificate of Title No. 42449 of the
Registry of Deeds of Rizal alleged to have been lost or destroyed during the last war, covering two parcels of land
described as follows: (a) Lot 1 of plan II-4374 situated in the Barrio of San Dionisio, Municipality of Paranaque (now
Muntinlupa), Province of Rizal, with an aggregate area of 717,523 sq. m., and (b) Lot 3 of plan II-4374 situated in the
Barrio of San Dionisio, Municipality of Paranaque, Province of Rizal, with an aggregate area of 717,539 sq. m. Presented
as the basic source of the title sought to be reconstituted was the owner's duplicate of Transfer Certificate of Title No. T-
42449 issued in the name of herein private respondent.

Opposition to the petition for reconstitution was filed by the Director of Lands, Pedro de la Pena Leodegario R. Alba, Jr.,
Angel Cruz, Aurora Favila, Democrito R. Favila and Eufracia R. Favila some of whom withdrew or never appeared or
abandoned their claims and after trial, the Court of First Instance of Rizal on November 19, 1973 denied the petition for
reconstitution of Transfer Certificate of Title No. T-42449 for insufficiency of evidence. Private respondent moved for
reconsideration of the Order, or in the alternative, for the vacation thereof and for a new trial on the ground of newly
discovered evidence. The motion for new trial was granted. After the hearing on the newly discovered evidence, the court
issued on September 18, 1974 an Order again denying reconstitution of private respondent's original Transfer Certificate
of Title No. T-42449, declaring that "(T)he Court still entertains doubt as to the authenticity and genuineness of Transfer
Certificate of Title No. 42449 (Exhibit C) which is sought to be reconstituted."

On appeal to the respondent Court of Appeals 1 filed by private respondent, the same court in its decision promulgated on
October 1, 1976 reversed the appealed Orders.
On October 21, 1976, the remaining oppositor, the Director of Lands, thru the Office of the Solicitor General, filed with
the respondent court a Motion for New Period to File Motion for Reconsideration alleging excusable negligence on his
part for his failure to file an extension of the period within which to file a motion for reconsideration, to which herein
private respondent filed her Opposition. On November 2, 1976, without waiting for the resolution of the above motion,
the Director of Lands filed a Motion to Admit Motion for Reconsideration attaching thereto his Motion for
Reconsideration dated October 1, 1976. Opposition thereto was likewise filed by herein private respondent. On November
11, 1976, respondent Court issued its Resolution denying herein petitioner's motions on the ground that the decision
sought to be reconsidered had become final and executory.

Hence, the petition at bar filed by the Director of Lands which was given due course by this Court in the Resolution dated
April 22,1977.

On June 14, 1978, the case was submitted for decision. Thereafter, the herein two motions to intervene were separately
filed on December 7, 1978 and December 29, 1978.

Rule 12, Section 2 of the Rules of Court provides the procedure for intervention. According to Section 2 thereof, which
reads:

Sec. 2. Intervention. - A person may, before or during a trial, be permitted by the court, in its discretion,
to intervene in an action, if he has legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or when he is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer thereof.

It is quite clear and patent that the motions for intervention filed by the movants at this stage of the proceedings where
trial has already been concluded, a judgment thereon had been promulgated in favor of private respondent and on appeal
by the losing party, the Director of Lands, the same was affirmed by the Court of Appeals and the instant petition for
certiorari to review said judgment is already submitted for decision by the Supreme Court, are obviously and manifestly
late, beyond the period prescribed under the aforecoded Section 2, Rule 12 of the Rules of Court.

But Rule 12 of the Rules of Court like all other Rules therein promulgated, is simply a rule of procedure, the whole
purpose and object of which is to make the powers of the Court fully and completely available for justice. The purpose of
procedure is not to thwart justice. Its proper aim is to facilitate the application of justice to the rival claims of contending
parties. It was created not to hinder and delay but to facilitate and promote the administration of justice. It does not
constitute the thing itself which courts are always striving to secure to litigants. It is designed as the means best adopted to
obtain that thing. In other words, it is a means to an end. 2

The denial of the motions for intervention arising from the strict application of the Rule due to alleged lack of notice to, or
the alleged failure of, movants to act seasonably will lead the Court to commit an act of injustice to the movants, to their
successors-in-interest and to all purchasers for value and in good faith and thereby open the door to fraud, falsehood and
misrepresentation should intervenors' claims be proven to be true. For it cannot be gainsaid that if the petition for
reconstitution is finally granted, the chaos and confusion arising from a situation where the certificates of title of the
movants covering large areas of land overlap or incroach on properties the title to which is being sought to be
reconstituted by private respondent, who herself indicates in her Opposition that, according to the Director of Lands, the
overlapping embraces some 87 hectares only, is certain and inevitable. The aggregate area of the property claimed by
respondent covering Lot 1 and Lot 2 is 1,435,062 sq. meters which is situated in a fast-growing, highly residential sector
of Metro Manila where growth and development are in rapid progress to meet the demands of an urbanized, exploding
population. Industries, factories, warehouses, plants, and other commercial infrastructures are rising and spreading with
the area and the owners of these lands and the valuable improvements thereon will not simply fold their hands but
certainly will seek judicial protection of their property rights or may even take the law into their own hands, resulting to
multiplicity of suits.

This Tribunal can take judicial notice of innumerable litigations and legal controversies spawned by overlapping and
encroaching boundaries, each party relying on certificates of titles issued under the Torrens System or the Spanish
registration laws or other deeds and documents which prima facie show their lawful interests or ownership therein. To the
ordinary land purchaser not fully acquainted with the intricacies of the law nor the validity much less the authenticity of
these instruments which in many instances are found to be forged or simply reconstituted with areas that have increased in
"table surveys" with the cooperation of unscrupulous officials, the courts by hastily stamping their approval on
reconstituted titles have wittingly and unwittinglly aided and abetted these fraudulent transactions resulting in the wiping
out of the lifesavings of many a poor, unlettered and inexperienced lot buyer. The court must guard against such haste and
carefully take due precautions that the public interest be protected.

In the case at bar, the sprawling area of the property in question where various subdivisions., residential houses and homes
and infrastructures have mushroomed and the great number of people living or having proprietary rights and interests in
such a vast property would certainly bring about the swamping of the courts and the clogging of their dockets with cases
involving not only the original parties and the movants but also their successors-in-interest. This litigation will have no
end, which this Court will not allow nor tolerate.

But over and above these considerations and circumstances which We have pointed out, there is the basic and
fundamental requirement under the Rules of Court, Section 7, Rule 3, that "Parties in interest without whom no final
determination can be had of an action shall be joined either as plaintiffs or defendants," The joinder of indispensable
parties is compulsory, under any and all conditions, their presence being a sine qua non of the exercise of judicial power. 3

The herein movants, Greenfield Development Corporation, Alabang Development Corporation, Ramon D. Bagatsing, and
all buyers from them, at least those with ostensible proprietary interests as the MERALCO, Alabang Hills Subdivision,
Cielito Homes Subdivision, Tahanan Village, the Ministry of Highways insofar as the South Super Highway is affected,
are indispensable parties to these proceedings as it has been shown affirmatively that they have such an interest in the
controversy or subject matter that a final adjudication cannot be made, in their absence, without injuring or affecting such
interest. The joinder must be ordered in order to prevent multiplicity of suits, so that the whole matter in dispute may be
determined once and for all in one litigation. 4 The evident aim and intent of the Rules regarding the joinder of
indispensable and necessary parties is a complete determination of all possible issues, not only between the parties
themselves but also as regards to other persons who may be affected by the judgment. 5 A valid judgment cannot seven be
rendered where there is want of indispensable parties. 6

We agree with the movants that the indefeasibility and stability of the Torrens System wig be imperiled should
reconstitution be granted, resulting into two holders of certificates of title to areas that overlap each other. And where the
overlapping area embraces 87 hectares or 870,000 sq. meters as alleged, it becomes essential and imperative to preserve
the efficacy and integrity of our registration system. This aspect of the case which commands the joinder of indispensable
parties to allow them to uphold their interests based upon the Torrens titles they hold overrides any question of late
intervention.

The crux of the matter, however, lies in ascertaining whether there really is overlapping of boundaries of the properties of
the movants for intervention and that of the private respondent. As We scrutinize carefully the claim of each party based
on survey readings and plattings appearing on the plans submitted as annexes, We find that the same have not passed the
rigid test of accuracy and authenticity as should be determined by precision instruments duly verified by accredited
surveyors. Indeed, each claim may appear to be as good and self-serving as the other. And since the Supreme Court is not
a trier of facts, the veracity and correctness of the alleged overlapping is better left to those scientifically qualified, trained
and experienced and whose integrity is beyond question and dispute.

PREMISES CONSIDERED, in view of the higher and greater interest of the public and in order to administer justice
consistent with a just, speedy and inexpensive determination of the respective claims of the parties and their numerous
successors-in-interest, the motions for intervention are hereby granted.

The Court directs the Chief of the Survey Division of the Bureau of Lands or his duly authorized representative with due
notice to the parties and in their presence or that of their duly authorized representatives to conduct a relocation of the
respective boundaries of the properties claimed by the movants and the private respondent within 90 days after notice and
his fees shag be borne equally by the parties and thereafter to submit to this Court the result of such relocation survey,
indicating therein such overlapping as he may have found and determined and the location of such industries, factories,
warehouses, plants and other commercial infrastructures, residential buildings and other constructions, public or private
roads, and other landmarks found within the areas concerned.

SO ORDERED. Teehankee, Actg. C.J, (Chairman), Fernandez, De Castro and Melencio-Herrera, JJ., concur.Makasiar,
J., is on leave.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28232 February 6, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR., alias "BOY,"
EDGARDO AQUINO Y PAYUMO and ROGELIO CAÑAL Y SEVILLA, defendants-appellants.

Office of the Solicitor General Antonio P. Barredo and Solicitor Augusto M. Amores for plaintiff-appellee.

Baizas, Alberto and Associates, Andreciano F. Caballero and Lota, Paraiso, Garcia and Dueñas for defendant-appellant
Jaime G. Jose.

Mabanag, Eliger and Associates for defendant-appellant Basilio Pineda, Jr.

Sycip, Salazar, Luna, Manalo and Feliciano for defendant-appellant Edgardo P. Aquino.

Antonio Coronel Law Office and Roberto J. Ignacio for defendant-appellant Rogelio S. Canial.

PER CURIAM:

The amended complaint filed in this case in the court below, reads as follows:

The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR. Alias "BOY,"
EDUARDO AQUINO Y PAYUMO alias "EDDIE" and ROGELIO CAÑAL Y SEVILLA alias
"ROGER," as principals, WONG LAY PUENG, SILVERIO GUANZON Y ROMERO and JESSIE
GUION Y ENVOLTARIO as accomplices, of the crime of Forcible Abduction with rape, committed as
follows:

That on or about the 26th day of June, 1967, in Quezon City, and within the jurisdiction of this Honorable
Court, the above-named principal accused, conspiring together, confederating with and mutually helping
one another, did, then and there, wilfully, unlawfully and feloniously, with lewd design, forcibly abduct
the undersigned complainant against her will, and did, then and there take her, pursuant to their common
criminal design, to the Swanky Hotel in Pasay City, where each of the four (4) accused, by means of force
and intimidation, and with the use of a deadly weapon, have carnal knowledge of the undersigned
complainant against her will, to her damage and prejudice in such amount as may be awarded to her under
the provisions of the civil code.

That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE GUION y
ENVOLTARIO without taking a direct part in the execution of the offense either by forcing, inducing the
principal accused to execute, or cooperating in its execution by an indispensable act, did, then and there
cooperate in the execution of the offense by previous or simultaneous acts, that is, by cooperating, aiding,
abetting and permitting the principal accused in sequestering the undersigned complainant in one of the
rooms of the Swanky Hotel then under the control of the accused Wong Lay Pueng, Silverio Guanzon y
Romero and Jessie Guion y Envoltario, thus supplying material and moral aid in the consummation of the
offense.

That the aforestated offense has been attended by the following aggravating circumstances:
 1. Use of a motor vehicle.

2. Night time sought purposely to facilitate the commission of the crime and to make its discovery
difficult;

3. Abuse of superior strength;

4. That means were employed or circumstances brought about which added ignominy to the natural
effects of the act; and

5. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong
not necessary for the commission.

CONTRARY TO LAW.

Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in the above-quoted amended complaint;
however, in an order dated July 11, 1967, the court reserved judgment "until such time as the prosecution shall have
concluded presenting all of its evidence to prove the aggravating circumstances listed in the complaint." Upon the other
hand, the rest of the defendants went to trial on their respective pleas of not guilty. After the merits, the court below
rendered its decision on October 2, 1967, the dispositive portion of which reads as follows:

WHEREFORE, the Court finds the accused Jaime Jose, Rogelio Cañal, Eduardo Aquino and Basilio
Pineda, Jr. guilty beyond reasonable doubt of the crime of forcible abduction with rape as described under
Art. 335 of the Revised Penal Code, as amended, and hereby sentences each of them to the death penalty
to be executed at a date to be set and in the manner provided for by law; and each to indemnify the
complainant in the amount of ten thousand pesos. On the ground that the prosecution has failed to
establish a prima facie case against the accomplices Wong Lay Pueng, Silverio Guanzon y Romero, and
Jessie Guion y Envoltario, the Motion to Dismiss filed for and in their behalf is hereby granted, and the
case dismissed against the aforementioned accused.

Insofar as the car used in the abduction of the victim which Jaime Jose identified by pointing to it from
the window of the courtroom and pictures of which were submitted and marked as Exhibits "M" and "M-
1," and which Jaime Jose in his testimony admitted belonged to him, pursuant to Art. 45 of the Revised
Penal Code, which requires the confiscation and forfeiture of the proceeds or instruments of the crime, the
Court hereby orders its confiscation.

This case is now before us by virtue of the appeal interposed by Basilio Pineda, Jr., Edgardo Aquino, and Jaime Jose, and
for automatic review as regards Rogelio Cañal. However, for practical purposes all of them shall hereafter be referred to
as appellants.

The complainant, Magdalena "Maggie" de la Riva, was, at the time of the incident, 25 years old and single; she graduated
from high school in 1958 at Maryknoll College and finished the secretarial course in 1960 at St. Theresa's College. Movie
actress by profession, she was receiving P8,000.00 per picture. It was part of her work to perform in radio broadcasts and
television shows, where she was paid P800.00 per month in permanent shows, P300.00 per month in live promotional
shows, and from P100.00 to P200.00 per appearance as guest in other shows.

So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De la Riva, homeward bound from the ABS
Studio on Roxas Blvd., Pasay City, was driving her bantam car accompanied by her maid Helen Calderon, who was also
at the front seat. Her house was at No. 48, 12th Street, New Manila, Quezon City. She was already near her destination
when a Pontiac two-door convertible car with four men aboard (later identified as the four appellants) came abreast of her
car and tried to bump it. She stepped on her brakes to avoid a collision, and then pressed on the gas and swerved her car to
the left, at which moment she was already in front of her house gate; but because the driver of the other car (Basilio
Pineda, Jr.) also accelerated his speed, the two cars almost collided for the second time. This prompted Miss De la Riva,
who was justifiably annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the car which he was driving, jumped out of it
and rushed towards her.
The girl became so frightened at this turn of events that she tooted the horn of her car continuously. Undaunted, Pineda
opened the door of Miss De la Riva's car and grabbed the lady's left arm. The girl held on tenaciously to her car's steering
wheel and, together with her maid, started to scream. Her strength, however, proved no match to that of Pineda, who
succeeded in pulling her out of her car. Seeing her mistress' predicament, the maid jumped out of the car and took hold of
Miss De la Riva's right arm in an effort to free her from Pineda's grip. The latter, however, was able to drag Miss De la
Riva toward the Pontiac convertible car, whose motor was all the while running.

When Miss De la Riva, who was being pulled by Pineda, was very near the Pontiac car, the three men inside started to
assist their friend: one of them held her by the neck, while the two others held her arms and legs. All three were now
pulling Miss De la Riva inside the car. Before she was completely in, appellant Pineda jumped unto the driver's seat and
sped away in the direction of Broadway Street. The maid was left behind.

The complainant was made to sit between Jaime Jose and Edgardo Aquino at the back seat; Basilio Pineda, Jr. was at the
wheel, while Rogelio Cañal was seated beside him. Miss De la Riva entreated the appellants to release her; but all she got
in response were jeers, abusive and impolite language that the appellants and threats that the appellants would finish her
with their Thompson and throw acid at her face if she did not keep quiet. In the meantime, the two men seated on each
side of Miss De la Riva started to get busy with her body: Jose put one arm around the complainant and forced his lips
upon hers, while Aquino placed his arms on her thighs and lifted her skirt. The girl tried to resist them. She continuously
implored her captors to release her, telling them that she was the only breadwinner in the family and that her mother was
alone at home and needed her company because her father was already dead. Upon learning of the demise of Miss De la
Riva's father, Aquino remarked that the situation was much better than he thought since no one could take revenge against
them. By now Miss De la Riva was beginning to realize the futility of her pleas. She made the sign of the cross and started
to pray. The appellants became angry and cursed her. Every now and then Aquino would stand up and talk in whispers
with Pineda, after which the two would exchange knowing glances with Cañal and Jose.

The car reached a dead-end street. Pineda turned the car around and headed towards Victoria Street. Then the car
proceeded to Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to Epifanio de los Santos Avenue. When the car
reached Makati, Aquino took a handkerchief from his pocket and, with the help of Jose, blindfolded Miss De la Riva. The
latter was told not to shout or else she would be stabbed or shot with a Thompson. Not long after, the car came to a stop at
the Swanky Hotel in Pasay City The blindfolded lady was led out of the car to one of the rooms on the second floor of the
hotel.

Inside the room Miss De la Riva was made to sit on a bed. Her blindfold was removed. She saw Pineda and Aquino
standing in front of her, and Jose and Cañal sitting beside her, all of them smiling meaningfully. Pineda told the
complainant: "Magburlesque ka para sa amin." The other three expressed their approval and ordered Miss De la Riva to
disrobe. The complainant ignored the command. One of the appellants suggested putting off the light so that the
complainant would not be ashamed. The idea, however, was rejected by the others, who said that it would be more
pleasurable for them if the light was on. Miss De la Riva was told to remove her stocking in order, according to them, to
make the proceedings more exciting. Reluctantly, she did as directed, but so slowly did she proceed with the assigned task
that the appellants cursed her and threatened her again with the Thompson and the acid. They started pushing Miss De la
Riva around. One of them pulled down the zipper of her dress; another unhooked her brassiere. She held on tightly to her
dress to prevent it from being pulled down, but her efforts were in vain: her dress, together with her brassiere, fell on the
floor.

The complainant was now completely naked before the four men, who were kneeling in front of her and feasting their
eyes on her private parts. This ordeal lasted for about ten minutes, during which the complainant, in all her nakedness,
was asked twice or thrice to turn around. Then Pineda picked up her clothes and left the room with his other companions.
The complainant tried to look for a blanket with which to cover herself, but she could not find one.

Very soon, Jose reentered the room and began undressing himself. Miss De la Riva, who was sitting on the bed trying to
cover her bareness with her hands, implored him to ask his friends to release her. Instead of answering her, he pushed her
backward and pinned her down on the bed. Miss De la Riva and Jose struggled against each other; and because the
complainant was putting up stiff resistance, Jose cursed her and hit her several times on the stomach and other parts of the
body. The complainant crossed her legs tightly, but her attacker was able to force them open. Jose succeeded in having
carnal knowledge of the complainant. He then left the room.
The other three took their turns. Aquino entered the room next. A struggle ensued between him and Miss De la Riva
during which he hit, her on different parts of the body. Like Jose, Aquino succeeded in abusing the complainant. The girl
was now in a state of shock. Aquino called the others into the room. They poured water on her face and slapped her to
revive her. Afterwards, three of the accused left the room, leaving Pineda and the complainant After some struggle during
which Pineda hit her, the former succeeded in forcing his carnal desire on the latter. When the complainant went into a
state of shock for the second time, the three other men went into the room again poured water on the complainant's face
and slapped her several times. The complainant heard them say that they had to revive her so she would know what was
happening. Jose, Aquino and Pineda then left the room. It was now appellant Canal's turn. There was a struggle between
him and Miss De la Riva. Like the other three appellants before him, he hit the complainant on different parts of the body
and succeeded in forcing his carnal lust on her.

Mention must be made of the fact that while each of mention must be made the four appellants was struggling with the
complainant, the other three were outside the room, just behind the door, threatening the complainant with acid and telling
her to give in because she could not, after all, escape what with their presence.

After the appellants had been through with the sexual carnage, they gave Miss De la Riva her clothes, told her to get
dressed and put on her stockings, and to wash her face and comb her hair, to give the impression that nothing had
happened to her. They told her to tell her mother that she was mistaken by a group of men for a hostess, and that when the
group found out that she was a movie actress, she was released without being harmed. She was warned not to inform the
police; for if she did and they were apprehended, they would simply post bail and later hunt her up and disfigure her face
with acid. The appellants then blindfolded Miss De la Riva again and led her down from the hotel room. Because she was
stumbling, she had to be carried into the car. Inside the car, a appellant Jose held her head down on his lap, and kept it in
that position during the trip, to prevent her from being seen by others.

Meanwhile, the four appellants were discussing the question of where to drop Miss De la Riva. They finally decided on a
spot in front of the Free Press Building not far from Epifanio de los Santos Avenue near Channel 5 to make it appear,
according to them, that the complainant had just come from the studio. Pineda asked Jose to alight and call a taxicab, but
to choose one which did not come from a well-known company. Jose did as requested, letting several taxicabs pass by
before flagging a UBL taxicab. After they warned again Miss De la Riva not to inform anyone of what had happened to
her, appellant Canal accompanied her to the taxicab. The time was a little past 6:00 o'clock. When Miss De la Riva was
already inside the cab and alone with the driver, Miguel F. Campos, she broke down and cried. She kept asking the driver
if a car was following them; and each time the driver answered her in the negative.

It was 6:30 o'clock — or some two hours after the abduction — when Miss De la Riva reached home. Her mother, her
brother-in-law Ben Suba, as well as several PC officers, policemen and reporters, were at the house. Upon seeing her
mother, the complainant ran toward her and said, "Mommy, Mommy, I have been raped. All four of them raped me." The
mother brought her daughter upstairs. Upon her mother's instruction, the complainant immediately took a bath and a
douche. The older woman also instructed her daughter to douche himself two or three times daily with a strong solution to
prevent infection and pregnancy. The family doctor, who was afterwards summoned, treated the complainant for external
physical injuries. The doctor was not, however, told about the sexual assaults. Neither was Pat. Pablo Pascual, the police
officer who had been sent by the desk officer, Sgt. Dimla, to the De la Riva residence when the latter received from a
mobile patrol a report of the snatching. When Miss De la Riva arrived home from her harrowing experience, Pat. Pascual
attempted to question her, but Ben Suba requested him to postpone the interrogation until she could be ready for it. At that
time, mother and daughter were still undecided on what to do.

On the afternoon of June 28, 1967, the complainant family gathered to discuss what steps, if any, should be taken. After
some agonizing moments, a decision was reached: the authorities had to be informed. Thus, early on the morning of June
29, 1967, or on the fourth day after the incident, Miss De la Riva, accompanied by her lawyer, Atty. Regina O. Benitez,
and by some members of the family, went to the Quezon City Police Department Headquarters, filed a complaint and
executed a statement (Exh. "B") wherein she narrated the incident and gave descriptions of the four men who abused her.
In the afternoon of the same day, the complainant submitted herself ito a medico-internal examination by Dr. Ernesto
Brion, NBI Chief Medico-Legal Officer.

During the physical examination of the complainant by Dr. Brion on June 29, 1967, Pat. Pascual was also at the NBI
office. There he received a telephone call from the police headquarters to the effect that one of the suspects had been
apprehended. That evening, the complainant and Pat. Pascual proceeded to the headquarters where Miss De la Riva
identified appellant Jaime Jose from among a group of persons inside the Office of the Chief of Police of Quezon City as
one of the four men he abducted and raped her. She executed another statement (Exh. "B-1") wherein she made a formal
identification of Jose and related the role played by him.

At about 9:00 o'clock of the same evening, appellant Jose executed a statement (Exh. "I") before Pat. Marcos G. Viñas. In
his statement, which was duly sworn. Jose admitted that he knew about, and was involved in, the June 26 incident. He
named the other line appellants as his companions. Jose stated, among other things, that upon the initiative of Pineda, he
and the other three waited for Miss De la Riva to come out of the ABS Studio; that his group gave chase to the
complainant's car; that it was Pineda who blindfolded her and that only Pineda and Aquino criminally assaulted the
complainant.

After Exh, "I" was executed by Jose, an informant furnished Pat. Vinas with a picture of appellant Edgardo Aquino. The
picture was shown to Miss De la Riva, who declared in her sworn statement (Exh. "B-3") that the man in the picture was
one of her abductors and rapists. The same picture was shown to Jose, who, in another sworn statement (Exh. "I-l"),
identified the man in the picture as appellant Aquino.

After the apprehension of Jose, the other three soon fell into the hands of the authorities: Pineda and Cañal on July 1,
1967, in Lipa City, and Aquino on July 5, 1967, in the province of Batangas. On the evening of July 1, 1967. Miss De la
Riva pointed to Pineda and Cañal as among the four persons who abducted and raped her. She picked them out from
among several person in the Office of the Chief of Police of Quezon City. Later in the same evening, Miss De la Riva
executed a sworn statement (Exh. B-2)wherein she made the same identification of the two appellants from among a
group of persons in the Office of the Chief of the Detective Bureau, adding that appellant Cañal had tattoo marks on his
right hip. After the identification, one of the policemen took appellant Cañal downstairs and undressed him, and he saw,
imprinted on the said appellant's right hip, the words "Bahala na Gang."

Appellant Cañal and Pineda executed and swore to separate statements on the day of their arrest. In his statement (Exh.
"G"), appellant Cañal confirmed the information previously given by Jose that the four of them waited for Miss De la
Riva to come down from the ABS Studio, and that they had planned to abduct and rape her. Appellant Cañal admitted that
all four of them participated in the commission of the crime, but he would make it appear that insofar as he was concerned
the complainant yielded her body to him on condition that he would release her. Pineda executed a statement (Exh. "J")
stating that he and his other three companions wept to the ABS Studio, and that, on learning that Miss De la Riva was
there, they made plans to wait for her and to follow her. He admitted that his group followed her car and snatched her and
took her to the Swanky Hotel. He would make it appear, however, that the complainant voluntarily acceded to having
sexual intercourse with him.

In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple contusions and bruises on different parts of the
complainant's body, as well as of genital injuries. On the witness stand the doctor was shown several photographs of the
complainant taken in his presence and under his supervision. With the aid of the photographs and the medical reports, the
doctor explained to the court that he found contusions or bruises on the complainant's chest, shoulders, arms and fore-
arms, right arm index finger, thighs, right knee and legs. He also declared that when he was examining her, Miss De la
Riva complained of slight tenderness around the neck, on the abdominal wall and at the sites of the extragenital physical
injuries, and that on pressing the said injuries, he elicited a sigh of pain or tenderness on the part of the subject. The
injuries, according to Dr. Brion, could have been caused blows administered by a closed fist or by the palm of the hand,
and could have been inflicted on the subject while she was being raped. It was the doctor's opinion that they could have
been sustained on or about June 26, 1967. In connection with the genital examination, the doctor declared that he found
injuries on the subject's genitalia which could have been produced by sexual intercourse committed on June 26, 1967. He
said that he failed to find spermatozoa. He explained, however, that spermatozoa are not usually found in the vagina after
the lapse of three days from the last intercourse, not to mention the possibility that the subject might have douched herself.

The three appellants who pleaded not guilty (Jose, Aquino and Cañal) took the witness stand. We quote hereunder the
portions of the decision under review relative to the theory of the defense:

Their story is that they and their co-accused Pineda had gone to the Ulog Cocktail Lounge somewhere in
Mabini street in Manila, and there killed time from 9:30 in the evening of June 25 until closing time,
which was about 3:30 in the early morning of the next day. At the cocktail lounge they had listened to the
music while enjoying some drinks. Between them they had consumed a whole bottle of whisky, so much
 so that at least Aquino became drunk, according to his own testimony. They had been joined at their table
by a certain Frankie whom they met only that night. Come time to go home, their new acquaintance asked
to be dropped at his home in Cubao. The five men piled into the red-bodied, black topped two-door
convertible Plymouth (Pontiac) car of Jaime Jose, and with Pineda at the wheel repaired to Cubao After
dislodging their new friend, Pineda steered the car to España Extension to bring Aquino to his home in
Mayon Street. But somewhere in España Extension before the Rotonda a small car whizzed to them
almost hitting them. They saw that the driver was a woman. Pineda gave chase and coming abreast of the
small car he shouted, "Putang ina mo, kamuntik na kaming mamatay." The woman continued on her way.
Now Pineda saying "let us teach her a lesson," sped after her and when she swerved ostensibly to enter a
gate, Pineda stopped his car behind being hurriedly got down, striding to the small car, opened the door
and started dragging the girl out. Both Jose and Aquino confirm the presence of another woman inside the
girl's car, who helped the girl struggle to get free from Pineda's grip; and that the struggle lasted about ten
minutes before Pineda finally succeeded in pushing the girl into the red convertible. All the three accused
insist they did nothing to aid Pineda: but they also admit that they did nothing to stop him.

Now the defense contends that Pineda cruised around and around the area just to scare the girl who was in
truth so scared that she begged them to let her be and return her to her home. She turned to Jose in appeal,
but this one told her he could net do anything as the "boss" was Pineda. Aquino heard her plead with Jose
"do you not have a sister yourself?" but did not bear the other plea 'do you not have a mother?' Then
Pineda stopped at the corner of the street where he had forcibly snatched the girl presumably to return her,
but then suddenly changing his mind he said, 'why don't you do a strip tease for us. I'll pay you P1,000.00
and the girl taunted, 'are you kidding?': that after a little while she consented to do the performance as
long as it would not last too long and provided the spectators were limited to the four of them.

Pineda sped the car until they got to Swanky Hotel where he and Maggie alighted first, but not before
Maggie had borrowed a handkerchief from one of them to cover her face as she went up the Hotel. The
three followed, and when they saw the pair enter a room, they quickly caught up. All the three accused
testify that as soon as they got into the room, Maggie de la Riva asked the boys to close the windows
before she. undressed in front of them. They themselves also removed their clothing. Two of them
removed their pants retaining their briefs, while Boy Pineda and Cañal stripped to the skin "because it
was hot." The three accused declared that they saw Boy Pineda hand P100.00 to Maggie and they heard
him promise her that he would pay the balance of P900.00 later. Whereupon, the show which lasted about
10 minutes began with the naked girl walking back and forth the room about 4 to 5 times. This
accomplished, all of them dressed up once more and the three accused (Jaime Jose, Eduardo Aquino and
Rogelio Cañal) left the room to wait in the car for Boy Pineda and Maggie de la Riva who were
apparently still discussing the mode of payment of the balance. Three minutes later Maggie de la Riva and
Boy Pineda joined them. Now, the question of how and where to drop Maggie came up and it is testified
to by the accused that it was Maggie's idea that they should drop her near the ABS Studio so that it would
appear as if she had just come from her work.

Jaime Jose was picked by the police on the morning of June 29 along Buendia Avenue. Aquino testifies
how, on June 29 Pineda went to him with a problem. He did not have the P900.00 with which to pay
Maggie the balance of her "show" and he was afraid that if he did not pay, Maggie would have her goons
after him. He wanted Aquino to go with him to Lipa City where he had relatives and where he could help
raise the money. Aquino readily obliged, and to make the company complete they invited Cañal to join
them. They used another car of Jaime Jose, different from the one they had used the day before. At Lipa,
Aquino detached himself from his compassions and proceeded alone to the barrio allegedly to visit his
relatives. In the meantime his two companions had remained in the City and had, according to Canal,
gone to live in a house very close to the municipal hall building. They later moved to another house where
the PC and Quezon City police posse found and arrested them. Aquino was the last to be apprehended,
when having read in the newspapers that he was wanted, he surrendered on July 5 to Mrs. Aurelia
Leviste, wife of the governor of Batangas.

The striptease-act-for-a-fee story on which the defense theory is anchored, defies one's credulity and reason, and had
utterly to counteract the evidence for the prosecution, particularly the complainant's testimony and Dr. Brion's medical
report and testimony. We quote with approval the able dissertion of the trial judge on this point:
 As main defense in the charge of rape, the three accused advance the proposition that nothing happened in
Swanky Hotel except a strip-tease exhibition which the complaint agreed to do for them for fee of
P1,000.00, P100.00 down and the balance to be paid "later." The flaw in this connection lies in its utter
inverisimilitude. The Court cannot believe that any woman exists, even one habitual engaged in this kind
of entertainment (which Maggie de la Riva has not been proven to be) who would consent (and as easily
and promptly as defense claims) to do a performance, not even for all money in the worlds after the rough
handling she experienced from these wolves in men's clothing who now hungered for a show. There is no
fury to match a woman stirred to indignation. A woman's pride is far stronger than her yen for money, and
her revenge much more keen. The Court cannot believe that after the rudeness and meanness of these men
to her, Maggie would in so short an interval of time forget her indignation and so readily consent to
satisfy their immoral curiosity about her. The woman in her would urge her to turn the men's hankering as
a weapon of revenge by denying them their pleasure.

Besides, the manner of payment offered for the performance is again something beyond even the wildest
expectations. Assuming that the woman whom the accused had abducted was in this kind of trade
assuming that the price offered was to her satisfaction, whom woman would be willing to perform first
and be paid later? It is simply preposterous to believe that Maggie de la Riva should have consent to do a
striptease act for a measly down-payment of P100.00 and the balance to be paid God knows when. Since
when are exposition of the flesh paid on the installment basis? By the very precautious nature of their
pitiful calling, women who sell their attractions are usually very shrewed and it is to be expected that they
could demand full payment before curtain call. How was Maggie to collect later when she did not even
know who these man were, where they lived, whether they could be trusted with a promise to pay later (!)
whether she could ever find them again? If there is anything that had struck the Court about the
complaint, it is her courage, her intelligence and her alertness. Only a stupid woman, and a most stupid
one that, could have been persuaded to do what the defense want this Court to believe Maggie de la Riva
consented to do.

Finally, it is odd that not one of these men should have mentioned this circumstances during their
interview with anyone, either the press, their police interrogator, the person who negotiated their
surrender (as in the case of Aquino) or even their counsel. One cannot escape the very strong suspicion
that this story is a last ditch, desperate attempt to save the day for the accused. It truly underscores the
hopelessness of their stand and projects all the more clearly their guilt.

Then there is the incident of the men's stripping themselves. Why was there need for this? The Court
realizes that in its desperate need of an explanation for Maggie's positive identification of Cañal as the
man with the tattoo mark on his right buttock, the defense concocted the sickeningly incident story that
the four men removed their underclothing in the presence of a woman simply "because it was hot." What
kind of men were these who were so devoid of any sense of decency that they thought nothing of adding
insult to injury by not only inducing a woman a strip before them, but for forcing her to perform before
a naked audience? And then they have gall to argue that "nothing" happened. For males of cold and
phlegmatic blood and disposition it could be credible, but not for men of torrid regions like ours where
quick passions and hot tempers are the rule rather than the exception!

All of these consideration set aside, notwithstanding, it is quite obvious that the version of the defense has not been able to
explain away a very vital piece of evidence of prosecution which, if unexplained, cannot but reduce any defense
unavailing. The result of the physical (external and internal) examination conducted on the person of Maggie de la Riva in
the afternoon of June 29, the pertinent findings of which quoted earlier in this decision, establish beyond doubt that at the
time that Maggie de la Riva was examined she bore on her body traces of physical and sexual assault.

The only attempt to an explanation made by the defense is either one of the following: (1) the insinuation
that when Maggie de la Riva and Boy Pineda were left behind in the hotel room the bruises and the sexual
attack could have taken place then. But then, the defense itself says that these two persons rejoined the
three after three or four minutes! It is physically impossible, in such a short time, for Boy Pineda to have
attacked the girl and inflicted on her all of these injuries; (2) it was suggested by the defense that Maggie
de la Riva could have inflicted all of those injuries upon herself just to make out a case against the
accused. The examining physician rules out this preposterous proposition, verily it does not take much
 stretch of the imagination to see how utterly impossible this would be, and for what purpose? Was
P900.00 which she had failed to collect worth that much self-torture? And what about all the shame,
embarrassment and publicity she would (as she eventually did) expose herself to? If she really had not
been raped would she have gone thru all of these tribulation?

A woman does not easily trump up rape charges for she has much more to lose in the notoriety the case
will reap her, her honor and that of her family, than in the redress she demands (Canastre 82-480; Medina,
C.A. 1943 O.G. 151; Medina y Puno, CA O.G. 338; CA 55 O.G. 7666; Galamito, L-6302, August 25,
1954); (3) it could also be argued that the contusions and bruises could have been inflicted on Maggie
during her struggle with Pineda when the latter pulled and pushed her into the red convertible car. The
telltale injuries, however, discount this possibility, for the location in which many of the bruises and
traumas were located (particularly on the inner portion of her thighs) could not have been cause by any
struggle save by those of a woman trying to resists the brutal and bestial attack on her honor.

In their Memorandum the accused contend that Maggie's sole and uncorroborated testimony should not be
rated any credence at all as against the concerted declaration of the the accused. In the first place, it is not
correct to say that Maggie's declaration was uncorroborated — she has for corroboration nothing less than
the written extra-judicial statements of Jose and Canal. But even assuming that Maggie stood alone in her
statements, the cases cited by the accused in their Memorandum notwithstanding which the Court does
not consider in point anyway, jurisprudence has confirmed the ruling that numbers is the least vital
element in gauging the weight of evidence. What is more important is which of the declarations is the
more credible, the more logical, the more reasonable, the more prone to be biased or polluted. (Ricarte 44
OG 2234; Damian CA-GR No. 25523, April 24, 1959). Besides, it should be borne in maid that in the
most detestable crime of rape in which a man is at his worst the testimony of the offended party most
often is the only one available to prove directly its commission and that corroboration by other
eyewitnesses would in certain cases place a serious doubt as to the probability of its commission, so trial
courts of justice are most often placed in a position of having to accept such uncorroborated testimony if
the same is in regards conclusive, logical and probable (Landicho, VIII ACR 530).

We shall now consider the points raised by the appellants in their briefs.

1. Appellants Jose, Aquino and Cañal deny having had anything to do with the abduction of Miss De la Riva. They point
to Pineda (who entered a plea of guilty) as the sole author thereof, but they generously contend that even as to him the act
was purged at any taint of criminality by the complainant's subsequent consent to perform a striptease show for a fee, a
circumstance which, it is claimed, negated the existence of the element of lewd design. This line of defense has evidently
leg no to stand on. The evidence is clear and overwhelming that all the appellants participated in the forcible abduction.
Miss De la Riva declared on the witness stand, as well as in her sworn statements, that they helped one another in
dragging her into the car against her will; that she did not know them personally; that while inside the car, Jose and
Aquino, between whom she was seated, toyed with her body, the former forcing his lips on hers, and the latter touching
her thighs and raising her skirt; that meaningful and knowing glances were in the meanwhile being exchanged among the
four; and that all of them later took turns in ravishing her at the Swanky Hotel. This testimony, whose evidentiary weight
has not in the least been overthrown by the defense, more than suffices to establish the crimes charged in the amended
complaint. In the light thereof, appellants' protestation that they were not motivated by lewd designs must be rejected as
absolutely without factual basis.

2. The commission of rape by each of the appellants has, as held by the court below, likewise been clearly established.
Jose, Aquino and Canal contend that the absence of semen in the complainant's vagina disproves the fact of rape. The
contention is untenable. Dr. Brion of the NBI, who testified as an expert, declared that semen is not usually found in the
vagina after three days from the last intercourse, especially if the subject has douched herself within that period. In the
present case, the examination was conducted on the fourth day after the incident, and the complainant had douched herself
to avoid infection and pregnancy. Furthermore, the absence of spermatozoa does not disprove the consummation of rape,
the important consideration being, not the emission of semen, but penetration (People vs Hernandez, 49 Phil., 980).
Aquino's suggestion that the abrasions on the cervix were caused by the tough tip of a noozle deliberately used by the
complainant to strengthen her alleged fabricated tale of rape, is absurd, if not cruel. It is difficult to imagine that any sane
woman, who is single and earning as much Miss Dela Riva did, would inflict injuries on her genital organ by puncturing
the same with a sharply-pointed instrument in order to strike back at four strangers who allegedly would not pay her the
sum of P900.00 due her for a striptease act. Besides, Dr. Brion testified that the insertion of such an instrument in the
genital organ would not result in the kind of injuries he found in the mucosa of the cervix.

3. Other evidence and considerations exist which indubitably establish the commission of successive rapes by the four
appellants. Upon Miss De la Riva's arrival at her house in the morning of June 26, 1967, she immediately told her mother,
" Mommy Mommy, I have been raped. All four of them raped me." This utterance, which is part of the res gestae,
commands strong probative value, considering that it was made by the complainant to her mother who, in cases of this
nature was the most logical person in whom a daughter would confide the truth. Aquino and Canal would make capital of
the fact that Miss De la Riva stated to the reporters on the morning of June 26, that she was not abused. Her statement to
the press is understandable. At that time the complainant, who had not yet consulted her family on a matter which
concerned her reputation as well as that of her family, and her career, was not then in a position to reveal publicly what
had happened to her. This is one reason why the complainant did not immediately inform the authorities of the tragedy
that befell her. Another reason is that she was threatened with disfiguration. And there were, of course, the traumas found
by Dr. Brion on different parts of the complainant's body. Could they, too, have been self-inflicted? Or, as suggested,
could they possibly have been inflicted by appellant Pineda alone, when the story given by the other three is that Pineda
and the complainant were left in the hotel room for only three or four minutes, and that they came out to join them in what
they would picture to be a cordial atmosphere, the complainant even allegedly suggesting that she be dropped on a spot
where people would reasonably presume her to have come from a studio? Equally important is the complainant's public
disclosure of her tragedy, which led to the examination of her private parts and lay her open to risks of future public
ridicule and diminution of popularity and earnings as a movie actress.

4. Jose and Canal seek the exclusion of their extrajudicial statements from the mass of evidence on the grounds that they
were secured from them by force and intimidation, and that the incriminating details therein were supplied by the police
investigators. We are not convinced that the statements were involuntarily given, or that the details recited therein were
concocted by the authorities. The statements were given in the presence of several people and subscribed and sworn to
before the City Fiscal of Quezon City, to whom neither of the aforesaid appellants intimated the use of inordinate methods
by the police. They are replete with details which could hardly be known to the police; and although it is suggested that
the authorities could have secured such details from their various informers, no evidence at all was presented to establish
the truth of such allegation. While in their statements Jose and Canal admitted having waited — together with the two
other appellants — for Miss De la Riva at the ABS Studio, each of them attempted in the same statements to exculpate
himself: appellant Jose stated that only Pineda and Aquino criminally abused the complainant; while appellant Canal
would make it appear that the complainant willingly allowed him to have sexual intercourse with her. Had the statements
been prepared by the authorities, they would hardly have contained matters which were apparently designed to exculpate
the affiants. It is significant, too, that the said two appellants did not see it fit to inform any of their friends or relatives of
the alleged use of force and intimidation by the police. Dr. Mariano Nario of the Quezon City Police Department, who
examined appellant Canal after the latter made his statement, found no trace of injury on any part of the said appellant's
body in spite of the claims that he was boxed on the stomach and that one of his arms was burned with a cigarette lighter.
In the circumstances, and considering, further, that the police officers who took down their statements categorically
denied on the witness stand that the two appellants were tortured, or that any detail in the statements was supplied by them
or by anyone other than the affiants themselves, We see no reason to depart from the trial court's well-considered
conclusion that the statements were voluntarily given. However, even disregarding the in-custody statements of Jose and
Canal, We find that the mass of evidence for the prosecution on record will suffice to secure the conviction of the two.

The admissibility of his extrajudicial statements is likewise being questioned by Jose on the other ground that he was not
assisted by counsel during the custodial interrogations. He cites the decisions of the Supreme Court of the United States in
Messiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (378 U.S. 478) and Miranda vs. Arizona (384 U.S. 436).

The provision of the Constitution of the Philippines in point is Article III (Bill of Rights), Section 1, par. 17 of which
provides: "In all criminal prosecutions the accused shall ... enjoy the right to be heard by himself and counsel ..." While
the said provision is identical to that in the Constitution of the United States, in this jurisdiction the term criminal
prosecutions was interpreted by this Court, in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection with a similar
provision in the Philippine Bill of Rights (Section 5 of Act of Congress of July 1, 1902) to mean proceedings before the
trial court from arraignment to rendition of the judgment. Implementing the said constitutional provision, We have
provided in Section 1, Rule 115 of the Rules of Court that "In all criminal prosecutions the defendant shall be entitled ...
(b) to be present and defend in person and by attorney at every stage of the proceedings, that is, from the arraignment to
the promulgation of the judgment." The only instances where an accused is entitled to counsel before arraignment, if he so
requests, are during the second stage of the preliminary investigation (Rule 112, Section 11) and after the arrest (Rule 113,
Section 18). The rule in the United States need not be unquestioningly adhered to in this jurisdiction, not only because it
has no binding effect here, but also because in interpreting a provision of the Constitution the meaning attached thereto at
the time of the adoption thereof should be considered. And even there the said rule is not yet quite settled, as can be
deduced from the absence of unanimity in the voting by the members of the United States Supreme Court in all the three
above-cited cases.

5. Appellant Pineda claims that insofar as he is concerned there was a mistrial resulting in gross miscarriage of justice. He
contends that because the charge against him and his co-appellants is a capital offense and the amended complaint cited
aggravating circumstances, which, if proved, would raise the penalty to death, it was the duty of the court to insist on his
presence during all stages of the trial. The contention is untenable. While a plea of guilty is mitigating, at the same time it
constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances, and
it matters not that the offense is capital, for the admission (plea of guilty) covers both the crime and its attendant
circumstances qualifying and/or aggravating the crime (People vs. Boyles, et al., L-15308, May 29, 1964, citing People
vs. Ama, L-14783, April 29, 1961, and People vs. Parete, L-15515, April 29, 1961). Because of the aforesaid legal effect
of Pineda's plea of guilty, it was not incumbent upon the trial court to receive his evidence, much less to require his
presence in court. It would be different had appellant Pineda requested the court to allow him to prove mitigating
circumstances, for then it would be the better part of discretion on the part of the trial court to grant his request. (Cf.
People vs. Arconado, L-16175, February 28, 1962.) The case of U.S. vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in
point, for there this Court ordered a new trial because it found for a fact that the accused, who had pleaded guilty, "did not
intend to admit that he committed the offense with the aggravating circumstances" mentioned in the information. We are
not in a position to make a similar finding here. The transcript of the proceedings during the arraignment shows that
Pineda's counsel, Atty. Lota prefaced his client's plea of guilty with the statement that .

I have advised him (Pineda) about the technicalities in plain simple language of the contents of
aggravating circumstances and apprised him of the penalty he would get, and we have given said accused
time to think. After a while I consulted him — for three times — and his decision was still the same.

Three days after the arraignment, the same counsel stated in court that he had always been averse to Pineda's idea of
pleading guilty, because "I know the circumstances called for the imposition of the maximum penalty considering the
aggravating circumstances," but that he acceded to his client's wish only after the fiscal had stated that he would
recommend to the court the imposition of life imprisonment on his client. To be sure, any such recommendation does not
bind the Court. The situation here, therefore, is far different from that obtaining in U.S. vs. Agcaoili, supra.

6. Two of the appellants — Jose and Cañal — bewail the enormous publicity that attended the case from the start of
investigation to the trial. In spite of the said publicity, however, it appears that the court a quo was able to give the
appellants a fair hearing. For one thing, three of the seven (7) original accused were acquitted. For another thing, Jose
himself admits in his brief that the Trial Judge "had not been influenced by adverse and unfair comments of the press,
unmindful of the rights of the accused to a presumption of innocence and to fair trial."

We are convinced that the herein four appellants have conspired together to commit the crimes imputed to them in the
amended information quoted at the beginning of this decision. There is no doubt at all that the forcible abduction of the
complainant from in front of her house in Quezon City, was a necessary if not indispensable means which enabled them to
commit the various and the successive acts of rape upon her person. It bears noting, however, that even while the first act
of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the three
succeeding (crimes of the same nature can not legally be considered as still connected with the abduction — in other
words, they should be detached from, and considered independently of, that of forcible abduction and, therefore, the
former can no longer be complexed with the latter.

What kind of rape was committed? Undoubtedly, it is that which is punishable by the penalty of reclusion perpetua to
death, under paragraph 3, Article 335, as amended by Republic Act No. 4111 which took effect on June 20, 1964, and
which provides as follows:

ART. 335. When and how rape committed.—Rape is committed by having carnal knowledge of a woman
under any of the following circumstances:
 1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in
the two next preceding paragraphs shall be present.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion
thereof, the penalty shall be likewise death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes committed, the latter is
definitely the more serious; hence, pursuant the provision of Art. 48 of the Revised Penal Code, the penalty prescribed
shall be imposed in its maximum period. Consequently, the appellants should suffer the extreme penalty of death. In this
regard, there is hardly any necessity to consider the attendance of aggravating circumstances, for the same would not alter
the nature of the penalty to be imposed.

Nevertheless, to put matters in their proper perspective and for the purpose of determining the proper penalty to be
imposed in each of the other three crimes of simple rape, it behooves Us to make a definite finding in this connection to
the effect that the commission of said crimes was attended with the following aggravating circumstances: (a) nighttime,
appellants having purposely sought such circumstance to facilitate the commission of these crimes; (b) abuse of superior
strength, the crime having been committed by the four appellants in conspiracy with one another (Cf. People vs. De
Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the appellants in ordering the complainant to exhibit to them her
complete nakedness for about ten minutes, before raping her, brought about a circumstance which tended to make the
effects of the crime more humiliating; and (d) use of a motor vehicle. With respect to appellants Jose, Aquino and
Ca_¤_al, none of these aggravating circumstances has been offset by any mitigating circumstance. Appellant Pineda
should, however, be credited with the mitigating circumstance of voluntary plea of guilty, a factor which does not in the
least affect the nature of the proper penalties to be imposed, for the reason that there would still be three aggravating
circumstances remaining. As a result, appellants should likewise be made to suffer the extreme penalty of death in each of
these three simple crimes of rape. (Art. 63, par. 2, Revised Penal Code.)

In refusing to impose as many death penalties as there are offenses committed, the trial court applied by analogy Article
70 of the Revised Penal Code, which provides that "the maximum duration of all the penalties therein imposed upon the
appellant shall not be more than threefold the length of time corresponding to the most severe of the penalties imposed
upon the appellant, which should not exceed forty years." The said court is of the opinion that since a man has only one
life to pay for a wrong, the ends of justice would be served, and society and the victim would be vindicated just as well, if
only one death penalty were imposed on each of the appellants.

We cannot agree with the trial court. Article 70 of the Revised Penal Code can only be taken into account in connection
with the service of the sentence imposed, not in the imposition of the penalty (People vs. Escares, 55 Off. Gaz., 623). In
holding that only one death penalty should be imposed because man has only one life, the trial court ignored the principle
enunciated in the very case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in affirming the judgment of
the trial court, found the accused guilty of two murders and one homicide and imposed upon him two death sentences for
the murders and a prison term for the homicide. In not applying the said principle, the court a quo said that the case of
Balaba is different from the present case, for while in the former case the accused was found to have committed three
distinct offenses, here only one offense is charged, even if complex. As We have explained earlier herein, four crimes
were committed, charged and proved. There is, therefore, no substantial difference between the two cases insofar as the
basic philosophy involved is concerned, for the fact remains that in the case of Balaba this Court did not hesitate to affirm
the two death sentences imposed on the accused by the trial court. In People vs. Peralta, et al., L-19060, October 29,
1968, in which this Court imposed on each of the six accused three death penalties for three distinct and separate crimes
of murder, We said that "since it is the settled rule that once conspiracy is established, the act of one conspirator is
attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a result of the
conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by law." In the said case (which
was promulgated after the decision of the court a quo had been handed down) We had occasion to discuss at length the
legality and practicality of imposing multiple death penalties, thus:

The imposition of multiple death penalties is decried by some as a useless formality, an exercise in
futility. It is contended, undeniably enough, that a death convict, like all mortals, has only one life to
forfeit. And because of this physiological and biological attribute of man, it is reasoned that the
imposition of multiple death penalties is impractical and futile because after the service of one capital
penalty, the execution of the rest of the death penalties will naturally be rendered impossible. The
foregoing opposition to the multiple imposition of death penalties suffers from four basic flaws: (1) it
fails to consider the legality of imposing multiple capital penalties; (2) it fails to distinguish between
imposition of penalty and service of sentence; (3) it ignores the fact that multiple death sentences could be
served simultaneously; and (4) it overlooks the practical merits of imposing multiple death penalties.

The imposition of a penalty and the service of a sentence are two distinct, though related, concepts. The
imposition of the proper penalty or penalties is determined by the nature, gravity and number of offenses
charged and proved, whereas service of sentence is determined by the severity and character of the
penalty or penalties imposed. In the imposition of the proper penalty or penalties, the court does not
concern itself with the possibility or practicality of the service of the sentence, since actual service is a
contingency subject to varied factors like the successful escape of the convict, grant of executive
clemency or natural death of the prisoner. All that go into the imposition of the proper penalty or
penalties, to reiterate, are the nature, gravity and number of the offenses charged and proved and the
corresponding penalties prescribed by law.

Multiple death penalties are not impossible to serve because they will have to be executed simultaneously.
A cursory reading of article 70 will show that there are only two moves of serving two or more (multiple)
penalties: simultaneously or successively. The first rule is that two or more penalties shall be served
simultaneously if the nature of the penalties will so permit. In the case of multiple capital penalties, the
nature of said penal sanctions does not only permit but actually necessitates simultaneous service.

The imposition of multiple death penalties, far from being a useless formality, has practical importance.
The sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal
perversity, which may not be accurately projected by the imposition of only one death sentence
irrespective of the number of capital felonies for which he is liable. Showing thus the reprehensible
character of the convict in its real dimensions, the possibility of a grant of executive clemency is
justifiably reduced in no small measure. Hence, the imposition of multiple death penalties could
effectively serve as deterrent to an improvident grant of pardon or commutation. Faced with the utter
delinquency of such a convict, the proper penitentiary authorities would exercise judicious restraint in
recommending clemency or leniency in his behalf.

Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of
the presidential prerogatives which is almost absolute) deems it proper to commute the multiple death
penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the
maximum forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is
commuted to life imprisonment, the convict will have to serve a maximum of only thirty years
corresponding to a single life sentence.

We are, therefore, of the opinion that in view of the existence of conspiracy among them and of our finding as regards the
nature and number of the crimes committed, as well as of the presence of aggravating circumstances, four death penalties
should be imposed in the premises.
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Before Us is a petition for intervention filed by Filipinas Investment & Finance Corporation asking for reversal of that
portion of the judgment of the court below ordering the confiscation of the car used by the appellants in abducting the
complainant. The aforesaid car is a 1965 two-door Pontiac sedan with Motor No. WT-222410, Serial No.
2376752110777, Plate No. H-33284, File No. 11584171, alleged by the intervenor to be in the custody of Major Ernesto
San Diego of the Quezon City Police Department. The car is registered in the name of Mrs. Dolores Gomez.

On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant Jaime G. Jose, bought the car from the Malayan Motors
Corporation and simultaneously executed a chattel mortgage thereon to secure payment of the purchase price of P13,200,
which was stipulated to be payable in 24 monthly installments of P550 beginning May 4, 1967 up to April 4, 1969. The
mortgage was duly registered with the Land Transportation Commission and inscribed in the Chattel Mortgage Registry.
The mortgage lien was annotated on the motor registration certificate. On April 17, 1967, for value received and with
notice to Mrs. Gomez, the Malayan Motors Corporation assigned its credit against Mrs. Gomez, as well as the chattel
mortgage, to the intervenor. The assignment was duly registered with the Land Transportation Commission and annotated
on the registration certificate.

Mrs. Gomez failed to pay any of the installments due, in view of which the intervenor filed on July 5, 1967, an action for
replevin against her (Civil Case No. 69993, Court of First Instance of Manila) as a preliminary step to foreclosure of the
chattel mortgage. On July 7, 1967, the court issued an order for the seizure of the car. The sheriff, however, could not
enforce the writ of replevin because the car was not in Mrs. Gomez' possession, the same having been used by her son,
appellant Jaime G. Jose, together with the other appellants in this case, in the abduction of Miss De la Riva, as a result of
which the car was seized by the Quezon City police and placed in the custody of Major San Diego, who refused to
surrender it to the sheriff on the ground that it would be used as evidence in the trial of the criminal case.

During the pendency of that criminal case in the court below, or on July 26, 1967, the intervenor filed with the said court a
petition for intervention. The said petition was not, however, acted upon. On October 2, 1967, the trial court rendered its
judgment in the present case ordering the car's confiscation as an instrument of the crime. Although not notified of the
said decision, the intervenor filed, on October 17, 1967, a motion for reconsideration of the order of confiscation; but the
same was denied on October 31, 1967, on the ground that the trial court had lost jurisdiction over the case in view of the
automatic elevation thereof to this Court. The intervenor then filed a petition for relief from judgement, but the same was
also denied.

On February 5, 1968, judgement was rendered in the replevin case ordering Mrs. Gomez to deliver the car to the
intervenor so that the chattel mortgage thereon could be foreclosed, or, in the alternative, to pay the intervenor the sum of
P13,200 with interest thereon at 12% per annum from July 5, 1968, the premium bond, attorney's fees, and the costs of
suit. The judgment became final and executory. Attempts to execute the judgment against the properties of Mrs. Gomez
were unavailing; the writ of execution was returned by the sheriff unsatisfied. On July 26, 1968, the present petition for
intervention was filed with this Court, which allowed the intervenor to file a brief. In his brief the Solicitor General
contends, among others, that the court a quo having found that appellant Jose is the owner of the car, the order of
confiscation is correct.

Considering that the car in question is registered in the name of Mrs. Dolores Gomez, who, in the absence of strong
evidence to the contrary, must be considered as the lawful owner thereof; that the only basis of the court a quo in
concluding that the said car belongs to appellant Jose were the latter's statements during the trial of the criminal case to
that effect; that the said statement were not, however, intended to be, nor could constitute, a claim of ownership over the
car adverse to his mother, but were made simply in answer to questions propounded in court for the sole purpose of
establishing the identity of the defendant who furnished the car used by the appellants in the commission of the crime; that
the chattel mortgage on the car and its assignment in the favor of the intervenor were made several months before the date
of commission of the crimes charged, which circumstance forecloses the possibility of collusion to prevent the State from
confiscating the car; that the final judgement in the replevin case can only be executed by delivering the possession of the
car to the intervenor for foreclosure of the chattel mortgage; and the Article 45 of the Revised Penal Code bars the
confiscation and forfeiture of an instrument or tool used in the commission of the crime if such "be the property of a third
person not liable for the offense," it is the sense of this Court that the order of the court below for confiscation of the car in
question should be set aside and that the said car should be ordered delivered to the intervenor for foreclosure as decreed
in the judgment of the Court of First Instance of Manila in the replevin case, Civil Case No. 69993.
 ————

Before the actual promulgation of this decision, this Court received a formal manifestation on the part of the Solicitor
General to the effect that Rogelio Cañal, one of the herein appellants, died in prison on December 28, 1970. As a result of
this development, this case is hereby dismissed as to him alone, and only insofar as his criminal liability is concerned,
with one-fourth (1/4) of the costs declared de oficio.

WHEREFORE, the judgment under review is hereby modified as follows: appellants Jaime G. Jose, Basilio Pineda, Jr.,
and Edgardo P. Aquino are pronounced guilty of the complex crime of forcible abduction with rape, and each and every
one of them is likewise convicted of three (3) other crimes of rape. As a consequence thereof, each of them is hereby
sentenced to four (4) death penalties; all of them shall, jointly and severally, indemnify the complainant of the sum of
P10,000.00 in each of the four crimes, or a total of 40,000.00; and each shall pay one-fourth (1/4) of the costs.

Insofar as the car used in the commission of the crime is concerned, the order of the court a quo for its confiscation is
hereby set aside; and whoever is in custody thereof is hereby ordered to deliver its possession to intervenor Filipinas
Investment & Finance Corporation in accordance with the judgment of the Court of First Instance of Manila in Civil Case
No. 69993 thereof.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Villamor and Makasiar, JJ., concur.

Barredo and Teehankee, JJ., took no part.