A.

LAW CONSTRUCTED AS A WHOLE AND IN RELATION TO OTHER

LAWS
1. CAUDAL VS C.A. (GR NO. 83414)
TONY CAUDAL, petitioner,
vs.
HON. COURT OF APPEALS, HON. REMEGIO E. ZARI, PRESIDING JUDGE, REGIONAL TRIAL COURT,
NATIONAL CAPITAL JUDICIAL REGION, Branch 98, QUEZON CITY, and DIONISIO O. CU, respondents.
Manuel M. Katapang for petitioner.
Modesto C. Juanson for private respondent.

FERNAN, C.J.:
This petition for review on certiorari seeks the reversal of the Court of Appeals decision in CA G.R. No. 09457
entitled "Tony Caudal v. Hon. Remegio E. Zari," dated 29 January 1988 1 which affirmed the decision of the
Regional Trial Court, National Capital Judicial Region, Branch 98, Quezon City and its resolution dated 18 May
1988 denying petitioner's motion for reconsideration.
The following are the established facts:
Private respondent Dionisio Cu, his wife and five (5) children rented first an apartment at No. 269-A D. Tuason,
Quezon City but later transferred to No. 38 Silencio St., Santol, Quezon City because the owner of the former
apartment needed it for his personal use. The period of lease of the second apartment was from 16 September
1984 up to 16 March 1986. 1a
In February 1984, Cu in his desire to provide his family with a permanent abode acquired a parcel of land
situated at 157 E. Garcia, Quezon City, together with the existing improvements thereon, consisting of a six (6)
door apartment building from Julieta Esguerra. 2
On 2 July 1984, Cu notified petitioner who was then occupying one of the units therein, of the termination of
the lease contract by giving him until October 1984 within which to vacate the premises.3 Yet despite the
demand, petitioner refused to comply by remaining in the premises even after October 1984, thereby
compelling Cu to bring the matter to the office of the Barangay Captain who issued a certification to file a
complaint. 4
Thereafter, Dionisio Cu filed an ejectment case docketed as Civil Case No. 0047612, against petitioner herein
Tony Caudal before the Metropolitan Trial Court of Quezon City, Branch 35. In his complaint, Cu alleged that
he and his family were residing at 38 Silencio St., Santol, Quezon City merely as tenants; that neither plaintiff
nor any member of his family, namely: his wife, Juanita nor his children — Selwyn, Anneli, Lynn, Devon, and
Irma was owner of a house or dwelling unit in Quezon City or Manila, except a, six (6) door apartment located
at 157 E. Garcia St., Cubao, Quezon City; that one of the apartment units was being leased to defendant
Caudal on a monthly basis; that plaintiff and his family were transferring to the six (6) door apartment, two (2)
of which would be merged into one dwelling unit for his son Selwyn, who planned to get married, and the
remaining apartment units would be utilized as conjugal home of plaintiff and his family. 5
In his answer, defendant alleged that he had a verbal contract with the owner Julieta B. Esguerra on the
subject premises at the monthly rate of P150.00 since July 1967; that Mrs. Esguerra failed to claim the rental
for November 1984 causing the defendant to deposit the same in a bank; that as the subject parcel of land had
an area of 1,000 sq. m. more or less he proposed that the 600 sq. m. fronting the 6 door apartment be used for
the construction of plaintiffs dwelling.6
1
Summary procedure having ensued, the Metropolitan Trial Court on 26 March 1986 rendered a decision
dismissing the complaint of the plaintiff. 7
From the said decision of the MTC of Quezon City, plaintiff Dionisio Cu appealed to the Regional Trial Court of
Quezon City which docketed it as Civil Case No. 47639.8
On 6 June 1986, the RTC of Quezon City reversed the decision of the inferior court. 9 Its decision in favor of
Cu was based mainly on the latter's right to possess the said property after Cu had bought the 6 door
apartment from vendor Esguerra.
From said decision of the RTC-Quezon City, Tony Caudal filed a petition for review with the Court of Appeals.
Petitioner argued that the RTC committed a grave abuse of discretion when it ruled in favor of Cu despite the
latter's intention of merely using (1) door as stock room, office, quarter for maids and drivers. 10 In support of his
argument, petitioner cited Sec 5 (c) B.P. 877 which states:
Grounds for Judicial Ejectment:
(c) Legitimate need of owner/lessor to repossess his property for his own use or for the use of any immediate
member of his family as a residential unit, such owner or immediate member not being the owner of any other
available residential unit within the same city or municipality; Provided however, That the lessor has given the
lessee formal notice three (3) months in advance of the lessor's intention to repossess the property; and
Provided, finally, That the owner/lessor is prohibited from leasing the residential unit or allowing its use by a
third party for at least one year.
On 29 January 1988, the Court of Appeals rendered a decision affirming the decision of the Regional Trial
Court of Quezon City.11 Petitioner moved to reconsider but the appellate court in its resolution dated 18 May
1988 denied the motion. 12
Hence, this instant petition.
Petitioner raises the central argument that:13
THE HONORABLE COURT OF APPEALS ERRED IN INTERPRETING SEC. 5 (c) BATAS PAMBANSA BLG.
25 AND 877, IN RELATION TO SEC. 2(6) (Sic), BATAS PAMBANSA 877, TO INCLUDE THE USE OF
SUBJECT APARTMENT DOOR AS STOCKROOM, OFFICE AND QUARTER FOR MAIDS AND DRIVERS AS
A GROUND FOR EJECTMENT.
We affirm. Cu may eject petitioner from the premises. The subsequent conversion of the subject area into a
maid/driver's quarters and stockroom comes within the purview of Sec. 5(c) as a legitimate need for residential
purposes.
As an intrinsic aid in fully appreciating the term "residential unit," we must refer to the Rental Law Batas
Pambansa 877. Legislative intent must be ascertained from a consideration of the whole statute. Clauses and
phrases of the statutes 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. 14 Said law in defining the term
"residential unit' states:
Sec. 2 (b):
Residential Unit — refers to an apartment, house and/or land on which another's dwelling is located used for
residential purposes and shall include not only buildings, parts or units thereof used solely as dwelling places,
except ... but also those used for home industries, retail stores or other business purposes if the owner thereof
and his family actually live therein and use it principally for dwelling purposes: Provided, that in the case of a
retail store, home industry or business, the initial capitalization thereof shall not exceed five thousand pesos
(P5,000.00) and Provided, further, that in the operation of the store, home industry or business, the owner
thereof shall not require the services of any person other than the members of his household. (Italics ours.)
2
Observe that the law does not strictly confine the meaning of the word "residence" mainly for habitation
purposes as restrictedly interpreted by petitioner. In a way, the definition admits a measure of liberality, albeit
limited, since a residence may also be the site of a home industry, or a retail store or be used for business
purposes so long as it is principally used for dwelling purposes. The law in giving greater importance to the
abode being used principally for dwelling purposes, has set the limitation on the maximum amount of
capitalization to P5,000.00, which is small by present standards.
Thus, if an abode can be used for limited business purposes, we see no reason why it cannot be used as an
abode for persons rendering services usually necessary or desirable for the maintenance and enjoyment of a
home and who personally minister to the personal comfort and convenience of the members of the household.
Cu admits in his complaint that two (2) doors would be merged into one (1) dwelling for his son and the
remaining apartment units would be utilized as conjugal home for the Cu family.15 Although they were formerly
rented to various lessees as separate units by the previous owner, Julieta Esguerra, upon conversion of the
said premises into a conjugal dwelling all doors would be considered as one.
A servants' quarter is an auxiliary part of a residence.16 Similarly, it has been held that a "dwelling house,' a
one story building annexed to the house proper, designed for a kitchen, and another erection attached to it,
designed for a wash room, is included. 17 A dwelling house is an entire thing; it includes the buildings, and such
attachments as are usually occupied and used for the family for the ordinary purposes of a house. 18 In law it
may embrace the dwelling itself and such buildings as are used in connection with it.19 Where other structures
were joined to a dwelling house by removing partitions and consolidating the entire physical structure under
one continuous roof, the dwelling house constituted only one .20
The ejectment of petitioner should not be taken in isolation of Cu's plan. Cu has explicitly stated that he himself
would be transferring to the adjoining units and would merge the latter with petitioner's unit to form one
conjugal dwelling. Indeed, the character of Cu's occupancy is mainly for dwelling purposes. A different
conclusion would have been arrived at if a lessee like petitioner herein, was ejected on the sole ratiocination
that the premises would be exclusively used as maid/driver's quarters autonomously of any adjoining conjugal
dwelling.
The argument that the maids/drivers are not covered by the term immediate members of the family of the
lessor 21 has no leg to stand on because Cu himself, his spouse and family are transferring to the adjoining
premises, of which petitioner's unit would become an auxiliary part of the main conjugal dwelling.
It is also the belief of petitioner that he could not be ejected just because the said property was sold to a third
person as provided in the last paragraph of Sec. 5 of B.P. 877, to wit:
(N)o lessor or his successor-in-interest shall be entitled to eject the lessee upon the ground that the leased
premises has been sold or mortgaged to a third person regardless of whether the lease or mortgage is
registered or not.
The prohibition in the above-quoted provision of law is obvious; that is, the law disallows the ejectment of the
lessee merely on the ground that the leased premises had been sold or mortgaged. Aside from the fact that
there is nothing under the law to prevent a vendee, who steps into the shoes of the original owner from ejecting
said lessee on grounds expressly provided for by the Rental Laws, it has already been settled that the
subsequent owner who has established that he bought the leased premises in question for his and his family's
own use may recover possession of the said premises.22 Hence, in the case at bar Cu the present owner is
within his rights in ejecting Caudal to enable the former to use the premises, a ground undisputably allowed
under Sec. 5(c) of B.P. 877.
As to the proviso under the same section of B.P. 877 that the lease for a definite period has expired, there is
no question that under existing jurisprudence, the verbal contract of lease between the original owner and the
lessee on a month-to-month basis is a lease with a definite period, 23 which has expired upon Cu's notice given
3
to Caudal on July 2, 1984, that the lease contract has been terminated; and that Caudal had until October
1984 or a period of three (3) months within which to vacate the premises. In fact, this Court has clearly ruled
that an oral month to month lease is terminable on a 30 days' notice. 24
Be that as it may, Cu's notice to Caudal has also in effect complied with the second requirement of Sec. 5(c) of
the same BP 877, to give three (3) months advance notice to the lessee.
We need not belabor the fact that Cu himself was in dire need of a place to stay since he too was just renting
an apartment at 38 Silencio St., Santol, Quezon City and had to transfer in view of the imminent expiration of
his lease on 16 March 1986.25 Indeed, there was a need to find a place he could call his own.
Verily, the law could not have intended to prevent bona fide sales from owners/lessors who wish to dispose of
their property to third persons in need of their own residence. This would be an absurd interpretation contrary
to the basic philosophy underlying the right to property. To give preferential right to a tenant over and above a
new owner's need for the premises for his use and that of his family as propounded in the Tan Tok Lee
Case 26 is arbitrary and unreasonable.
WHEREFORE, the decision of the Court of Appeals dated 29 January 1988 is hereby affirmed.
SO ORDERED.

4
2. PRC VS DE GUZMAN (GR NO. 144681)
PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN HERMOGENES P. POBRE,
ASSOCIATE COMMISSIONER ARMANDO PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P.
DE GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R. POLICARPIO, EDGARDO T.
FERNANDO and RICARDO D. FULGENCIO II, petitioners,
vs.
ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA S. NAVARRO, JOSE RAMONCITO P.
NAVARRO, ARNEL V. HERRERA and GERALDINE ELIZABETH M. PAGILAGAN, ELNORA R. RAQUENO,
MARISSA A. REGODON, LAURA M. SANTOS, KARANGALAN D. SERRANO, DANILO A. VILLAVER, MARIA
ROSARIO L. LEONOR, ALICIA S. LIZANO, MARITEL M. ECHIVERRI, BERNADETTE T. MENDOZA,
FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN C. ARRIOLA, HERMINIGILDA E. CONEJOS,
SALLY B. BUNAGAN, ROGELIO B. ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO, EVELYN S.
ACOSTA, MARGARITA BELINDA L. VICENCIO, VALENTINO P. ARBOLEDA, EVELYN O. RAMOS,
ACHILLES J. PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, MA. LUISA S.
GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO, FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL
I. TOLENTINO, GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO, FEDERICO L. CASTILLO,
MELITA J. CAÑEDO, SAMUEL B. BANGOY, BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D.
FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S. NAZARENO, CLARISSA B. BACLIG, DAYMINDA
G. BONTUYAN, BERNADETTE H. CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L.
CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA, DERILEEN D. DORADO, SAIBZUR N.
EDDING, VIOLETA C. FELIPE, HERMINIO V. FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA,
NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI, CLARISA SJ. NICOLAS, PERCIVAL H.
PANGILINAN, ARNULFO A. SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P.
UNICA, respondents.
DECISION
TINGA, J.:
This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision,1 dated
May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283. The appellate court affirmed the
judgment2 dated December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch 52, in Civil Case No.
93-66530. The trial court allowed the respondents to take their physician’s oath and to register as duly licensed
physicians. Equally challenged is the Resolution3 promulgated on August 25, 2000 of the Court of Appeals,
denying petitioners’ Motion for Reconsideration.
The facts of this case are as follows:
The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro Manila. They
passed the Physician Licensure Examination conducted in February 1993 by the Board of Medicine (Board).
Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees in
the medical licensure examination.
Shortly thereafter, the Board observed that the grades of the seventy-nine successful examinees from Fatima
College in the two most difficult subjects in the medical licensure exam, Biochemistry (Bio-Chem) and
Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima examinees
scored 100% in Bio-Chem and ten got 100% in OB-Gyne, another eleven got 99% in Bio-Chem, and twenty-
one scored 99% in OB-Gyne. The Board also observed that many of those who passed from Fatima got marks
of 95% or better in both subjects, and no one got a mark lower than 90%. A comparison of the performances of
the candidates from other schools was made. The Board observed that strangely, the unusually high ratings
were true only for Fatima College examinees. It was a record-breaking phenomenon in the history of the
Physician Licensure Examination.
5
On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as physicians of all the
examinees from the Fatima College of Medicine.4 The PRC asked the National Bureau of Investigation (NBI) to
investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination.
Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert mathematician
and authority in statistics, and later president of the Ateneo de Manila University, to conduct a statistical
analysis of the results in Bio-Chem and Ob-Gyne of the said examination.
On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the scores in Bio-Chem
and Ob-Gyne, of the Fatima College examinees with those of examinees from De La Salle University and
Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only
incredibly high but unusually clustered close to each other. He concluded that there must be some unusual
reason creating the clustering of scores in the two subjects. It must be a cause "strong enough to eliminate the
normal variations that one should expect from the examinees [of Fatima College] in terms of talent, effort,
energy, etc."5
For its part, the NBI found that "the questionable passing rate of Fatima examinees in the [1993] Physician
Examination leads to the conclusion that the Fatima examinees gained early access to the test questions."6
On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S. Navarro, Jose
Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al.,
for brevity) filed a special civil action for mandamus, with prayer for preliminary mandatory injunction docketed
as Civil Case No. 93-66530 with the Regional Trial Court (RTC) of Manila, Branch 52. Their petition was
adopted by the other respondents as intervenors.
Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents with "immorality,
dishonest conduct, fraud, and deceit" in connection with the Bio-Chem and Ob-Gyne examinations. It
recommended that the test results of the Fatima examinees be nullified. The case was docketed as Adm. Case
No. 1687 by the PRC.
On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the preliminary mandatory
injunction sought by the respondents. It ordered the petitioners to administer the physician’s oath to Arlene V.
De Guzman et al., and enter their names in the rolls of the PRC.
The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the
mandatory injunctive writ, docketed as CA-G.R. SP No. 31701.
On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the dispositive portion of
the Decision ordaining as follows:
WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary mandatory injunction issued by
the lower court against petitioners is hereby nullified and set aside.
SO ORDERED.7
Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No. 112315. In
our Resolution dated May 23, 1994, we denied the petition for failure to show reversible error on the part of the
appellate court.
Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial conference in Civil
Case No. 93-66530 was held. Then, the parties, agreed to reduce the testimonies of their respective witnesses
to sworn questions-and-answers. This was without prejudice to cross-examination by the opposing counsel.
On December 13, 1993, petitioners’ counsel failed to appear at the trial in the mistaken belief that the trial was
set for December 15. The trial court then ruled that petitioners waived their right to cross-examine the
witnesses.
6
On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-
appearance and praying that the cross-examination of the witnesses for the opposing parties be reset. The trial
court denied the motion for lack of notice to adverse counsel. It also denied the Motion for Reconsideration that
followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing.
Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687, the respondents
herein moved for the issuance of a restraining order, which the lower court granted in its Order dated April 4,
1994.
The petitioners then filed with this Court a petition for certiorari docketed as G.R. No. 115704, to annul
the Orders of the trial court dated November 13, 1993, February 28, 1994, and April 4, 1994. We referred the
petition to the Court of Appeals where it was docketed as CA-G.R. SP No. 34506.
On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows:
WHEREFORE, the present petition for certiorari with prayer for temporary restraining order/preliminary
injunction is GRANTED and the Orders of December 13, 1993, February 7, 1994, February 28, 1994, and April
4, 1994 of the RTC-Manila, Branch 52, and all further proceedings taken by it in Special Civil Action No. 93-
66530 are hereby DECLARED NULL and VOID. The said RTC-Manila is ordered to allow petitioners’ counsel
to cross-examine the respondents’ witnesses, to allow petitioners to present their evidence in due course of
trial, and thereafter to decide the case on the merits on the basis of the evidence of the parties. Costs against
respondents.
IT IS SO ORDERED.8
The trial was then set and notices were sent to the parties.
A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-Parte Manifestation
and Motion praying for the partial reconsideration of the appellate court’s decision in CA-G.R. SP No. 34506,
and for the outright dismissal of Civil Case No. 93-66530. The petitioners asked for the suspension of the
proceedings.
In its Order dated September 23, 1994, the trial court granted the aforesaid motion, cancelled the scheduled
hearing dates, and reset the proceedings to October 21 and 28, 1994.
Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for reconsideration in CA-G.R.
SP No. 34506. Thus, petitioners filed with the Supreme Court a petition for review docketed as G.R. No.
117817, entitled Professional Regulation Commission, et al. v. Court of Appeals, et al.
On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case No. 93-66530.
Upon motion of the respondents herein, the trial court ruled that herein petitioners waived their right to cross-
examine the herein respondents. Trial was reset to November 28, 1994.
On November 25, 1994, petitioners’ counsel moved for the inhibition of the trial court judge for alleged
partiality. On November 28, 1994, the day the Motion to Inhibit was to be heard, petitioners failed to appear.
Thus, the trial court denied the Motion to Inhibit and declared Civil Case No. 93-66530 deemed submitted for
decision.
On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-66530, the fallo of which
reads:
WHEREFORE, judgment is rendered ordering the respondents to allow the petitioners and intervenors (except
those with asterisks and footnotes in pages 1 & 2 of this decision) [sic],9 to take the physician’s oath and to
register them as physicians.

7
It should be made clear that this decision is without prejudice to any administrative disciplinary action which
may be taken against any of the petitioners for such causes and in the manner provided by law and consistent
with the requirements of the Constitution as any other professionals.
No costs.
SO ORDERED.10
As a result of these developments, petitioners filed with this Court a petition for review on certiorari docketed
as G.R. No. 118437, entitled Professional Regulation Commission v. Hon. David G. Nitafan, praying inter alia,
that (1) G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the decision of the Court of Appeals dated
August 31, 1994 in CA-G.R. SP No. 34506 be nullified for its failure to decree the dismissal of Civil Case No.
93-66530, and in the alternative, to set aside the decision of the trial court in Civil Case No. 93-66530, order
the trial court judge to inhibit himself, and Civil Case No. 93-66530 be re-raffled to another branch.
On December 26, 1994, the petitioners herein filed their Notice of Appeal11 in Civil Case No. 93-66530, thereby
elevating the case to the Court of Appeals, where it was docketed as CA-G.R. SP No. 37283.
In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817.
On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:
WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being moot. The petition in G.R. No. 118437
is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals. Assistant
Solicitor General Amparo M. Cabotaje-Tang is advised to be more circumspect in her dealings with the courts
as a repetition of the same or similar acts will be dealt with accordingly.
SO ORDERED.12
While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V. Herrera, one of the
original petitioners in Civil Case No. 93-66530, joined by twenty-seven intervenors, to wit: Fernando F.
Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A.
Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S.
Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S.
Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez,
Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-
Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P.
Navarro, manifested that they were no longer interested in proceeding with the case and moved for its
dismissal. A similar manifestation and motion was later filed by intervenors Mary Jean I. Yeban-Merlan,
Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica, Dayminda
G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C.
Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas, Federico L.
Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The
Court of Appeals ruled that its decision in CA-G.R. SP No. 37283 would not apply to them.
On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following fallo, to wit:
WHEREFORE, finding no reversible error in the decision appealed from, We hereby AFFIRM the same and
DISMISS the instant appeal.
No pronouncement as to costs.
SO ORDERED.13
In sustaining the trial court’s decision, the appellate court ratiocinated that the respondents complied with all
the statutory requirements for admission into the licensure examination for physicians in February 1993. They
8
all passed the said examination. Having fulfilled the requirements of Republic Act No. 2382,14 they should be
allowed to take their oaths as physicians and be registered in the rolls of the PRC.
Hence, this petition raising the following issues:
I
WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR MANDAMUS AGAINST
PETITIONERS IN THE LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT IN G.R. NO. 112315
AFFIRMING THE COURT OF APPEALS’ DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT
AS TO THE MORAL FITNESS OF EXAMINEES, THE ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS
NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL EXAMINEES.
II
WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE THE PENDENCY OF
ADMINISTRATIVE CASE NO. 1687, WHICH WAS PRECISELY LODGED TO DETERMINE THE MORAL
FITNESS OF RESPONDENTS TO BECOME DOCTORS.15
To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in sustaining the
judgment of the trial court that respondents are entitled to a writ of mandamus?
The petitioners submit that a writ of mandamus will not lie in this case. They point out that for a writ of
mandamus to issue, the applicant must have a well-defined, clear and certain legal right to the thing demanded
and it is the duty of the respondent to perform the act required. Thus, mandamus may be availed of only when
the duty sought to be performed is a ministerial and not a discretionary one. The petitioners argue that the
appellate court’s decision in CA-G.R. SP No. 37283 upholding the decision of the trial court in Civil Case No.
93-66530 overlooked its own pronouncement in CA-G.R. SP No. 31701. The Court of Appeals held in CA-G.R.
SP No. 31701 that the issuance of a license to engage in the practice of medicine becomes discretionary on
the PRC if there exists some doubt that the successful examinee has not fully met the requirements of the law.
The petitioners stress that this Court’s Resolution dated May 24, 1994 in G.R. No. 112315 held that there was
no showing "that the Court of Appeals had committed any reversible error in rendering the questioned
judgment" in CA-G.R. SP No. 31701. The petitioners point out that our Resolution in G.R. No. 112315 has long
become final and executory.
Respondents counter that having passed the 1993 licensure examinations for physicians, the petitioners have
the obligation to administer to them the oath as physicians and to issue their certificates of registration as
physicians pursuant to Section 2016 of Rep. Act No. 2382. The Court of Appeals in CA-G.R. SP No. 37283,
found that respondents complied with all the requirements of Rep. Act No. 2382. Furthermore, respondents
were admitted by the Medical Board to the licensure examinations and had passed the same. Hence, pursuant
to Section 20 of Rep. Act No. 2382, the petitioners had the obligation to administer their oaths as physicians
and register them.
Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state or the
sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the
performance of a particular duty therein specified, which duty results from the official station of the party to
whom the writ is directed, or from operation of law.17 Section 3 of Rule 6518 of the 1997 Rules of Civil
Procedure outlines two situations when a writ of mandamus may issue, when any tribunal, corporation, board,
officer or person unlawfully (1) neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station; or (2) excludes another from the use and enjoyment of a right or office
to which the other is entitled.
We shall discuss the issues successively.

9
1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registration as Physicians
under Rep. Act No. 2382.
For mandamus to prosper, there must be a showing that the officer, board, or official concerned, has a clear
legal duty, not involving discretion.19 Moreover, there must be statutory authority for the performance of the
act,20 and the performance of the duty has been refused.21 Thus, it must be pertinently asked now: Did
petitioners have the duty to administer the Hippocratic Oath and register respondents as physicians under the
Medical Act of 1959?
As found by the Court of Appeals, on which we agree on the basis of the records:
It bears emphasizing herein that petitioner-appellees and intervenor-appellees have fully complied with all the
statutory requirements for admission into the licensure examinations for physicians conducted and
administered by the respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too, must be made of
the fact that all of them successfully passed the same examinations.22
The crucial query now is whether the Court of Appeals erred in concluding that petitioners should allow the
respondents to take their oaths as physicians and register them, steps which would enable respondents to
practice the medical profession23 pursuant to Section 20 of the Medical Act of 1959?
The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in concluding that the
petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them
as physicians. But it is a basic rule in statutory construction that each part of a statute should be construed in
connection with every other part to produce a harmonious whole, not confining construction to only one
section.24 The intent or meaning of the statute should be ascertained from the statute taken as a whole, not
from an isolated part of the provision. Accordingly, Section 20, of Rep. Act No. 2382, as amended should be
read in conjunction with the other provisions of the Act. Thus, to determine whether the petitioners had the
ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians,
recourse must be had to the entirety of the Medical Act of 1959.
A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word "shall" with
respect to the issuance of certificates of registration. Thus, the petitioners "shall sign and issue certificates of
registration to those who have satisfactorily complied with the requirements of the Board." In statutory
construction the term "shall" is a word of command. It is given imperative meaning. Thus, when an examinee
satisfies the requirements for the grant of his physician’s license, the Board is obliged to administer to him his
oath and register him as a physician, pursuant to Section 20 and par. (1) of Section 2225 of the Medical Act of
1959.
However, the surrounding circumstances in this case call for serious inquiry concerning the satisfactory
compliance with the Board requirements by the respondents. The unusually high scores in the two most
difficult subjects was phenomenal, according to Fr. Nebres, the consultant of PRC on the matter, and raised
grave doubts about the integrity, if not validity, of the tests. These doubts have to be appropriately resolved.
Under the second paragraph of Section 22, the Board is vested with the power to conduct administrative
investigations and "disapprove applications for examination or registration," pursuant to the objectives of Rep.
Act No. 2382 as outlined in Section 126 thereof. In this case, after the investigation, the Board filed before the
PRC, Adm. Case No. 1687 against the respondents to ascertain their moral and mental fitness to practice
medicine, as required by Section 927 of Rep. Act No. 2382. In its Decision dated July 1, 1997, the Board ruled:
WHEREFORE, the BOARD hereby CANCELS the respondents[’] examination papers in the Physician
Licensure Examinations given in February 1993 and further DEBARS them from taking any licensure
examination for a period of ONE (1) YEAR from the date of the promulgation of this DECISION. They may, if
they so desire, apply for the scheduled examinations for physicians after the lapse of the period imposed by
the BOARD.
10
SO ORDERED.28
Until the moral and mental fitness of the respondents could be ascertained, according to petitioners, the Board
has discretion to hold in abeyance the administration of the Hippocratic Oath and the issuance of the
certificates to them. The writ of mandamus does not lie to compel performance of an act which is not duly
authorized.
The respondents nevertheless argue that under Section 20, the Board shall not issue a certificate of
registration only in the following instances: (1) to any candidate who has been convicted by a court of
competent jurisdiction of any criminal offense involving moral turpitude; (2) or has been found guilty of immoral
or dishonorable conduct after the investigation by the Board; or (3) has been declared to be of unsound mind.
They aver that none of these circumstances are present in their case.
Petitioners reject respondents’ argument. We are informed that in Board Resolution No. 26,29 dated July 21,
1993, the Board resolved to file charges against the examinees from Fatima College of Medicine for
"immorality, dishonesty, fraud, and deceit in the Obstetrics-Gynecology and Biochemistry examinations." It
likewise sought to cancel the examination results obtained by the examinees from the Fatima College.
Section 830 of Rep. Act No. 2382 prescribes, among others, that a person who aspires to practice medicine in
the Philippines, must have "satisfactorily passed the corresponding Board Examination." Section 22, in turn,
provides that the oath may only be administered "to physicians who qualified in the examinations." The
operative word here is "satisfactorily," defined as "sufficient to meet a condition or obligation" or "capable of
dispelling doubt or ignorance."31 Gleaned from Board Resolution No. 26, the licensing authority apparently did
not find that the respondents "satisfactorily passed" the licensure examinations. The Board instead sought to
nullify the examination results obtained by the respondents.
2. On the Right Of The Respondents To Be Registered As Physicians
The function of mandamus is not to establish a right but to enforce one that has been established by law. If no
legal right has been violated, there can be no application of a legal remedy, and the writ of mandamus is a
legal remedy for a legal right.32 There must be a well-defined, clear and certain legal right to the thing
demanded.33 It is long established rule that a license to practice medicine is a privilege or franchise granted by
the government.34
It is true that this Court has upheld the constitutional right35 of every citizen to select a profession or course of
study subject to a fair, reasonable, and equitable admission and academic requirements.36 But like all rights
and freedoms guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of
the State to safeguard health, morals, peace, education, order, safety, and general welfare of the
people.37 Thus, persons who desire to engage in the learned professions requiring scientific or technical
knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This
regulation takes particular pertinence in the field of medicine, to protect the public from the potentially deadly
effects of incompetence and ignorance among those who would practice medicine. In a previous case, it may
be recalled, this Court has ordered the Board of Medical Examiners to annul both its resolution and certificate
authorizing a Spanish subject, with the degree of Licentiate in Medicine and Surgery from the University of
Barcelona, Spain, to practice medicine in the Philippines, without first passing the examination required by the
Philippine Medical Act.38 In another case worth noting, we upheld the power of the State to upgrade the
selection of applicants into medical schools through admission tests.39
It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an
occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A
political body that regulates the exercise of a particular privilege has the authority to both forbid and grant such
privilege in accordance with certain conditions. Such conditions may not, however, require giving up ones
constitutional rights as a condition to acquiring the license.40 Under the view that the legislature cannot validly
bestow an arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike
11
down license legislation that vests in public officials discretion to grant or refuse a license to carry on some
ordinarily lawful business, profession, or activity without prescribing definite rules and conditions for the
guidance of said officials in the exercise of their power.41
In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382, as amended, which
prescribes the requirements for admission to the practice of medicine, the qualifications of candidates for the
board examinations, the scope and conduct of the examinations, the grounds for denying the issuance of a
physician’s license, or revoking a license that has been issued. Verily, to be granted the privilege to practice
medicine, the applicant must show that he possesses all the qualifications and none of the disqualifications.
Furthermore, it must appear that he has fully complied with all the conditions and requirements imposed by the
law and the licensing authority. Should doubt taint or mar the compliance as being less than satisfactory, then
the privilege will not issue. For said privilege is distinguishable from a matter of right, which may be demanded
if denied. Thus, without a definite showing that the aforesaid requirements and conditions have been
satisfactorily met, the courts may not grant the writ of mandamus to secure said privilege without thwarting the
legislative will.
3. On the Ripeness of the Petition for Mandamus
Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the petition for
mandamus below for being premature. They argue that the administrative remedies had not been exhausted.
The records show that this is not the first time that petitioners have sought the dismissal of Civil Case No. 93-
66530. This issue was raised in G.R. No. 115704, which petition we referred to the Court of Appeals, where it
was docketed as CA-G.R. SP No. 34506. On motion for reconsideration in CA-G.R. SP No. 34506, the
appellate court denied the motion to dismiss on the ground that the prayers for the nullification of the order of
the trial court and the dismissal of Civil Case No. 93-66530 were inconsistent reliefs. In G.R. No. 118437, the
petitioners sought to nullify the decision of the Court of Appeals in CA-G.R. SP No. 34506 insofar as it did not
order the dismissal of Civil Case No. 93-66530. In our consolidated decision, dated July 9, 1998, in G.R. Nos.
117817 & 118437, this Court speaking through Justice Bellosillo opined that:
Indeed, the issue as to whether the Court of Appeals erred in not ordering the dismissal of Civil Case No. 93-
66530 sought to be resolved in the instant petition has been rendered meaningless by an event taking place
prior to the filing of this petition and denial thereof should follow as a logical consequence.42 There is no longer
any justiciable controversy so that any declaration thereon would be of no practical use or value.43 It should be
recalled that in its decision of 19 December 1994 the trial court granted the writ of mandamus prayed for by
private respondents, which decision was received by petitioners on 20 December 1994. Three (3) days after,
or on 23 December 1994, petitioners filed the instant petition. By then, the remedy available to them was to
appeal the decision to the Court of Appeals, which they in fact did, by filing a notice of appeal on 26 December
1994.44
The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor will their reliance
upon the doctrine of the exhaustion of administrative remedies in the instant case advance their cause any.
Section 2645 of the Medical Act of 1959 provides for the administrative and judicial remedies that respondents
herein can avail to question Resolution No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable
judgment to the PRC; (b) should the PRC ruling still be unfavorable, to elevate the matter on appeal to the
Office of the President; and (c) should they still be unsatisfied, to ask for a review of the case or to bring the
case to court via a special civil action of certiorari. Thus, as a rule, mandamus will not lie when administrative
remedies are still available.46 However, the doctrine of exhaustion of administrative remedies does not apply
where, as in this case, a pure question of law is raised.47 On this issue, no reversible error may, thus, be laid at
the door of the appellate court in CA-G.R. SP No. 37283, when it refused to dismiss Civil Case No. 93-66530.
As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat, Ophelia C. Hidalgo,
Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-

12
Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M.
Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R.
Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-
Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E.
Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro manifested to
the Court of Appeals during the pendency of CA-G.R. SP No. 37283, that they were no longer interested in
proceeding with the case and moved for its dismissal insofar as they were concerned. A similar manifestation
and motion were later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla,
Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma.
Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco,
Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo
A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and motions, the
appellate court in CA-G.R. SP No. 37283 decreed that its ruling would not apply to them. Thus, inasmuch as
the instant case is a petition for review of the appellate court’s ruling in CA-G.R. SP No. 37283, a decision
which is inapplicable to the aforementioned respondents will similarly not apply to them.
As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H. Padua, Jr., Evelyn
D. Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H.
Pangilinan, Corazon M. Cruz and Samuel B. Bangoy, herein decision shall not apply pursuant to the Orders of
the trial court in Civil Case No. 93-66530, dropping their names from the suit.
Consequently, this Decision is binding only on the remaining respondents, namely: Arlene V. de Guzman,
Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J.
Chavez, Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana and Merly D. Sta. Ana, as
well as the petitioners.
WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision dated May 16, 2000, of
the Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the judgment dated December 19, 1994, of the
Regional Trial Court of Manila, Branch 52, in Civil Case No. 93-66530, ordering petitioners to administer the
physician’s oath to herein respondents as well as the resolution dated August 25, 2000, of the appellate court,
denying the petitioners’ motion for reconsideration, are REVERSED and SET ASIDE; and (2) the writ of
mandamus, issued in Civil Case No. 93-66530, and affirmed by the appellate court in CA-G.R. SP No. 37283
is NULLIFIED AND SET ASIDE.
SO ORDERED.

13
B. TITLE OF THE LAW
1. CITY OF BAGUIO VS MARCOS (GR NO. 26100)
CITY OF BAGUlO, REFORESTATION ADMINISTRATION,
FRANCISCO G. JOAQUIN, SR., FRANCISCO G. JOAQUIN, JR., and TERESITA J.
BUCHHOLZ petitioners,
vs.
HON. PIO R. MARCOS, Judge of the Court of First Instance of Baguio,
BELONG LUTES, and the HONORABLE COURT OF APPEALS, respondents.
1st Assistant City Fiscal Dionisio C. Claridad, Augusto Tobias and Feria, Feria, Lugtu and La'O for
petitioners.
Bernardo C. Ronquillo for respondents.
SANCHEZ, J.:
Petitioners attack the jurisdiction of the Court of First Instance of Baguio to reopen cadastral
proceedings under Republic Act 931. Private petitioner's specifically question the ruling of the Court
of Appeals that they have no personality to oppose reopening. The three-pronged contentions of all
the petitioners are: (1) the reopening petition was filed outside the 40-year period next preceding the
approval of Republic Act 931; (2) said petition was not published; and (3) private petitioners, as
lessees of the public land in question, have court standing under Republic Act 931. The facts follow:
On April 12, 1912, the cadastral proceedings sought to be reopened, Civil Reservation Case No. 1,
GLRO Record No. 211, Baguio Townsite, were instituted by the Director of Lands in the Court of First
Instance of Baguio. It is not disputed that the land here involved (described in Plan Psu-186187) was
amongst those declared public lands by final decision rendered in that case on November 13, 1922.
On July 25, 1961, respondent Belong Lutes petitioned the cadastral court to reopen said Civil
Reservation Case No. 1 as to the parcel of land he claims. His prayer was that the land be registered
in his name upon the grounds that: (1) he and his predecessors have been in actual, open, adverse,
peaceful and continuous possession and cultivation of the land since Spanish times, or before July
26, 1894, paying the taxes thereon; and (2) his predecessors were illiterate Igorots without personal
notice of the cadastral proceedings aforestated and were not able to file their claim to the land in
question within the statutory period.
On December 18, 1961, private petitioners Francisco G. Joaquin, Sr., Francisco G. Joaquin, Jr., and
Teresita J. Buchholz registered opposition to the reopening. Ground: They are tree farm lessees upon
agreements executed by the Bureau of Forestry in their favor for 15,395.65 square meters on March.
16, 1959, for 12,108 square meters on July 24, 1959, and for 14,771 square meters on July 17, 1959,
respectively.
On May 5, 1962, the City of Baguio likewise opposed reopening.
On May 8, 1962, upon Lutes' opposition, the cadastral court denied private petitioners' right to
intervene in the case because of a final declaratory relief judgment dated March 9, 1962 in Yaranon
vs. Castrillo [Civil Case 946, Court of First Instance of Baguio] which declared that such tree farm
leases were null and void.

14
On May 18, 1962, private petitioners moved to reconsider. They averred that said declaratory relief
judgment did not bind them, for they were not parties to that action.
On September 14, 1962, the cadastral court reversed its own ruling of May 8, 1962, allowed
petitioners to cross-examine the witnesses of respondent Lutes.
On October 16, 1962, Lutes replied to and moved to dismiss private petitioners' opposition to his
reopening petition. On October 25, 1962, private petitioners' rejoinder was filed.
On August 5, 1963, the cadastral court dismissed private petitioners' opposition to the reopening. A
motion to reconsider was rejected by the court on November 5, 1963.
On January 6, 1964, it was the turn of the City of Baguio to lodge a motion to dismiss the petition to
reopen. This motion was adopted as its own by the Reforestation Administration. They maintained the
position that the declaratory judgment in Civil Case 946 was not binding on those not parties thereto.
Respondent Lutes opposed on February 24, 1964. On April 6, 1964, private petitioners reiterated
their motion to dismiss on jurisdictional grounds.
On September 17, 1964, the court denied for lack of merit the City's motion as well as the April 6,
1964 motion to dismiss made by private petitioners.
On November 13, 1964, all the petitioners went to the Court of Appeals on certiorari, prohibition, and
mandamus with preliminary injunction. 1 They then questioned the cadastral court's jurisdiction over
the petition to reopen and the latter's order of August 5, 1963 dismissing private petitioners'
opposition. The appellate court issued a writ of preliminary injunction upon a P500-bond.
Then came the judgment of the Court of Appeals of September 30, 1965. The court held that
petitioners were not bound by the declaratory judgment heretofore hated. Nevertheless, the appellate
court ruled that as lessees, private petitioners had no right to oppose the reopening of the cadastral
case. Petitioners moved to reconsider. It was thwarted on May 6, 1966.
Petitioners now seek redress from this Court. On July 6, 1966, respondents moved to dismiss the
petition before us. On August 5, 1966, petitioners opposed. On August 12, 1966, we gave due
course.
1. Do private petitioners have personality to appear in the reopening proceedings?
First, to the controlling statute, Republic Act 931, effective June 20, 1953.
The title of the Act reads —
AN ACT TO AUTHORIZE THE FILING IN THE PROPER COURT, UNDER CERTAIN CONDITIONS,
OF CERTAIN CLAIMS OF TITLE TO PARCELS OF LAND THAT HAVE BEEN DECLARED PUBLIC
LAND, BY VIRTUE OF JUDICIAL DECISIONS RENDERED WITHIN THE FORTY YEARS NEXT
PRECEDING THE APPROVAL OF THIS ACT.
Section 1 thereof provides —
SECTION 1. All persons claiming title to parcels of land that have been the object of cadastral
proceedings, who at the time of the survey were in actual possession of the same, but for some
justifiable reason had been unable to file their claim in the proper court during the time limit
established by law, in case such parcels of land, on account of their failure to file such claims, have
been, or are about to be declared land of the public domain by virtue of judicial proceedings instituted
15
within the forty years next preceding the approval of this Act, are hereby granted the right within five
years 2 after the date on which this Act shall take effect, to petition for a reopening of the judicial
proceedings under the provisions of Act Numbered Twenty-two hundred and fifty-nine, as
amended, only with respect to such of said parcels of land as have not been alienated, reserved,
leased, granted, or otherwise provisionally or permanently disposed of by the Government, and the
competent Court of First Instance, upon receiving such petition, shall notify the Government through
the Solicitor General, and if after hearing the parties, said court shall find that all conditions herein
established have been complied with, and that all taxes, interests and penalties thereof have been
paid from the time when land tax should have been collected until the day when the motion is
presented, it shall order said judicial proceedings reopened as if no action has been taken on such
parcels. 3
We concede that in Leyva vs. Jandoc, L-16965, February 28, 1962, a land registration case where
oppositors were "foreshore lessees of public land", a principle was hammered out that although
Section 34, Land Registration Act, 4 "apparently authorizes any person claiming any kind of interest to
file an opposition to an application for registration, ... nevertheless ... the opposition must be based on
a right of dominion or some other real right independent of, and not at all subordinate to, the rights of
the Government."5 The opposition, according to the Leyva decision, "must necessarily be predicated
upon the property in question being part of the public domain." Leyva thus pronounced that "it is
incumbent upon the duly authorized representatives of the Government to represent its interests as
well as private claims intrinsically dependent upon it."
But the Leyva case concerned an ordinary land registration proceeding under the provisions of the
Land Registration Act. Normally and logically, lessees cannot there present issues of ownership. The
case at bar, however, stands on a different footing. It involves a special statute R.A. 931, which
allows a petition for reopening on lands "about to be declared" or already "declared land of the public
domain" by virtue of judicial proceedings. Such right, however, is made to
cover limited cases, i.e., "only with respect to such of said parcels of land as have not been alienated,
reserved, leased, granted, or otherwise provisionally or permanently disposed of by the
Government." 6 The lessee's right is thus impliedly recognized by R.A. 931. This statutory phrase
steers the present case clear from the impact of the precept forged by Leyva. So it is, that if the land
subject of a petition to reopen has already been leased by the government, that petition can no longer
prosper.
This was the holding in Director of Land vs. Benitez, L-21368, March 31, 1966. The reopening petition
there filed was opposed by the Director of Lands in behalf of 62 lessees of public land holding
revocable permits issued by the government. We struck down the petition in that Case because the
public land, subject-matter of the suit, had already been leased by the government to private persons.
Of course, the Benitez ruling came about not by representations of the lessees alone, but through the
Director of Lands. But we may well scale the heights of injustice or abet violations of R.A. 931 if we
entertain the view that only the Director of Lands 7 can here properly oppose the reopening petition.
Suppose the lands office fails to do so? Will legitimate lessees be left at the mercy of government
officials? Should the cadastral court close its eyes to the fact of lease that may be proved by the
lessees themselves, and which is enough to bar the reopening petition? R.A. 931 could not have
intended that this situation should happen. The point is that, with the fact of lease, no question of
ownership need be inquired into pursuant to R.A. 931. From this standpoint, lessees have sufficient
legal interest in the proceedings.
16
The right of private petitioners to oppose a reopening petition here becomes the more patent when
we take stock of their averment that they have introduced improvements on the land affected. It would
seem to us that lessees insofar as R.A. 931 is concerned, come within the purview of those who,
according to the Rules of Court, 8 may intervene in an action. For, they are persons who have "legal
interest in the matter in litigation, or in the success of either of the parties." 9 In the event herein
private petitioners are able to show that they are legitimate lessees, then their lease will continue.
And this because it is sufficient that it be proven that the land is leased to withdraw it from the
operation of Republic Act 931 and place it beyond the reach of a petition for reopening. 10
In line with the Court of Appeals' conclusion, not disputed by respondent Lutes herein, the cadastral
court should have ruled on the validity of private petitioners 'tree farm leases — on the merits.
Because there is need for Lutes' right to reopen and petitioners' right to continue as lessees to be
threshed out in that court.
We, accordingly, hold that private petitioners, who aver that they are lessees, have the necessary
personality to intervene in and oppose respondent Lutes' petition for reopening.
2. Petitioners next contend that the reopening petition below, filed under R.A. 931, should have been
published in accordance with the Cadastral Act.
To resolve this contention, we need but refer to a very recent decision of this Court in De Castro vs.
Marcos, supra, involving exactly the same set of facts bearing upon the question. We there held, after
a discussion of law and jurisprudence, that: "In sum, the subject matter of the petition for reopening —
a parcel of land claimed by respondent Akia — was already embraced in the cadastral proceedings
filed by the Director of Lands. Consequently, the Baguio cadastral court already acquired jurisdiction
over the said property. The petition, therefore, need not be published." We find no reason to break
away from such conclusion.
Respondent Lutes attached to the record a certified true copy of the November 13, 1922 decision in
the Baguio Townsite Reservation case to show, amongst others, that the land here involved was part
of that case. Petitioners do not take issue with respondent Lutes on this point of fact.
We here reiterate our ruling in De Castro, supra, that the power of the cadastral court below over
petitions to reopen, as in this case, is not jurisdictionally tainted by want of publication.
3. A question of transcendental importance is this: Does the cadastral court have power to reopen the
cadastral proceedings upon the application of respondent Lutes?
The facts are: The cadastral proceedings sought to be reopened were instituted on April 12, 1912.
Final decision was rendered on November 13, 1922. Lutes filed the petition to reopen on July
25, 1961.
It will be noted that the title of R.A. 931, heretofore transcribed, authorizes "the filing in the proper
court, under certain conditions, of certain claims of title to parcels of land that have been declared
public land, by virtue of judicial decisions rendered within the forty years next preceding the approval
of this Act." The body of the statute, however, in its Section 1, speaks of parcels of land that "have
been, or are about to be declared land of the public domain, by virtue of judicial proceedings instituted
within the forty years next preceding the approval of this Act." There thus appears to be a seeming
inconsistency between title and body.

17
It must be stressed at this point that R.A. 931 is not under siege on constitutional grounds. No charge
has been made hero or in the courts below that the statute offends the constitutional injunction that
the subject of legislation must be expressed in the title thereof. Well-entrenched in constitutional law
is the precept that constitutional questions will not be entertained by courts unless they are
"specifically raised, insisted upon and adequately argued." 11 At any rate it cannot be seriously
disputed that the subject of R.A. 931 is expressed in its title.
This narrows our problem down to one of legal hermeneutics.
Many are the principles evolved in the interpretation of laws. It is thus not difficult to stray away from
the true path of construction, unless we constantly bear in mind the goal we seek. The office of
statutory interpretation, let us not for a moment forget, is to determine legislative intent. In the words
of a well-known authority, "[t]he true object of all interpretation is to ascertain the meaning and will of
the law-making body, to the end that it may be enforced." 12 In varying language, "the, purpose of all
rules or maxims" in interpretation "is to discover the true intention of the law." 13 They "are only
valuable when they subserve this purpose." 14 In fact, "the spirit or intention of a statute prevails over
the letter thereof." 15 A statute "should be construed according to its spirit and reason, disregarding as
far as necessary, the letter of the law." 16 By this, we do not "correct the act of the Legislature, but
rather ... carry out and give due course to" its true intent. 17
It should be certain by now that when engaged in the task of construing an obscure expression in the
law 18 or where exact or literal rendering of the words would not carry out the legislative intent, 19 the
title thereof may be resorted to in the ascertainment of congressional will. Reason therefor is that the
title of the law may properly be regarded as an index of or clue or guide to legislative intention. 20 This
is especially true in this jurisdiction. For the reason that by specific constitutional precept, "[n]o bill
which may be enacted into law shall embrace more than one subject which shall be expressed in the
title of the bill." 21 In such case, courts "are compelled by the Constitution to consider both the body
and the title in order to arrive at the legislative intention." 22
With the foregoing guideposts on hand, let us go back to the situation that confronts us. We take
another look at the title of R.A. 931, viz: "AN ACT TO AUTHORIZE THE FILING IN THE PROPER
COURT, UNDER CERTAIN CONDITIONS, OF CERTAIN CLAIMS OF TITLE TO PARCELS OF
LAND THAT HAVE BEEN DECLARED PUBLIC LAND, BY VIRTUE OF JUDICIAL DECISIONS
RENDERED WITHIN THE FORTY YEARS NEXT PRECEDING THE APPROVAL OF THIS ACT."
Readily to be noted is that the title is not merely composed of catchwords. 23 It expresses in language
clear the very substance of the law itself. From this, it is easy to see that Congress intended to give
some effect to the title of R.A. 931.
To be carefully noted is that the same imperfection in the language of R.A. 931 aforesaid — from
which surfaces a seeming inconsistency between the title and the body — attended Commonwealth
Act 276, the present statute's predecessor. That prior law used the very same language in the body
thereof and in its title. We attach meaning to this circumstance. Had the legislature meant to shake off
any legal effects that the title of the statute might have, it had a chance to do so in the reenactment of
the law. Congress could have altered with great facility the wording of the title of R.A. 931. The fact is
that it did not.
It has been observed that "in modern practice the title is adopted by the Legislature, more thoroughly
read than the act itself, and in many states is the subject of constitutional regulation." 24 The
constitutional in jurisdiction that the subject of the statute must be expressed in the title of the bill,
18
breathes the spirit of command because "the Constitution does not exact of Congress the obligation
to read during its deliberations the entire text of the bill." 25 Reliance, therefore, may be placed on the
title of a bill, which, while not an enacting part, no doubt "is in some sort a part of the act, although
only a formal part." 26 These considerations are all the more valid here because R.A. 931 was passed
without benefit of congressional debate in the House from which it originated as House Bill
1410, 27 and in the Senate. 28
The title now under scrutiny possesses the strength of clarity and positiveness. It recites that it
authorizes court proceedings of claims to parcels of land declared public land "by virtue of
judicial decisions rendered within the forty years next preceding the approval of this Act." That title is
written "in capital letters" — by Congress itself; such kind of a title then "is not to be classed with
words or titles used by compilers of statutes" because "it is the legislature speaking." 29 Accordingly, it
is not hard to come to a deduction that the phrase last quoted from R.A. 931 — "by virtue of judicial
decisions rendered" — was but inadvertently omitted from the body. Parting from this premise, there
is, at bottom, no contradiction between title and body. In line with views herein stated, the title
belongs to that type of titles which; should be regarded as part of the rules or provisions expressed in
the body. 30 At the very least, the words "by virtue of judicial decisions rendered" in the title of the law
stand in equal importance to the phrase in Section 1 thereof, "by virtue of judicial proceedings
instituted."
Given the fact then that there are two phrases to consider the choice of construction we must give to
the statute does not need such reflection. We lean towards a liberal view. And this, because of the
principle long accepted that remedial legislation should receive the blessings of liberal
construction. 31 And, there should be no quibbling as to the fact that R.A. 931 is a piece of remedial
legislation. In essence, it provides a mode of relief to landowners who, before the Act, had no legal
means of perfecting their titles. This is plainly evident from the explanatory note thereof, which reads:
This bill is intended to give an opportunity to any person or claimant who has any interest in any
parcel of land which has been declared as public land in cadastral proceeding for failure of said
person or claimant to present his claim within the time prescribed by law.
There are many meritorious cases wherein claimants to certain parcels of land have not had the
opportunity to answer or appear at the hearing of cases affecting their claims in the corresponding
cadastral proceedings for lack of sufficient notice or for other reasons and circumstances which are
beyond their control. Under C.A. No. 276, said persons or claimants have no more legal remedy as
the effectivity of said Act expired in 1940.
This measure seeks to remedy the lack of any existing law within said persons or claimants with
meritorious claims or interests in parcels of land may seek justice and protection. This bill proposes to
give said persons or claimants their day in court. Approval of this bill is earnestly requested.
In fine, we say that lingual imperfections in the drafting of a statute should never be permitted to
hamstring judicial search for legislative intent, which can otherwise be discovered. Legal technicalities
should not abort the beneficent effects intended by legislation.
The sum of all the foregoing is that, as we now view Republic Act 931, claims of title that may be filed
thereunder embrace those parcels of land that have been declared public land "by virtue of judicial
decisions rendered within the forty years next preceding the approval of this Act." Therefore, by that
statute, the July 25, 1961 petition of respondent Belong Lutes to reopen Civil Reservation Case No.

19
1, GLRO Record No. 211 of the cadastral court of Baguio, the decision on which was rendered on
November 13, 1922, comes within the 40-year period.lawphi1.nêt
FOR THE REASONS GIVEN, the petition for certiorari is hereby granted; the cadastral court's orders
of August 5, 1963, November 5, 1963 and September 17, 1964 are hereby declared null and void and
the cadastral court is hereby directed to admit petitioners' oppositions and proceed accordingly. No
costs. So ordered.

20
C. PREAMBLE
1. PEOPLE VS PURISIMA (GR NO. 42050)
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF MANILA, BRANCH VII,
and PORFIRIO CANDELOSAS, NESTOR BAES, ELIAS L. GARCIA, SIMEON BUNDALIAN, JR., JOSEPH C.
MAISO, EDUARDO A. LIBORDO, ROMEO L. SUGAY, FEDERICO T. DIZON, GEORGE M. ALBINO,
MARIANO COTIA, JR., ARMANDO L. DIZON, ROGELIO B. PARENO, RODRIGO V. ESTRADA, ALFREDO
A. REYES, JOSE A. BACARRA, REYNALDO BOGTONG, and EDGARDO M. MENDOZA, respondents.
G.R. No. L-46229-32 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and
REYNALDO LAQUI Y AQUINO, ELPIDIO ARPON, VICTOR EUGENIO Y ROQUE and ALFREDO
VERSOZA, respondents.
G.R. No. L-46313-16 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and JUANITO
DE LA CRUZ Y NUNEZ, SABINO BUENO Y CACAL, TIRSO ISAGAN Y FRANCISCO and BEN CASTILLO Y
UBALDO, respondents.
G.R. No. L-46997 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE WENCESLAO M. POLO, Judge of the Court of First Instance of Samar, and PANCHITO
REFUNCION, respondents.
Jose L. Gamboa, Fermin Martin, Jr. & Jose D. Cajucom, Office of the City of Fiscal of Manila and the Office of
Provincial Fiscal of Samar for petitioners.
Norberto Parto for respondents Candelosas, Baes and Garcia.
Amado C. de la Marced for respondents Simeon Bundalian Jr., et al.
Manuel F. de Jesus for all the respondents in L-46229-32 and L-46313-16.
Norberto L. Apostol for respondent Panchito Refuncion.
Hon. Amante P. Purisima for and in his own behalf.

MUÑOZ PALMA, J.:

These twenty-six (26) Petitions for Review filed by the People of the Philippines represented, respectively, by
the Office of the City Fiscal of Manila, the Office of the Provincial Fiscal of Samar, and joined by the Solicitor
General, are consolidated in this one Decision as they involve one basic question of law.

21
These Petitions or appeals involve three Courts of First Instance, namely: the Court of First Instance of Manila,
Branch VII, presided by Hon. Amante P. Purisima (17 Petitions), the Court of First Instance of Manila, Branch
XVIII, presided by Hon. Maximo A. Maceren (8 Petitions) and, the Court of First Instance of Samar, with Hon.
Wenceslao M. Polo, presiding, (1 Petition).
Before those courts, Informations were filed charging the respective accused with "illegal possession of deadly
weapon" in violation of Presidential Decree No. 9. On a motion to quash filed by the accused, the three Judges
mentioned above issued in the respective cases filed before them — the details of which will be recounted
below — an Order quashing or dismissing the Informations, on a common ground, viz, that the Information did
not allege facts which constitute the offense penalized by Presidential Decree No. 9 because it failed to state
one essential element of the crime.
Thus, are the Informations filed by the People sufficient in form and substance to constitute the offense of
"illegal possession of deadly weapon" penalized under Presidential Decree (PD for short) No. 9? This is the
central issue which we shall resolve and dispose of, all other corollary matters not being indispensable for the
moment.
A — The Information filed by the People —
1. In L-42050-66, one typical Information filed with the Court presided by Judge Purisima follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS Y DURAN, accused.
Crim. Case No. 19639
VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081
INFORMATION
The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of paragraph 3, Presidential
Decree No. 9 of Proclamation 1081, committed as follows:
That on or about the 14 th day of December, 1974, in the City of Manila, Philippines, the said accused did then
and there wilfully, unlawfully, feloniously and knowingly have in his possession and under his custody and
control one (1) carving knife with a blade of 6-½ inches and a wooden handle of 5-1/4 inches, or an overall
length of 11-¾ inches, which the said accused carried outside of his residence, the said weapon not being
used as a tool or implement necessary to earn his livelihood nor being used in connection therewith.
Contrary to law. (p. 32, rollo of L-42050-66)
The other Informations are similarly worded except for the name of the accused, the date and place of the
commission of the crime, and the kind of weapon involved.
2. In L-46229-32 and L-46313-16, the Information filed with the Court presided by Judge Maceren follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y AQUINO, accused.
CRIM. CASE NO. 29677
VIOL. OF PAR. 3,
PD 9 IN REL. TO LOI
No. 266 of the Chief
Executive dated April 1, 1975
INFORMATION

22
The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION OF PARAGRAPH 3,
PRESIDENTIAL DECREE NO. 9 in relation to Letter of Instruction No. 266 of the Chief Executive dated April 1,
1975, committed as follows:
That on or about the 28 th day of January, 1977, in the City of Manila, Philippines, the said accused did then
and there wilfully, unlawfully and knowingly carry outside of his residence a bladed and pointed weapon, to wit:
an ice pick with an overall length of about 8½ inches, the same not being used as a necessary tool or
implement to earn his livelihood nor being used in connection therewith.
Contrary to law. (p. 14, rollo of L-46229-32)
The other Informations are likewise similarly worded except for the name of the accused, the date and place of
the commission of the crime, and the kind of weapon involved.
3. In L-46997, the Information before the Court of First Instance of Samar is quoted hereunder:
PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION, accused.
CRIM. CASE NO. 933
For:
ILLEGAL POSSESSION OF
DEADLY WEAPON
(VIOLATION OF PD NO. 9)
INFORMATION
The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO REFUNCION of the crime of
ILLEGAL POSSESSION OF DEADLY WEAPON or VIOLATION OF PD NO. 9 issued by the President of the
Philippines on Oct. 2, 1972, pursuant to Proclamation No. 1081 dated Sept. 21 and 23, 1972, committed as
follows:
That on or about the 6th day of October, 1976, in the evening at Barangay Barruz, Municipality of Matuginao,
Province of Samar Philippines, and within the jurisdiction of this Honorabe Court, the abovenamed accused,
knowingly, wilfully, unlawfully and feloniously carried with him outside of his residence a deadly weapon called
socyatan, an instrument which from its very nature is no such as could be used as a necessary tool or
instrument to earn a livelihood, which act committed by the accused is a Violation of Presidential Decree No. 9.
CONTRARY TO LAW. (p. 8, rollo of L-46997)
B. — The Orders of dismissal —
In dismissing or quashing the Informations the trial courts concurred with the submittal of the defense that one
essential element of the offense charged is missing from the Information, viz: that the carrying outside of the
accused's residence of a bladed, pointed or blunt weapon is in furtherance or on the occasion of, connected
with or related to subversion, insurrection, or rebellion, organized lawlessness or public disorder.
1. Judge Purisima reasoned out, inter alia, in this manner:
... the Court is of the opinion that in order that possession of bladed weapon or the like outside residence may
be prosecuted and tried under P.D. No. 9, the information must specifically allege that the possession of
bladed weapon charged was for the purpose of abetting, or in furtherance of the conditions of rampant
criminality, organized lawlessness, public disorder, etc. as are contemplated and recited in Proclamation No.
1081, as justification therefor. Devoid of this specific allegation, not necessarily in the same words, the

23
information is not complete, as it does not allege sufficient facts to constitute the offense contemplated in P.D.
No. 9. The information in these cases under consideration suffer from this defect.
xxx xxx xxx
And while there is no proof of it before the Court, it is not difficult to believe the murmurings of detained
persons brought to Court upon a charge of possession of bladed weapons under P.D. No. 9, that more than
ever before, policemen - of course not all can be so heartless — now have in their hands P.D. No. 9 as a most
convenient tool for extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten
years for a rusted kitchen knife or a pair of scissors, which only God knows where it came from. Whereas
before martial law an extortion-minded peace officer had to have a stock of the cheapest paltik, and even that
could only convey the coercive message of one year in jail, now anything that has the semblance of a sharp
edge or pointed object, available even in trash cans, may already serve the same purpose, and yet five to ten
times more incriminating than the infamous paltik.
For sure, P.D. No. 9 was conceived with the best of intentions and wisely applied, its necessity can never be
assailed. But it seems it is back-firing, because it is too hot in the hands of policemen who are inclined to
backsliding.
The checkvalves against abuse of P.D. No. 9 are to be found in the heart of the Fiscal and the conscience of
the Court, and hence this resolution, let alone technical legal basis, is prompted by the desire of this Court to
apply said checkvalves. (pp. 55-57, rollo of L-42050-66)
2. Judge Maceren in turn gave his grounds for dismissing the charges as follows:
xxx xxx xxx
As earlier noted the "desired result" sought to be attained by Proclamation No. 1081 is the maintenance of law
and order throughout the Philippines and the prevention and suppression of all forms of lawless violence as
well as any act of insurrection or rebellion. It is therefore reasonable to conclude from the foregoing premises
that the carrying of bladed, pointed or blunt weapons outside of one's residence which is made unlawful and
punishable by said par. 3 of P.D. No. 9 is one that abets subversion, insurrection or rebellion, lawless violence,
criminality, chaos and public disorder or is intended to bring about these conditions. This conclusion is further
strengthened by the fact that all previously existing laws that also made the carrying of similar weapons
punishable have not been repealed, whether expressly or impliedly. It is noteworthy that Presidential Decree
No. 9 does not contain any repealing clause or provisions.
xxx xxx xxx
The mere carrying outside of one's residence of these deadly weapons if not concealed in one's person and if
not carried in any of the aforesaid specified places, would appear to be not unlawful and punishable by law.
With the promulgation of Presidential Decree No. 9, however, the prosecution, through Assistant Fiscal Hilario
H. Laqui, contends in his opposition to the motion to quash, that this act is now made unlawful and punishable,
particularly by paragraph 3 thereof, regardless of the intention of the person carrying such weapon because
the law makes it "mala prohibita". If the contention of the prosecution is correct, then if a person happens to be
caught while on his way home by law enforcement officers carrying a kitchen knife that said person had just
bought from a store in order that the same may be used by one's cook for preparing the meals in one's home,
such person will be liable for punishment with such a severe penalty as imprisonment from five to ten years
under the decree. Such person cannot claim that said knife is going to be used by him to earn a livelihood
because he intended it merely for use by his cook in preparing his meals.
This possibility cannot be discounted if Presidential Decree No. 9 were to be interpreted and applied in the
manner that that the prosecution wants it to be done. The good intentions of the President in promulgating this

24
decree may thus be perverted by some unscrupulous law enforcement officers. It may be used as a tool of
oppression and tyranny or of extortion.
xxx xxx xxx
It is therefore the considered and humble view of this Court that the act which the President intended to make
unlawful and punishable by Presidential Decree No. 9, particularly by paragraph 3 thereof, is one
that abets or is intended to abet subversion, rebellion, insurrection, lawless violence, criminality, chaos and
public disorder. (pp. 28-30, rollo of L-46229-32)
3. Judge Polo of the Court of First Instance of Samar expounded his order dismissing the Information filed
before him, thus:
... We believe that to constitute an offense under the aforcited Presidential decree, the same should be or there
should be an allegation that a felony was committed in connection or in furtherance of subversion, rebellion,
insurrection, lawless violence and public disorder. Precisely Proclamation No. 1081 declaring a state of martial
law throughout the country was issued because of wanton destruction to lives and properties widespread
lawlessness and anarchy. And in order to restore the tranquility and stability of the country and to secure the
people from violence anti loss of lives in the quickest possible manner and time, carrying firearms, explosives
and deadly weapons without a permit unless the same would fall under the exception is prohibited. This
conclusion becomes more compelling when we consider the penalty imposable, which is from five years to ten
years. A strict enforcement of the provision of the said law would mean the imposition of the Draconian penalty
upon the accused.
xxx xxx xxx
It is public knowledge that in rural areas, even before and during martial law, as a matter of status symbol,
carrying deadly weapons is very common, not necessarily for committing a crime nor as their farm implement
but for self-preservation or self-defense if necessity would arise specially in going to and from their farm. (pp.
18-19, rollo of L-46997)
In most if not all of the cases, the orders of dismissal were given before arraignment of the accused. In the
criminal case before the Court of (First Instance of Samar the accused was arraigned but at the same time
moved to quash the Information. In all the cases where the accused were under arrest, the three Judges
ordered their immediate release unless held on other charges.
C. — The law under which the Informations in question were filed by the People.
As seen from the Informations quoted above, the accused are charged with illegal possession of deadly
weapon in violation of Presidential Decree No. 9, Paragraph 3.
We quote in full Presidential Decree No. 9, to wit:
PRESIDENTIAL DECREE NO. 9
DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED SEPTEMBER 22, 1972, AND
SEPTEMBER 23, 1972, RESPECTIVELY, TO BE UNLAWFUL AND PROVIDING PENALTIES THEREFORE.
WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the Philippines has been placed
under a state of martial law;
WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6 dated September 22, 1972 and
General Order No. 7 dated September 23, 1972, have been promulgated by me;
WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos and public disorder
mentioned in the aforesaid Proclamation No. 1081 are committed and abetted by the use of firearms,
explosives and other deadly weapons;
25
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of the
Philippines, in older to attain the desired result of the aforesaid Proclamation No. 1081 and General Orders
Nos. 6 and 7, do hereby order and decree that:
1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the violator shall, upon conviction
suffer:
(a) The mandatory penalty of death by a firing squad or electrocution as a Military, Court/Tribunal/Commission
may direct, it the firearm involved in the violation is unlicensed and is attended by assault upon, or resistance
to persons in authority or their agents in the performance of their official functions resulting in death to said
persons in authority or their agent; or if such unlicensed firearm is used in the commission of crimes against
persons, property or chastity causing the death of the victim used in violation of any other General Orders
and/or Letters of Instructions promulgated under said Proclamation No. 1081:
(b) The penalty of imprisonment ranging from twenty years to life imprisonment as a Military
Court/Tribunal/commission may direct, when the violation is not attended by any of the circumstances
enumerated under the preceding paragraph;
(c) The penalty provided for in the preceding paragraphs shall be imposed upon the owner, president,
manager, members of the board of directors or other responsible officers of any public or private firms,
companies, corporations or entities who shall willfully or knowingly allow any of the firearms owned by such
firm, company, corporation or entity concerned to be used in violation of said General Orders Nos. 6 and 7.
2. It is unlawful to posses deadly weapons, including hand grenades, rifle grenades and other explosives,
including, but not limited to, "pill box bombs," "molotov cocktail bombs," "fire bombs," or other incendiary
device consisting of any chemical, chemical compound, or detonating agents containing combustible units or
other ingredients in such proportion, quantity, packing, or bottling that ignites by fire, by friction, by concussion,
by percussion, or by detonation of all or part of the compound or mixture which may cause such a sudden
generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive
effects on continguous objects or of causing injury or death of a person; and any person convicted thereof shall
be punished by imprisonment ranging from ten to fifteen years as a Military Court/Tribunal/Commission may
direct.
3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon such as "fan knife," "spear,"
"dagger," "bolo," "balisong," "barong," "kris," or club, except where such articles are being used as necessary
tools or implements to earn a livelihood and while being used in connection therewith; and any person found
guilty thereof shall suffer the penalty of imprisonment ranging from five to ten years as a Military
Court/Tribunal/Commission may direct.
4. When the violation penalized in the preceding paragraphs 2 and 3 is committed during the commission of or
for the purpose of committing, any other crime, the penalty shall be imposed upon the offender in its maximum
extent, in addition to the penalty provided for the particular offenses committed or intended to be committed.
Done in the City of Manila, this 2nd day of October in the year of Our Lord, nineteen hundred and seventy-two.
(SGD) FERDINAND E. MARCOS
President
Republic of the Philippines
D. — The arguments of the People —
In the Comment filed in these cases by the Solicitor General who as stated earlier joins the City Fiscal of
Manila and the Provincial Fiscal of Samar in seeking the setting aside of the questioned orders of dismissal,
the main argument advanced on the issue now under consideration is that a perusal of paragraph 3 of P.D. 9
26
'shows that the prohibited acts need not be related to subversive activities; that the act proscribed is essentially
a malum prohibitum penalized for reasons of public policy.1
The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of the accused who
commits the act is immaterial; that it is enough if the prohibited act is voluntarily perpetuated; that P.D. 9
provides and condemns not only the carrying of said weapon in connection with the commission of the crime of
subversion or the like, but also that of criminality in general, that is, to eradicate lawless violence which
characterized pre-martial law days. It is also argued that the real nature of the criminal charge is determined
not from the caption or preamble of the information nor from the specification of the provision of law alleged to
have been violated but by the actual recital of facts in the complaint or information.2
E. — Our Ruling on the matter —
1. It is a constitutional right of any person who stands charged in a criminal prosecution to be informed of the
nature and cause of the accusation against him.3
Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires that for a complaint or
information to be sufficient it must, inter alia state the designation of the offense by the statute, and the acts or
omissions complained of as constituting the offense. This is essential to avoid surprise on the accused and to
afford him the opportunity to prepare his defense accordingly. 4
To comply with these fundamental requirements of the Constitution and the Rules on Criminal Procedure, it is
imperative for the specific statute violated to be designated or mentioned 4 in the charge. In fact, another
compelling reason exists why a specification of the statute violated is essential in these cases. As stated in the
order of respondent Judge Maceren the carrying of so-called "deadly weapons" is the subject of another penal
statute and a Manila city ordinance. Thus, Section 26 of Act No. 1780 provides:
Section 26. It should be unlawful for any person to carry concealed about his person any bowie knife, dirk
dagger, kris, or other deadly weapon: ... Any person violating the provisions of this section shall, upon
conviction in a court of competent jurisdiction, be punished by a fine not exceeding five hundred pesos, or by
imprisonment for a period not exceeding six months, or both such fine and imprisonment, in the discretion of
the court.
Ordinance No. 3820 of the City of Manila as amended by Ordinance No. 3928 which took effect on December
4, 1957, in turn penalizes with a fine of not more than P200.00 or imprisonment for not more than one months,
or both, at the discretion of the court, anyone who shall carry concealed in his person in any manner that would
disguise its deadly character any kind of firearm, bowie knife, or other deadly weapon ... in any public
place. Consequently, it is necessary that the particular law violated be specified as there exists a substantial
difference between the statute and city ordinance on the one hand and P.D. 9 (3) on the other regarding the
circumstances of the commission of the crime and the penalty imposed for the offense.
We do not agree with petitioner that the above-mentioned statute and the city ordinance are deemed repealed
by P.D. 9 (3). 5 P. D. 9(3) does not contain any repealing clause or provision, and repeal by implication is not
favored. 6 This principle holds true with greater force with regards to penal statutes which as a rule are to be
construed strictly against the state and liberally in favor of the accused. 7 In fact, Article 7 of the New Civil Code
provides that laws are repealed only by subsequent ones and their violation or non- observance shall not be
excused by disuse, or custom or practice to the contrary.
Thus we are faced with the situation where a particular act may be made to fall, at the discretion of a police
officer or a prosecuting fiscal, under the statute, or the city ordinance, or the presidential decree. That being
the case, the right becomes more compelling for an accused to be confronted with the facts constituting the
essential elements of the offense charged against him, if he is not to become an easy pawn of oppression and
harassment, or of negligent or misguided official action — a fear understandably shared by respondent Judges
who by the nature of their judicial functions are daily exposed to such dangers.
27
2. In all the Informations filed by petitioner the accused are charged in the caption as well as in the body of the
Information with a violation of paragraph 3, P.D. 9. What then are the elements of the offense treated in the
presidential decree in question?
We hold that the offense carries two elements: first, the carrying outside one's residence of any bladed, blunt,
or pointed weapon, etc. not used as a necessary tool or implement for a livelihood; and second, that the act of
carrying the weapon was either in furtherance of, or to abet, or in connection with subversion, rebellion,
insurrection, lawless violence, criminality, chaos, or public disorder.
It is the second element which removes the act of carrying a deadly weapon, if concealed, outside of the scope
of the statute or the city ordinance mentioned above. In other words, a simple act of carrying any of the
weapons described in the presidential decree is not a criminal offense in itself. What makes the act criminal or
punishable under the decree is the motivation behind it. Without that motivation, the act falls within the purview
of the city ordinance or some statute when the circumstances so warrant.
Respondent Judges correctly ruled that this can be the only reasonably, logical, and valid construction given to
P.D. 9(3).
3. The position taken by petitioner that P.D. 9(3) covers one and all situations where a person carries outside
his residence any of the weapons mentioned or described in the decree irrespective of motivation, intent, or
purpose, converts these cases into one of "statutory construction." That there is ambiguity in the presidential
decree is manifest from the conflicting views which arise from its implementation. When ambiguity exists, it
becomes a judicial task to construe and interpret the true meaning and scope of the measure, guided by the
basic principle that penal statutes are to be construed and applied liberally in favor of the accused and strictly
against the state.
4. In the construction or interpretation of a legislative measure — a presidential decree in these cases — the
primary rule is to search for and determine the intent and spirit of the law. Legislative intent is the controlling
factor, for in the words of this Court in Hidalgo v. Hidalgo, per Mr. Justice Claudio Teehankee, whatever is
within the spirit of a statute is within the statute, and this has to be so if strict adherence to the letter would
result in absurdity, injustice and contradictions. 8
There are certain aids available to Us to ascertain the intent or reason for P.D. 9(3).
First, the presence of events which led to or precipitated the enactment of P.D. 9. These events are clearly
spelled out in the "Whereas" clauses of the presidential decree, thus: (1) the state of martial law in the country
pursuant to Proclamation 1081 dated September 21, 1972; (2) the desired result of Proclamation 1081 as well
as General Orders Nos. 6 and 7 which are particularly mentioned in P.D. 9; and (3) the alleged fact that
subversion, rebellion, insurrection, lawless violence, criminality, chaos, aid public disorder mentioned in
Proclamation 1081 are committed and abetted by the use of firearms and explosives and other deadly
weapons.
The Solicitor General however contends that a preamble of a statute usually introduced by the word
"whereas", is not an essential part of an act and cannot enlarge or confer powers, or cure inherent defects in
the statute (p. 120, rollo of L-42050-66); that the explanatory note or enacting clause of the decree, if it indeed
limits the violation of the decree, cannot prevail over the text itself inasmuch as such explanatory note merely
states or explains the reason which prompted the issuance of the decree. (pp. 114-115, rollo of 46997)
We disagree with these contentions. Because of the problem of determining what acts fall within the purview of
P.D. 9, it becomes necessary to inquire into the intent and spirit of the decree and this can be found among
others in the preamble or, whereas" clauses which enumerate the facts or events which justify the
promulgation of the decree and the stiff sanctions stated therein.

28
A "preamble" is the key of the statute, to open the minds of the makers as to the mischiefs which are to be
remedied, and objects which are to be accomplished, by the provisions of the statute." (West Norman Timber
v. State, 224 P. 2d 635, 639, cited in Words and Phrases, "Preamble"; emphasis supplied)
While the preamble of a statute is not strictly a part thereof, it may, when the statute is in itself ambiguous and
difficult of interpretation, be resorted to, but not to create a doubt or uncertainty which otherwise does not
exist." (James v. Du Bois, 16 N.J.L. (1 Har.) 285, 294, cited in Words and Phrases, "Preamble")
In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court had occasion to state that
'(L)egislative intent must be ascertained from a consideration of the statute as a whole, and not of an isolated
part or a particular provision alone. This is a cardinal rule of statutory construction. For taken in the abstract, a
word or phrase might easily convey a meaning quite different from the one actually intended and evident when
the word or phrase is considered with those with which it is associated. Thus, an apparently general provision
may have a limited application if read together with other provisions. 9
Second, the result or effects of the presidential decree must be within its reason or intent.
In the paragraph immediately following the last "Whereas" clause, the presidential decree states:
NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an the Armed Forces of the
Philippines, in order to attain the desired result of the aforesaid Proclamation No. 1081 and General Orders
Nos. 6 and 7, do hereby order and decree that:
xxx xxx xxx
From the above it is clear that the acts penalized in P.D. 9 are those related to the desired result of
Proclamation 1081 and General Orders Nos. 6 and 7. General Orders Nos. 6 and 7 refer to firearms and
therefore have no relevance to P.D. 9(3) which refers to blunt or bladed weapons. With respect to
Proclamation 1081 some of the underlying reasons for its issuance are quoted hereunder:
WHEREAS, these lawless elements having taken up arms against our duly constituted government and
against our people, and having committed and are still committing acts of armed insurrection and rebellion
consisting of armed raids, forays, sorties, ambushes, wanton acts of murders, spoilage, plunder, looting,
arsons, destruction of public and private buildings, and attacks against innocent and defenseless civilian lives
and property, all of which activities have seriously endangered and continue to endanger public order and
safety and the security of the nation, ...
xxx xxx xxx
WHEREAS, it is evident that there is throughout the land a state of anarchy and lawlessness, chaos and
disorder, turmoil and destruction of a magnitude equivalent to an actual war between the forces of our duly
constituted government and the New People's Army and their satellite organizations because of the
unmitigated forays, raids, ambuscades, assaults, violence, murders, assassinations, acts of terror, deceits,
coercions, threats, intimidations, treachery, machinations, arsons, plunders and depredations committed and
being committed by the aforesaid lawless elements who have pledged to the whole nation that they will not
stop their dastardly effort and scheme until and unless they have fully attained their primary and ultimate
purpose of forcibly seizing political and state power in this country by overthrowing our present duly constituted
government, ... (See Book I, Vital Documents on the Declaration of Martial Law in the Philippines by the
Supreme Court of the Philippines, pp. 13-39)
It follows that it is only that act of carrying a blunt or bladed weapon with a motivation connected with or related
to the afore-quoted desired result of Proclamation 1081 that is within the intent of P.D. 9(3), and nothing else.

29
Statutes are to be construed in the light of purposes to be achieved and the evils sought to be remedied. (U.S.
v. American Tracking Association, 310 U.S. 534, cited in LVN Pictures v. Philippine Musicians Guild, 110 Phil.
725, 731; emphasis supplied)
When construing a statute, the reason for its enactment should be kept in mind, and the statute should be
construed with reference to its intended scope and purpose. (Statutory Construction by E.T. Crawford, pp. 604-
605, cited in Commissioner of Internal Revenue v. Filipinas Compania de Seguros, 107 Phil. 1055, 1060;
emphasis supplied)
5. In the construction of P.D. 9(3) it becomes relevant to inquire into the consequences of the measure if a
strict adherence to the letter of the paragraph is followed.
It is a salutary principle in statutory construction that there exists a valid presumption that undesirable
consequences were never intended by a legislative measure, and that a construction of which the statute is
fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil, and
injurious consequences.9-a
It is to be presumed that when P.D. 9 was promulgated by the President of the Republic there was no intent to
work a hardship or an oppressive result, a possible abuse of authority or act of oppression, arming one person
with a weapon to impose hardship on another, and so on.10
At this instance We quote from the order of Judge Purisima the following:
And while there is no proof of it before the Court, it is not difficult to believe the murmurings of detained
persons brought to Court upon a charge of possession of bladed weapons under P.D. No. 9, that more than
ever before, policemen - of course not all can be so heartless — now have in their hands P.D. No. 9 as a most
convenient tool for extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten
years for a rusted kitchen knife or a pair of scissors, which only God knows where it came from. Whereas
before martial law an extortion-minded peace officer had to have a stock of the cheapest paltik, and even that
could only convey the coercive message of one year in jail, now anything that has the semblance of a sharp
edge or pointed object, available even in trash cans, may already serve the same purpose, and yet five to ten
times more incriminating than the infamous paltik. (pp. 72-73, rollo L-42050-66)
And as respondent Judge Maceren points out, the people's interpretation of P.D. 9(3) results in absurdity at
times. To his example We may add a situation where a law-abiding citizen, a lawyer by profession, after
gardening in his house remembers to return the bolo used by him to his neighbor who lives about 30 meters or
so away and while crossing the street meets a policeman. The latter upon seeing the bolo being carried by that
citizen places him under arrest and books him for a violation of P.D. 9(3). Could the presidential decree have
been conceived to produce such absurd, unreasonable, and insensible results?
6. Penal statutes are to be construed strictly against the state and liberally in favor of an accused.
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." 11 The purpose is not to enable a guilty person to escape punishment through a
technicality but to provide a precise definition of forbidden acts.12
Our own decisions have set down the same guidelines in this manner, viz:
Criminal statutes are to be construed strictly. No person should be brought within their terms who is not clearly
within them, nor should any act be pronounced criminal which is not made clearly so by the statute. (U.S. v.
Abad Santos, 36 Phil. 243, 246)

30
The rule that penal statutes are given a strict construction is not the only factor controlling the interpretation of
such laws, instead, the rule merely serves as an additional, single factor to be considered as an aid in
determining the meaning of penal laws. (People v. Manantan, 5 SCRA 684, 692)
F. The Informations filed by petitioner are fatally defective.
The two elements of the offense covered by P.D. 9(3) must be alleged in the Information in order that the latter
may constitute a sufficiently valid charged. The sufficiency of an Information is determined solely by the facts
alleged therein.13 Where the facts are incomplete and do not convey the elements of the crime, the quashing of
the accusation is in order.
Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move to quash the complaint or
information when the facts charged do not constitute an offense.
In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly rendering an unjust
judgment under Article 204 of the Revised Penal Code, failure to allege in the Information that the judgment
was rendered knowing it to be unjust, is fatal. 14
In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later became Chief Justice of
the Court affirmed an order of the trial court which quashed an Information wherein the facts recited did not
constitute a public offense as defined in Section 1, Republic Act 145. 15
G. The filing of these Petitions was unnecessary because the People could have availed itself of other
available remedies below.
Pertinent provisions of the Rules of Court follow:
Rule 117, Section 7. Effect of sustaining the motion to quash. — If the motion to quash is sustained the court
may order that another information be filed. If such order is made the defendant, if in custody, shall remain so
unless he shall be admitted to bail. If such order is not made or if having been made another information is not
filed withuntime to be specified in the order, or within such further time as the court may allow for good cause
shown, the defendant, if in custody, shall be discharged therefrom, unless he is in custody on some other
charge.
Rule 110, Section 13. Amendment. — The information or complaint may be amended, in substance or form,
without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all
matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to
the rights of the defendant.
xxx xxx xxx
Two courses of action were open to Petitioner upon the quashing of the Informations in these cases, viz:
First, if the evidence on hand so warranted, the People could have filed an amended Information to include the
second element of the offense as defined in the disputed orders of respondent Judges. We have ruled that if
the facts alleged in the Information do not constitute a punishable offense, the case should not be dismissed
but the prosecution should be given an opportunity to amend the Information.16
Second, if the facts so justified, the People could have filed a complaint either under Section 26 of Act No.
1780, quoted earlier, or Manila City Ordinance No. 3820, as amended by Ordinance No. 3928, especially since
in most if not all of the cases, the dismissal was made prior to arraignment of the accused and on a motion to
quash.
Section 8. Rule 117 states that:
An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the
motion was based on the grounds specified in section 2, subsections (f) and (h) of this rule.
31
Under the foregoing, the filing of another complaint or Information is barred only when the criminal action or
liability had been extinguished (Section 2[f]) or when the motion to quash was granted for reasons of double
jeopardy. (ibid., [h])
As to whether or not a plea of double jeopardy may be successfully invoked by the accused in all these cases
should new complaints be filed against them, is a matter We need not resolve for the present.
H. — We conclude with high expectations that police authorities and the prosecuting arm of the government
true to the oath of office they have taken will exercise utmost circumspection and good faith in evaluating the
particular circumstances of a case so as to reach a fair and just conclusion if a situation falls within the purview
of P.D. 9(3) and the prosecution under said decree is warranted and justified. This obligation becomes a
sacred duty in the face of the severe penalty imposed for the offense.
On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon on his letter to the City Fiscal of
Manila on October 15, 1975, written for the Secretary, now Minister of Justice, where he stated the following:
In any case, please study well each and every case of this nature so that persons accused of carrying bladed
weapons, specially those whose purpose is not to subvert the duly constituted authorities, may not be unduly
indicted for the serious offenses falling under P.D. No. 9.17
Yes, while it is not within the power of courts of justice to inquire into the wisdom of a law, it is however a
judicial task and prerogative to determine if official action is within the spirit and letter of the law and if basic
fundamental rights of an individual guaranteed by the Constitution are not violated in the process of its
implementation. We have to face the fact that it is an unwise and unjust application of a law, necessary and
justified under prevailing circumstances, which renders the measure an instrument of oppression and evil and
leads the citizenry to lose their faith in their government.
WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of respondent Judges
dismissing or quashing the Information concerned, subject however to Our observations made in the preceding
pages 23 to 25 of this Decision regarding the right of the State or Petitioner herein to file either an amended
Information under Presidential Decree No. 9, paragraph 3, or a new one under other existing statute or city
ordinance as the facts may warrant.
Without costs.
SO ORDERED.

32
E. HEADNOTES OR EPIGRAPHS
1. PEOPLE VS YABUT (GR NO. 39085)
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appelle,
vs.
ANTONIO YABUT, defendant-appellant.
Felipe S. Abeleda for appellant.
Office of the Solicitor-General Hilado for appellee.
BUTTE, J.:
This is an appeal from the judgment of the Court of First Instance of Manila, convicting the appellant of the
crime of murder and assessing the death penalty.
The appellant, Yabut, was charged in the Court of First Instance of Manila with the crime of murder upon the
following information:
That on or about the 1st day of August, 1932, in the City of Manila, Philippine Islands, the accused Antonio
Yabut, then a prisoner serving sentence in the Bilibid Prison, in said city, did then and there, with intent to kill,
wilfully, unlawfully, feloniously and treacherously, assault, beat and use personal violence upon one Sabas
Aseo, another prisoner also serving sentence in Bilibid, by then and there hitting the said Sabas Aseo suddenly
and unexpectedly from behind with a wooden club, without any just cause, thereby fracturing the skull of said
Sabas Aseo and inflicting upon him various other physical injuries on different parts of the body which caused
the death of the latter about twenty-four (24) hours thereafter.
That at the time of the commission of this offense, the said Antonio Yabut was a recidivist, he having
previously been convicted twice of the crime of homicide and once of serious physical injuries, by virtue of final
sentences rendered by competent tribunals.
Upon arraignment, the accused plead not guilty. The court below made the following findings of fact which,
from an independent examination of the entire testimony, we are convinced, are supported by the evidence
beyond reasonable doubt:
La brigada de presos, conocida como Brigada 8-A Carcel, el 1.º de agosto de 1932, estaba compuesta de
unos 150 o mas penados, de largas condenas, al mando del preso Jose Villafuerte, como Chief Squad
Leader, y del preso Vicente santos, como su auxiliar. forman parte de esta brigada el occiso Sabas Aseo, o
Asayo, el acusado Antonio Yabut y los presos llamados Apolonio Saulo, Isaias Carreon, Melecio Castro,
Mateo Bailon y los moros Taladie y Hasan.
Entre siete y media y ocho de la noche de la fecha de autos, estando ya cerrado el pabellon de la brigada,
pues se aproximaba la hora del descanso y silencio dentro de la prision, mientras el jefe bastonero Villafuerte
se hallaba sentado sobre su mesa dentro de la brigada, vio al preso Carreon cerca de el, y en aquel instante
el acusado Yabut, dirigiendose a Carreon, le dijo que, si no cobrada a uno que la debia, el (Yabut) le
abofetearia. El jefe bastonero Villafuerte trato de imponer silencio y dijo a los que hablaban que se
apaciguaran; pero, entre tanto, el preso Carreon se encaro con el otro preso Saulo cobrandole dos cajetillas
de cigarillos de diez centimos cada una que le debia. Saulo contesto que ya le pagaria, pero Carreon, por toda
contestacion, pego en la cara a saulo y este quedo desvanecido. En vista de esto, el jefe bastonero se dirigio
a su cama para sacar la porra que estaba autorizado a llevar. Simultaneamente Villafuerte vio que el preso
Yabut pegaba con un palo (Exhibit C) al otro preso Sabas Aseo, o Asayo, primeramente en la nuca y despues
en la cabeza, mientras estaba de espaldas el agregido Sabas, quien, al recibir el golpe en la nuca, se inclino
hacia delante, como si se agachara, y en ese momento el acusado Yabut dio un paso hacia delante y con el
palo de madera que portaba dio otro golpe en la cabeza a Sabas Aseo, quien cayo al suelo.
33
El jefe bastonero Villafuerte se acerco al agresor Yabut para desarmarle, pero este le dijo: "No te acerques; de
otro modo, moriras." No obstante la actitud amenazadora de Yabut, Villafuerte se acerco y Yabut quiso darle
un golpe que iba dirigido a la cabeza, pero Villafuerte lo pudo desviar pcon la porra que Ilevaba. Los dos
lucharon y Ilegaron a abrazarse hasta que se le deslizo a Villafuerte la porra que llevaba. Continuaron
luchando ambos y el acusado Yabut llego a soltar el palo Exhibit C con que acometia a Villafuerte y habia
malherido al preso Sabas Aseo. Despues de aquello, Yabut consiguio zafarse de Villafuerte y se dirigio al otro
extremo de la brigada, escondiendose dentro del baño y alli fue cogido inmediatamente despues del suceso
por el preso Proceso Carangdang, que desempenaba el cargo de sargento de los policias de la prision.
We reject, as unworthy of belief, the testimony of Yabut that it was Villafuerte, not he, who gave the fatal blow
to the deceased Aseo. The testimonies of Santiago Estrada, resident physician of the Bureau of Prisons and
Dr. Pablo Anzures of the Medico Legal Department of the University of the Philippines, clearly establish that
the death of Aseo was caused by subdural and cerebral hemorrhages following the fracture of the skull
resulting from the blow on the head of Aseo. They further confirm the testimony of the four eyewitnesses that
the deceased was struck from behind.
On appeal to this court, the appellant advances the following assignments of error:
1. The lower court erred in applying article 160 of the Revised Penal Code.
2. The lower court erred in holding that the evidence of the defense are contradictory and not corroborated.
3. The lower court erred in holding that the crime of murder was established by appreciating the qualifying
circumstance of alevosia.
4. The lower court erred in finding the accused guilty of the crime of murder beyond reasonable doubt.
In connection with the first assignment of error, we quote article 160 of the Revised Penal Code, in the Spanish
text, which is decisive:
Comision de un nuevo delito durante el tiempo de la condena por otro anterior — Pena. — Los que
comentieren algun delito despues de haber sino condenados por sentencia firme no empezada a cumpir, o
durante el tiempo de su condena, seran castigados con la pena señalada por la ley para el nuevo delito, en su
grado maximo, sin perjuicio de lo dispuesto en la regla 5.a del articulo 62.
El penado conprendidoen este articulo se no fuere un delincuente habitual sera indultado a los setenta años,
si hubiere ya cumplido la condena primitiva, o cuando llegare a cumplirla despues de la edad sobredicha, a no
ser que por su conducta a por otras circunstancias no fuere digno de la gracia.
The English translation of article 160 is as follows:
Commission of another crime during service of penalty imposed for another previous offense — Penalty. —
Besides the provisions of rule 5 of article 62, any person who shall commit a felony after having been convicted
by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by
the maximum period of the penalty prescribed by law for the new felony.
Any convict of the class referred to in this article, who is not a habitual criminal, shall be pardoned at the age of
seventy years if he shall have already served out his original sentence, or when he shall complete it after
reaching said age, unless by reason of his conduct or other circumstances he shall not be worthy of such
clemency.
The appellant places much stress upon the word "another" appearing in the English translation of the headnote
of article 160 and would have us accept his deduction from the headnote that article 160 is applicable only
when the new crime which is committed by a person already serving sentence is different from the crime for
which he is serving sentence. Inasmuch as the appellant was serving sentence for the crime of homicide, the
appellant contends the court below erred in applying article 160 in the present case which was a prosecution
34
for murder (involving homicide). While we do not concede that the appellant is warranted in drawing the
deduction mentioned from the English translation of the caption of article 160, it is clear that no such deduction
could be drawn from the caption. Apart from this, however, there is no warrant whatever for such a deduction
(and we do not understand the appellant to assert it) from the text itself of article 160. The language is plain
and unambiguous. There is not the slightest intimation in the text of article 160 that said article applies only in
cases where the new offense is different in character from the former offense for which the defendant is
serving the penalty.
It is familiar law that when the text itself of a statute or a treaty is clear and unambiguous, there is neither
necessity nor propriety in resorting to the preamble or headings or epigraphs of a section of interpretation of
the text, especially where such epigraphs or headings of sections are mere catchwords or reference aids
indicating the general nature of the text that follows. (Cf. In re Estate of Johnson, 39 Phil., 156, 166.) A mere
glance at the titles to the articles of the Revised Penal code will reveal that they were not intended by the
Legislature to be used as anything more than catchwords conveniently suggesting in a general way the subject
matter of each article. Being nothing more than a convenient index to the contents of the articles of the Code,
they cannot, in any event have the effect of modifying or limiting the unambiguous words of the text. Secondary
aids may be consulted to remove, not to create doubt.
The remaining assignments of error relate to the evidence. We have come to the conclusion, after a thorough
examination of the record, that the findings of the court below are amply sustained by the evidence, except
upon the fact of the existence of treachery (alevosia). As some members of the court entertain a reasonable
doubt that the existence of treachery (alevosia) was established, it results that the penalty assessed by the
court below must be modified. We find the defendant guilty of homicide and, applying article 249 of the
Revised Penal Code in connection with article 160 of the same, we sentence the defendant- appellant to the
maximum degree of reclusion temporal, that is to say, to twenty years of confinement and to indemnify the
heirs of the deceased Sabas Aseo (alias Sabas Asayo), in the sum of P1,000. Costs de oficio.
Avanceña, C.J., Street, Malcolm, Villa-Real, Abad Santos, Hull, Vickers, and Imperial, JJ., concur.

35
F. CONFLICTING PROVISIONS
1. MNL RAILROAD VS COLLECTOR (GR NO. L-30264)
MANILA RAILROAD COMPANY, plaintiff-appellee,
vs.
INSULAR COLLECTOR OF CUSTOMS, defendant-appellant.
Attorney-General Jaranilla for appellant.
Jose C. Abrew for appellee.
MALCOLM, J.:
The question involved in this appeal is the following: How should dust shields be classified for the
purposes of the tariff, under paragraph 141 or under paragraph 197 of section 8 of the Tariff Law of
1909? These paragraphs placed in parallel columns for purposes of comparison read:
141. Manufactures of wool not otherwise provided for, forty per centum ad valorem
197. Vehicles for use on railways and tramways, and detached parts thereof, ten per centum ad
valorem.
Dust shields are manufactured of wool and hair mixed. The component material of chief value is the
wool. They are used by the Manila Railroad Company on all of its railway wagons. The purpose of the
dust shield is to cover the axle box in order to protect from dust the oil deposited therein which serves
to lubricate the bearings of the wheel. "Dust guard," which is the same as "dust shield," is defined in
the work Car Builders' Cyclopedia of American Practice, 10th ed., 1922, p. 41, as follows: "A this
piece of wood, leather, felt, asbestos or other material inserted in the dust guard chamber at the back
of a journal box, and fitting closely around the dust guard bearing of the axle. Its purpose is to exclude
dust and to prevent the escape of oil and waste. Sometimes called axle packing or box packing."
Based on these facts, it was the decision of the Insular Collector of Customs that dust shields should
be classified as "manufactures of wool, not otherwise provided for." That decision is entitled to our
respect. The burden is upon the importer to overcome the presumption of a legal collection of duties
by proof that their exaction was unlawful. The question to be decided is not whether the Collector was
wrong but whether the importer was right. (Erhardt vs. Schroeder [1894], 155 U. S., 124; Behn, Meyer
& Co. vs. Collector of Customs [1913], 26 Phil., 647.) On the other hand, His Honor, Judge Simplicio
del Rosario, took an opposite view, overruled the decision of the Collector of Customs, and held that
dust shields should be classified as "detached parts" of vehicles for the use on railways. This
impartial finding is also entitled to our respect. It is the general rule in the interpretation of statutes
levying taxes or duties not to extend their provisions beyond the clear import of the language used. In
every case of doubt, such statutes are construed most strongly against the Government and in favor
of the citizen, because burdens are not to be imposed, nor presumed to be imposed, beyond what the
statutes expressly and clearly import. (U. S. vs. Wigglesworth [1842], 2 Story, 369; Froehlich &
Kuttner vs. Collector of Customs [1911], 18 Phil., 461.)
There are present two fundamental considerations which guide the way out of the legal dilemma. The
first is by taking into account the purpose of the article and then acknowledging that it is in reality
used as a detached part or railways vehicles. The second point is that paragraph 141 is a general
provision while paragraph 197 is a special provision. Where there is in the same statute a particular

36
enactment and also a general one which is embraced in the former, the particular enactment must be
operative, and the general enactment must be taken to effect only such cases within its general
language as are not within the provisions of the particular enactment (25 R. C. L., p. 1010, citing
numerous cases).
We conclude that the trial judge was correct in classifying dust shields under paragraph 197 of
section 8 of the Tariff Law of 1909, and in refusing to classify them under paragraph 141 of the same
section of the law. Accordingly, the judgment appealed from will be affirmed in its entirety, without
special taxation of costs in either instance.
Johnson, Street, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

37
G. MEANING OF WORD QUALIFIED BY PURPOSE OF THE STATUTE
1. DAVID VS C.A. (GR NO. L-57719-21)
WILFREDO DAVID, petitioner,
vs.
COURT OF APPEALS, JULIO MANALILI, ARCADIO BALAGTAS, MARTIN PASCUAL, RICARTE SUPAN,
FIDEL LIWANAG, MATIAS DIZON, NARCISO LUMBA, DANIEL SUPAN and CIRIACO REYES, respondents.
Hermenegildo D. Ocampo for petitioner.
Jose V. Reyes for respondents.

FERNAN, J.:
Submitted for determination in this petition for review on certiorari is the issue of whether or not tenants in
plantations exclusively devoted to sugarcane production may automatically convert their relationship with the
landowner from sharing to leasehold system in the absence of a presidential proclamation sanctioning such
change of relationship.
The nine [9] private respondents herein were share tenants of Patricio David in his 36-hectare land in
barangays San Pablo and San Agustin in Magalang, Pampanga. Each tenant had a landholding ranging in
area from four to five hectares devoted entirely to the production of sugarcane which were ultimately milled and
processed into sugar by the Pampanga Sugar Development Company [PASUDECO] in San Fernando,
Pampanga.
As dictated by the practice in Central Luzon, the landowner advanced the expenses of production including the
subsistance of the tenants. The landowner transacted with the PASUDECO during the milling season. He took
charge of transporting the sugarcane from the fields to the millers, recruiting cane cutters to whom he extended
cash advances, and procuring farm machineries. He exercised general supervision and control of the farm and
had to attend to the needs of the tenants including extending loans to them and providing for the fertilizers
used in the plantation.
On their part, the tenants provided labor during the milling season from November to March each year. They
were allowed to undertake additional jobs to augment their earnings even if they were also tenants in the
landowner's riceland.
Liquidation and accounting usually ensued a few days after the sugarcane had been milled and the landowner
and the tenants shared 50%-50% the net proceeds of the sale of the sugarcane. Also shared similarly were the
molasses, additional sugar seasonally given by PASUDECO, the bag rebates, incentive bonuses and other
benefits granted by the millers.
Effective in the 1979-80 agricultural year, Patricio David leased his sugarland to his son, Wilfredo David. For
said year, Wilfredo shared with the tenants the net proceeds of the sugarcane produced on the 50%-50%
arrangement.
As early as August 15, 1979, herein private respondents notified Wilfredo David of their intention to elect the
leasehold tenancy system starting from agricultural year 1980-81. 1 Wilfredo David objected not only because
he had prepared for said agricultural year by applying for a crop loan from the Philippine National Bank but
also because he believed that his tenants were financially incapable to undertake the venture. Hence, he
allegedly halted the cutting of the canes which had started sometime in November, 1979.

38
Through the help of the Bureau of Agrarian Legal Assistance of the then Ministry of Agrarian Reform, private
respondents individually filed complaints in the Court of Agrarian Relations in Angeles City. Said complaints, in
effect, sought to compel David to shift to the leasehold tenancy system. They prayed for an interlocutory order
authorizing the Deputy Sheriff to supervise the harvesting, milling and hauling of the standing crops which
would thereafter be shared on a 50%- 50% basis. They also proposed a temporary arrangement on the
sharing should the case continue before the harvest of the 1980-81 crop.2
In his answer to the complaints, David contended that private respondents were not entitled to an automatic
conversion to leasehold tenancy because Section 4 of Republic Act No. 3844, as amended, was not applicable
to sugarlands inasmuch as the production of sugar was covered by marketing allotments and subject to
international commitments. He averred that under a presidential proclamation on September 21, 1979,
sugarlands should be managed and cultivated under the corporate farming scheme. He denied having stopped
the harvest of the crops but alleged that the Philippine National Bank refused to release portions of the crop
loans he had obtained.
The Philippine National Bank, in whose favor Wilfredo David executed a chattel mortgage on September 14,
1979 covering 1,805.76 piculs of "A" and "B" sugar of the 1980-81 crop to secure a loan of P124,000, sought
intervention in the case. In its answer in intervention, said bank contended that private respondents were not
entitled to elect the leasehold system as a matter of right in view of Section 4 of Republic Act No. 3844. The
court disallowed the intervention.
On December 18, 1980, the Court of Agrarian Relations rendered a decision ordering the change of
relationship between private respondents and petitioner from share tenancy to the leasehold system starting
with agricultural year 1980-81. It also fixed the rentals of each tenant.
Wilfredo David appealed to the Court of Appeals which, in its decision * of July 13, 1981, affirmed the decision
of the Court of Agrarian Relations. 3 Hence, the instant petition for review on certiorari stressing the necessity
for a ruling on the aforestated issue in view of the diverse rulings thereon of the Court of Appeals.
Petitioner does not question the correctness of the rentals imposed by the Court of Agrarian Relations. It is not
surprising, therefore, that after this case was submitted for decision in this Court, private respondents filed a
motion for execution pending appeal based on the provisions of Section 5 of Republic Act No. 5434 and
Section 18 of Presidential Decree No. 946. Said Section 18 states that an appeal shall not stay the decision or
order of the Court of Agrarian Relations "except where the ejectment of a tenant-farmer, agricultural lessee or
tiller, settler, or amortizing owner-cultivator is directed." Accordingly, notwithstanding petitioner's opposition
thereto, We granted the motion for execution pending appeal in the resolution of May 31, 1983. 4 Hence, the
instant petition zeroes in solely on the legal issue set forth at the beginning of this decision.
Private respondents anchor their arguments on the provisions of Republic Act No. 1199, 5 as amended, which
states:
SEC. 14. Change of System. — The tenant shall have the right to change the tenancy, contract from one of
share tenancy to leasehold tenancy and vice-versa and from one crop sharing arrangement to another of the
share tenancy. If the share tenancy contract is in writing and duly registered, the right to change from one crop
sharing arrangement to another or from one tenancy system to another may be exercised at least one month
before the beginning of the next agricultural year after the expiration of the period of the contract. In the
absence of any registered written contract, the right may be exercised at least one month before the
agricultural year where the change shall be effected.
and on the following provisions of Republic Act No: 3844 6 which, as originally enacted on August 8, 1963,
stated:
SEC. 4. Abolition of Agricultural Share Tenancy. — Agricultural share tenancy, as herein defined, is hereby
declared to be contrary to public policy and shall be abolished: Provided, That existing share tenancy contracts
39
may continue in force and effect in any region or locality, to be governed in the meantime by the pertinent
provisions of Republic Act Numbered Eleven hundred and ninety- nine, as amended, until the end of the
agricultural year when the National Land Reform Council proclaims that all the government machineries and
agencies in that region or locality relating to leasehold envisioned in this Code are operating, unless such
contracts provide for a shorter period or the tenant sooner exercises his option to elect the leasehold
system: Provided, further, That in order not to jeopardize international commitments, lands devoted to crops
covered by marketing allotments shall be made the subject of a separate proclamation that adequate
provisions, such as the organization of cooperatives, marketing agreements, or other similar workable
arrangements, have been made to insure efficient management on all matters requiring synchronization of the
agricultural with the processing phases of such crops; Provided, furthermore, That where the agricultural share
tenancy contract has ceased to be operative by virtue of this Code, or where such a tenancy contract has been
entered into in violation of the provisions of this Code and is, therefore, null and void, and the tenant continues
in possession of the land for cultivation, there shall be presumed to exists a leasehold relationship under the
provisions of this Code, without prejudice to the right of the landowner and the former tenant to enter into any
other lawful contract in relation to the land formerly under tenancy contract, as long as in the interim the
security of tenure of the former tenant under Republic Act Numbered Eleven hundred ninety-nine, as
amended, and as provided in this Code, is not impaired: Provided, finally, That if a lawful leasehold tenancy
contract was entered into prior to the effectivity of this Code, the rights and obligations arising therefrom shall
continue to subsist until modified by the parties in accordance with the provisions of this Code.
Republic Act No. 6389 7 later amended Section 4 thereby providing for an "automatic conversion" to
agricultural leasehold from agricultural share tenancy which is declared as contrary to public policy. The
amendment retains the proviso on crops covered by marketing allotments.
Sugarlands are not mentioned as among the areas covered by the Agricultural Land Reform Code. Neither are
they included in the exempted lands which, as enumerated in Section 35 of said Code, include fishponds,
saltbeds and those principally planted to citrus, coconuts. cacao, coffee, durian and other similar permanent
trees.
While it is true that there have been no presidential proclamations to the effect that measures have been
adopted to insure efficient management of the agricultural and processing phases of crops covered by
marketing allotments, it would be nothing short of regressive to deny sugarland share tenants of their right to
elect the leasehold system. Considering the policy of the government as enunciated in Section 4 of the Code
as amended, which mandates the automatic conversion of share tenants to leaseholders, individual sugarland
tenants should not be discriminated against. Hence, any share tenant in sugarlands may, in accordance with
law, exercise his option to change his relationship with the landowner into the leasehold system. However, all
sugarland tenants who do not avail of said option may still be subject to existing lawful arrangements with the
landowner in the absence of the presidential proclamation adverted to in Section 4.
In this connection, We quote with approval the Court of Appeals decision which states:
The policy and the law are clear. Share tenancy is contrary to public policy and must be abolished. Any
interpretation of the law which tends to prolong any share tenancy relationship can be indulged in only when
such an interpretation is inescapable and may not be avoided. But where it is possible to construe an abolition
of share tenancy, then such a construction must perforce be adopted.
A careful consideration of the decision appealed to us in these cases shows that the lower court did not err.
There is no showing that the defendant-appellant's view is clearly and unmistakably supported by the statute
and, therefore, that the policy to abolish share tenancy for the plaintiffs may be judicially halted and stayed.
The only basis for the appellant's appeal is the second proviso in Section 4 of Republic Act 3844 that "... lands
devoted to crops covered by marketing allotments shall be made the subject of a separate proclamation by the
President ...."

40
There are various reasons why we adopt a strict construction against exemptions to leasehold tenancy.
Where the language of a statute is fairly susceptible to two or more constructions, that should be adopted
which will most tend to give effect to the manifest intent of the lawmaker and promote the object for which the
statute was enacted and a construction should be rejected which would tend to render abortive other
provisions of the statute and to defeat the object which the legislator sought to attain by its enactment (Ty Sue
vs. Hord, 12 Phil. 485).
xxx xxx xxx
There is absolutely no showing from the fact of this case that the crops harvested from the appellant's
landholding are covered by marketing allotments or that to convert the tenancy relationships in this case from
an out-moded and more oppressive system to one of leasehold would jeopardize any international
commitments.
The Philippines no longer depends on the marketing allotment or quota which our sugar industry was
committed to fill for the American market. Sugar is now sold in the world open market, about half under long
term contracts which protect against the violent fluctuations of prices characteristic of the sugar trade and the
other half in shorter term arrangements to get the best possible prices at any given time. In both cases,
however, sugar is traded not in terms of quotas or marketing allotments but in free and open competition with
the rest of the world's sugar. 8
Another development worth mentioning is the fact that to give more teeth to the policy of automatic conversion
of share tenancy to the leasehold system, Presidential Decree No. 1425 was issued to strengthen the
prohibition against agricultural share tenancy by providing penalties for violation thereof. We may add that
more recent developments portend the transformation of tenants to owner-farmers. Under the 1987
Constitution, a comprehensive rural development and agrarian reform shall be promoted. Accordingly,
President Corazon C. Aquino issued on July 22, 1987 Proclamation No. 131 instituting a comprehensive
agrarian reform program, and Executive Order No. 229 providing the mechanisms for the implementation of
the said program. Both issuances state that all public and private agricultural lands shall be covered by an
agrarian reform program.
In the instant case, We can do no less than to apply a liberal interpretation of the Agricultural Land Reform
Code to give full force and effect to its clear intent which, under Section 2[2] and [6] of said Code, is "to
achieve a dignified existence for the small farmers" and to make them "more dependent, self-reliant and
responsible citizens, and a source of genuine strength in our democratic society." 9
WHEREFORE, the instant petition for review on certiorari is hereby denied. No costs.
SO ORDERED.

41
H. WORDS CONSTRUCTED IN THEIR ORDINARY SENSE
1. COLLECTOR VS MANILA LODGE NO 761 (GR NO. L-11176)
THE COLLECTOR OF INTERNAL REVENUE, petitioner,
vs.
MANILA LODGE NO. 761 OF THE BENEVOLENT & PROTECTIVE ORDER OF ELKS and THE
COURT OF TAX APPEALS, respondents.
Office of the Solicitor General Ambrosio Padilla and Solicitor Frine C. Zaballero for petitioner.
Manuel O. Chan for respondent Lodge.
CONCEPCION, J.:
This is an appeal taken by the Collector of Internal Revenue from a decision of the Court of Tax
Appeals holding that the Manila Lodge No. 761 of the Benevolent & Protective Order of Elks "is not
liable for privilege taxes on its sale by retail of liquor and tobacco exclusively to its members and their
guests," and reversing and setting aside a decision of said appellant to the contrary, dated November
19, 1953 without special pronouncement as to costs.
The uncontested facts are set forth in the decision of said Court, from which we quote:
This is an appeal from two decisions of the respondent Collector of Internal Revenue assessing and
demanding from the petitioner herein the sums of P1,203.50 and P332.00, respectively representing
fixed taxes as retail dealer in liquor, fermented liquor, and tobacco, allegedly due from the petitioner
for the period from the 4th quarter of 1946 to 1953 and the period from 1954-1955, pursuant to
subsections (i), (k) and (n) of section 193 of the Tax Code, in relation to 178 of the same Code.
The petitioner, Manila Lodge No. 761 is admittedly a fraternal, civic, non-stock, non-profit organization
duly incorporated under Philippine laws. It owns and operates a clubhouse located at Dewey
Boulevard, Manila, wherein it sells at retail, liquor, fermented liquor, cigar and cigarettes only to its
members and their guests. B.I.R. agents discovered that the Manila Elks Club had not paid for the
period in question the privilege tax for retail liquor dealer (B-4), retail dealer in fermented liquor (B-7),
and retail tobacco dealer (B-9-a) prescribed in section 193 of the Tax Code.
On November 19, 1953, the Collector of Internal Revenue assessed against and demanded from the
petitioner the payment of the sum of P1,203.50 representing fixed taxes, as retail dealer, for the
period from its 4th quarter of 1946 to 1953, exclusive of the suggested compromise penalty of
P80.00. The petitioner, claiming that it was exempted from the payment of the privilege taxes in
question, requested that the said assessment be reviewed by the Conference Staff of the Bureau of
Internal Revenue. The Conference Staff, after due hearing, upheld and reiterated the assessment
made by the respondent Collector of Internal Revenue. Forthwith, the petitioner appealed to this
Court on June 1, 1955.
During the pendency of the original petition for review in the above-entitled case, respondent issued
another assessment covering fixed taxes for the years 1954 to 1955 in the amount of P332.00,
exclusive of the suggested compromise penalty of P50.00. Consequently, petitioner with leave of
Court filed a supplemental petition for review which included the latter assessment.
Petitioner bases its claim for exemption from the payment of the privilege taxes in question on the
grounds that it is not engaged in the business of selling at retail liquor, fermented liquor, and tobacco
42
because the sale of these aforementioned specific goods is made only to members of the club and
their guests' on a very limited scale in pursuance only of its general purpose as a fraternal social club,
to provide comfort, recreation, and convenience to such members, and merely to provide enough
margin to cover operational expenses. (Petitioner's Memo p. 3).
Respondent, on the other hand, maintains that persons selling articles subject to specific tax, such as
cigars, tobacco, liquor and the like, are subject to the fixed taxes imposed by section 193 of the Tax
Code, irrespective of whether or not they made profit, and whether or not they are civic or fraternal
clubs selling only to their members and their guests. This contention is based on a ruling promulgated
by the Bureau of Internal Revenue made in 1921.
Petitioner herein maintains that:
1. The respondent Court of Tax Appeals erred in reversing the decision of the petitioner-appellant
which held the respondent club liable for fixed taxes.
2. The respondent Court of Tax Appeals erred in holding that before respondent club's liability for the
privilege taxes imposed by section 193 of the Tax Code attaches it is necessary that it be engaged in
the "business" of selling liquor and tobacco.
3. The respondent Court of Tax of Appeals erred in holding that a fraternal, civic, non-stock, non-profit
organization like the respondent club selling at retail liquor and tobacco only to its members and their
guests with just enough margin to cover operational expenses should not be held liable for the fixed
taxes incident to the business of selling at retail, liquor and tobacco.
4. The respondent Court of Tax Appeals erred in holding that the Administrative construction of the
Bureau of Internal Revenue on the matter in question is outside the ambit of, and is inconsistent with,
the Revised Administrative Code and Tax Code.
This appeal is untenable. In the language of the Court of Tax Appeals:
The bone of contention between the two parties herein . . ., lies in the proper interpretation and
application of the pertinent provisions of the Tax Code, namely, subsections (i), (k) and (n) of section
193 in relation to section 178 of the Tax Code, which we quote hereunder:
Sec. 178. Payment of privilege taxes. — A privilege tax must be paid before any business or
occupation hereinafter specified can be lawfully begun or pursued. The tax on business is payable for
every separate or distinct establishment or place where the business subject to the tax is conducted;
and one occupation or line of business does not become exempt by being conducted with some other
occupation or business for which such tax has been paid.
The occupation tax must be paid by each individual engaged in a calling subject thereto; the tax on a
business by the person, firm, or company conducting the same. (Emphasis supplied.)
SEC. 193. Amount of tax on business. — Fixed taxes on business shall be collected as follows, the
amount stated being for the whole year when not otherwise specified:
(i) Retail liquor dealers, one hundred pesos.
(k) Retail dealers in fermented liquors, fifty pesos.
xxx xxx xxx

43
(n) Wholesale tobacco dealers, sixty pesos; retail tobacco dealers, sixteen pesos.
The aforequoted provisions of the Tax Code are clear and precise. The privilege taxes prescribed in
section 193 of the Tax Code in relation to section 178 of the same, are to be imposed or classified
therein for "business" purposes. This evident intention of the law becomes more palpable when we
take into consideration the facts that the drafters of our Tax Code had grouped the aforequoted
provisions of law under one general division of the Tax Code headed as "Title V, Privilege Taxes
on Business and occupation.
It is not therefore entirely correct to maintain as respondent does, that all person selling articles
subject to specific taxes, like liquor and tobacco, should likewise be subject to the fixed taxes
imposed by section 193 of the Tax Code. We believe, that in order that these persons should be
subjected to the privilege taxes imposed by the aforementioned section of the Tax Code, it is
necessary that they be engaged in the "business" of selling liquor and tobacco, otherwise the
privilege taxes as a dealer of liquor and tobacco can not attach.
At this juncture a definition of the word "business" is in order and we have the following:.
The word "business" in its ordinary and common use is employed to designate human efforts which
have for their and living or reward; it is not commonly used as descriptive of charitable, religious,
educational or social agencies. (Ballantine's Law Dictionary, 1948 Ed. P. 179)
Business — "that which busies or engages time, attention or labor as a principal serious concern or
interest; any particular occupation or employment habitually engaged in specially for livelihood or
gain." (Vol. 1, 1949 Merriam-Webster's New International Dictionary, 2nd Ed. p. 362.)
Other definitions of the term "business" as given by judicial pronouncement are found in Volume V,
Words and Phrases, page 999 as follows:
Business is a word of large signification, and denotes the employment or occupation in which a
person is engaged to produce a living. (Citing: Goddard v. Chaffee, 84 Mass (Allen) 395; 79 Am Dec.
769).
Business in common speech means habitual or regular occupation that a party is engaged in with a
view to winning a livelihood or some gain. (Citing: In re Lemont, 41 p. 2D, 497, 502)
An enterprise not conducted as a means of livelihood or for profit does not come within the ordinary
meaning of the terms, "business, trade or industry." (Citing City of Rochester vs. Rochester Girl's
Home, 194 N.Y.S. 236, 237).
The term "business" as used in law imposing a license tax on business, trades, etc. ordinarily means
business in the trade or commercial sense only, carried on with a view to profit or livelihood. (Citing:
Cuzner vs. California Club 100 p. 868, 867, 155, Cal. 303, 20 L.R.A. N.S. 1095).
From the foregoing definitions, it is evident that the plain ordinary meaning of "business" is restricted
to activities or affairs where profit is the purpose, or livelihood is the motive. The term "business"
being used without any qualification in section 193 of the Tax Code in relation to section 178 of the
same, should therefore be construed in its plain and ordinary meaning, restricted to activities for profit
or livelihood.
With these considerations in mind, we now come to the question of whether or not the Manila Elks
Club is engaged in the "business" of selling liquor and tobacco.
44
Respondent, in paragraph 1 of his answer, admits that the petitioner herein, Manila Elks Club is a
fraternal, civic, non-stock, non-profit organization. It has been established without contradiction that
the Manila Elks Club, in pursuance of its purpose as a fraternal social club, sells on retail at its
clubhouse on Dewey Boulevard, liquor, cigars and cigarettes, on a very limited scale, only to its
members and their guests, providing just enough margin to cover operational expenses without
intention to obtain profit. Such being the case then, the Manila Elks Club cannot be considered as
engaged in the "business" of selling liquor and tobacco.
Where the corporation handled no money except such as was necessary to cover operational
expenses, conducted no business for itself, and engaged in no transactions that contemplated a profit
for itself — such corporation is considered not organized for profit under the General Corporation
Law. (Read V. Tidewater Coal Exch., 116 A 898, 904, cited in Vol. 34 Words & Phrases, p. 220,
defining "profits"; underscoring provided.).
The petitioner herein, Manila elks Club, not being engaged in the business of selling at retail liquor
and tobacco, cannot therefore be held liable for the privilege taxes required by section 193,
subsections (1), (k) and (n). The weight of American authorities enhances the strength of our findings
that a fraternal, civic, non-stock, non-profit organization, like the Elks Club, selling at retail liquor and
tobacco only to its members and their guests in pursuance with its general purpose as a fraternal
social club with just enough margin to cover operational expenses, should not be held liable for the
fixed taxes incident to the business of selling at retail, liquor and tobacco.
A bonafide social club, which disposes of liquors at its clubhouse to members and their guests at a
fixed charge as incident to the general purposes of the organizational is not required to take out a
license by Rev. Laws No. 3777-3785, approved March 15, 1905, which provides for a license upon
the business of disposing intoxicating liquors; the term business in such statute meaning business in
the trade or commercial sense. (State v. university Club, 130 p. 468, 470; 35 Nev. 475; 44 L.R.A., N.
S. 1026).
A social club, not organized for the purpose of evading the liquor laws, but which furnishes its
members with liquors and refreshments without profit to itself, is not a retail liquor dealer, within the
statute imposing a license tax on all persons dealing in, selling or disposing of intoxicating liquors by
retail. (Barden v. Montan Club, 25 P. 1042, 10 Mont. 330, II L.R.A. 593).
Acts 1881, C. 149, authorizing taxation of liquors dealers, does not include a social club maintaining a
library, giving musical entertainments, and furnishing meals for its members, which keeps a small
stock of liquor; the members paying for its drink as it is taken, but no profit being made on such sales.
(Tennessee Club of Memphis v. Dwyer, 79 Tenn. (11 Lea) 452, 461, 47 Am. Rep. 298.).
A social club composed of members who have no proprietary interest in the assets which provides a
reading room, restaurant, bar room, library, billiard rooms and sitting rooms for its members, the
expenses of which are defrayed by annual dues from each member, and by payments made by the
members for food and drinks, is not engaged in the business of a retail liquor dealer, within section 11
of the Louisiana License Tax Laws. (La Ann. 585, 20 L.R.A. 185). Respondent however, insists that
the petitioner should pay the privilege tax on the sale at retail of liquor and tobacco because this has
been allegedly the practice consistently followed by the Bureau of Internal Revenue since 1921, and
because section 1464 of the Revised Administrative Code under which said ruling was then based
had been reenacted by the legislature as section 193 of the National Internal Revenue Code. Thus,

45
respondent contends, that the policy of the Bureau of Internal Revenue has therefore gained
"approval by legislative reenactments."
The alleged administrative practice is founded upon the following ruling rendered in 1921.
Clubs selling exclusively to members thereof liquors and other products on which the specific tax is
imposed should pay the privilege tax corresponding to the business engaged in. The fact that such
products are sold at cost to the members of the club does not affect the club's liability to tax. (Ruling,
Oct. 13, 1921, B.I.R. 105.02; Exh. 3, pp. 66-69. BIR records.)
We do not agree with the contention of the respondent. While there is admittedly a ruling on this point
in 1921, there is no showing that such has been a long-continued practice. Be that as it may, any
such administrative construction must be within the ambit of, and must be consistent with, the
Revised Administrative Code and the Tax Code. It is likewise the rule that where the statute is
unambiguous, an administrative construction is unwarranted (U.S. vs. Missouri P.R. Co. 278 U. S.
269, 73 L. Ed. 322) and no construction may be made to restrict or enlarge the meaning of an Act.
(Blatt vs. U.S.., 305 U.S. 267, 83 L. Ed. 167).
An examination of section 1464 of the Revised Administrative Code taken in connection with section
1453 of the same, discloses the fact that aside from the change in rates of taxes to be paid and the
arrangement of the classification of business enumerated therein, section 193 of the present Tax
Code is a verbatim copy of the aforementioned provisions of the Revised Administrative Code. The
policy or principle followed by the said code regarding privileges taxes, i.e. that the privilege taxes are
payable only by those persons or entities engaged in the business enumerated in section 1464 of the
said Code, has not suffered any change, and the same still obtains under our present Tax Code. In
the absence of a showing that the legislative body had been apprised of the aforesaid ruling, what
has gained legislative approval thru reenactment is, we believe, the policy behind the above-
mentioned provision of the Revised Administrative Code of taxing persons engaged in business and
not the alleged practice following the administrative ruling of 1921. We believe that no amount of
trenchant adherence to an established practice may justify its continued application where it is clear
and manifest that the same is not in consonance with the policy of the legislature as defined by law.
It is urged by appellant that emphasis should be placed not on the term "business", but on the
phrases "retail liquor dealers", in fermented liquors" and "retail tobacco dealers", appearing in section
193 of the National Internal Revenue Code, which are defined in section 194 thereof as follows:
SEC. 194. Words and phrases defined. — In applying the provisions of the preceding section, words
and phrases shall be taken in the sense and extension indicated below:
xxx xxx xxx
(i) "Retail liquor dealer" includes every person, except a retail vino dealer, who for himself or on
commission sells or offers for sale wine or distilled spirits (other than denatured alcohol) in quantities
of five liters or less at any one time and not for sale.
xxx xxx xxx
(k) "Retail dealer in fermented liquors" includes every person, except dealers in tuba, basi, and tapuy,
who for himself or on commission sells or offers for sale fermented liquors and quantities of five liters
or less at any one time and not for resale.

46
xxx xxx xxx
(o) "Tobacco dealer" comprehends every person who himself or on commission sells or offers for sale
cigars, cigarettes, or manufactured tobacco.
Undoubtedly, these definitions must be given all the weight due thereto, in the interpretation of
section 193 of the Tax Code. As used therein, the phrases above referred to are, however, part and
parcel of the provisions contained, not only in said section 193, but, also, in section 178 and other
parts of the Tax Code, all of which must be given effect in their entirety as a harmonious, coordinated
and integrated unit, not as a mass of heterogeneous and unrelated if not incongruous terms, clauses
and sentences. In other words, the phrases in question should be construed in the light of the context
of the whole Tax Code, of which they are integral parts. And when this is done — when we consider
that section 193 requires "retail liquor dealers", "retail dealers in fermented liquors" and "retail tobacco
dealers" to pay the taxes on business" therein specified; that said section 193 is entitled "Amount of
tax on business", that said section 193 merely implements the general provision in section 178, to the
effect that "a privilege tax must be paid in before any business or occupation hereinafter specified can
be lawfully begun and pursued"; that the term "business" is used in said section 178, six (6) times;
and that the aforementioned sections 178, 193 and 194 are part of Title V of the Tax Code, entitled
"Privilege taxes on business and occupation" — it becomes crystal clear that the "retail liquor
dealers", "retail dealers in fermented liquors" and "retail tobacco dealers" alluded to in said section
193 are those engaged in "business", not fraternal, civic, non-stock, non-profit organizations, like
herein respondent, which sells wines, distilled spirits, fermented liquors and tobacco, exclusively to its
members and their guests, at such prices as are merely sufficient to cover operational expenses.
Petitioner assails the applicability of the decisions relied upon by the Court of Tax Appeals, upon the
ground that said decisions refer to the authority to license, and, hence, to the exercise to the police
power, not that of taxation which is involved in the case at bar. However, the distinction made
enhances — instead of detracting from — the weight of said decisions as precedents, insofar as the
issue herein is concerned. Indeed, the police power is, in general broader and subject to less
restrictions than the power to tax. It is not difficult to conceive the advisability, if not, necessity, of
requiring a license for some activities undertaken by so-called "clubs", owing to the possibility, if not
probability, of use of said name, appellation or denomination, in order to avoid or evade some laws or
to camouflage certain ventures, pursuits or enterprises which otherwise would clearly be illegal,
immoral or contrary to public policy. Upon the other hand, a tax is a burden and, as such, it will not be
deemed imposed upon fraternal, civic, non-profit, non-stock organizations, unless the intent to the
contrary is manifest and patent.
Wherefore, the appealed decision of the Court of Tax Appeals is hereby affirmed, without special
pronouncement as to costs. It is so ordered.

47
I. GENERAL WORDS CONSTRUCTED GENERALLY
1. GATCHALIAN VS COMELEC (GR NO. 32560)
ESMERALDO M. GATCHALIAN, petitioner on his behalf and on behalf of all others similarly situated,
vs.
COMMISSION ON ELECTIONS, respondent.
Esmeraldo M. Gatchalian in his own behalf.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Hector C. Fule and Solicitors
Teodulo R. Dino and Patricio Patajo for respondent.

MAKASIAR, J.:.
Petitioner Esmeraldo M. Gatchalian alleges that he is a candidate for delegate to the Constitutional Convention
for the first district of Rizal, having filed his certificates of candidacy with the Commission on Elections on
September 8, 1970.
It appears that pursuant to the request of the advertising firms and associations of the Philippines, the
Commission on Elections promulgated on August 13, 1970 Comelec Resolution No. RR-707 holding that
"donations of billboards to the Commission by foreigners or companies or corporations owned and controlled
partially or wholly by foreigners are not covered by the provision of Sec. 56 of the Revised Election Code."
(See Annex A.)
On September 17, 1970, pursuant to the request of the Advertising Council of the Philippines, the Commission
on Elections promulgated Resolution No. RR-731 to the effect that the ban in Sec. 46 of the Revised Election
Code, as amended, does not cover the projected campaign for funds and other contributions by the Advertising
Council of the Philippines and others similarly situated, during the 120 days immediately preceding a regular or
special election; and "that in line with the ruling in its resolution numbered RR-707, donations and contributions
for the above campaign may be received from foreigners, companies or corporation owned and/or controlled
wholly or partially by foreigners. (See Annex B.)
On September 21, 1970, petitioner filed a petition with the Commission on Elections impugning the validity of
said Resolutions Nos. RR-707 and 731 as violative of Sec. 56 of the Revised Election Code. (See Annex C)
On the same day, September 21, 1970, the Commission on Elections denied the petitioner's petition on, the
ground "that contributions by foreigners to the Comelec Billboards Committee for the purpose of financing
costs of Comelec billboards are not made in aid or support of any particular candidate in a particular district
and that the allocation of space for its candidate is allowed by lottery, nor would it in any way influence the
result of the election, ... . (See Annex D)
From the said order of the Comelec denying his petition, petitioner, pursuant to Sec. 2 of Art. X of the
Constitution, filed a notice of appeal and the present petition for a review by this Tribunal of the said Comelec
ruling, contending that said order of the Comelec is null and void as contrary to law or having been issued in
excess of the powers of the Commission on Elections or in grave abuse of its discretion, and praying for a writ
of preliminary as well as permanent injunction.
No writ of preliminary injunction nor restraining order was issued, however, by reason of the fact that the
Comelec itself refrained from enforcing the questioned Resolutions Nos. RR-707 and 731 and had given the
corresponding advice to the advertising firms and associations concerned, including the Advertising Council of
the Philippines.
48
Sec. 56 of the Revised Election Code, as amended, provides that.
No foreigner shall aid any candidate, directly or indirectly, or to take part in or to influence in any manner any
elections.
The prohibited active intervention of foreigners thereunder may consist of:.
(1) aiding any candidate, directly or indirectly, in any election;
(2) taking part in any election; and
(3) influencing in any manner any election.
I
To dissipate any doubt, although not raised by the parties, the first question is whether the term "any elections"
as used in Sec. 56 of the Revised Election Code as amended, includes the election of delegates to the
Constitutional Convention under Resolution of both Houses No. 2 of March 16, 1967, as amended by
Resolution of both Houses No. 4 of June 17, 1969, as implemented by Rep. Act No. 6132.
The affirmative answer is beyond debate; because Sec. 8 of R.A. No. 6132 expressly enumerates prohibited
acts "In addition to and supplementing prohibited acts provided for in the Revised Election Code." Said Sec. 56
of the Revised Election Code, as amended, defines one such prohibited act or corrupt election practice.
Moreover, Sec. 2 of Res. No. 2 states that the election of delegates to the Constitutional Convention "shall be
held on the second Tuesday in November, 1970 in accordance with the Revised Election Code," which is
restated in Sec. 6 of R.A. No. 6132.
The same conclusion finds support in controlling jurisprudence.
Thus, We held recently that the term "any election" in Sec. 2 of Art. XII of the Constitution, which prohibits
officers and employees in the Civil Service, including members of the Armed Forces, from engaging "directly or
indirectly in partisan political activities" or "taking part in any election except to vote," comprehends or applies
to election of delegates Constitutional Convention.1
The term "any election" in a statute making it criminal to bet on any duel or on the result of any election
includes all elections held in the State. 2 It means not only any election then provided by the laws and the
Constitution, but any election which may thereafter be established or required to be held pursuant to law.3
II
The second issue is whether the term "foreigner as employed in the law includes both natural and juridical
persons or associations or organized groups, with or without legal personality.
Under Sec. 39 of Art. III of the Revised Election Code, "the term "person" includes an individual, partnership,
committee, association, corporation and any other organization or group of persons."4 Sec. 39 refers to
contributions from or expenditures by any person for the purpose of influencing or attempting to influence the
election of candidates.
The contributors to electoral campaign funds are either natural or artificial persons, or an organized group of
persons without separate legal personality. Sec. 39 even goes further by including in the definition of the term
"person," a committee or any other group of persons which may not have any juridical personality.
Moreover, under Sec. 185 of the Revised Election Code, as amended, Sec. 56, a violation of which is a serious
election offense under Sec. 183 of the same Code, may be violated by an entity which, if found guilty, shall be
sentenced to pay a fine of from five thousand pesos (P5,000.00) to one hundred thousand pesos
(P100,000.00) and its President, officials and employees performing duties connected with the offense

49
committed are liable as principals, accomplices or accessories as the case may be, in addition "to the
responsibility of such entity."5
To limit the term "foreigner" to natural persons would be unrealistic and would remove much of the bite in the
prohibition. It should not be disputed that juridical persons or organized groups — whether civic, fraternal,
religious, professional, trade, or labor — have more funds than individuals with which to subsidize a candidate.
Consequently, the influence of a juridical person or organized group, which is a contributor or donor, is greater
than that of any natural person. Furthermore, any, juridical person organized group has more interests to
protect than any of its component members or stockholders. And if the interest of the individual stockholders or
members of the juridical person or organized group were also to be considered, because usually the
stockholders or members have common cause with their corporation or organized group, such artificial person
or organized group together with its members will be under a more compelling motivation to aid a candidate or
to influence the conduct as well as the outcome of the election — even to frustrate the holding of the election if
it is necessary to protect, if not enhance, their interests.
It has likewise been held that in the absence of an expressed statutory provision or instruction the word
"person" comprehends private corporations unless it appears that it is used in a more limited sense, and
that prima facie the word "person" under even a penal statute which is intended to inhibit an act, must be a
"person in law" that is, an artificial as well as a natural person and therefore includes corporations if they are
within the sphere and purpose of the statute.6
There is nothing in the Revised Election Code, much less in Sec. 56 itself, indicting that the term "foreigner" is
limited only to natural persons. Neither is there any provision in the same Revised Election Code expressly or
impliedly suggesting that the circumstances of an artificial person in law are not identical to those of natural
persons covered by the prohibition in the Revised Election Code. On the contrary, there is greater reason to
believe that the law-maker feared more the assistance and influence of artificial persons in the elections than
the aid of natural persons. Hence, the law utilizes the more generic term "foreigner."
It is a cardinal rule of statutory construction that a law is understood to contain, by implication, if not by its
expressed terms, all such provisions as may be necessary to effectuate its object and purpose. And that the
whole and every part of the statute must be considered in fixing the meaning of its part.7
The law penalizing corrupt election practices should be given a reasonable construction in the interests of the
purity of the elections. 8 Since, as heretofore stated, the danger of desecration of the sanctity of the ballot is
greater from artificial persons by reason of their vastly superior financial and other resources including the
combined voting power of their members and employees, the term "foreigner" in Sec. 56 should be understood
to include artificial persons and other organized groups, without distinct legal personality.
The position of the respondents Chairman and members of the Commission on Elections that the Advertising
Council of the Philippines and the other advertising firms, associations and organizations are the donors, and
not the alien contributors for the construction of Comelec billboards, is as inaccurate as it is specious.
Inaccurate, because the very Resolution No. RR-707 states that the advertising firms and associations
mentioned therein "request an opinion from the Commission whether or not foreigners or companies or
corporations which are owned partially or wholly by foreigners or with foreign stockholders may contribute to or
donate billboards to the Commission without violating Sec. 56 of the Revised Election Code ..." (See Annex A),
re-emphasized by its concluding paragraph that "in line with the above rulings of the Commission in the
previous elections the Commission hereby RESOLVES to hold that the donations of billboards to the
Commission by foreigners or companies or corporations owned and controlled partially or wholly by
foreigners are not covered by the prohibition of Sec. 56 of the Revised Election Code." (Emphasis supplied)
Specious, because the advertising firms and organizations are merely the collectors of such donations or
contributions; they do not own the money or materials contributed or donated by the foreigners who are the
actual benefactors.
50
III
The third issue is whether the term "any candidate" in Sec. 56 comprehends "some candidates" or "all
candidates."
The term "any can candidate" should be construed also to mean some or all candidates. It has been held that
the term "any candidate" voted for at any election refers to "candidates"; 9 and that the term "any person" is
not limited to "any person" in the singular, but is applicable as well to two or more persons. 10.
When the context so indicates, the word may be construed to mean, and indeed it has been frequently used in
its enlarged and plural sense, as meaning "all," "all or every," "each," "each one of all," "every," without
limitation; indefinite number or quantity, an indeterminate unit or number of units out of many or all, one or
more as the case may be, several, some. 11
Penal laws, like Sec. 56 and the Revised Penal Code, usually refer to the felon in the singular.
It is possible that, to play safe or for his own protection, the donor may aid or assist both opponents or all of
them, especially if they have approximately the same political strength or following.
IV
The fourth question is whether by such donations, the foreigner.
(a) aids any candidate directly or indirectly, or
(b) takes a part in any election, or
(c) influences in any manner any election.
In law, the word "aid" is understood to mean to support, to help, to assist or to strengthen or to act in
cooperation with. 12
On the other hand, the term "to take part" means to participate or to engage in; 13 while the term "influence"
means to use the party's endeavors, though he may not be able to carry his point, or to exert or have an effect
on the nature or behaviour of, or affect the action or thought of, or modify; or to sway; to persuade; to affect;
to have an effect on the condition or development of; to modify or act upon physically, especially in some
gentle, subtle, or gradual way; or to exert or maintain a mental or moral power upon or over; to effect or sway
by modifications, feelings or conduct. 14 (Emphasis supplied).
The fact that the Comelec allowed:.
(1) Operations Quick Count 1969 (OQC '69), established by civic-minded citizens for the purpose of reporting
truthfully and speedily the results of the 1969 Presidential Elections, to accept monetary and material
contributions from foreign individuals and corporations to finance its activities;
(2) Robert L. Stewart, an American citizen who owns TV Channel 7, to utilize his Radio-TV station to
disseminate information and public features beneficial to public interests in connection with the elections; and
(3) Time-Ad, Inc. whose President is an alien who owns 25% of its stocks, to accept political commercials from
candidates for inclusion in their television programs.
as not contravening Sec. 56 of the Revised Election Code, does not make the questioned Resolutions Nos.
RR-707 and 731 legal, nor the 1969 resolutions regarding OQC '69, Channel 7, and Time-Ad, Inc., valid and
binding on this Tribunal.
It would indeed be a myopic view and the height of naivete to believe that donations for Comelec billboards will
not aid the candidates nor in any way influence the elections, no matter how small the contributions may be;
although parenthetically, the needed amount of two hundred fifty thousand pesos (P250,000.00) for billboards
51
is not insubstantial. The fact that alien donors have no direct participation in the distribution or allocation of the
Comelec billboards, does not inevitably mean that they have no participation in the elections nor exercise any
influence in the same, nor give assistance to any candidate. Billboards are means of propaganda. Supplying
billboards to all candidates is an assistance greater than the aid that may be given to one candidate. The
influence therefore that may be exerted jointly by the donors on all the candidates is correspondingly as great,
because all the candidates benefited thereby will naturally be grateful to the donors for such needed materials
for their publicity or propaganda. This is even worse than supporting a single candidate, because if the latter's
opponent wins he will not be amenable to influence by those who supported the adversary — out in donations
of this sort, whoever wins will feel grateful. The fact that the identity of the donors is not publicized, does not
necessarily mean that their identity cannot be made known to the candidates themselves thru adroit subtle
means. The names of the donors will be entered in the books of the collecting advertising agencies or
associations which must acknowledge receipts thereof and must account for the same in their itemized reports
to the Comelec and to their respective members. Besides, there is nothing to stop the donors or contributors
from informing the candidates during the campaign and after the elections.
The contributions or donations, no matter how small, can effect the thinking or attitude of the victorious
candidates in dealing with matters involving foreigners, and more so when the sum total of all these donations
is to be taken into account. The aggregate total will certainly generate a greater influence on the triumphant
candidates than the contribution of one foreigner considered separately or individually.
Then again, masterminds and financiers almost always stay in the background from where they issue order to
those who are either their outright dummies or who are beholden to them.
This will open the floodgates to undesirable alien influences in our country, which may be exercised subtly and
covertly in many guises and forms. In matters of national interest as well as affecting civil liberties, the caveat
is obsta principiis — oppose or resist from the very beginning such "erosion of small encroachments."
Consequently, We apprehend the same danger feared by petitioner; because the Constitutional Convention
will inescapably discuss proposals concerning the rights — civil, social, economic, legal and political — of
foreigners in this country, accentuated by the off-and-on renegotiations of the Parity Amendment as well as the
U.S.-Philippine military base agreement, and which renegotiations may extend to other treaties to which the
Philippines is a signatory. The delegates who are beneficiaries of the Comelec billboards contributed or
donated by foreigners will be under terrific pressure from quarters whose interest are alien, if not inimical to
ours. Some sectors are already agitating for the inclusion in the new Constitution of the principle of jus soli as a
mode of acquiring Filipino citizenship with retroactive effect. One could just visualize the impact of such a
constitutional amendment. Dire repercussions arising from such and other amendments on the political and
economic life of our country and people may be too terrifying to contemplate.
If, as asserted by the Assistant Solicitor General and the Solicitor, who filed an Answer in behalf of the
Comelec (which Answer curiously does not bear the signature of the Solicitor General), the needed amount is
only about two hundred fifty thousand pesos (P250,000.00) for the billboards to be allocated free to all
candidates in all congressional districts in the country or at the rate of two pesos and fifty centavos (P2.50) for
each candidate, this amount of two hundred fifty thousand pesos (P250,000.00) can easily be covered by
contributions from patriotic and civic-minded Filipino citizens or Filipino-owned corporations or associations or
organized groups composed entirely of Filipino citizens, which abound in our land. If there are not enough
patriotic and civic-minded citizens of this country who can underwrite said amount, then it is certainly a sad
commentary on the character of our people.
However, even donations from our own compatriots for such billboards, are objectionable; because Congress
should appropriate the needed funds for the purpose.
That Congress slashed the proposed Comelec budget for this election, can only mean that the legislators, who
are familiar with the cost of such campaign materials, estimated that the diminished appropriation will suffice to

52
cover the expenses for this election including those for Comelec billboards. In the same manner that it had
economized and accumulated savings the last fiscal year, the Comelec must not be prodigal with public funds
to effectuate the legislative judgment in reducing its budget for this particular election.
But above all, our sense of national integrity, pride and dignity should restrain us in subscribing to such a
mendicant attitude, especially considering that our country is endowed by Divine Providence with rich natural
resources and a people whose talents, initiative and resourcefulness are equal if not superior in some
respects, to those of foreigners. That we should, without feeling any shame, barter our national integrity, dignity
and pride by running for succor to foreigners to obtain such a measly amount of two hundred fifty thousand
pesos (P250,000.00), does not speak well of our independent status.
WHEREFORE, the resolutions of the Commission on Elections Nos. RR-707 and 731 promulgated
respectively on August 13, 1970 and September 17, 1970 are hereby declared illegal and null and void. Writ
granted, without costs.

53
J. USE OF GENERIC WORDS INCLUDE THINGS THAT ARISE AFTER
ENACTMENT OF THE LAW – PROGRESSIVE INTERPRETATION
1. GEOTINA VS C.A. (GR NO. 33500)
ROLANDO E. GEOTINA, in his capacity as COMMISSIONER OF CUSTOMS, petitioner,
vs.
THE COURT OF TAX APPEALS and UNITRADE, INC., respondents.
Office of the Solicitor General Felix Q. Antonio, First Assistant Solicitor General Antonio A. Torres, Solicitors
Bernardo P. Pardo and Guillermo C. Nakar, Jr., for petitioner.
De Santos, Balgos and Perez for respondents.

TEEHANKEE, J.:
Petitioner commissioner of customs has filed the instant petition either as an original action for certiorari or as
an appeal via certiorari by way of challenging the validity of the decision of the Court of Tax Appeals dated
April 23, 1971 and of its resolution of May 3, 1971 granting the private respondent's petition in the case
below1 and ordering petitioner commissioner to release on P550,000.00 bond an alleged no-dollar shipment of
37,042 cartons of fresh apples without the corresponding Central Bank release certificate.
The Court accepted the petition as an original action, requiring an answer thereto which was filed in due
course, and issued, as prayed for, the order restraining until further orders the enforcement and execution of
the tax court's question decision and resolution.
The material facts are undisputed, having been stipulated and documented in the proceedings below. The tax
court thus restated the facts in its decision (referring to herein respondent importer as petitioner before it and to
herein petitioner commissioner as respondent before it): "(P)etitioner is a domestic corporation duly organized
and existing under and by virtue of the laws of the Philippines. On December 22, 1970, the vessel M/V
"Mindanao Sea" arrived at the Port of Manila carrying 37,042 cartons fresh apples consigned to herein
petitioner. After payment of the taxes and duties on the portion of the shipment consisting of 10,000 cartons of
fresh apples covered by Bills of Lading Nos. PM-1, PM-2, PM-3 and PM-4, the necessary transfer permits were
issued by the Collector of Customs of Manila. While this portion of the importation was being unloaded from
the carrying vessel and transported to the designated cold storage house, the Collector of Customs, on
December 22, 1970, issued warrants of seizure and detention (S.I. Nos. 11993 to 11996) ordering the seizure
of a portion of the goods already unloaded and their detention for allegedly having been imported in violation of
Central Bank Circulars Nos. 289, 294 and 295, in relation to Section 2530 (f) of the Tariff and Customs Code
"pending termination of the seizure proceedings thereof and/or until further orders." Before the entire shipment
could be unloaded, the Collector of Customs apparently changed his mind and ordered that the goods already
unloaded be returned to the vessel.
"On December 23, 1970, petitioner, through its broker, requested the discharge of said articles from the
carrying vessel and their delivery to it under bond. This was denied by the Collector of Customs on the same
day on the ground that "the matter is under advisement by the proper government authorities, and therefore,
this Office regrets that for the moment, it can not grant (its) request." On appeal from this decision of the
Collector, the Commissioner, in his letter dated January 20, 1971, refused to render a decision until the
Collector shall have rendered a "definite ruling on the matter."
"On January 22, 1971, petitioner again requested the Collector of Customs to have the goods discharged from
the vessel and their delivery to it under bond. In his letter of January 26, 1971, the Collector denied the request
54
on the ground that the importation of said goods is prohibited under Circulars Nos. 289, 294 and 295 of the
Central Bank and are, therefore, articles of prohibited importation under Section 102(k) of the Tariff and
Customs Code. For convenience, the pertinent portions of the said decision of the Collector are reproduced
below.
The subject shipment, undoubtedly, belongs to a commodity classification of merchandise the importation of
which is prohibited under Central Bank Circular Nos. 289, 294 and 295. Since CB circulars form part of the
Tariff and Customs Law (Sec. 3514, R.A. 1937, as amended), the aforementioned importation may be
considered prohibited under Section 102(k) of the Tariff and Customs Code.
"In this connection, the pertinent provision of the Tariff and Customs Code on the matter is quoted hereunder:
"SEC. 1207. Jurisdiction of Collector Over Articles of Prohibited Importation. — Where articles are of prohibited
importation or subject to importation only upon conditions prescribed by law, it shall be the duty of the Collector
to exercise such jurisdiction in respect thereto as will prevent importation or otherwise secure compliance with
all legal requirements." (Emphasis supplied.)
Under this particular section, it is obvious, that where the importation is prohibited, or subject to the conditions
prescribed by law, the Collector is duty bound to exercise two options — either to prevent the importation of the
cargo or require compliance with all the requirements. It appearing that the latter alternative is not feasible
under the circumstances now prevailing, this Office is constrained to enforce the former by not allowing the
discharge of the shipment in question.
"In view of the foregoing, and in pursuance of the strict policy of the Central Bank of the Philippines relative to
the importation of commodities of this nature, the request of your client regarding the discharge of the cargo
from the vessel "Mindanao Sea" is hereby denied, thus, rendering the request for an authority to release the
same under bond premature."
Respondent Commissioner of Customs, on appeal from said decision of the Collector of Customs, sustained
the decision of the latter in an order dated January 29, 1971. Hence, this appeal.
"It will be noted that the principal issue raised in this appeal is the decision of the Collector, sustained by
respondent, to the effect that the goods in question are articles of prohibited importation under Section 102(k)
of the Tariff and Customs Code. Since importation of such articles is prohibited, delivery thereof to the importer
can not be authorized. For this reason, the Collector took the necessary steps to prevent their entry or
importation by authority of section 1207 of the Tariff and Customs Code by ordering the portion of the goods
previous unloaded returned to the carrying vessel. The effect of this order is the abandonment of the seizure
proceedings which were started previously by the issuance of warrants of seizure and detention." (pp. 46-50
CTA record.)
Upon respondent's filing on February 2, 1971 of its appeal with the lower court from the customs
commissioner's decision affirming that of the Manila customs collector denying said respondent's request for
the discharge of the shipment of 37,042 cartons of fresh applies * with a stated value of U.S. $66,675.60 from
the vessel "Mindanao Sea" and their release to respondent under bond, it renewed its move, through motion
for a preliminary injunction, for immediate discharge from the carrying vessel and release under bond of the
said shipment. The tax court, per its resolution of February 16, 1971, correctly denied respondent's motion, "for
to do so would be to prejudge the main issue raised in this appeal."
Respondent's motion for reconsideration of the denial order was denied anew by the tax court per its resolution
of February 26, 1971, wherein expounding on its first resolution abjuring a prejudgment of the main issue, it
ruled that "(S)ince articles of prohibited importation are not subject to the right of redemption by the claimant or
owner,2 it is obvious that the motion of [respondent company] to have said goods delivered to it pending final
determination of its appeal is without merit, for to do so would in effect be a declaration that the goods are not
articles of prohibited importation."
55
On another urgent motion of respondent alleging malfunctioning of the reefer machinery of the carrying vessel,
however, the tax court per its order of March 4, 1971, allowed the immediate discharge of the fruits and their
deposit in a customs bonded warehouse "under conditions as to prevent or arrest spoilage or deterioration
pending final determination of the case on the merits." The fruits were thus deposited since March 19, 19713 at
the refrigerated storage compartments of the Ice & Cold Storage Corporation at Plaza Lawton, Manila.
After the parties' submittal of their stipulation of facts and respective memoranda, the tax court rendered its
decision, wherein after upholding its challenged jurisdiction over the case, it, ruled that:
We are, therefore, of the opinion that the fresh apples in question are not absolutely prohibited to be imported
into the Philippines under the aforesaid Circulars of the Central Bank, in relation to Section 102 of the Tariff
and Customs Code. However, while said goods are not articles of prohibited importation, they may be held
liable for forfeiture for failure of petitioner to secure a release certificate from the Central Bank, which liability
may be determined in an appropriate seizure proceeding to be conducted by the Collector of Customs,
pursuant to Sections 2301, et seq. of the Tariff and Customs Code. In the meantime, considering the
perishable nature of said goods, and in the interest both of petitioner and the Government, the goods should
be released to petitioner under bond to secure payment of the appraised value thereof in case they are finally
declared forfeited in favor of the Government.
and rendered judgment as follows:
WHEREFORE, respondent is hereby ordered to release to petitioner the 37,042 cartons of fresh apples in
question, now deposited with the Ice & Cold Storage Corporation at Plaza Lawton, Manila, after petitioner shall
have filed a sufficient bond to guarantee payment of the appraised value thereof.
The tax court thereafter issued its resolution of May 3, 1971 for the immediate release of the apples, on the
basis of respondent's surety bond for P550,000.00 "to guarantee payment of the appraised value of said goods
in case the same are finally declared forfeited in favor of the Government." As already stated, such release
was enjoined by the Court's restraining order. Pursuant to the hearing held on May 21, 1971, the parties filed
on May 27, 1971 their joint manifestation to the effect that some of the apples had been found totally rotten and
the rest in various stages of deterioration. In respondent's last urgent motion of July 20, 1971, it prayed for
resolution of the case at bar "for the reason that the fresh fruits ... are already in grave danger of totally
deteriorating."
I. The preliminary issue of jurisdiction raised by petitioner may readily be disposed of. The tax court correctly
overruled petitioner commissioner's contention that his ruling denying release under bond of the fresh apples
partook of the nature of an interlocutory order "pending seizure proceedings against said importation" which
was not appealable to and could not be taken cognizance of by the tax court, in this wise: "(T)his is not correct.
What is being appealed is the decision declaring the articles question as "articles of prohibited importation" and
the order prohibiting entry thereof. This is a final decision and is in no sense an interlocutory order because it
was not issued in connection with a pending case. As stated heretofore, and as shown by the records of the
case, the seizure proceeding which was at first started by the Collector of Customs of Manila was
discontinued, the Collector having elected to prevent importation of said articles under Section 1207 of the
Tariff and Customs Code."
The tax court properly maintained its jurisdiction over the case which, as it pointed out, "precisely involves
seizure, detention or release of property belonging to [respondent company] consisting of fresh apples
imported from abroad, which property is under detention by [the commissioner] who refuses to release the
same to [respondent]." As reaffirmed by the Court in the latest case of Seneres vs. Frias, L-32921-40, June 10,
1971, in customs cases, "(T)he collector's decision may be appealed to the commissioner of customs, whose
decision, inter alia, in cases involving seizure, detention or release of property affected, may in turn be
reviewed only by the Court of Tax Appeals under the exclusive appellate jurisdiction conferred on said Court
under section 7 of Republic Act 1125."

56
II. We thus come to grips with the linchpin issue: did the tax court act within its authority and in accordance with
the applicable law and jurisprudence in ordering the release under bond of the questioned shipment of fresh
apples — admittedly imported on a "no dollar" basis — notwithstanding the lack of the required Central Bank
release certificate?
Petitioner commissioner submits that since the importation of fresh apples and other goods similarly classified
by the Central Bank as non-essential consumer (NEC) products is prohibited under Central Bank Circulars
Nos. 289, 294 and 295, the questioned importation is considered a prohibited importation under Section 102
(k) of the Tariff and Customs Code,4 and he was but complying with his mandate under section 1207 of the
same Code, quoted supra, page 3, "to exercise such jurisdiction in respect thereto as will prevent importation"
by refusing to allow the discharge of the said shipment.
Respondent importer in turn contends quite naturally that the tax court "committed no error when it found that
the imported fresh apples are not absolutely prohibited importation and therefore may be released to the
(importer) under bond."
The issue reduces itself quite simply and essentially to whether or not the fresh apples in question are "articles
of prohibited importation." If so, as the Court holds, then the tax court acted in excess of its jurisdiction in
overturning the customs authorities' proper exercise of their jurisdiction under section 1207 of the Customs
Code, in preventing importation and refusing to allow the discharge of the shipment of apples, which admittedly
is not covered by the required Central Bank permit or release certificate. By the same token, since the
importation of said apples is banned under the cited Central Bank circulars which have the force and effect of
law, the tax court acted without authority of law in ordering the commissioner to release the apples to the
importer under bond, for under the very section 2301 of the customs code invoked by it, "articles the
importation of which is prohibited by law shall not be released under bond."
1. The huge shipment of 37,042 cartons of fresh apples with a stated value of $66,675.60 and a total weight of
about 671,942 kilos,5 is concededly one of fruits classified as NEC goods, the importation of which is barred
under Central Bank Circular No. 289 dated February 21, 1970.6 As for "no-dollar" imports, Central Bank
Circular No. 247 dated July 21, 1967, after referring to previous circulars which required release certificates
from the Central Bank for certain "no-dollar" importations, expressly enumerates the items which are exempt
from the requirement of such release certificates, e.g. personal effects in reasonable quantities, gifts sent from
abroad not exceeding $100.00 unless there is evidence of abuse in the use of the privilege, etc. Central Bank
Circular No. 295, amending circular No. 294, promulgated on March 20 and 10, 1970, respectively,7 reiterates
the exemption of the "no dollar" imports covered by Circular No. 247 from the release certificate requirements,
but imposes an express ban on all other "no-dollar" imports, as follows:
No-dollar imports not covered by Circular No. 247 shall not be issued any release certificates and shall be
referred to the Central Bank for official transmittal to the Bureau of Customs for appropriate seizure
proceedings.
xxx xxx xxx
Section 2 of said Circular No. 295, however, provides certain conditions for the issuance of release certificates
for "no-dollar imports which arrived on or before February 21, 1970", the date that the floating rate system and
foreign exchange restrictions were instituted under Circular No. 289 of the same date.
The customs authorities clearly acted then within authority and mandate under section 1207 of the customs
code, quoted supra,8 in "preventing importation" and entry of the shipment of apples by not allowing its
discharge from the carrying vessel. As noted by the Court in the recent case of Seneres, supra, "When the
goods are challenged as being of prohibited importation and the collector questions the legality of the
importation ... the law expressly imposes upon the collector the obligation "to exercise such jurisdiction in
respect thereto as will prevent importation."" The second alternative granted by the cited section to the port
collector of "securing compliance with all legal requirements" with respect to "articles subject to importation
57
only upon conditions prescribed by law" was patently not available, for under the categorical terms of Circular
No. 295 above quoted, no release certificate could be issued for the apples in question and the questioned
import could only be "referred to the Central Bank for official transmittal to the Bureau of Customs for
appropriate seizure proceedings."
2. The pertinent and applicable provisions of the tariff and customs code quite indubitably prohibit the
importation of the apples in question as "prohibited importations" since their importation is "prohibited by
law" under section 102, while section 1207, quoted, supra,9 expressly enjoins the port collector "to exercise
such jurisdiction in respect thereto as will prevent importation." Section 2301 et seq. make the apples liable to
seizure and detention; they may not be released under bond since they are "articles the importation of which is
prohibited by law", but they may be subjected to forfeiture in the specific appropriate cases provided in section
2530:
SEC. 102. Prohibited, Importations. — The importation into the Philippines of the following articles is
prohibited:
xxx xxx xxx
All other articles the importation of which is prohibited by law.
. 2301. Warrant for Detention of Property — Bond. — Upon making any seizure, the Collector shall issue a
warrant for the detention of the property; and if the owner or importer desires to secure the release of the
property for legitimate use, the Collector may surrender it upon the filing of a sufficient bond, in an amount to
be fixed by him, conditioned for the payment of the appraised value of the article and/or any fine, expenses
and costs which may be adjudged in the case: Provided, That articles the importation of which is prohibited by
law shall not be released under bond.
SEC. 2307. Settlement of Case by Payment of Fine or Redemption of Forfeited Property. — ...
xxx xxx xxx
Redemption of forfeited property shall not be allowed in any case where the importation is absolutely prohibited
or where the surrender of the property to the person offering to redeem the same would be contrary to law.
SEC. 2530. Property Subject to Forfeiture Under Tariff and Customs Laws. — Any vessel or aircraft, cargo,
articles and other objects shall, under the following conditions, be subject to forfeiture:
xxx xxx xxx
f. Any article of prohibited importation or exportation, the importation or exportation of which is effected or
attempted contrary to law, and all other articles which, in the opinion of the Collector, have been used, are or
were intended to be used as instrument in the importation or exportation of the former.
xxx xxx xxx
m. Any article sought to be imported or exported:
(1) Without going through a customhouse, whether the act was consummated, frustrated or attempted;
(2) By failure to mention to a customs official, articles found in the baggage of a person arriving from abroad.
(3) On the strength of a false declaration or affidavit executed by the owner, importer, exporter or consignee
concerning the importation or exportation of such article.
(4) On the strength of a false invoice or other document executed by the owner, importer, exporter or
consignee concerning the importation or exportation of such article.

58
(5) Through any other fraudulent practice or device by means of which such article was entered through a
customhouse to the prejudice of the government.
Section 3514, defining the words and phrases used in the code, further expressly declares that " "tariff and
customs law" includes not only the provisions of this Code and regulations pursuant thereto but all other laws
and regulations which are subject to enforcement by the Bureau of Customs or otherwise within its
jurisdiction."
Accordingly, for the administrative information and guidance of all customs personnel, Customs Administrative
Order No. 19-70 dated October 20, 1970 was issued by the then acting commissioner of customs and duly
approved by the Secretary of Finance, as follows:
Pursuant to Section 608 of the Tariff and Customs Code in relation to Section 2307 of the same Code and in
order to give force and effect to Central Bank Circular No. 289, all importations seized and forfeited for violation
of Central Bank Circulars shall not be allowed to be released under bond, either surety or cash, nor allowed to
be redeemed.
All previous orders inconsistent with or contrary to the foregoing are hereby superseded and/or revoked.
This Order shall take effect upon approval by the Secretary of Finance.
(Sgd.) ALFREDO PIO DE RODA, JR.
Acting Commissioner of Customs
APPROVED:
(Sgd.) CESAR VIRATA
Secretary of Finance".
3. The tax court, however, erroneously justified its decision overruling the commissioner's denial of importation
of the apples and instead ordering their release under bond in this wise:
... respondent seeks to prevent importation of the goods in question and the delivery thereof to petitioner on
the ground that said goods, having been imported in violation of Central Bank Circulars Nos. 289, 294 and 295,
are considered "articles of prohibited importation" which may be banned under Section 1207, in relation to
Section 102, of the Tariff and Customs Code. We have examined said Circulars, and we find nothing therein
which declares that fresh apples are articles which are prohibited to be imported into the Philippines. It is true
that the Circulars provide that no release certificate may be issued for such goods coming from abroad, yet the
Central Bank may issue such release certificate under the exceptional circumstances, the prohibition not being
absolute. In fact, the Collector of Customs authorized the release and delivery to the importer of a shipment of
fresh apples on December 1, 1970, after the effectivity of said Circulars. It may be added that by Executive
Order of the President (Executive Order No. 282, dated January 4, 1971) the tariff duty on apples was
increased.
xxx xxx xxx
Executive Order No. 282 is proof enough that it has never been the intention to classify fresh apples as articles
of prohibited importation.
We are, therefore, of the opinion that the fresh apples in question are not absolutely prohibited to be imported
into the Philippines under the aforesaid Circulars of the Central Bank, in relation to Section 102 of the Tariff
and Customs Code.
(a) The tax court's first stated ground that the importation of fresh apples was "not absolutely prohibited" under
the Central Bank circulars and that therefore the apples could not be deemed "articles of prohibited
importation" as envisaged by section 102 of the tariff and customs code has been long rejected by the settled
59
doctrine and jurisprudence of the Court. The contention that to be deemed articles of prohibited importation,
the questioned articles must partake of the same nature as those specifically declared prohibited in said
section 102 (formerly section 3 of the Philippine Tariff Act of 1909) such as explosives, etc. was discarded by
the Court in the 1959 case of Tong Tek vs. Commissioner of Customs: 10
Petitioners alleged that the term "merchandise of prohibited exportation" used in Section 1363-(f) of the
Revised Administrative Code (now Section 2530-f of the tariff and customs code) has its own fixed and definite
meaning; that it refers exclusively to those articles specifically declared prohibited by Section 3 of the
Philippine Tariff Act of 1909, such as firearms and explosives, obscene and subversive articles, gambling
outfits, falsely marked gold and silver articles, adulterated foods, lottery tickets, opium and opium pipes and as
gold bars do not fall under any of the enumeration, they conclude that the aforementioned petitioned codal
provision can not be invoked in ordering the forfeiture of the articles in question. We entertain a different view.
It must be remembered that the Revised Administrative Code is a general legislation. As such, it must have
been intended to meet not only the peculiar conditions obtaining at the time of its enactment but also designed
to comprehend those that may normally arise after its approval. To our mind the term "merchandise of
prohibited exportation" used in the code is broad enough to embrace not only those already declared
prohibited at the time of its adoption but also goods, commodities or articles that may be the subject of
activities undertaken in violation of subsequent laws. Considering that the Central Bank circulars, issued for the
implementation of the law authorizing their issuance although by themselves are not statutes, have the force
and effect of law (People vs. Que Po Lay, 94 Phil. 640; 50 Off. Gaz., No. 10, p. 4850), the carrying out of
transactions or undertakings without complying with the requirements of Circular Nos. 20, 21 and 42 makes
these undertakings illegal. And as a natural consequence thereof, the articles involved in such unauthorized
ventures become prohibited and, therefore, subject to forfeiture under Section 1363-(f) of the Revised
Administrative Code.
(b) In another 1959 case of Pascual vs. Commissioner of Customs, 11 the Court, in upholding the penalty of
forfeiture for such importations made without the required Central Bank release certificates, stressed that
"since the importations in question were made without the necessary import license issued by the Monetary
Board pursuant to Circular No. 45 and the release certificates issued by the Central Bank or its authorized
agent bank in the prescribed form pursuant to Circular No. 44, they fall within the class of "merchandise of
prohibited importation" or merchandise "the importation ... of which is effected ... contrary to law" that the
Commissioner of Customs may seize and order forfeited. To sustain the appellant theory of the case would
render nugatory the aim and purpose of the law when it authorizes the Central Bank to temporarily suspend or
restrict the sale of foreign exchange and subject all transactions in gold and foreign exchange to licensing
during an exchange crisis in order to protect the international reserve and to give the Monetary Board and the
Government time in which to take constructive measures to combat such a crisis." The Court emphasized
therein that "every import of goods or merchandise requires an immediate or future demand for foreign
exchange" and that the Central Bank circulars in question requiring its permit and release certificates for so-
called "no-dollar" imports were "measures taken to check the unregulated flow of foreign exchange from the
country and are within the powers of the Monetary Board."
(c) Numerous cases thereafter have elevated the Court's initial 1959 rulings to settled doctrine. Thus, ten years
later, in the 1969 case of Sare vs. Commissioner of Customs, 12 the Court, through the Chief Justice, declared
that "it is now well settled that goods imported without the release certificates required in Circulars Nos. 44 and
45 are "merchandise of prohibited importation" as this expression is used in said section No. 1363
(f)." 13 Similarly, in another 1969 case of Sare Enterprises vs. Commissioner of Customs, 14 the Court, per Mr.
Justice Castro, in reiterating the same doctrine, noted that "the ruling in Capulong 15 has been reiterated and
reaffirmed in numerous decisions of this Court 16 and it is now too late in the day to suggest that it should be
reexamined which of course the petitioner does not do."

60
4. The tax court thus failed to take note that articles of prohibited importation under section 102 of the code are
of two categories, viz, those which are absolutely prohibited or more commonly known as contraband, such as
explosives or prohibited drugs, and other articles which are considered qualifiedly prohibited referring to those
which may be imported subject to certain restrictions or limitations. But as has been observed, the legal effects
of an authorized importation of qualifiedly prohibited articles are the same as those of an importation
of contraband: "an article imported or attempted to be imported in violation of regulations of the Central Bank is
considered an article of prohibited importation and is subject to forfeiture in like manner as an article the
importation of which is absolutely prohibited under Section 102 of the Tariff & Customs Code." 17
None of the above-cited pertinent provisions of the tariff and customs code requires that the questioned
importation be of articles of absolutely prohibited importation for the customs authorities to prevent their entry
or importation or enforce their seizure and forfeiture.
Indeed, it will be noted that even as to articles of absolutely prohibited importation under section 102 of the
code, e.g. explosives or prohibited drugs, their limited importation is nevertheless permitted "when authorized
by law" in the case of dynamite and other explosives, and by duly authorized persons "for medicinal purposes
only" in the case of prohibited drugs. The granting of limited importation of such absolutely prohibited articles in
the "exceptional circumstances" authorized by law (to use the tax court's own phrase) no more nullifies the
standing prohibition against their importation than the release on December 1, 1970, cited by the tax court, of a
small shipment of 100 cartons of fresh apples with a dollar value of $897.50 and a total weight of 2,087
kilos) 18 to the Savoy Philippines Hotel would serve to annul the Central Bank subsisting ban against such so-
called "no-dollar" imports; neither may it be used as a lever to allow the release under bond of the present
enormous shipment of 37,042 cartons of apples.
5. The President's Executive Order No. 282, dated January 4, 1971, increasing the tariff duty on apples, as
cited in the tax court's decision, does not serve in law to bring down the barrier against the importation of fresh
apples as "no-dollar" imports under Circular No. 295. It is obvious that the increased tariff duty thereby
imposed on fresh apples would be applicable and collectible only on lawful and valid importations thereof duly
made in accordance with law, more specifically, after full compliance with Central Bank requirements. In this
regard, the Court has taken note that it is stated in the pertinent Central Bank circulars that "no-dollar imports
not covered by Circular No. 247, shall not be issued, any release certificates" (per Circular No. 295,
quoted supra. 19) Yet, respondent takes the Central Bank to task for having in some instances disregarded its
own circulars by granting "prior specific approval" for banned "no-dollar imports" or by issuing release
certificates therefor as exceptions for "favored parties", as in the Savoy Hotel importation of fresh apples. The
clearance granted Savoy Hotel for the small shipment of fresh apples may be readily justifiable as one having
been given to a tourist hotel as a dollar earner catering to the country's tourists industry. But it might perhaps
be desirable that the Central Bank spell out exceptions and the cases where it will grant "prior specific
approvals" as against the standing prohibition for the guidance of all concerned, so that it may not be charged
with acting arbitrarily and without any definite set of rules and guidelines that assures equal treatment and
equal application of its circulars to all.
Respondent importer in its answer at bar contends that since its contract with the Hongkong supplier for the
importation of fresh apples was entered into since March 26, 1969, when Central Bank Circulars 289, 294 and
295 had not yet been issued (the earliest thereof instituting the floating rate system having been issued and
taken effect on February 21, 1970), that the alleged shipment thereof which arrived at Manila one year and
seven months later on December 22, 1970 should not be deemed covered by the Central Bank ban. The tax
court gave no credit to this contention, since the contract presented covering assorted goods and foodstuffs
with a total value of US $2,288,977.00 called by its own terms for payment "by letters of credit from the
Philippines or from other countries" and provided a "life or term of contract" of "six months period after signing
of this agreement" on May 22, 1969, within which the importer had to order the commodities and the supplier
had to have the goods ordered available. 20 Clearly, the term of the alleged contract of May 26, 1969 had
expired seven months thereafter by the end of the year 1969.
61
7. The tax court in fact rejected the importer's contention and ruled that while the apples "are not articles of
prohibited importation, they may be held liable for forfeiture for failure of petitioner to secure a release
certificate from the Central Bank, which liability may be determined in an appropriate seizure proceeding",
ordering in the meantime the release of the fruits to the importer under bond in view of their "perishable
nature."
The tax court, however, incurred itself in contradiction in that under our settled doctrine and jurisprudence,
supra, goods imported without the corresponding release certificates required by Central Bank circulars are
"articles of prohibited importation" as the term is used in section 2530-f of the Customs Code (formerly section
1363-f of the Revised Administrative Code), which subjects them to forfeiture. No Central Bank permit or
release certificate could be issued for the apples by virtue of the express ban against them in Circular
295. 21 Hence, they fell under the explicit prohibition in the proviso of the very section cited by the tax court, viz,
Section 2301, "that articles the importation of which is prohibited by law shall not be released under bond." 22
8. The tax court had noted at the beginning of its decision that the customs authorities had opted to act under
the authority of section 1207 and prevent the entry or importation of the shipment of apples by refusing to allow
its discharge from the carrying vessel, thus abandoning in effect the seizure proceedings started previously by
the issuance of warrants of seizure and detention. 23 Respondent importer however did not take advantage
thereof and instead insisted on effecting entry and importation and on the unloading, storage and release
under bond of the fruits pending these proceedings. If the apples have deteriorated in storage, the importer has
only itself to fault for its wrongful insistence on the entry and release of the shipment, notwithstanding its being
prohibited and contrary to law.
9. The case at bar presents a timely occasion for the Court to clear certain past misconceptions and fallacies in
regard to the release under bond of seizure or detained properties, "conditioned for the payment of the
appraised value of the article and/or any fine, expenses and cots * which may be adjudged in the case", as
provided in section 2301 of the code. 24
The first two functions of the customs bureau are "a. the assessment and collection of the lawful revenues from
imported articles and all other dues, fees, charges, fines and penalties accruing under the tariff and customs
laws" and "b. the prevention and suppression of smuggling and other frauds upon the customs." 25
The lawful revenue are to be assessed and collected upon articles properly and lawfully imported into the
Philippines. "Where articles are of prohibited importation", section 1207 of the code imposes the primary duty
upon the collector "to exercise such jurisdiction in respect thereto as will prevent importation." Articles of
prohibited importation, which cover not only contraband or absolutely articles but also qualifiedly
prohibited articles which are sought to be imported, more precisely smuggled, in violation of Central Bank
circulars, supra, are expressly made subject to seizure and forfeiture under section 2530-f and section 2301
expressly enjoins that "articles the importation of which is prohibited by law shall not be released under bond."
It is utterly fallacious, therefore, when such banned goods are nevertheless sought to be imported in violation
of law, to assume that it is to the interest of the Government, where the goods are perishable to release them
to the importer under bond to secure payment of the appraised value thereof in case they are finally declared
forfeited in favor of the Government.
For the code expressly prohibits the release under bond of such articles of prohibited importation. The
Government expects no revenue from such banned articles, since they are not allowed to be imported.
Otherwise, the law's prohibition would be rendered totally nugatory, since such banned articles, which are
mostly luxury items, are in great demand and command sky-high prices assuring great profit to the smuggler.
The smuggler would have the greatest profit motive to wreak havoc upon our currency by purchasing dollars at
the highest black market rates to purchase and bring in these high-profit luxury items. Should he succeed in
smuggling them in, his venture is a complete success. If he is caught, then all he has to do is put up a bond for
the release of the goods "to secure payment of the appraised value thereof" to the Government, and he can

62
still realize a substantial profit from the sale of the banned goods thus released to him. All the measures
designed by the Central Bank to strengthen and stabilize our peso and to check the unregulated flow of foreign
exchange from the country with the ultimate end of setting aright the country's economy and financial position
would thereby be set at naught.
10. The Government's finance secretary and customs authorities appear to have realized the deleterious
consequences of the hitherto ambivalent attitude of customs officials in permitting release under bond of
banned article to the express prohibition of section 2301, when they issued Customs Administrative Order No.
19-70 dated October 20, 1970, supra, declaring that "all importations seized and forfeited for violation of
Central Bank circulars shall not be allowed to be released under bond, either surety or cash, nor allowed to be
redeemed." Such an outright ban on release of seized goods in accordance with the law's mandate further
removes occasion and opportunity for corruption of customs officials in seeking the exercise of their
"discretion" and authorizing release of banned articles to favored parties.
Respondent importer's petition before the tax court was filed to seek judgment "sustaining [the importer's] right
to the discharge of its importation from the carrying vessel and its release under bond to it and declaring
Customs Administrative Order No. 19-70 null and void" as an alleged unauthorized and arbitrary modification
or amendment of the provisions of section 2301 of the tariff and customs code. As already shown above, the
said administrative reiteration of the express prohibition of the cited section against the release under bond of
prohibited articles seized and held for forfeiture by the customs authorities. The tax court of course made no
pronouncement of alleged nullity of the said administrative order, the validity of which cannot be gainsaid,
under the ruling of Romualdez vs. Arca, 26 wherein in upholding the memorandum therein issued by the
finance secretary to guide customs appraisers in appraising the value of imported remnants, the Court held
that: "since the memorandum is neither a law (statute), nor an implementation of a law authorizing its issuance,
and does not prescribe any penalty for its violation, publication thereof is not necessary."
ACCORDINGLY, judgment is hereby rendered annulling and setting aside the decision dated April 23, 1971
and the resolution dated May 3, 1971 of the court of tax appeals. The decision of petitioner commissioner of
customs appealed from by private respondent is instead affirmed and the petition of said respondent in the
lower court is dismissed, with costs in both instances against said respondent.

63
K. WORDS AND PHRASES CONSTRUCTED IN RELATION TO OTHER
PROVISIONS
1. CLAUDIO VS COMELEC (GR NO. 140560)
JOVITO O. CLAUDIO, petitioner,
vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON
AUDIT and RICHARD ADVINCULA, respondents.

G.R. No. 140714 May 4, 2000

PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein represented by its Chairman, RICHARD
ADVINCULA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON
AUDIT and HON. JOVITO O. CLAUDIO, respondents.
MENDOZA, J.:
These are petitions arising from the proceedings initiated by the Preparatory Recall Assembly of Pasay City
(PRA) in the Commission on Elections in E.M. No. 99-005 entitled IN THE MATTER OF THE PREPARATORY
RECALL ASSEMBLY RESOLUTION NO. 01, S-1999 ADOPTED ON 29 MAY 1999 FOR THE RECALL OF
MAYOR JOVITO CLAUDIO OF PASAY CITY. G.R. No. 140560 is a petition for certiorari and prohibition,
seeking the nullification of the resolution, 1 dated October 18, 1999, of the COMELEC giving due course to the
petition for the recall of petitioner Jovito O. Claudio as mayor of Pasay City. On the other hand, G.R. No.
140714 is a petition for mandamus filed by the PRA, represented by its Chair, Richard Advincula, to compel
the COMELEC to set the date for the holding of recall elections in Pasay City pursuant to the aforecited
resolution of the COMELEC.
The facts are as follows:
Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected mayor of Pasay City in the May 11, 1998
elections. He assumed office on July 1, 1998.
Sometime during the second week of May 1999, the chairs of several barangays in Pasay City gathered to
discuss the possibility of filing a petition for recall against Mayor Claudio for loss of confidence. On May 19,
1999, at the residence of barangay chair Benjamin Lim, Jr. in Barangay 11, Zone 4, Pasay City, several
barangay chairs formed an ad hoc committee for the purpose of convening the PRA. Richard Advincula,
private respondent in G.R. No. 140560 and petitioner in G.R. No. 140714, was designated chair.
On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and sangguniang
kabataan chairs of Pasay City, adopted Resolution No. 01, S-1999, entitled RESOLUTION TO INITIATE THE
RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY CITY FOR LOSS OF CONFIDENCE. In a letter
dated June 29, 1999, Advincula, as chair of the PRA, invited the Mayor, Vice-Mayor, Station Commander, and
thirteen (13) Councilors of Pasay City to witness the formal submission to the Office of the Election Officer on
July 2, 1999 of the petition for recall.
As scheduled, the petition for recall was filed on July 2, 1999, accompanied by an affidavit of service of the
petition on the Office of the City Mayor. Pursuant to the rules of the COMELEC, copies of the petition were
posted on the bulletin boards of the local COMELEC office, the City Hall, the Police Department, the public
market at Libertad St. and Taft Avenue, and at the entrance of the Sta. Clara Church on P. Burgos St., all in

64
Pasay City. Subsequently, a verification of the authenticity of the signatures on the resolution was conducted
by Ligaya Salayon, the election officer for Pasay City designated by the COMELEC.
Oppositions to the petition were filed by petitioner Jovito O. Claudio, Rev. Ronald Langub, and Roberto L.
Angeles, alleging procedural and substantive defects in the petition, to wit: (1) the signatures affixed to the
resolution were actually meant to show attendance at the PRA meeting; (2) most of the signatories were only
representatives of the parties concerned who were sent there merely to observe the proceedings; (3) the
convening of the PRA took place within the one-year prohibited period; (4) the election case, 2 filed by
Wenceslao Trinidad in this Court, seeking the annulment of the proclamation of petitioner Claudio as mayor of
Pasay City, should first be decided before recall proceedings against petitioner could be filed; and (5) the recall
resolution failed to obtain the majority of all the members of the PRA, considering that 10 were actually double
entries, 14 were not duly accredited members of the barangays, 40 sangguniang kabataan officials had
withdrawn their support, and 60 barangay chairs executed affidavits of retraction.
In its resolution of October 18, 1999, the COMELEC granted the petition for recall and dismissed the
oppositions against it. On the issue of whether the PRA was constituted by a majority of its members, the
COMELEC held that the 1,073 members who attended the May 29, 1999 meeting were more than necessary
to constitute the PRA, considering that its records showed the total membership of the PRA was 1,790, while
the statistics of the Department of Interior and Local Government (DILG) showed that the total membership of
the PRA was 1,876. In either case, since only a majority is required to constitute the PRA, clearly, a majority
had been obtained in support of the recall resolution. Based on the verification made by election officer Ligaya
Salayon, the COMELEC found the signatures of 958 members of the PRA sufficient. On whether the pendency
of the case questioning the proclamation of petitioner was a prejudicial question which must first be decided
before any recall election could be held, the COMELEC ruled that it was not and that petitioner was merely
using the pendency of the case to delay the recall proceedings. Finally, on whether the petition for recall
violated the bar on recall within one year from the elective official's assumption of office, the COMELEC ruled
in the negative, holding that recall is a process which starts with the filing of the petition for recall. Since the
petition was filed on July 2, 1999, exactly one year and a day after petitioner Claudio's assumption of office, it
was held that the petition was filed on time.
Hence, these petitions. Oral arguments were held in these cases in Baguio City on April 4, 2000, after which
the Court, by the vote of 8 to 6 of its members, 3 resolved to dismiss the petition in G.R. No. 140560 for lack of
showing that the COMELEC committed a grave abuse of discretion. On the other hand, the Court unanimously
dismissed the petition in G.R. No. 140714 on the ground that the issue raised therein had become moot and
academic.
We now proceed to explain the grounds for our resolution.
In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date of the recall elections in Pasay
City on April 15, 2000. Consequently, the petition for mandamus in G.R. No. 140714 to compel the COMELEC
to fix a date for the recall elections in Pasay City is no longer tenable. We are thus left with only petitioner
Claudio's action for certiorari and prohibition.
The bone of contention in this case is §74 of the Local Government Code (LCG) 4 which provides:
Limitations on Recall. — (a) Any elective local official may be the subject of a recall election only once during
his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1)
year immediately preceding a regular local election.
As defined at the hearing of these cases on April 4, 2000, the issues are:
WHETHER, under Section 74 of the Local Government Code of 1991 (R.A. No. 7160) . . . .

65
A. The word "recall" in paragraph (b) covers a process which includes the convening of the Preparatory Recall
Assembly and its approval of the recall resolution.
B. The term "regular local election" in the last clause of paragraph (b) includes the election period for that
regular election or simply the date of such election.
(1)
On Whether the Word "Recall" in Paragraph (b) of §74 of the Local Government Code Includes the Convening
of the Preparatory Recall Assembly and the Filing by it of a Recall Resolution.
Petitioner contends that the term "recall" in §74(b) refers to a process, in contrast to the term "recall election"
found in §74(a), which obviously refers to an election. He claims that "when several barangay chairmen met
and convened on May 19, 1999 and unanimously resolved to initiate the recall, followed by the taking of votes
by the PRA on May 29, 1999 for the purpose of adopting a resolution "to initiate the recall of Jovito Claudio as
Mayor of Pasay City for loss of confidence," the process of recall began" and, since May 29, 1999 was less
than a year after he had assumed office, the PRA was illegally convened and all proceedings held thereafter,
including the filing of the recall petition on July 2, 1999, were null and void.
The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the petition for
recall and ends with the conduct of the recall election, and that, since the petition for recall in this case was
filed on July 2, 1999, exactly one year and a day after petitioner's assumption of office, the recall was validly
initiated outside the one-year prohibited period.
Both petitioner Claudio and the COMELEC thus agree that the term "recall" as used in §74 refers to a process.
They disagree only as to when the process starts for purposes of the one-year limitation in paragraph (b) of
§74.
We can agree that recall is a process which begins with the convening of the preparatory recall assembly or
the gathering of the signatures at least 25% of the registered voters of a local government unit, and then
proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or
petition, the fixing of the date of the recall election, and the holding of the election on the scheduled
date. 5 However, as used in paragraph (b) of §74, "recall" refers to the election itself by means of which voters
decide whether they should retain their local official or elect his replacement. Several reasons can be cited in
support of this conclusion.
First, §74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall." On the other
hand, §69 provides that "the power of recall . . . shall be exercised by the registered voters of a local
government unit to which the local elective official belongs." Since the power vested on the electorate is not the
power to initiate recall proceedings 6 but the power to elect an official into office, the limitations in §74 cannot
be deemed to apply to the entire recall proceedings. In other words, the term "recall" in paragraph (b) refers
only to the recall election, excluding the convening of the PRA and the filing of a petition for recall with the
COMELEC, or the gathering of the signatures of at least 25 % of the voters for a petition for recall.
Thus, there may be several PRAs held (as in the case of Bataan Province in 1993) or petitions for recall filed
with the COMELEC — there is no legal limit on the number of times such processes may be resorted to. These
are merely preliminary steps for the purpose of initiating a recall. The limitations in §74 apply only to the
exercise of the power of recall which is vested in the registered voters. It is this — and not merely the
preliminary steps required to be taken to initiate a recall — which paragraph (b) of §74 seeks to limit by
providing that no recall shall take place within one year from the date of assumption of office of an elective
local official.
Indeed, this is the thrust of the ruling in Garcia v. COMELEC 7 where two objections were raised against the
legality of PRAs: (1) that even the power to initiate recall proceedings is the sole prerogative of the electorate

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which cannot be delegated to PRAs, and (2) that by vesting this power in a PRA, the law in effect
unconstitutionally authorizes it to shorten the term of office of incumbent elective local officials. Both objections
were dismissed on the ground that the holding of a PRA is not the recall itself. With respect to the first
objection, it was held that it is the power to recall and not the power to initiate recall that the Constitution gave
to the people. With respect to the second objection, it was held that a recall resolution "merely sets the stage
for the official concerned before the tribunal of the people so he can justify why he should be allowed to
continue in office. [But until] the people render their sovereign judgment, the official concerned remains in
office . . . ."
If these preliminary proceedings do not produce a decision by the electorate on whether the local official
concerned continues to enjoy the confidence of the people, then, the prohibition in paragraph (b) against the
holding of a recall, except one year after the official's assumption of office, cannot apply to such proceedings.
The second reason why the term "recall" in paragraph (b) refers to recall election is to be found in the purpose
of the limitation itself. There are two limitations in paragraph (b) on the holding of recalls: (1) that no recall shall
take place within one year from the date of assumption of office of the official concerned, and (2) that no recall
shall take place within one year immediately preceding a regular local election.
The purpose of the first limitation is to provide a reasonable basis for judging the performance of an elective
local official. In the Bower case 8 cited by this Court in Angobung v. COMELEC, 9 it was held that "The only
logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall
election is to prevent premature action on their part in voting to remove a newly elected official before having
had sufficient time to evaluate the soundness of his policies and decisions." The one-year limitation was
reckoned as of the filing of a petition for recall because the Municipal Code involved in that case expressly
provided that "no removal petition shall be filed against any officer or until he has actually held office for at
least twelve months." But however the period of prohibition is determined, the principle announced is that the
purpose of the limitation is to provide a reasonable basis for evaluating the performance of an elective local
official. Hence, in this case, as long as the election is held outside the one-year period, the preliminary
proceedings to initiate a recall can be held even before the end of the first year in office of a local official.
It cannot be argued that to allow recall proceedings to be initiated before the official concerned has been in
office for one-year would be to allow him to be judged without sufficient basis. As already stated, it is not the
holding of PRA nor the adoption of recall resolutions that produces a judgment on the performance of the
official concerned; it is the vote of the electorate in the election that does. Therefore, as long as the recall
election is not held before the official concerned has completed one year in office, he will not be judged on his
performance prematurely.
Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose of
discussing the performance in office of elective local officials would be to unduly restrict the constitutional right
of speech and of assembly of its members. The people cannot just be asked on the day of the election to
decide on the performance of their officials. The crystallization and formation of an informed public opinion
takes time. To hold, therefore, that the first limitation in paragraph (b) includes the holding of assemblies for the
exchange of ideas and opinions among citizens is to unduly curtail one of the most cherished rights in a free
society. Indeed, it is wrong to assume that such assemblies will always eventuate in a recall election. To the
contrary, they may result in the expression of confidence in the incumbent.
Our esteemed colleague Justice Puno says in his dissent that the purpose of the one-year period in paragraph
(b) is to provide the local official concerned a "period of repose" during which "[his] attention should not be
distracted by any impediment, especially by disturbance due to political partisanship." Unfortunately, the law
cannot really provide for a period of honeymoon or moratorium in politics. From the day an elective official
assumes office, his acts become subject to scrutiny and criticism, and it is not always easy to determine when
criticism of his performance is politically motivated and when it is not. The only safeguard against the baneful
and enervating effects of partisan politics is the good sense and self restraint of the people and its leaders
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against such shortcomings of our political system. A respite from partisan politics may have the incidental
effect of providing respite from partisanship, but that is not really the purpose of the limitation on recall under
the law. The limitation is only intended to provide a sufficient basis for evaluating and judging the performance
of an elected local official.
In any event, it is argued that the judgments of PRAs are not "as politically unassailable as recalls initiated
directly by the people." Justice Puno cites the "embarrassing repudiation by the people of [Kaloocan City's]
Preparatory Recall Assembly" when, instead of ousting Mayor Rey Malonzo, they reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the ensuing election the local official whose recall is
sought is actually reelected. Laws converting municipalities into cities and providing for the holding of
plebiscites during which the question of cityhood is submitted to the people for their approval are not always
approved by the people. Yet, no one can say that Congress is not a good judge of the will of the voters in the
locality. In the case of recall elections in Kaloocan City, had it been shown that the PRA was resorted to only
because those behind the move to oust the incumbent mayor failed to obtain the signatures of 25% of the
voters of that city to a petition for his recall, there may be some plausibility for the claim that PRAs are not as
good a gauge of the people's will as are the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered voters of a local government unit cannot be more
representative of the sentiments of the people than those initiated by PRAs whose members represent the
entire electorate in the local government unit. Voters who directly initiate recalls are just as vulnerable to
political maneuverings or manipulations as are those composing PRAs.
The other point regarding Justice Puno's claim is that the question here is not whether recalls initiated by 25%
of the voters are better. The issue is whether the one-year period of limitation in paragraph (b) includes the
convening of the PRA. Given that question, will convening the PRA outside this period make it any more
representative of the people, as the petition filed by 25% of the registered voters is claimed to be?
To sum up, the term "recall" in paragraph (b) refers to the recall election and not to the preliminary proceedings
to initiate recall —
1. Because §74 speaks of limitations on "recall" which, according to §69, is a power which shall be exercised
by the registered voters of a local government unit. Since the voters do not exercise such right except in an
election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided
in paragraph (b);
2. Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging
an elective local official, and final judging is not done until the day of the election; and
3. Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would
unduly curtail freedom of speech and of assembly guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner assumed office
as mayor of that city, we hold that there is no bar to its holding on that date.
(2)
On Whether the Phrase "Regular Local Election" in the Same Paragraph (b) of §74 of the Local Government
Code includes the Election Period for that Regular Election or Simply the Date of Such Election.
Petitioner contends, however, that the date set by the COMELEC for the recall election is within the second
period of prohibition in paragraph (b). He argues that the phrase "regular local elections" in paragraph (b) does
not only mean "the day of the regular local election" which, for the year 2001 is May 14, but the election period

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as well, which is normally at least forty five (45) days immediately before the day of the election. Hence, he
contends that beginning March 30, 2000, no recall election may be held.
This contention is untenable.
The law is unambiguous in providing that "[n]o recall shall take place within . . . one (1) year immediately
preceding a regular local election." Had Congress intended this limitation to refer to the campaign period,
which period is defined in the Omnibus Election Code, 10 it could have expressly said so.
Moreover, petitioner's interpretation would severely limit the period during which a recall election may be held.
Actually, because no recall election may be held until one year after the assumption of office of an elective
local official, presumably on June 30 following his election, the free period is only the period from July 1 of the
following year to about the middle of May of the succeeding year. This is a period of only nine months and 15
days, more or less. To construe the second limitation in paragraph (b) as including the campaign period would
reduce this period to eight months. Such an interpretation must be rejected, because it would devitalize the
right of recall which is designed to make local government units "more responsive and accountable."
Indeed, there is a distinction between election period and campaign period. Under the Omnibus Election
Code, 11 unless otherwise fixed by the COMELEC, the election period commences ninety (90) days before the
day of the election and ends thirty (30) days thereafter. Thus, to follow petitioner's interpretation that the
second limitation in paragraph (b) includes the "election period" would emasculate even more a vital right of
the people.
To recapitulate the discussion in parts 1 and 2, §74 imposes limitations on the holding of recall elections. First,
paragraph (a) prohibits the holding of such election more than once during the term of office of an elective local
official. Second, paragraph (b) prohibits the holding of such election within one year from the date the official
assumed office. And third, paragraph (b) prohibits the holding of a recall election within one year immediately
preceding a regular local election. As succinctly stated in Paras v. COMELEC, 12 "[p]aragraph (b) construed
together with paragraph (a) merely designates the period when such elective local official may be subject to
recall election, that is, during the second year of office."
(3)
On Whether the Recall RESOLUTION was Signed by a Majority of the PRA and Duly Verified.
Petitioner alleges other grounds for seeking the annulment of the resolution of the COMELEC ordering the
holding of a recall election. He contends that a majority of the signatures of the members of the PRA was not
obtained because 74 members did not really sign the recall resolution. According to petitioner, the 74 merely
signed their names on pages 94-104 of the resolution to signify their attendance and not their concurrence.
Petitioner claims that this is shown by the word "Attendance" written by hand at the top of the page on which
the signatures of the 74 begin.
This contention has no basis. To be sure, this claim is being raised for the first time in this case. It was not
raised before the COMELEC, in which the claim made by petitioner was that some of the names in the petition
were double entries, that some members had withdrawn their support for the petition, and that Wenceslao
Trinidad's pending election protest was a prejudicial question which must first be resolved before the petition
for recall could be given due course. The order of the COMELEC embodying the stipulations of the parties and
defining the issues to be resolved does not include the issue now being raised by petitioner.
Although the word "Attendance" appears at the top of the page, it is apparent that it was written by mistake
because it was crossed out by two parallel lines drawn across it. Apparently, it was mistaken for the
attendance sheet which is a separate document. It is absurd to believe that the 74 members of the PRA who
signed the recall resolution signified their attendance at the meeting twice. It is more probable to believe that

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they signed pages 94-104 to signify their concurrence in the recall resolution of which the pages in question
are part.
The other point raised by petitioner is that the recall petition filed in the COMELEC was not duly verified,
because Atty. Nelson Ng, who notarized it, is not commissioned as notary public for Pasay City but for Makati
City. As in the case of the first claim, this issue was not raised before the COMELEC itself. It cannot, therefore,
be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the petition in G.R. No. 140714 is
DISMISSED for having been rendered moot and academic.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Quisumbing, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Melo, J., is on leave.
Puno, J., see dissent.
Vitug, J., I also reiterate my separate opinion in the resolution of 5 Apr. 2000.
Kapunan, J., See attached separate and dissenting opinion.
Panganiban, J., I joined the dissents of JJ. Puno and Kapunan.
Pardo, J., I join J. Puno in dissent.
De Leon Jr., J., I join the dissenting opinion of Justice R.S. Puno.
Separate Opinions
PUNO, J., dissenting opinion;
The cases at bar are one of first impression. At issue is the meaning of Section 74 (b) of the Local Government
Code which provides: "No recall shall take place within one (1) year from the date of the official's assumption to
office or one (1) year immediately preceding a regular local election." Our interpretation of this provision is
significant for, to a large extent, it will determine the use or misuse of the right of recall. The right of recall is
part of the cutting edge of the sword of the sovereignty of our people, and its exercise should be shielded from
abuses.
I begin with the baseline proposition that the proper interpretation of Section 74 (b) of the Local Government
Code should depend on the edifying intent of our legislators. With due respect to the majority, I wish to express
my humble reading of the intent of our lawmakers, when they engrafted the people's right of recall in
the corpus of an laws. Our search should start with the Constitution which provides the matrix of our rights. All
our fundamental laws 1 set in stone the principle that "the Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority emanates from them." An important component
of this sovereign power is the right of the people to elect officials who will wield the powers of government i.e.,
the power to make laws and the power to execute laws. These powers are enormous and in the wrong hands
can wreak havoc to the people. Our laws therefore regulate their exercise. Among others, they set minimum
qualifications for candidates to elective public office. They safeguard the integrity of the procedure of electing
these candidates. They also established an independent COMELEC to enhance the laboratory conditions
under which elections must be conducted.
Over the years, however, the country experienced the defilement of these ideals. The wrong officials were able
to win the scepters of power, the sanctity of our election process has been breached, and unscrupulous
politicians perpetuated themselves in public office. The authoritarian regime that prolonged its reign from 1972
to 1986 demonstrated the need to address these problems with greater resolve. Various schemes were
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installed in the 1987 Constitution and our statutes. Among them are the provisions limiting terms of offices,
banning political dynasties, strengthening the power and independence of the COMELEC, sharpening the
accountability of public officials and institutionalizing the power or the people to recall their elected officials.
In the ground breaking case of Garcia v. COMELEC 2 we traced the metamorphosis of the people's right of
recall from its diaper days. In Angobung v. COMELEC 3 we articulated the rationale of the right of recall, viz.:
. . . While recall was intended to be an effective and speedy remedy to remove an official who is not giving
satisfaction to the electorate regardless of whether or not he is discharging his full duty to the best of his ability
and as his conscience dictates, it is a power granted to the people who, in concert, desire to change their
leaders for reasons only they, as a collective, can justify. In other words, recall must be pursued by the people,
not just by one disgruntled loser in the elections or a small percentage of disenchanted electors. Otherwise, its
purpose as a direct remedy of the people shall be defeated by the ill motives of a few among them whose
selfish resort to recall would destabilize the community and seriously disrupt the running of government.
A scrutiny of the rationale underlying the time bar provisions and the percentage of minimum voter requirement
in America recall statutes, unmistakably reveals the vigilance of lawmakers against the abuse of the power of
recall. For instance, the Supreme Court of Illinois held in the case of In Re Bower that:
[t]he only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a
recall election is to prevent premature action on their part in voting to remove a newly elected official before
having had sufficient time to evaluate the soundness of his political policies and decisions. We view the
statutory provision requiring the number of petition signers to equal at least 45% of the total votes cast in the
last general election for mayor as a further attempt to insure that an official will not have to defend his policies
against frivolous attacks launched by a small percentage of disenchanted electors.
Along the same lines, the Supreme Court of Colorado held in the case of Bernzen v. City of Boulder that:
[t]he framers, by requiring that a recall petition contain the signatures of at least 25% of all votes cast in the last
election for all candidates for the position which the person sought to be recalled occupies, assured that a
recall election will not be held in response to the wishes of a small and unrepresentative minority. However,
once at least 25% of the electorate have expressed their dissatisfaction, the constitution reserves the recall
power to the will of the electorate.
And in the case of Wallace v. Tripp, the Supreme Court of Michigan echoed the foregoing posturings in this
wise:
Much of what has been said to justify a limit upon recall clearly not provided or contemplated by the
Constitution has revealed fears about an irresponsible electorate . . . A much cited Nebraska case pertaining to
a Nebraska recall statute provides some answers which are equally applicable to the Michigan constitutional
right of recall:
. . . Doubtless the provision requiring 30 per cent of the electors to sign the petition before the council [is[
compelled to act was designed to avoid such a contingency. The Legislature apparently assumed that nearly
one-third of the electorate would not entail upon the taxpayers the cost of an election unless the charges made
approved themselves to their understanding and they were seriously dissatisfied with the services of the
incumbent of the office.
In fine, democratic experience, here and abroad, shows that the right of recall is a double-edged sword. Rightly
used, it can promote the greater good. Wrongly used, it can result in greater evil. There are recalls as pointed
out in Angobung that should be avoided: (1) recalls borne by the ill motive of a few; (2) recalls that disrupt the
smooth running of government; and (3) recalls that destabilize the local government unit. The standard
mechanisms in recall statutes to avoid these evils are: (1) the setting of a waiting period before a petition for
recall can be initiated, and (2) the fixing of a minimum percentage of voters signatures to kickstart a petition for

71
recall. As clearly explained in Bowers, the reason for fixing a waiting period is "to prevent premature action on
their part in voting to remove a newly elected official before having had sufficient time to evaluate the
soundness of his political policies and decisions." On the other hand, the reason for requiring a minimum
number of voters signatures is "to insure that an official will not have to defend his policies against frivolous
attacks launched by a small percentage of disenchanted electors." It will further avoid expenditure of public
funds for frivolous elections.
I like to focus on the one-year waiting period provided by Section 74 (b) which is the bedrock issue in the cases
at bar. Beyond debate, the ideal interpretation of the waiting period must bring about this pristine purpose — —
— to give the voters a sound basis for their decision to recall or not to recall an official whom they have elected
just a year ago. The sound basis cannot exist in a vacuum. "Sound basis requires affording the official
concerned a fair and reasonable opportunity to accomplish his program for the people. By no means will there
be a reasonable opportunity if from Day One after assumption of office, the process of recall can already be
initiated against said official. For it cannot be gainsaid that the more disquieting and destabilizing part of recall
is its initiation more than the recall election itself. It is in the too early initiatory process where the baseless
criticisms and falsehoods of a few are foisted on the many. Premature initiatives to recall an official are resisted
with stronger vim and venom. The reasons are obvious to those whose political innocence has long been slain.
The incumbent would not like to lose power just recently won. The challenger, often a loser in the previous
election, would not want to lose a second time. To allow early recall initiative is to encourage divisive,
expensive; wasteful politics. It will also put a premium on the politics of compromise — — — the politics where
public interest always comes out second best.
With due respect, the interpretation made by the majority of Section 74 (b) of the Local Government Code,
which will countenance recall initiatives right on Day One after an official starts his term of office, will breed
these political evils. To be sure, the interpretation is based on a narrow rationale and cannot inspire assent. It
starts from the premise that recall is a power given to registered voters and "since the voters do not exercise
such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the
one-year period" provided by law. The reasoning is based on the misleading perception that the only
participation of the people in recall is on election day when they cast their vote electing or rejecting an
incumbent. But the role of the people in recall is not limited to being the judge on election day. In truth, the
people participate in the initiation of the recall process. There are two (2) kinds of recall — — — recall initiated
directly by the people and recall initiated by the people thru the Preparatory Recall Assembly (PRA). In recall
initiated by the people, it is self-evident that the people are involved from beginning to the end of the process.
But nothing less is true in recall initiated by the PRA. In Garcia, 4 we scoured the history of recall and we held:
"[p]etitioners have misconstrued the nature of the initiatory process of recall by the PRAC. They have
embraced the view that initiation by the PRAC is not initiation by the people. This is a misimpression for
initiation by the PRAC is also initiation by the people, albeit done indirectly through their representatives." We
further ruled that "the members of the PRAC are in the PRAC not in representation of their political parties but
as representatives of the people." 5
There is another reason why I do not share the majority ruling that the one-year waiting period is a limitation on
the right of the people to judge an incumbent on election day itself but not a limitation on their right to initiate
the recall process. I submit that the rationale for fixing the election day one year after assumption of office is
different from the rationale for prohibiting premature recall initiative. The rationale of the first is for the benefit of
the people, to give them sufficient time to assess intelligently the performance of an incumbent. The rationale
of the second is for the benefit of the incumbent, to give him a fair chance to govern well, to serve the people
minus the unnecessary distractions from the itch of too much politics. The ruling of the majority recognizes the
rationale of the first but not the rationale of the second. Its ruling that sanctions too early a recall initiative, and
worse, that allows endless recall initiatives will deprive an incumbent a fair opportunity to prove himself thru the
politics of performance.

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The majority also holds that "to construe the limitation in paragraph (b) as including the initiation of recall
proceedings would unduly curtail freedom of speech and assembly." Again, I beg to disagree. A dredging even
of the subterranean meanings of freedom of speech and assembly will not yield this result. It is one thing to
postulate that during the one-year waiting period the people cannot legally start a recall process. It is
entirely non sequitur to add that during the said period, the people's freedom of speech and freedom of
assembly are suspended. These rights are in no way restricted for critical speeches during the one-year
waiting period cam serve as valuable inputs in deciding after the said period whether to initiate the recall
process. They will assume more importance in the recall election date itself. To stress again, what the law
deems impermissible is formally starting the recall process right after Day One of an incumbent's term of office
for the purpose of ending his incumbency, an act bereft of any utility.
In my Preliminary Dissenting Opinion, I purveyed the view that the one-year waiting period is a period of
repose, of respite from divisive politics in order to give whoever is the sovereign choice of the people a fair
chance to succeed in public service. Rejecting this view, the majority holds that "unfortunately, the law cannot
really provide for a period of honeymoon or moratorium in politics." With due respect, the ruling betrays
historical amnesia. By no means is the one-year waiting period a new, startling legal mechanism. This legal
mechanism has long been installed to regulate our labor-management relations, a volatile relationship, then
and now. One of the areas of concern in labor-management relations relates to the choice of employee
representative who shall bargain with the employer on the terms and conditions of employment. The choice of
the representative is determined in a certification election, a democratic exercise often forcefully contested by
unions for at stake is enormous power, both political and economic. In the infant years of our labor-
management relations, these representatives were the objects of frequent change thru repeated petitions for
new certification elections. These repeated petitions for certification elections weakened employee
representatives and resulted in instability in labor-management relations. The instability had a debilitating effect
on the economy. As a remedial measure, the Industrial Peace Act insulated the term of the employee
representative from change for one year. This is known as the certification year rule pursuant to which no
petition for certification election can be ordered in the same bargaining unit more often than once in twelve
months. 6 Hence, for one year, the employee representative is shielded from any initiative calling for a
certification election to change representative. This progressive mechanism is still contained in Article 231 of
our Labor Code. To jog our memory, this legal mechanism was taken from the Wagner Act 7 of the United
States which had a provision that no election can be directed in any bargaining unit or in any subdivision,
where in the preceding 12-months period, a valid election has been held. This 12-month ban on certification
election of the Wagner Act has never been challenged as violative of freedom of speech and of assembly of
members of minority unions who wish to be elected as employee bargaining representative. Let us not miss
the reason for the twelve-month ban. Authorities in labor law like Professor Forkosch emphasize that the
"concepts of political democracy were assimilated in these representation elections in labor law." 8 Needless to
state, our own laws and derivative foreign law repudiate the majority ruling that ". . . the law cannot really
provide for a period of honeymoon or moratorium in politics. . . The only safeguard against the baneful . . .
effects of partisan politics is the good sense and self restraint of the
people. . . ."
I do not have any competing vision to offer against the majority on the need to hike the efficacy of the power of
our people to recall elected officials who have lost their confidence. After all, our EDSA experience has taught
us that it is the people and the people alone who can end malgovernment when all else fail. Recall is a
powerful weapon given to our people but, like any power, it can be abused. For this reason, the legislature
carefully defined its limitations for its misuse can bring about the disuse of a valuable means to terminate the
misrule of misfits in government. Our lawmakers know that the paradox of power is that to be effective it must
be restrained from running riot. Section 74 of the Local Government Code spelled out these restraints. Section
74 (a) limits the number of times an official can be subjected to recall during his term of office to only one time.
Section 74 (b) limits the periods when the power can be exercised. It sets two periods: the first, sets the
beginning, i.e., one year after an officials' assumption of office; the second, sets the end, i.e., one year

73
immediately preceding a regular election. These limitations should be strictly followed considering the short 3-
year term of office of local officials.
It is in this light that the Court should interpret Section 74. Its interpretation should strengthen the right of recall
and the best way to do this is to interpret it to prevent its misuse. By way of summation, I respectfully submit
that by holding that recall initiatives can start right after Day One of an official's assumption to office, the
majority failed to recognize the need for stability of a public office. By holding that these initiatives can be
undertaken not once, not twice but endlessly within one year after an official's assumption to office, the
majority exposed our people to an overdose of politics. By holding that recall initiatives can be done
prematurely, the majority forgot that such initiatives are meaningful only if they are used to adjudge an official's
performance in office. By holding that recall initiatives can be done even without giving an official a fair chance
to serve the people, the majority has induced incumbents to play the politics of compromise instead of the
politics of performance. By holding that recall initiatives can be done at any one's caprice, the majority has cast
a blind eye on the expenses that accompany such exercise. These expenses have to be repaid later, an
undeniable cause of cronyism and corruption in government.
The bottomline is that our law intends recall as a mechanism of good government. It can never fulfill that intent
if we allow its use to foment too much politics. We need not be adepts in the alleyways of politics to say that
too much politics is the root of a lot of evils in our country. Our 1987 Constitution sought to check this bad
political cholesterol plaguing our government. Any attempt to restore this fat should draw more than a
phlegmatic posture.
I vote to grant the petition.

KAPUNAN, J., separate and dissenting opinion;

With utmost due respect, I am constrained to disagree with the main opinion that the term "recall" under
Section 74(b) of Republic Act No. 7160, otherwise known as the Local Government Code, refers to the recall
election alone. Section 74 provides:
Sec. 74. Limitation on Recall. —
(a) Any elective official may be the subject of a recall election only once during his term of office for loss of
confidence;
(b) No recall shall take place within one year from the date of the official's assumption of office.
Mayor Claudio won the mayoralty race in Pasay City in the 11 May 1998 elections. He assumed office on 1
July 1998. 1 Less than 10 months thereafter, or on 29 May 1999, the People's Recall Assembly (PRA) of Pasay
City convened and passed a resolution to initiate the recall of Mayor Claudio. 2 On 2 July 1999, a petition for
the recall of Mayor Claudio was filed with the Commission on Elections (COMELEC). 3 In a Resolution,
promulgated on 18 October 1999, rendered in E.M. No. 99-005 (RCL), the COMELEC resolved to approve and
give due course to the petition for recall. The COMELEC, construing that the word "recall" only begins upon the
time of filing of the recall petition in the Office of the Election Officer of Pasay City up to the date of recall
election," 4 ruled that since the petition was filed on 2 July 1999, the same was already outside the prohibited
period of one (1) year after Mayor Claudio assumed his office on 1 July 1998. 5 Hence, the present case where
the majority fund that the COMELEC did not abuse its discretion in issuing the assailed resolution.
Contrary to the majority view, I humbly submit that "recall" under Section 74(b) is not limited to the election
itself, but, rather, it is a process which begins once the PRA makes its first affirmative acts towards the recall of
the elective local official concerned, i.e. the convening of the PRA and the passing by the PRA of a recall
resolution during a session called for the said purpose, and culminates with the holding of the recall election.

74
The majority opinion concedes that it "can agree that a process which begins with the convening of the
preparatory recall assembly on the gathering of the signatures at least 25% of the registered voters of a local
government unit." Yet, it maintains that "recall" as used in paragraph (b) of Section 74 "refers to the election
itself by means of which the voters decide whether they should retain their local official or elect his
replacement."
The majority opines that the power of recall can be exercised solely by he electorate and not by the PRA
through "the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25%
of the voters for a petition for recall." This is so since the majority equates the power of recall with the
electorate's power to replace or retain the local official concerned during the recall elections. In furtherance of
this premise, the majority concludes that since the "power vested on the electorate is not the power to initiate
the recall proceedings but the power to elect an official into office, the limitations in §74 cannot be deemed to
apply to the entire recall proceedings." I beg to disagree.
Since our form of government is a representative democracy, it cannot be claimed that the initiation of the
recall process by the PRA is not an initiation by the people. This was explained by the Court in the case
of Garcia vs. Commission on Elections, 6 wherein it was said:
Again, the contention cannot command our concurrence. Petitioners have misconstrued the nature of the
initiatory process of recall by the PRAC. They have embraced the view that initiation by the PRAC is not
initiation by the people. This is a misimpression for initiation by the PRAC is also initiation by the people, albeit
done indirectly through their representatives. It is not constitutionally impermissible for the people to act
through their elected representatives. Nothing less than the paramount task of drafting our Constitution is
delegated by the people to their representatives, elected either to act as a constitutional convention or as
congressional constituent assembly. The initiation of a recall process is a lesser act and there is no rhyme or a
reason why it cannot be entrusted to and exercised by the elected representatives of the people. 7
It must be noted that in the above quotation, as well as in all the discussions in the Garcia case, recall is
always described and referred to as a process. The Garcia case does not, either directly or impliedly; state that
the term "recall" in Section 74(b) is confined solely to the recall election alone. Garcia explains that recall as a
process which begins with the convening of the PRA coupled with the passing of a recall resolution and
culminating with the recall election itself. 8 It is the PRA resolution which paves the way for the official sought to
be recalled to appear before the electorate so he can justify why he should be allowed to continue in
office. 9 Thereafter, to determine whether the elected official still retains the confidence of the people, a recall
election is held. Thus, the recall process may be considered as composed of two distinct but continuous
phases, namely: the initiatory phase and the election phase. As such, for purposes of determining whether the
recall was instituted within the allowable period under Section 74(b), the reckoning point should be the initiatory
phase which is the time of convening and passing of the recall resolution. This should be so since it is from this
moment that the process of recall comes into being. It is at this precise moment when the PRA, as
representatives of the electorate, concretizes its stand and makes an affirmative act of its intent to recall the
elected local official. Nonetheless, it is still up to the people to affirm or reject the move to recall the incumbent
official during the election called for the purpose.
The underlying reason behind the time bar provisions, as pronounced by the Court in Angobung
vs. COMELEC 10 , is to guard against the abuse of the power of recall. In so holding, the Court authoritatively
cited the case of In Re Bower 11 , stating that "the only logical reason which we can ascribe for requiring the
electors to wait one year before petitioning for a recall is to prevent premature action on their part in voting to
remove a newly elected official before having had sufficient time to evaluate the soundness of his policies and
decisions." The phrase "premature action" logically refers to any activity geared towards removing the
incumbent official without waiting for sufficient time to elapse to evaluate his performance in office. The
convening of the PRA and the passing of the questioned recall resolution in this case were actions or activities
proscribed by law, rendering the entire recall process invalid. The term "recall" under Section 74(b) being a

75
process which begins with the convening of the PRA and the passing of the recall resolution, such initiatory
exercises within the prohibited period tend to disrupt the workings of a local government unit and are
deleterious to its development and growth.
In a political culture like ours where a losing candidate does not easily concede defeat as demonstrated by
numerous election protests pending before our courts and in the COMELEC, all that a disgruntled candidate
has to do to undermine the mandate of the victor is to court the other local officials in order to set the stage for
the convening of a PRA and the passage of a recall resolution. After this, all that needs to be done is to wait for
the lapse of the first time bar and, thereafter, file the petition for recall. In the meantime, the incumbent official
sought to be removed and his political opponents engage in a full-scale election campaign which is divisive,
destabilizing and disruptive, with its pernicious effects taking their toll on good governance.
In this regard, Senator Aquilino Pimentel, the main author of the Local Government Code of 1991, in his book
entitled "The Local Government Code of 1991: The Key to National Development," explained:
Recall resolutions or petitions may not be used whimsically. In fact, they can be resorted to only once during
the term of the elective official sought to be recalled. And since there is a prohibition against recalls within the
first year of an official's term of office, and within one year immediately preceding a regular local election, the
move to recall can only be done in the second year of the three year term of local elective officials. 12
It can readily be observed that Senator Pimentel used the phrase "move to recall" in describing the activity
which can only he undertaken during the freedom period. This is significant because the use of the phrase
"move to recall" is instructive of the concept envisioned by the primary author of the law in providing for the
limitations on recall. It connotes a progressive course of action or a step-by-step process. As such, the word
"move," when used in conjunction with the word "recall," can pertain to no other than the entire recall process
which begins with the convening of the PRA and the passing of the recall resolution and ending with the recall
election. It cannot, by any stretch of imagination, be construed as referring to the election alone.
I cannot subscribe to the observation of the majority that to construe the limitation in Section 74 (b) "as
including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly
guaranteed by the Constitution." The people can assemble and discuss their opinions and grievances against
the incumbent official, at any time during his term and as often as they would like, because it is their right to do
so. An exercise of their right to peaceably assemble and exchange views about the governance of the local
official would not be violative of the limitations set forth in Section 74(b). However, once notice is sent, during
the prohibited period, stating that the purpose of the meeting is to convene the PRA and to pass a recall
resolution, and the same is actually approved, then Section 74(b) is transgressed. In this instance, the
limitation of the electorate's freedom of speech and assembly is not violated since the time bar provision is
imposed by the legislature in the exercise of its police power. The limitation in Section 74(b) is analogous to the
prohibition under Section 80 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
which prohibits a person from engaging in any election campaign or partisan political activity except during the
campaign period. 1 The limitation on the freedom of speech and assembly imposed by Section 80 has never
been questioned as being unconstitutional.
Finally, I do not find any logical reason to support the view that the recall process should be counted only from
the time of the filing of the recall resolution or petition with the COMELEC. Although the filing of the petition for
recall with the COMELEC is, admittedly, an important component in the recall process, it, however, cannot be
considered as the starting point of the same. The filing of the petition, being merely a consequential
mechanical act, is just a next step in the process of recall after PRA's acts of convening the recall assembly
and passing the recall resolution. Once a petition for recall is filed, the only role of the COMELEC is the
verification of its authenticity and genuineness. After such verification the COMELEC is mandated by law to set
the date of the recall election. Clearly, the role of the COMELEC in the recall process under Section 70 of R.A.
7160 is merely ministerial in nature. Such being the case, it cannot be correctly argued that the crucial moment
in the recall process is the actual filing of the petition with the COMELEC. I vote, therefore, to grant the petition.
76
L. WHERE THE LAW DOES NOT DISTINGUISH
1. PILAR VS COMELEC (GR NO. 115245)
JUANITO C. PILAR, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing the Resolution dated April
28, 1994 of the Commission on Elections (COMELEC) in UND No. 94-040.
I
On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy for the position of member of the
Sangguniang Panlalawigan of the Province of Isabela.
On March 25, 1992, petitioner withdrew his certificate of candidacy.
In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and February 13, 1994 respectively, the
COMELEC imposed upon petitioner the fine of Ten Thousand Pesos (P10,000.00) for failure to file his
statement of contributions and expenditures.
In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied the motion for reconsideration of
petitioner and deemed final M.R. Nos. 93-2654 and 94-0065 (Rollo, p. 14).
Petitioner went to the COMELEC En Banc (UND No. 94-040), which denied the petition in a Resolution dated
April 28, 1994 (Rollo, pp. 10-13).
Hence, this petition for certiorari.
We dismiss the petition.
II
Section 14 of R.A. No. 7166 entitled "An Act Providing for Synchronized National and Local Elections and for
Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" provides as follows:
Statement of Contributions and Expenditures: Effect of Failure to File Statement. Every candidate and
treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the
offices of the Commission the full, true and itemized statement of all contributions and expenditures in
connection with the election.
No person elected to any public office shall enter upon the duties of his office until he has filed the statement of
contributions and expenditures herein required.
The same prohibition shall apply if the political party which nominated the winning candidate fails to file the
statement required herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file the statements or reports in connection with
electoral contributions and expenditures as required herein shall constitute an administrative offense for which
the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos ( P1,000.00) to
Thirty Thousand Pesos (P30,000.00), in the discretion of the Commission.

77
The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be
enforceable by a writ of execution issued by the Commission against the properties of the offender.
It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or
registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply
with their obligation to file their statements of contributions and expenditures.
For the commission of a second or subsequent offense under this Section, the administrative fine shall be from
Two Thousand Pesos (P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of the Commission.
In addition, the offender shall be subject to perpetual disqualification to hold public office (Emphasis supplied).
To implement the provisions of law relative to election contributions and expenditures, the COMELEC
promulgated on January 13, 1992 Resolution No. 2348 (Re: Rules and Regulations Governing Electoral
Contributions and Expenditures in Connection with the National and Local Elections on
May 11, 1992). The pertinent provisions of said Resolution are:
Sec. 13. Statement of contributions and expenditures: Reminders to candidates to file statements. Within five
(5) days from the day of the election, the Law Department of the Commission, the regional election director of
the National Capital Region, the provincial election supervisors and the election registrars shall advise in
writing by personal delivery or registered mail all candidates who filed their certificates of candidacy with them
to comply with their obligation to file their statements of contributions and expenditures in connection with the
elections. Every election registrar shall also advise all candidates residing in his jurisdiction to comply with said
obligation (Emphasis supplied).
Sec. 17. Effect of failure to file statement. (a) No person elected to any public office shall enter upon the duties
of his office until he has filed the statement of contributions and expenditures herein required.
The same prohibition shall apply if the political party which nominated the winning candidates fails to file the
statement required within the period prescribed by law.
(b) Except candidates for elective barangay office, failure to file statements or reports in connection with the
electoral contributions and expenditures as required herein shall constitute an administrative offense for which
the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos (P1,000) to Thirty
Thousand Pesos (P30,000), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be
enforceable by a writ of execution issued by the Commission against the properties of the offender.
For the commission of a second or subsequent offense under this section, the administrative fine shall be from
Two Thousand Pesos (P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of the Commission. In
addition, the offender shall be subject to perpetual disqualification to hold public office.
Petitioner argues that he cannot be held liable for failure to file a statement of contributions and expenditures
because he was a "non-candidate," having withdrawn his certificates of candidacy three days after its filing.
Petitioner posits that "it is . . . clear from the law that candidate must have entered the political contest, and
should have either won or lost" (Rollo, p. 39).
Petitioner's argument is without merit.
Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his statement of
contributions and expenditures.
Well-recognized is the rule that where the law does not distinguish, courts should not distinguish, Ubi lex non
distinguit nec nos distinguere debemos (Philippine British Assurance Co. Inc. v. Intermediate Appellate Court,
150 SCRA 520 [1987]; cf Olfato v. Commission on Elections, 103 SCRA 741 [1981]). No distinction is to be
made in the application of a law where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636 [1946]).
78
In the case at bench, as the law makes no distinction or qualification as to whether the candidate pursued his
candidacy or withdrew the same, the term "every candidate" must be deemed to refer not only to a candidate
who pursued his campaign, but also to one who withdrew his candidacy.
The COMELEC, the body tasked with the enforcement and administration of all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum, and recall (The Constitution of the Republic of the
Philippines, Art. IX(C), Sec. 2[1]), issued Resolution No. 2348 in implementation or interpretation of the
provisions of Republic Act No. 7166 on election contributions and expenditures. Section 13 of Resolution No.
2348 categorically refers to "all candidates who filed their certificates of candidacy."
Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use of the word "shall" in a
statute implies that the statute is mandatory, and imposes a duty which may be enforced , particularly if public
policy is in favor of this meaning or where public interest is involved. We apply the general rule (Baranda v.
Gustilo, 165 SCRA 757 [1988]; Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608 [1952]).
The state has an interest in seeing that the electoral process is clean, and ultimately expressive of the true will
of the electorate. One way of attaining such objective is to pass legislation regulating contributions and
expenditures of candidates, and compelling the publication of the same. Admittedly, contributions and
expenditures are made for the purpose of influencing the results of the elections (B.P. Blg. 881, Sec. 94;
Resolution No. 2348, Sec. 1). Thus, laws and regulations prescribe what contributions are prohibited (B.P. Blg.
881, Sec. 95, Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg. 881, Sec. 96), and what expenditures are
authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution No. 2348, Sec. 7) or lawful (Resolution
No. 2348, Sec. 8).
Such statutes are not peculiar to the Philippines. In "corrupt and illegal practices acts" of several states in the
United States, as well as in federal statutes, expenditures of candidates are regulated by requiring the filing of
statements of expenses and by limiting the amount of money that may be spent by a candidate. Some statutes
also regulate the solicitation of campaign contributions (26 Am Jur 2d, Elections § 287). These laws are
designed to compel publicity with respect to matters contained in the statements and to prevent, by such
publicity, the improper use of moneys devoted by candidates to the furtherance of their ambitions (26 Am Jur
2d, Elections § 289). These statutes also enable voters to evaluate the influences exerted on behalf of
candidates by the contributors, and to furnish evidence of corrupt practices for annulment of elections
(Sparkman v. Saylor [Court of Appeals of Kentucky], 180 Ky. 263, 202 S.W. 649 [1918]).
State courts have also ruled that such provisions are mandatory as to the requirement of filing (State ex rel.
Butchofsky v. Crawford [Court of Civil Appeals of Texas], 269 S.W. 2d 536 [1954]; Best v. Sidebottom, 270 Ky.
423,109 S.W. 2d 826 [1937]; Sparkman v. Saylor, supra.)
It is not improbable that a candidate who withdrew his candidacy has accepted contributions and incurred
expenditures, even in the short span of his campaign. The evil sought to be prevented by the law is not all too
remote.
It is notesworthy that Resolution No. 2348 even contemplates the situation where a candidate may not have
received any contribution or made any expenditure. Such a candidate is not excused from filing a statement,
and is in fact required to file a statement to that effect. Under Section 15 of Resolution No. 2348, it is provided
that "[i]f a candidate or treasurer of the party has received no contribution, made no expenditure, or has no
pending obligation, the statement shall reflect such fact."
Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election
Code of the Philippines, it is provided that "[t]he filing or withdrawal of certificate of candidacy shall not affect
whatever civil, criminal or administrative liabilities which a candidate may have incurred." Petitioner's
withdrawal of his candidacy did not extinguish his liability for the administrative fine.
WHEREFORE, the petition is DISMISSED.
79
Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Puno, Vitug, Mendoza and Francisco, JJ.,
concur.
Kapunan, J., is on leave.

Separate Opinions

MELO, J., dissenting:

The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate of
candidacy, is obliged to file his statement of contributions and expenditures in line with Section 14 of Republic
Act No. 7166 vis-a-vis the pertinent portions of Comelec Resolution No. 2348. I must concede that the use of
the word "shall" in the main statute as well as the implementing rules generally suggest mandatoriness as to
cover all candidates.
But is an anspirant for public office who had a sudden change of heart, so to speak, still considered a
candidate to begin with? I am of the impression that he is not and is thus not bound to render an accounting
subsequent to election for the simple reason that the term 'candidate' is used to designate a person who
actually submits himself and is voted for at our election (Santos vs. Miranda, 35 Phil. 643, 648 (1916) citing
State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84)
Certainly, one who withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted for at
an election. And considering the shortness of the period of 3 days from the filing to the withdrawal of the
certificate of candidacy, petitioner cannot be accused, as indeed there is no such charge, of utilizing his
aborted candidacy for purposes to raise funds or to extort money from other candidates in exchange for the
withdrawal.
I, therefore, vote to grant the petition.
Padilla, J., concurs.

Separate Opinions
MELO, J., dissenting:
The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate of
candidacy, is obliged to file his statement of contributions and expenditures in line with Section 14 of Republic
Act No. 7166 vis-a-vis the pertinent portions of Comelec Resolution No. 2348. I must concede that the use of
the word "shall" in the main statute as well as the implementing rules generally suggest mandatoriness as to
cover all candidates.
But is an aspirant for public office who had a sudden change of heart, so to speak, still considered a candidate
to begin with? I am of the impression that he is not and is thus not bound to render an accounting subsequent
to election for the simple reason that the term 'candidate' is used to designate a person who actually submits
himself and is voted for at our election (Santos vs. Miranda, 35 Phil. 643, 648 (1916) citing State vs. Hirsch,
125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84) Certainly, one who
withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted for at an election. And
considering the shortness of the period of 3 days from the filing to the withdrawal of the certificate of
candidacy, petitioner cannot be accused, as indeed there is no such charge, of utilizing his aborted candidacy
for purposes to raise funds or to extort money from other candidates in exchange for the withdrawal.
I, therefore, vote to grant the petition.
80
L. WHERE THE LAW DOES NOT DISTINGUISH
2. COLGATE PALMOLIVE VS GIMENEZ (GR NO. L-14787)
COLGATE-PALMOLIVE PHILIPPINE, INC., petitioner,
vs.
HON. PEDRO M. GIMENEZ as Auditor General and ISMAEL MATHAY as AUDITOR OF THE CENTRAL
BANK OF THE PHILIPPINES, respondents.
Ross, Selph and Carrascoso for petitioner.
Office of the Solicitor General for respondents.
GUTIERREZ DAVID, J.:
The petitioner Colgate-Palmolive Philippines, Inc. is a corporation duly organized and existing under Philippine
laws engaged in the manufacture of toilet preparations and household remedies. On several occasions, it
imported from abroad various materials such as irish moss extract, sodium benzoate, sodium saccharinate
precipitated calcium carbonate and dicalcium phosphate, for use as stabilizers and flavoring of the dental
cream it manufactures. For every importation made of these materials, the petitioner paid to the Central Bank
of the Philippines the 17% special excise tax on the foreign exchange used for the payment of the cost,
transportation and other charges incident thereto, pursuant to Republic Act No. 601, as amended, commonly
known as the Exchange Tax Law.
On March 14, 1956, the petitioner filed with the Central Bank three applications for refund of the 17% special
excise tax it had paid in the aggregate sum of P113,343.99. The claim for refund was based on section 2 of
Republic Act 601, which provides that "foreign exchange used for the payment of the cost, transportation
and/or other charges incident to the importation into the Philippines of . . . stabilizer and flavors . . . shall be
refunded to any importer making application therefor, upon satisfactory proof of actual importation under the
rules and regulations to be promulgated pursuant to section seven thereof." After the applications were
processed by the officer-in-charge of the Exchange Tax Administration of the Central Bank, that official
advised, the petitioner that of the total sum of P113,343.99 claimed by it for refund, the amount of P23,958.13
representing the 17% special excise tax on the foreign exchange used to import irish moss extract, sodium
benzoate and precipitated calcium carbonate had been approved. The auditor of the Central Bank, however,
refused to pass in audit its claims for refund even for the reduced amount fixed by the Officer-in-Charge of the
Exchange Tax Administration, on the theory that toothpaste stabilizers and flavors are not exempt under
section 2 of the Exchange Tax Law.
Petitioner appealed to the Auditor General, but the latter or, December 4, 1958 affirmed the ruling of the
auditor of the Central Bank, maintaining that the term "stabilizer and flavors" mentioned in section 2 of the
Exchange Tax Law refers only to those used in the preparation or manufacture of food or food products. Not
satisfied, the petitioner brought the case to this Court thru the present petition for review.
The decisive issue to be resolved is whether or not the foreign exchange used by petitioner for the importation
of dental cream stabilizers and flavors is exempt from the 17% special excise tax imposed by the Exchange
Tax Law, (Republic Act No. 601) so as to entitle it to refund under section 2 thereof, which reads as follows:
SEC, 2. The tax collected under the preceding section on foreign exchange used for the payment of the cost,
transportation and/or other charges incident to importation into the Philippines of rice, flour, canned milk, cattle
and beef, canned fish, soya beans, butterfat, chocolate, malt syrup, tapioca, stabilizer and flavors, vitamin
concentrate, fertilizer, poultry feed; textbooks, reference books, and supplementary readers approved by the
Board of Textbooks and/or established public or private educational institutions; newsprint imported by or for
publishers for use in the publication of books, pamphlets, magazines and newspapers; book paper, book cloth,
chip board imported for the printing of supplementary readers (approved by the Board of Textbooks) to be

81
supplied to the Government under contracts perfected before the approval of this Act, the quantity thereof to be
certified by the Director of Printing; anesthetics, anti-biotics, vitamins, hormones, x-ray films, laboratory
reagents, biologicals, dental supplies, and pharmaceutical drugs necessary for compounding medicines;
medical and hospital supplies listed in the appendix to this Act, in quantities to be certified by the Director of
Hospitals as actually needed by the hospitals applying therefor; drugs and medicines listed in the said
appendix; and such other drugs and medicines as may be certified by the Secretary of Health from time to time
to promote and protect the health of the people of the Philippines shall be refunded to any importer making
application therefor, upon satisfactory proof of actual importation under the rules and regulations to be
promulgated pursuant to section seven thereof." (Emphasis supplied.)
The ruling of the Auditor General that the term "stabilizer and flavors" as used in the law refers only to those
materials actually used in the preparation or manufacture of food and food products is based, apparently, on
the principle of statutory construction that "general terms may be restricted by specific words, with the result
that the general language will be limited by the specific language which indicates the statute's object and
purpose." (Statutory Construction by Crawford, 1940 ed. p. 324-325.) The rule, however, is, in our opinion,
applicable only to cases where, except for one general term, all the items in an enumeration belong to or fall
under one specific class. In the case at bar, it is true that the term "stabilizer and flavors" is preceded by a
number of articles that may be classified as food or food products, but it is likewise true that the other items
immediately following it do not belong to the same classification. Thus "fertilizer" and "poultry feed" do not fall
under the category of food or food products because they are used in the farming and poultry industries,
respectively. "Vitamin concentrate" appears to be more of a medicine than food or food product, for, as matter
of fact, vitamins are among those enumerated in the list of medicines and drugs appearing in the appendix to
the law. It should also here be stated that "cattle", which is among those listed preceding the term in question,
includes not only those intended for slaughter but also those for breeding purposes. Again, it is noteworthy that
under, Republic Act No. 814 amending the above-quoted section of Republic Act No. 601, "industrial starch",
which does not always refer to food for human consumption, was added among the items grouped with
"stabilizer and flavors". Thus, on the basis of the grouping of the articles alone, it cannot validly be maintained
that the term "stabilizer and flavors" as used in the above-quoted provision of the Exchange Tax Law refers
only to those used in the manufacture of food and food products. This view is supported by the principle "Ubi
lex non distinguish nec nos distinguire debemos", or "where the law does not distinguish, neither do we
distinguish". (Ligget & Myers Tobacco Company vs. Collector of Internal Revenue, 53 Off. Gaz. No. 15, page
4831). Since the law does not distinguish between "stabilizer and flavors" used in the preparation of food and
those used in the manufacture of toothpaste or dental cream, we are not authorized to make any distinction
and must construe the words in their general sense. The rule of construction that general and unlimited terms
are restrained and limited by particular recitals when used in connection with them, does not require the
rejection of general terms entirely. It is intended merely as an aid in ascertaining the intention of the legislature
and is to be taken in connection with other rules of construction. (See Handbook of the Construction and
Interpretation of Laws by Black, p. 215.216, 2nd ed.)
Having arrived at the above conclusion, we deem it now idle to pass upon the other questions raised by the
parties.
WHEREFORE, the decision under review is reversed and the respondents are hereby ordered to audit
petitioners applications for refund which were approved by the Officer-in-Charge of the Exchange Tax
Administration in the total amount of P23,958.13.

82
L. WHERE THE LAW DOES NOT DISTINGUISH
3. GUEVARA VS INOCENTES (GR NO. L-25577)
ONOFRE P. GUEVARA, petitioner,
vs.
RAOUL M. INOCENTES, respondent.
Ambrosia Padilla and Onofre Guevara for the petitioner.
Office of the Solicitor General for the respondent.
BAUTISTA ANGELO, J.:
This decision is written in keeping with the statement we made in our resolution dated February 16, 1966.
Petitioner was extended an ad interim appointment as Undersecretary of Labor by the former Executive on
November 18, 1965, having taken his oath of office on November 25 of the same year, and considering that
the ad interim appointment for the same position extended to respondent by the incumbent Executive on
January 23, 1966 is invalid in spite of Memorandum Circular No. 8 issued by the latter on the same date
declaring all ad interim appointments made by the former Executive as having lapsed with the adjournment of
the special session of Congress at about midnight of January 22, 1966, petitioner brought before this Court the
instant petition for quo warranto seeking to be declared the person legally entitled to said office of
Undersecretary of Labor.
The petition is predicated on the following grounds: (1) under Article VII, Section 10(4) of the Constitution,
petitioner's ad interim appointment is valid and permanent and may only become ineffective either upon
express disapproval by the Commission on Appointments or upon the adjournment of the regular session of
Congress of 1966; (2) here there has been no express disapproval by the Commission on Appointments
because the same has never been constituted during the special session called by President Marcos in his
Proclamation No. 2, series of 1966; and (3) there has been no adjournment of the Congress as contemplated
in the Constitution because (a) the aforesaid special session was suspended by the House on Saturday,
January 22, 1966 at 10:55 p.m. to be resumed on Monday, January 24, 1966 at 10:00 a.m.; (b) the resolution
approved by the Senate on January 23, 1966 at past 2:00 a.m. for adjournment sine die is not the adjournment
contemplated in Article VII, Section 10(a) of our Constitution; (c) the suspension by the House or the
adjournment by the Senate to resume the session on January 24, 1966 at 10:00 a.m. meant the end of the
special session and the start of the regular session as a continuous session without any interruption; and (d)
the phrase "until the next adjournment of the Congress" must be related with the phrase "until disapproval by
the Commission on Appointments" so that the adjournment contemplated should refer to a regular session
during which the Commission on Appointments may be organized and allowed to discharge its functions as
such.
Respondent, on the other hand, set up the following defenses: (1) petitioner's ad interim appointment lapsed
when Congress adjourned its last special session called under Proclamation No. 2 of President Marcos; (2)
an ad interim appointment ceases to be valid after each term of Congress and so petitioner's appointment
must have lapsed as early as December 30, 1965; (3) petitioner's ad interim appointment as well as others
made under similar conditions, is contrary to morals, good customs and public policy, and hence null and void;
and (4) petitioner's appointment is void in the light of the doctrine laid down in Rodriguez, Jr. vs. Quirino, G.R.
No. L-19800 October 28, 1953.
After due deliberation, the Court resolved that the ad interim appointment extended to petitioner on November
18, 1965 by the former Executive lapsed when the special session of Congress adjourned sine die at about
midnight of January 22, 1966, as embodied in our resolution dated February 16, 1966.
We will now elaborate on the reasons expressed in said resolution.
83
The important provision to be considered is Article VII, Section 10, Subsection 4 of our Constitution, which
provides:
The President shall have the power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
A perusal of the above-quoted provision would at once reveal that it is the clear intent of the framers of our
Constitution to make a recess appointment effective only (a) until disapproval by the Commission on
Appointments, or (b) until the next adjournment of Congress, and never a day longer regardless of the nature
of the session adjourned. And this is so considering the plain language of the aforesaid provision which is free
from any ambiguity in the light of the well-settled rule of statutory construction that "when the intention of the
legislature is so apparent from the face of the statute that there can be no question as to its meaning there is
no room for construction" (Vol. 2, Sutherland, Statutory Construction, p. 316). Hence, the above provision
contemplates two modes of termination of an ad interim appointment, or of one made during the recess of
Congress, which are completely separate from, and independent of, each other. And while during the special
session called under proclamation No. 2 no Commission on Appointments was organized by Congress, the
second mode of termination, however, had its constitutional effect, as when Congress adjourned sine die at
about midnight of January 22. 1966. Such adjournment, in legal contemplation, had the effect of terminating
petitioner's appointment thereby rendering it legally ineffective.
Petitioner's theory that the first mode of termination consisting in the disapproval by the Commission on
Appointments should be inseparately related with the clause "until the next adjournment of Congress" in the
sense that the Commission has to be first organized in order that the last mode may operate is untenable
considering that the latter is not dependent upon, nor influenced in any manner by the operation of the former.
As already stated, the two modes of termination are completely separate from and independent of each other.
If the framers of the Constitution had intended to make the operation of the second clause dependent upon the
prior constitution of the Commission on Appointments they should have so stated in clear terms considering
that the first clause implies a positive act of the Commission, while the second an entirely separate and
independent act of Congress. Indeed, the theory of petitioner, if carried to its logical conclusion, may result into
the anomaly that, should Congress be controlled by a party not inclined to organize said Commission, or
should there arise a group which for reasons of its own indulges in obstructionism, the Commission on
Appointments contemplated in the Constitution is never organized as a consequence of the action of either,
any appointment made during the recess of Congress would never run the test of legislative scrutiny and would
thereby then be always considered permanent even if it is extended ad interim, a result which, to be sure, was
never intended by the framers of our Constitution. It thus becomes imperative that we avoid such absurd result.
It is true that the provision of the Constitution we are now considering in speaking of the mode of termination
epitomized in the phrase "until the next adjournment of the Congress" does not make any reference to any
specific session of the Congress, — whether regular or special, — but such silence is of no moment, for it is a
well-known maxim in statutory construction that when the law does not distinguish we should not distinguish.
UBI LEX NON DISTINGUIT NEC NOS DISTINGUERE DEBEMUS (Robles vs. Zambales Chromite Mining
Company, et al., G. R. No. L-12560, September 30, 1958). Consequently, it is safe to conclude that the
framers of our Constitution in employing merely the word adjournment as a mode of terminating an
appointment made during the recess of Congress had in mind either the regular or special session, and not
simply the regular one as contended by petitioner.
Under our tripartite form of government predicated on the principle of separation of powers the power to
appoint is inherently an executive function while the power to confirm or reject appointments belongs to the
legislative department, the latter power having been conferred as a check on the former. This power to check
may be exercised through the members of both Houses in the Commission on Appointments. But although the
Commission on Appointments is provided for in the Constitution, its organization requires congressional action,

84
and once organized, by express provision of the Constitution, it "shall meet only while Congress is in session."
Consequently, if for any reason Congress adjourns a regular or special session without organizing the
Commission on Appointments, Congress should be deemed to have impliedly exercised said power to check
by allowing the ad interim appointments to lapse as provided for in the Constitution.
The next important inquiry is: Since Congress in its special session held under Proclamation No. 2 of the
President, series of 1966, did not deem it wise to organize the Commission on Appointments to act on the
recess appointments made by the former Executive, can it be said that Congress is deemed to have impliedly
exercised its power to check on such recess appointments when it adjourned its special session at about 12:00
o'clock midnight of January 22, 1966?
The answer must of necessity be in the affirmative inasmuch as that special session actually adjourned in legal
contemplation at about 12:00 midnight of January 22, 1966 considering that the Senate adjourned sine die at
about said hour. Although the House allegedly suspended its session at 10:55 p.m. on January 22, 1966 to be
resumed on Monday, January 24, 1966, at 10:00 a.m., Congress cannot be considered to be in special session
subsequently to January 22 for the reason that the House without the Senate which had adjourned sine die, is
not "Congress." Indeed, when the Senate adjourned at 12:00 midnight on January 22, 1966 this adjournment
should be considered as the "next adjournment of the Congress" of the special session notwithstanding the
alleged suspension of the session earlier by the House for the reason that neither the House nor the Senate
can hold session independently of the other in the same manner as neither can transact any legislative
business after the adjournment of the other. None other than President Macapagal and Speaker Cornelio
Villareal expressed such opinion when as members of the Lower House in 1954 they expoused and defended
the same on the floor as can be seen from the following transcript of the congressional record:
Mr. MACAPAGAL — . . . Since the Senate has, by its own responsibility, adjourned one and a half hours ago,
therefore, under the present facts, in our Constitution this House is automatically adjourned, and therefore it is
improper and illegal for us to continue the proceedings farther.
xxx xxx xxx
Mr. VILLAREAL — Mr. Speaker, although it is true that I do not want to appeal from the ruling of the Chair,
nonetheless, I maintain that our actuations from the time we approved that resolution will be illegal acts, and I
do not want this Congress to commit illegal acts because it will affect the dignity of this Chamber. We are not
unaware of the facts. I invite the Presiding Officer and everybody here to go to the Senate now, and if they
accept my challenge, let us go so that I can prove to them that there is not one ghost of any Senator in that
Chamber. The Senate has actually adjourned, Mr. Speaker, and are we to have a fiction here that the Senators
are still holding a session? We approved that resolution of adjournment before twelve o'clock tonight knowing
that the Senate adjourned two or three hours ago. Are we crazy here to believe that the Senators are still
holding sessions? How can we in conscience justify our actuations here that we are still doing something for
the benefit of the people when in fact and in truth we are not because we cannot do so? . . .
Mr. Speaker, let us be frank; let us be honest to ourselves; let us not ridicule ourselves; let us adjourn now
because we having nothing to do and all that we will do will be illegal beginning now. . . .
Mr. Speaker. I honestly believe that legally we cannot do anything any further, and if I am the author of a bill
pending approval, I would not submit the bill for passage now because that will be the subject of litigation in
court as to whether such approval will be legal or not, and I would never risk my committee report to be
submitted after the approval of that resolution, knowing fully well that actually and physically that Upper
Chamber has already adjourned. (Congressional Record, House of Representatives, 3rd Congress, Republic
of the Philippines, First Regular and First Special Sessions, Vol. I, pp. 4091 and 4094).1äwphï1.ñët
As a corollary, the theory that there was a continuous session without any interruption when the house
allegedly suspended its session at 10:55 p.m. on January 22, 1966 to be resumed on Monday, January 24,
1966 at 10:00 a.m. cannot be accepted, because such theory runs counter to well-established parliamentary
85
precedents and practice. Thus, for one thing, between January 22, 1966 at 10:55 p.m. and January 24, 1966 at
10:35 a.m. when the House opened its regular session, there intervened January 23, 1966, which was Sunday,
and as such is expressly excluded by the Constitution as a session day of Congress. For another, it is
imperative that there be a "constructive recess" between a special and regular session, as when a regular
session succeeds immediately a special session or vice-versa, and so a special session cannot be held
immediately before a regular session without any interruption nor can both be held simultaneously together.
Hinds' Precedents has the following to say on the matter:
The commissions granted during the recess prior to the convening of Congress in extraordinary session
November 9, 1903, of course furnished lawful warrant for the assumption by the persons named therein of the
duties of the offices to which they were, respectively, commissioned. Their names were regularly sent to the
Senate thereafter. If confirmed, of course they would hold under appointment initiated by the nomination
without any regard to the recess commission. If not confirmed, their right to hold under the recess nomination
absolutely ended at 12 o'clock meridian on the 7th of December, 1903, for at that hour the extraordinary
session ended and the regular session of Congress began by operation of law. An extraordinary session and a
regular session can not coexist, and the beginning of the regular session at 12 o'clock was the end of the
extraordinary session; not a constructive end of it, but an actual end of it. At 12 o'clock December 7 the
President pro tempore of the Senate said:
Senators, the hour provided by law for the meeting of the first regular session of the Fifty-eighth Congress
having arrived, I declare the extraordinary session adjourned without day.
Aside from the statement upon the record that the "hour had struck" which marked the ending of the one and
the beginning of the other, the declaration of the President pro tempore was without efficacy. It did not operate
to adjourn without day either the Congress or the Senate. Under the law the arrival of the hour did both.
The constitutional provision that the commission shall expire at the end of the next session is self-executing,
and when the session expires the right to hold under the commission expires with it. If there be no appreciable
point of time between the end of one session and the beginning of another, since of necessity one ends and
another begins, the tenure under the commission as absolutely terminates as if months of recess supervened.
(Hinds' Precedents of the House of Representatives of the United States, Vol. V, p. 854.)
Considering now petitioner's ad interim appointment and others extended under similar conditions in the light
of the doctrine we laid down in the Aytona case, we may say that they were even more irregular than those
involved in said case to the extend that they may be avoided even on this ground alone. Thus, while President
Garcia only extended 350 ad interim appointments after he had lost the election, President Macapagal made
1,717 ad interim appointments most of which were made only after the elections in November, 1965. As a
consequence, the following anomalies were noted: a former presidential assistant was appointed judge of
three different salas, another was appointed to a non-existing branch of the Court of First Instance of
Pangasinan, while still another who had a pending disbarment case received an ad interim appointment as
judge of first instance. This is indeed a far cry from the following admonition we made in the Aytona case:
Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30,
1961. But it is common sense to believe that after the proclamation of the election of President Macapagal, his
was no more than a "caretaker" administration. He was duty bound to prepare for the orderly transfer of
authority to the incoming President, and he should not do acts which, he ought to know, would embarrass or
obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not
for him to use his powers as incumbent President to continue the political warfare that had ended or to avail
himself of presidential prerogatives to serve partisan purposes. The filling up of vacancies in important
positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of
the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the
issuance of 350 appointments in one night and the planned induction of almost all of them a few hours before
the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of
86
Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions
irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to
make the corresponding appointments. (Aytona vs. Castillo, et al., G.R. No. L-19313, January 20, 1962.)
It is hoped that now and hereafter such excess in the exercise of power should be obviated to avoid confusion,
uncertainty, embarrassment and chaos which may cause disruption in the normal function of government to
the prejudice of public interest. It is time that such excess be stopped in the interest of the public weal.
Wherefore, petition is denied. No costs.
Bengzon, C.J., Reyes, J.B.L., Barrera and Regala, JJ., concur.
Makalintal, J., dissents for the same reasons previously expressed by him in the resolution of Feb. 16, 1966.
Bengzon, J.P., and Sanchez, JJ., took no part.
Separate Opinions
CONCEPCION, J., concurring:
Having been extended an ad interim appointment, dated November 18, 1965, as Undersecretary of Labor,
petitioner Onofre F. Guevara assumed the office on November 25, 1965. The question for determination is
whether his title to said office has lapsed upon adjournment of the special session of Congress that began on
January 17, 1966, in view of the provisions of Section 10(4), Article VII of the Constitution, reading:
The President shall have the power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
Petitioner maintains that the question adverted to above should be answered in the negative, for there has
been no adjournment of Congress because the aforementioned special session had commenced on January
17, 1966, and, although the Senate had adjourned sine die shortly after midnight of January 22 to 23, 1966,
the House of Representatives merely suspended its session on January 22, 1966, at 10:55 p.m., "to be
resumed on January 24, 1966, at 10:00 a.m." when the present regular session began. Petitioner concludes,
therefrom, that Congress has been in continuous session without any interruption" since January 17, 1966.
This pretense is clearly devoid of merit for:
1. The Senate had admittedly adjourned at about midnight of January 22 to 23, 1966. Inasmuch as the House
of Representatives is only a part of our Congress, not Congress itself, it follows necessarily that "Congress"
can not be said to have been in session on January 23, 1966.
2. Not even the House was in special session on January 23 and 24, 1966. The fact is that it did not hold any
session on January 23, 1966. Although it purported to have "suspended" the session on January 22 to be
resumed on January 24, the House did not, evidently, intend to "resume" the special session on January 24,
1966, at 10:00 a.m., for: a) the members of the House knew that the regular session would then begin; b)
the regular session did begin on January 24, 1966, at 10:00 a.m.; and c) they did not meet, or try or
even purport to meet in special session on January 24, 1966, or at any other time after January 22, 1966. In
other words, when, on January 22, 1966 at 10:55 p.m., the House placed on record that the (special) session
was then suspended to be resumed on January 24, 1966, at 10:00 a.m., it meant that the Congressmen would
meet on January 24, 1966, at 10:00 a.m., not in special session, but to begin the regular session.
3. Petitioner does not claim that Congress is still in special session. It is, likewise, an undisputable and
undisputed fact that the regular session of Congress had begun on January 24, 1966. Since the
commencement of such regular session has necessarily put an end, ipso facto, to the special session that
began on January 17, 1966, the inevitable conclusion is that Congress, assembled in
such special session, has adjourned since, at least, January 24, 1966,1 even if we assumed hypothetically that

87
its two (2) Houses had actually assembled daily in legislative session, without any interruption, from January
17 up to this date, which is not a fact. Indeed, said assumption does not offset the fact that the
present regular session of Congress is different, distinct and separate from said special session; that
said regular session is not the session next following the issuance of petitioner's ad interim appointment; and
that, even if the regular session had followed the special session, without any physical solution of continuity,
said special session, which is the one next to said ad interim appointment has in fact and in law
been adjourned. Hence, it is admitted in the petition herein (par. 6[d]) that the aforementioned "suspension by
the House" of its session on January 22, to be resumed on January 24, 1966, at 10:00 a.m. "meant the end of
the special session."
It is next urged by petitioner that the clause "the next adjournment of the Congress" in the above quoted
provision of our fundamental law refers to an adjournment of Congress assembled in regular session. I am
unable to accept this view because:
1) To do so would entail a judicial legislation by the insertion of the word "regular" in said provision. We can not
even justify such act upon the ground of judicial construction, for "where the language of a statute is plain and
unambiguous" — as the constitutional precept in question is — "there is no occasion for construction, and the
statute must be given effect according to its plain and obvious meaning,"2 and "this is true even though other
meanings of the language employed could be fraud."3
The editor of American Jurisprudence has expressed itself as follows:
x x x Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning,
there is no occasion for resorting to the rules of statutory construction, and the court has no right to look for or
impose another meaning.4
2) Neither can we adopt petitioner's theory without, in effect, amending the Constitution, and violating its
requirement therefor of "a vote of three-fourths (3/4) of all the Members of the Senate and of the House of
Representatives voting separately" and a ratification by a majority of the votes cast at a plebiscite called for the
purpose.5 As the branch of the Government to which the task of being the last bulwark of the Constitution has
been assigned, we can not adopt the posture advocated by the petitioner, entailing as it does an impairment of
the basic tenets of our political system, and the assumption of omnipotent powers which, admittedly, we do not
have.
3) Petitioner's theory is refuted by the fact — admitted by petitioner and his counsel — that the adjournment of
a special session of Congress may render ineffective an ad interim appointment made prior thereto, if said
appointment had been preceded by a regular session of a new Congress. In fact, upon adjournment of the
regular session of Congress in 1965, ad interim appointments were made, some of which, including those of
several members of this Court, were renewed upon the adjournment of each of the several special sessions
called after said regular session. In other words, it is an established practice in this jurisdiction, confirmed no
less than by the party backing up petitioner herein, that ad interim appointments made before a
given special session of Congress, expire upon the adjournment thereof.
4) Petitioner's theory is further refuted by the fact that, if a special session is held before the initial regular
session of a new Congress, and the Commission on Appointments is organized during said special session, its
adjournment would admittedly extinguish the effectivity of ad interim appointments made prior thereto,
provided, according to petitioner, that the Commission has had reasonable time during that session to act on
said appointments.
In this connection, it should be noted that, although Congress convenes in regular session on the fourth
Monday of January, it may by law fix another date for the beginning of said session.6 Suppose that the date
fixed by law therefor is, say, June 19 (Rizal's birthday); that ad interim appointments have been made on
January 2, following the assumption of office of a new President, who calls four (4) special sessions, one after
the other, each for thirty (30) days, the first to begin on January 5; and that the Commission on Appointments
88
is duly organized on January 10. Shall we hold that, if the Commission does not act on said appointments, the
same shall be effective until the adjournment of the regular session of Congress, which, in our hypothesis,
would take place early in October? Indeed, there is no plausible reason to distinguish between the
adjournment of a regular session and that of a special session, insofar as the effect thereof upon ad
interim appointments is concerned.
The main argument adduced in support of petitioner's theory that the adjournment of the last special session of
Congress cannot affect the effectivity of his ad interim appointment, is that the Commission on Appointments
had not been organized during said special session and that, even if then organized, the Commission would
not have had enough time, during that session, to consider the 1,717 ad interim appointments made after the
last special session held in 1965.
With respect to the last part of the argument, the Constitution does not make the extinctive effect of the "next
adjournment of the Congress" upon ad interim appointments made prior thereto dependent on the sufficiency
of the time available to the Commission on Appointments. Thus, if the Commission on Appointments were not
organized until, say, May 15, 1966, there could be no possible doubt that such ad interim appointments as may
have been made prior to the present regular session of Congress, no matter how many said appointments may
be, would lapse upon adjournment of Congress at about May 20, or five (5) days later, even if this period of
time were manifestly inadequate to permit a reasonable consideration of said appointments.
Let us now consider the theory that the "next adjournment of the Congress" does not extinguish the effectivity
of ad interim appointments made prior thereto, unless the Commission on Appointments has been organized
before said adjournment. This theory is contradicted by the admission of petitioner's counsel during the hearing
of this case, that, upon adjournment of a regular session of Congress, ad interim appointments made before
said session would lapse, even if the Commission on Appointments had not been organized prior to said
adjournment.
The aforementioned theory is, moreover, predicated upon false assumptions, namely: that the "next
adjournment of the Congress" should be construed in relation only to the "disapproval of the Commission on
Appointments," not to "the recess of the Congress"; that "the next adjournment of the Congress" terminates the
effectivity of ad interim appointments because the Commission on Appointments cannot function when
Congress is not in session; and that Congress would be usurping the functions of the Commission on
Appointments if said appointments lapsed by the adjournment of Congress, although the Commission had not
as yet been constituted.
At the outset, it is well to remember that one of the fundamental tenets underlying our constitutional system is
the principle of separation of powers, pursuant to which the powers of government are mainly divided into three
classes,7 each of which is assigned to a given branch of the service.8 The main characteristic of said principle
is not, however, this allocation of powers among said branches of the service,9 but the fact that: 1) each
department is independent of the others and supreme within its own sphere; and 2) the power vested in one
department cannot be given or delegated, either by the same or by Act of Congress, to any other department.
The reason is that, otherwise, instead of being separated, said powers are likely to be concentrated - and
hence united - in one (1) department, 10 thereby seriously jeopardizing our republican system. Indeed, history
has shown that sovereignty cannot long remain in the people when the powers of Government are in the hands
of one man, for the latter is thus placed in a position, and would eventually be inclined, to change his role, from
that of a public servant to that of master of the people.
The separation of powers in our Government is not, however, absolute. Not all legislative powers are vested in
Congress. Some, like the veto power and the power to make rules of Court, are explicitly vested in the
President and the Supreme Court, respectively. 11 Similarly, not all executive powers are vested in the
President. Some, like the treaty-making power, are shared by him with the legislative department. 12 Not all
judicial powers are vested in courts of justice. Some — like the pardoning power — are lodged exclusively in
the President. 13
89
As a consequence, there is some overlapping of powers and a system of checks and balances, under which
a department may exercise some measure of restraint, upon another department. Such is the situation as
regards appointing power of the Executive, which is subject to said restraint by the legislative
department. 14 Indeed, the latter may limit said executive power by, inter alia, prescribing the qualifications of
the appointees, fixing their term of office, or disapproving appointments to some offices.
With respect to the approval or disapproval of appointments, the framers of our Constitution considered it,
however, impractical to entrust the exercise of the power to the whole National Assembly or Congress.
Considering its sizeable membership, it was deemed wiser to vest the power of confirmation or rejection of
appointments upon a body, small enough to permit reasonable expeditious action, when necessary, but
sufficiently representative to reflect substantially the views of the legislature. Hence, the Commission on
Appointments, which, under the present Constitution, consists of "twelve Senators and twelve Members of the
House of Representatives elected by each House, respectively, on basis of proportional representation of the
political parties therein." 15 Although, in the discharge of their duties, the Members of the Commission are not
under the control of Congress, it is only obvious, from the composition of the Commission — particularly the
equal representation therein of each House of Congress and the manner of selection of the Members of the
Commission — that the same was expected to reflect the feelings of Congress on presidential appointments,
and this expectation has, invariably, been borne out by the facts. In other words, the Commission was intended
to be, and is an agent of Congress, or the means by which Congress may check the appointing power of the
President.
More specifically, appointments made by the President are subject to two (2) forms of legislative restraint,
namely: a) disapproval of the Commission on Appointments; and b) termination of the effectivity of ad
interim appointments upon "the next adjournment of the Congress."
As regards the first form of restraint, the Constitution provides that regular appointments to specified offices
shall be made only after consent thereto has been given by the Commission on Appointments, to which the
President must have first submitted the corresponding nominations. 16 Inasmuch as the Commission can act
only while Congress is in session, 17 no appointments could be made during a recess of Congress for lack of
said consent, if the provision above quoted had not been inserted in the fundamental law. Pursuant thereto,
which Congress is not in session, a nomination need not be made. Neither is the previous consent of the
Commission on Appointments necessary, for, being impotent to act at such time, said consent cannot possibly
be given. In order to avoid a hiatus in the public service — to forestall a suspension in the exercise of
governmental functions — the President may "make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress."
Now, why is the lifetime of ad interim appointments limited? Because, if they expired before the session of
Congress, the evil sought to be avoided — interruption in the discharge of essential functions — may take
place. Because the same evil would result if the appointments ceased to be effective during the session of
Congress and before its adjournment. 18 Upon the other hand, once Congress has adjourned, the evil
aforementioned may easily be conjured by the issuance of other ad interim appointments or reappointments.
In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the
incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon
the next adjournment of the Congress," simply because the President may then issue new appointments
— not because of implied disapproval of the Commission deduce from its inaction during the session of
Congress, for, under the Constitution, the Commission may affect adversely the ad interim appointments only
by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim
appointments made prior thereto, then the President could no longer appoint those so bypassed by the
Commission. But, the fact is that the President may reappoint them, thus clearly indicating that the reason for
said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said

90
omission of the Commission, but, the circumstance that, upon said adjournment of the Congress, the President
is free to make ad interim appointments or reappointments.
It is thus patent that the adjournment of Congress operates differently from the disapproval by the Commission;
that the effect of the former is predicated upon a premise other than that of the latter; and that the opinion of
the majority of the Court in the case at bar, not only does not lead to an encroachment by Congress upon the
field assigned to the Commission on Appointments, but is, moreover, in consonance with the latter and the
spirit of the fundamental law.
In fact, the first draft of our Constitution provided that ad interim appointments shall "become ineffective after a
period of three months or upon disapproval" by a Permanent Commission, which was to perform the functions
of the Commission on Appointments. In other words, it subjected the effectivity of said appointments to (1) a
period (three months) and (2) a condition (disapproval by the Permanent Commission). It is worthy of notice, in
this connection, that the operation of said period was not conditioned upon the organization of the Permanent
Commission. The provision incorporated into the original Constitution 19 adopted, in principle, the same
limitations: a period and a condition. In lieu of the "Permanent Commission", it used the phrase "Commission
on Appointments", and instead of the three-month term in the draft, it, merely, inserted the clause "until the
next adjournment of the National Assembly". Upon the amendment of our Constitution, by the establishment of
a bicameral legislature, the term "Congress" was substituted in lieu of the "National Assembly". The philosophy
of the original draft was thereby preserved — the effectivity of ad interim appointments is subject to a condition
(disapproval by the Commission on Appointments) and a period (the next adjournment of the Congress,
regardless of whether the Commission on Appointments was been organized or not).
A portion of my concurring and dissenting opinion in Aytona vs. Castillo (L-19313, Jan. 19, 1962) has been
quoted in support of petitioner herein. Detached from the context thereof, the quotation seemingly gives an
impression altogether at variance with the obvious import of said opinion. The Aytona case did not involve the
legal issue posed in this case — the effect of the adjournment of a special session of Congress upon ad
interim appointments made prior thereto. The question raised in the Aytona case was whether an incoming
President could, before Congress had met in regular or special session, validly withdraw ad
interim appointments made by the outgoing President, in order that the Commission on Appointments could
not act, even if it wanted to, on said appointments. In the regular session of Congress following said withdrawal
of ad interim appointments, the Commission on Appointments was actually organized. What is more, the
Commission did, in fact, approve or confirm some of the aforementioned ad interim appointments. The Aytona
case was decided even before the next session of Congress had begun. An incident thereof 20 was decided
before the adjournment of said session. There was no occasion, therefore, to pass upon the effect of said
adjournment. In the case at bar, the ad interim appointments made by the outgoing President were not
withdrawn by the incoming President before the special session of Congress; the Commission on
Appointments was not organized during said special session; and the President merely considered said
appointments 21 ineffective upon the adjournment of the aforementioned special session, as well as withdrawn.
True, there are a number of things in common between the Aytona case and the one at bar; in both cases the
outgoing President had made hundreds of ad interim appointments knowing that he had lost his bid for
reelection; in both cases equity is, admittedly, against the action taken by the outgoing President and in favor
of that taken by the incoming President; in both cases the judicial verdict has been in favor of the latter. But,
then, there are the following points of difference: (1) the right of the incoming President to withdraw said
appointments in the Aytona case was defended by those who deny the existence of such right in the present
case; (2) those who invoked equity in favor of the measure taken by the incoming President in the Aytona
case, now object to the application of the rules of equity in favor of the action taken by the incoming President
in the case at bar; (3) the only legal ground, in support of our decision in the Aytona case was a principle of
equity in the writs of prohibition and mandamus sought by Aytona depended upon the sound discretion of the
Court to be exercised on equitable principles, because of which the writs were denied — whereas, in addition
to equity, there is a clear and explicit provision of the Constitution in support of the step taken by the incoming
91
President in the present case; (4) those who urged the condition of said decision in the Aytona case, backed
by no other principles than those of equity, and hailed it as an act of justice, now maintains that said
principles, plus said constitutional provision, are insufficient to warrant a similar decision in the present case.
It is trite to say that the interest of the appointees involved therein cannot but be the object of grave concern.
But, the Courts must apply the law as they find it, not as they wish it to be. Moreover, the power to make ad
interim appointments and the lifetime thereof are dictated by considerations of public policy — the neccessity
of insuring continuity in the discharge of the sovereign functions of the State. The protection of the interest of
the appointees is subordinate to such policy and merely incidental thereto. Under our constitutional set up, the
President is the principal administrative officer of the Government. As such, he is the officer mainly responsible
for the faithful execution of the laws and the maintenance of law and order in the Philippines. Consistently with
this responsibility, he has authority to appoint those who shall assist him in the discharge of his difficult task.
He may exercise such authority, even if his term is about to expire, but, only to avoid a disruption in the
operation of the Government. And his appointees — particularly those whose appointments have been
confirmed by the Commission on Appointments — shall be entitled to remain in office, even after the expiration
of his term. But, the recipients of his ad interim appointments are forwarned that the same are subject to the
resolutory condition and the period adverted to above. They know that, unless approved by the Commission
prior thereto, the appointments cease to be effective upon the expiration of said period. They know that the
incoming Executive may then either re-appoint those whose ad interim appointments had lapsed or appoint
others whom he may deem fit to carry out the policies of his administration. In the exercise of this authority, his
functions are mainly political, and, hence, not subject to judicial review.
Wherefore, I vote to dismiss the petition and concur in the majority opinion, penned by Mr. Justice Felix
Bautista Angelo.
DIZON, J., concurring:
I concur. However, aside from the reasons given in support of the majority opinion penned by Mr. Justice Felix
Bautista Angelo, I am of the opinion that the ad interim appointments extended to petitioner Guevara must be
deemed to have lapsed for the reasons given in support of the concurring opinion penned by former Justice
Sabino Padilla in the Aytona case — with which I concur.

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L. WHERE THE LAW DOES NOT DISTINGUISH
4. PH BRITISH ASSURANCE VS IAC (GR NO. 72005)
PHILIPPINE BRITISH ASSURANCE CO., INC., petitioner,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT; SYCWIN COATING & WIRES, INC., and
DOMINADOR CACPAL, CHIEF DEPUTY SHERRIF OF MANILA, respondents.

GANCAYCO, J.:
This is a Petition for Review on certiorari of the Resolution dated September 12, 1985 of the
Intermediate Appellate Court in AC-G.R. No. CR-05409 1 granting private respondent's motion for
execution pending appeal and ordering the issuance of the corresponding writ of execution on the
counterbond to lift attachment filed by petitioner. The focal issue that emerges is whether an order of
execution pending appeal of a judgment maybe enforced on the said bond. In the Resolution of
September 25, 1985 2 this Court as prayed for, without necessarily giving due course to the petition,
issued a temporary restraining order enjoining the respondents from enforcing the order complaint of.
The records disclose that private respondent Sycwin Coating & Wires, Inc., filed a complaint for
collection of a sum of money against Varian Industrial Corporation before the Regional Trial Court of
Quezon City. During the pendency of the suit, private respondent succeeded in attaching some of the
properties of Varian Industrial Corporation upon the posting of a supersedeas bond. 3 The latter in
turn posted a counterbond in the sum of P1,400, 000.00 4 thru petitioner Philippine British Assurance
Co., Inc., so the attached properties were released.
On December 28, 1984, the trial court rendered a Decision, the dispositive portion of which reads:
WHEREFORE, plaintiff's Motion for Summary Judgment is hereby GRANTED, and judgment is
rendered in favor of the plaintiff and against the defendant Varian Industrial Corporation, and the
latter is hereby ordered:
1. To pay plaintiff the amount of P1,401,468.00, the principal obligation with 12% interest per annum
from the date of default until fully paid;
2. To pay plaintiff 5% of the principal obligation as liquidated damages;
3. To pay plaintiff P30,000.00 as exemplary damages;
4. To pay plaintiff 15% of P1,401,468.00, the principal obligation, as and for attorney's fees; and
5. To pay the costs of suit.
Accordingly, the counterclaim of the defendant is hereby DISMISSED for lack of merit.
SO ORDERED. 5
Varian Industrial Corporation appealed the decision to the respondent Court. Sycwin then filed a
petition for execution pending appeal against the properties of Varian in respondent Court. Varian
was required to file its comment but none was filed. In the Resolution of July 5, 1985, respondent
93
Court ordered the execution pending appeal as prayed for. 6 However, the writ of execution was
returned unsatisfied as Varian failed to deliver the previously attached personal properties upon
demand. In a Petition dated August 13, 1985 filed with respondent Court Sycwin prayed that the
surety (herein petitioner) be ordered to pay the value of its bond. 7 In compliance with the Resolution
of August 23, 1985 of the respondent Court herein petitioner filed its comment. 8 In the Resolution of
September 12, 1985, 9 the respondent Court granted the petition. Hence this action.
It is the submission of private respondent Sycwin that without a previous motion for reconsideration of
the questioned resolution, certiorari would not lie. While as a general rule a motion for reconsideration
has been considered a condition sine qua non for the granting of a writ of certiorari, this rule does not
apply when special circumstances warrant immediate or more direct action. 10 It has been held
further that a motion for reconsideration may be dispensed with in cases like this where execution
had been ordered and the need for relief was extremely urgent. 11
The counterbond provides:
WHEREAS, in the above-entitled case pending in the Regional Trial Court, National Capital Judicial
Region, Branch LXXXV, Quezon City, an order of Attachment was issued against abovenamed
Defendant;
WHEREAS, the Defendant, for the purpose of lifting and/or dissolving the order of attachment issued
against them in the above-en-titled case, have offered to file a counterbond in the sum of PESOS
ONE MILLION FOUR HUNDRED THOUSAND ONLY (P1,400,000.00), Philippine Currency, as
provided for in Section 5, Rule 57 of the Revised Rules of Court.
NOW, THEREFORE, we, VARIAN INDUSTRIAL CORPORATION, as Principal and the PHILIPPINE
BRITISH ASSURANCE COMPANY, INC., a corporation duly organized and existing under and by
virtue of the laws of the Philippines, as Surety, in consideration of the above and of the lifting or
dissolution of the order of attachment, hereby jointly and severally, bind ourselves in favor of the
above Plaintiff in the sum of PESOS ONE MILLION FOUR HUNDRED THOUSAND ONLY
(P1,400,000.00), Philippine Currency, under the condition that in case the Plaintiff recovers judgment
in the action, and Defendant will, on demand, re-deliver the attached property so released to the
Officer of the Court and the same shall be applied to the payment of the judgment, or in default
thereof, the defendant and Surety will, on demand, pay to the Plaintiff the full value of the property
released.
EXECUTED at Manila, Philippines, this 28th day of June, 1984. 12
Sections 5, 12, and 17 of Rule 57 of the Revised Rules of Court also provide:
SEC. 5. Manner of attaching property. — The officer executing the order shall without delay attach, to
await judgment and execution in the action, all the properties of the party against whom the order is
issued in the province, not exempt from execution, or so much thereof as may be sufficient to satisfy
the applicant's demand, unless the former makes a deposit with the clerk or judge of the court from
which the order issued, or gives a counter-bond executed to the applicant, in an amount sufficient to
satisfy such demand besides costs, or in an amount equal to the value of the property which is about
to be attached, to secure payment to the applicant of any judgement ment which he may recover in
the action. The officer shall also forthwith serve a copy of the applicant's affidavit and bond, and of the
order of attachment, on the adverse party, if he be found within the province.

94
SEC. 12. Discharge of attachment upon giving counterbond. — At any time after an order of
attachment has been granted, the party whose property has been attached, or the person appearing
on his behalf, may, upon reasonable notice to the applicant, apply to the judge who granted the order,
or to the judge of the court in which the action is pending, for an order discharging the attachment
wholly or in part on the security given. The judge shall, after hearing, order the discharge of the
attachment if a cash deposit is made, or a counter-bond executed to the attaching creditor is filed, on
behalf of the adverse party, with the clerk or judge of the court where the application is made, in an
amount equal to the value of the property attached as determined by the judge, to secure the
payment of any judgment that the attaching creditor may recover in the action. Upon the filing of such
counter-bond, copy thereof shall forthwith be served on the attaching creditor or his lawyer. Upon the
discharge of an attachment in accordance with the provisions of this section the property attached, or
the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the
counterbond aforesaid standing in place of the property so released. Should such counterbond for
any reason be found to be, or become, insufficient, and the party furnishing the same fail to file an
additional counterbond, the attaching creditor may apply for a new order of attachment.
SEC. 17. When execution returned unsatisfied, recovery had upon bond. — If the execution be
returned unsatisfied in whole or in part, the surety or sureties on any counter-bond given pursuant to
the provisions of this rule to secure the payment of the judgment shall become charged on such
counter- bond, and bound to pay to the judgement creditor upon demand, the amount due under the
judgment, which amount may be recovered from such surety or sureties after notice and summary
hearing in the same action. (Emphasis supplied.)
Under Sections 5 and 12, Rule 57 above reproduced it is provided that the counterbond is intended to
secure the payment of "any judgment" that the attaching creditor may recover in the action. Under
Section 17 of same rule it provides that when "the execution be returned unsatisfied in whole or in
part" it is only then that "payment of the judgment shall become charged on such counterbond."
The counterbond was issued in accordance with the provisions of Section 5, Rule 57 of the Rules of
Court as provided in the second paragraph aforecited which is deemed reproduced as part of the
counterbond. In the third paragraph it is also stipulated that the counterbond is to be "applied for the
payment of the judgment." Neither the rules nor the provisions of the counterbond limited its
application to a final and executory judgment. Indeed, it is specified that it applies to the payment
of any judgment that maybe recovered by plaintiff. Thus, the only logical conclusion is that an
execution of any judgment including one pending appeal if returned unsatisfied maybe charged
against such a counterbond.
It is well recognized rule that where the law does not distinguish, courts should not distinguish. Ubi lex
non distinguish nec nos distinguere debemos. 13 "The rule, founded on logic, is a corollary of the
principle that general words and phrases in a statute should ordinarily be accorded their natural and
general significance. 14 The rule requires that a general term or phrase should not be reduced into
parts and one part distinguished from the other so as to justify its exclusion from the operation of the
law. 15 In other words, there should be no distinction in the application of a statute where none is
indicated.16 For courts are not authorized to distinguish where the law makes no distinction. They
should instead administer the law not as they think it ought to be but as they find it and without regard
to consequences. 17

95
A corollary of the principle is the rule that where the law does not make any exception, courts may not
except something therefrom, unless there is compelling reason apparent in the law to justify
it.18 Thus where a statute grants a person against whom possession of "any land" is unlawfully
withheld the right to bring an action for unlawful detainer, this Court held that the phrase "any land"
includes all kinds of land, whether agricultural, residential, or mineral.19 Since the law in this case
does not make any distinction nor intended to make any exception, when it speaks of "any judgment"
which maybe charged against the counterbond, it should be interpreted to refer not only to a final and
executory judgment in the case but also a judgment pending appeal.
All that is required is that the conditions provided for by law are complied with, as outlined in the case
of Towers Assurance Corporation v. Ororama Supermart, 20
Under Section 17, in order that the judgment creditor might recover from the surety on the
counterbond, it is necessary (1) that the execution be first issued against the principal debtor and that
such execution was returned unsatisfied in whole or in part; (2) that the creditor make a demand upon
the surety for the satisfaction of the judgment, and (3) that the surety be given notice and a summary
hearing on the same action as to his liability for the judgment under his counterbond.
The rule therefore, is that the counterbond to lift attachment that is issued in accordance with the
provisions of Section 5, Rule 57, of the Rules of Court, shall be charged with the payment of any
judgment that is returned unsatisfied. It covers not only a final and executory judgement but also the
execution of a judgment pending appeal.
WHEREFORE, the petition is hereby DISMISSED for lack of merit and the restraining order issued on
September 25, 1985 is hereby dissolved with costs against petitioner.
SO ORDERED.

96
M. USE OF TECHNICAL TERM
1. MANILA HERALD PUBLISHING VS RAMOS (GR NO. L-4268)
MANILA HERALD PUBLISHING CO., INC., doing business under the name of Evening Herald Publishing Co.,
Inc., and Printers, Inc., petitioner,
vs.
SIMEON RAMOS, Judge of the Court of First Instance of Manila, MACARIO A. OFILADA, Sheriff of City of
Manila, ANTONIO QUIRINO and ALTO SURETY AND INSURANCE CO., INC., respondents.
Edmundo M. Reyes and Antonio Barredo for petitioners.
Bausa and Ampil for respondents.
TUASON, J.:
This is a petition for "certiorari with preliminary injunction" arising upon the following antecedents:
Respondent Antonio Quirino filed a libel suit, docketed as civil case No. 11531, against Aproniano G. Borres,
Pedro Padilla and Loreto Pastor, editor, managing editor and reporter, respectively, of the Daily Record, a daily
newspaper published in Manila, asking damages aggregating P90,000. With the filing of this suit, the plaintiff
secureda writ of preliminary attachment upon putting up a P50,000 bond, and the Sheriff of the City of Manila
levied an attachment upon certain office and printing equipment found in the premises of the Daily Record.
Thereafter the Manila Herald Publishing Co. Inc. and Printers, Inc., filed with the sheriff separate third-party
claims, alleging that they were the owners of the property attached. Whereupon, the sheriff required of Quirino
a counter bound of P41,500 to meet the claim of the Manila Herald Publishing Co., Inc., and another bond of
P59,500 to meet the claim of Printers, Inc. These amounts, upon Quirino's motion filed under Section 13, Rule
59, of the Rules of Court, were reduced by the court to P11,000 and P10,000 respectively.
Unsuccessful in their attempt to quash the attachment, on October 7, 1950, the Manila Herald Publishing Co.,
Inc. and Printers, Inc. commenced a joint suit against the sheriff, Quirino and Alto Surety and Insurance Co.
Inc., in which the former sought (1) to enjoin the defendants from proceeding with the attachment of the
properties above mentioned and (2) P45,000 damages. This suit was docketed as civil case No. 12263.
Whereas case No. 11531 was being handled by Judge Sanchez or pending in the branch of the Court presided
by him, case No. 12263 fell in the branch of Judge Pecson. On the same date, in virtue of an ex parte motion
in case No. 12263 by the Manila Herald Publishing Co. Inc., and Printers, Inc., Judge Pecson issued a writ of
preliminary injunction to the sheriff directing him to desist from proceeding with the attachment of the said
properties.
After the issuance of that preliminary injunction, Antonio Quirino filed an ex parte petition for its dissolution, and
Judge Simeon Ramos, to whom case No. 12263 had in the meanwhile been transferred, granted the petition
on a bond of P21,000. However Judge Ramos soon set aside the order just mentioned on a motion for
reconsideration by the Manila Herald Publishing Co. Inc. and Printer, Inc. and set the matter for hearing for
October 14, then continued to October 16.
Upon the conclusion of that hearing, Judge Ramos required the parties to submit memoranda on the question
whether "the subject matter of civil case No. 12263 should be ventilated in an independent action or by means
of a complaint in intervention in civil case No. 11531." Memoranda having been filed, His Honor declared that
the suit, in case No. 12263, was "unnecessary, superfluous and illegal" and so dismissed the same. He held
that what Manila Herald Publishing Co., Inc., and Printers, Inc., should do was intervene in Case No. 11531.
The questions that emerge from these facts and the arguments are: Did Judge Ramos have authority to
dismiss case No. 12263 at the stage when it was thrown out of court? Should the Manila Herald Publishing
Co., Inc., and Printers, Inc., come as intervernors into the case for libel instead of bringing an independent
97
action? And did Judge Pecson or Judge Ramos have jurisdiction in case No. 12263 to quash the attachment
levied in case No. 11531?
In case No. 12263, it should be recalled, neither a motion to dismiss nor an answer had been made when the
decision under consideration was handed down. The matter then before the court was a motion seeking a
provisional or collateral remedy, connected with and incidental to the principal action. It was a motion to
dissolve the preliminary injunction granted by Judge Pecson restraining the sheriff from proceeding with the
attachment in case No. 11531. The question of dismissal was suggested by Judge Ramos on a ground
perceived by His Honor. To all intents and purposes, the dismissal was decreed by the court on its own
initiative.
Section 1 Rule 8 enumerates the grounds upon which an action may be dismissed, and it specifically ordains
that a motion to this end be filed. In the light of this express requirement we do not believe that the court had
power to dismiss the case without the requisite motion duly presented. The fact that the parties filed
memoranda upon the court's indication or order in which they discussed the proposition that the action was
unnecessary and was improperly brought outside and independently of the case for libel did not supply
deficiency. Rule 30 of the Rules of Court provides for the cases in which an action may be dismissed, and the
inclusion of those therein provided excludes any other, under the familiar maxim, inclusio unius est exclusio
alterius. The only instance in which, according to said Rules, the court may dismiss upon the court's own
motion an action is, when the "plaintiff fails to appear at the time of the trial or to prosecute his action for an
unreasonable length of time or to comply with the Rules or any order of the court."
The Rules of Court are devised as a matter of necessity, intended to be observed with diligence by the courts
as well as by the parties for the orderly conduct of litigation and judicial business. In general, it is compliance
with these rules which gives the court jurisdiction to act.
We are the opinion that the court acted with grave abuse of discretion if not in excess of its jurisdiction in
dismissing the case without any formal motion to dismiss.
The foregoing conclusions should suffice to dispose of this proceeding for certiorari, but the parties have
discussed the second question and we propose to rule upon it if only to put out of the way a probable cause for
future controversy and consequent delay in the disposal of the main cause.
Section 14 of rule 59, which treats of the steps to betaken when property attached is claimed by the other
person than that defendant or his agent, contains the proviso that "Nothing herein contained shall prevent such
third person from vindicating his claim to the property by any proper action." What is "proper action"? Section 1
of Rule 2 defines action as "an ordinary suit in court of justice, by which one party prosecutes another for the
enforcement or protection of a right, or the prevention or redress of a wrong," while section 2, entitled
"Commencement of Action," says that "civil action may be commenced by filing a complaint with the court."
"Action" has acquired a well-define, technical meaning, and it is in this restricted sense that the word "action" is
used in the above rule. In employing the word "commencement" the rule clearly indicates an action which
originates an entire proceeding and puts in motion the instruments of the court calling for summons, answer,
etc, and not any intermediary step taken in the course of the proceeding whether by the parties themselves or
by a stranger. It would be strange indeed if the framers of the Rules of Court or the Legislature should have
employed the term "proper action" instead of "intervention" or equivalent expression if the intention had been
just that. It was all the easier, simplier and the more natural to say intervention if that had been the purpose,
since the asserted right of the third-party claimant necessarily grows out of the pending suit, the suit in which
the order of attachment was issued.
The most liberal view that can be taken in favor of the respondents' position is that intervention as a means of
protecting the third-party claimants' right is not exclusive but cumulative and suppletory to the right to bring a
new, independent suit. It is significant that there are courts which go so far as to take the view that even where
the statute expressly grants the right of intervention is such cases as this, the statute does not extend to
98
owners of property attached, for, under this view, "it is considered that the ownership is not one of the essential
questions to be determined in the litigation between plaintiff and defendant;" that "whether the property belongs
to defendant or claimant, if determined, is considered as shedding no light upon the question in controversy,
namely, that defendant is indebted to plaintiff."
(See 7 C. J. S., 545 and footnote No. 89 where extracts from the decision in Lewis vs. Lewis, 10 N. W., 586, a
leading case, are printed.)
Separate action was indeed said to be the correct and only procedure contemplated by Act No. 190,
intervention addition to, but not in substitution of, the old process. The new Rules adopted section 121 of Act
No. 190 and added thereto Rule 24 (a) of the Federal Rules of Procedure. Combined, the two modes of
redress are now section 1 of Rule 13,1 the last clause of which is the newly added provision. The result is that,
whereas, "under the old procedure, the third person could not intervene, he having no interest in the debt (or
damages) sued upon by the plaintiff," under the present Rules, "a third person claiming to be the owner of such
property may, not only file a third-party claim with the sheriff, but also intervene in the action to ask that the writ
of attachment be quashed." (I Moran's Comments on the Rules of Court, 3rd Ed., 238, 239.) Yet, the right to
inetervene, unlike the right to bring a new action, is not absolute but left to the sound discretion of the court to
allow. This qualification makes intervention less preferable to an independent action from the standpoint of the
claimants, at least. Because availability of intervention depends upon the court in which Case No. 11531 is
pending, there would be assurance for the herein petitioners that they would be permitted to come into that
case.
Little reflection should disabuse the mind from the assumption that an independent action creates a multiplicity
of suits. There can be no multiplicity of suits when the parties in the suit where the attachment was levied are
different from the parties in the new action, and so are the issues in the two cases entirely different. In the
circumstances, separate action might, indeed, be the more convenient of the two competing modes of redress,
in that intervention is more likely to inject confusion into the issues between the parties in the case for debt or
damages with which the third-party claimant has nothing to do and thereby retard instead of facilitate the
prompt dispatch of the controversy which is underlying objective of the rules of pleading and practice. That is
why intervention is subject to the court's discretion.
The same reasons which impelled us to decide the second question, just discussed, urge us to take
cognizance of and express an opinion on the third.
The objection that at once suggests itself entertaining in Case No. 12263 the motion to discharge the
preliminary attachment levied in case No. 11531 is that by so doing one judge would intefere with another
judge's actuations. The objection is superficial and will not bear analysis.
It has been seen that a separate action by the third party who claims to be the owner of the property attached
is appropriate. If this is so, it must be admitted that the judge trying such action may render judgment ordering
the sheriff of whoever has in possession the attached property to deliver it to the plaintiff-claimant or desist
from seizing it. It follows further that the court may make an interlocutory order, upon the filing of such bond as
may be necessary, to release the property pending final adjudication of the title. Jurisdiction over an action
includes jurisdiction over a interlocutory matter incidental to the cause and deemed necessary to preserve the
subject matter of the suit or protect the parties' interests. This is self-evident.
The fault with the respondents' argument is that it assumes that the Sheriff is holding the property in question
by order of the court handling the case for libel. In reality this is true only to limited extent. That court did not
direct the sheriff to attach the particular property in dispute. The order was for the sheriff to attach Borres',
Padilla's and Pastor's property. He was not supposed to touch any property other than that of these
defendants', and if he did, he acted beyond the limits of his authority and upon his personal responsibility.
It is true of course that property in custody of the law can not be interferred with without the permission of the
proper court, and property legally attached is property in custodia legis. But for the reason just stated, this rule
99
is confined to cases where the property belongs to the defendant or one in which the defendant has proprietary
interest. When the sheriff acting beyond the bounds of his office seizes a stranger's property, the rule does not
apply and interference with his custody is not interference with another court's order of attachment.
It may be argued that the third-party claim may be unfounded; but so may it be meritorious, for the matter.
Speculations are however beside the point. The title is the very issue in the case for the recovery of property or
the dissolution of the attachment, and pending final decision, the court may enter any interlocutory order
calculated to preserve the property in litigation and protect the parties' rights and interests.
None of what has been said is to be construed as implying that the setting aside of the attachment prayed for
by the plaintiffs in Case No. 12263 should be granted. The preceding discussion is intended merely to point out
that the court has jurisdiction to act in the premises, not the way the jurisdiction should be exercised. The
granting or denial, as the case may be, of the prayer for the dissolution of the attachment would be a proper
subject of a new proceeding if the party adversely affected should be dissatisfied.
The petition for certiorari is granted with costs against the respondents except the respondent Judge.

100
N. USE OF ASSOCIATED WORDS
1. BUENASEDA VS SEC FLAVIER (GR NO. 106719)
DRA. BRIGIDA S. BUENASEDA, Lt. Col. ISABELO BANEZ, JR., ENGR. CONRADO REY MATIAS, Ms.
CORA S. SOLIS and Ms. ENYA N. LOPEZ, petitioners,
vs.
SECRETARY JUAN FLAVIER, Ombudsman CONRADO M. VASQUEZ, and NCMH NURSES ASSOCIATION,
represented by RAOULITO GAYUTIN, respondents.
Renato J. Dilag and Benjamin C. Santos for petitioners.
Danilo C. Cunanan for respondent Ombudsman.
Crispin T. Reyes and Florencio T. Domingo for private respondent.

QUIASON, J.:
This is a Petition for Certiorari, Prohibition and Mandamus, with Prayer for Preliminary Injunction or Temporary
Restraining Order, under Rule 65 of the Revised Rules of Court.
Principally, the petition seeks to nullify the Order of the Ombudsman dated January 7, 1992, directing the
preventive suspension of petitioners,
Dr. Brigida S. Buenaseda, Chief of Hospital III; Isabelo C. Banez, Jr., Administrative Officer III; Conrado Rey
Matias, Technical Assistant to the Chief of Hospital; Cora C. Solis, Accountant III; and Enya N. Lopez, Supply
Officer III, all of the National Center for Mental Health. The petition also asks for an order directing the
Ombudsman to disqualify Director Raul Arnaw and Investigator Amy de Villa-Rosero, of the Office of the
Ombudsman, from participation in the preliminary investigation of the charges against petitioner (Rollo, pp. 2-
17; Annexes to Petition, Rollo, pp. 19-21).
The questioned order was issued in connection with the administrative complaint filed with the Ombudsman
(OBM-ADM-0-91-0151) by the private respondents against the petitioners for violation of the Anti-Graft and
Corrupt Practices Act.
According to the petition, the said order was issued upon the recommendation of Director Raul Arnaw and
Investigator Amy de Villa-Rosero, without affording petitioners the opportunity to controvert the charges filed
against them. Petitioners had sought to disqualify Director Arnaw and Investigator Villa-Rosero for manifest
partiality and bias (Rollo, pp. 4-15).
On September 10, 1992, this Court required respondents' Comment on the petition.
On September 14 and September 22, 1992, petitioners filed a "Supplemental Petition (Rollo, pp. 124-130);
Annexes to Supplemental Petition; Rollo pp. 140-163) and an "Urgent Supplemental Manifestation" (Rollo,
pp. 164-172; Annexes to Urgent Supplemental Manifestation; Rollo, pp. 173-176), respectively, averring
developments that transpired after the filing of the petition and stressing the urgency for the issuance of the
writ of preliminary injunction or temporary restraining order.
On September 22, 1992, this Court ". . . Resolved to REQUIRE the respondents to MAINTAIN in the
meantime, the STATUS QUO pending filing of comments by said respondents on the original supplemental
manifestation" (Rollo, p. 177).

101
On September 29, 1992, petitioners filed a motion to direct respondent Secretary of Health to comply with the
Resolution dated September 22, 1992 (Rollo, pp. 182-192, Annexes, pp. 192-203). In a Resolution dated
October 1, 1992, this Court required respondent Secretary of Health to comment on the said motion.
On September 29, 1992, in a pleading entitled "Omnibus Submission," respondent NCMH Nurses Association
submitted its Comment to the Petition, Supplemental Petition and Urgent Supplemental Manifestation. Included
in said pleadings were the motions to hold the lawyers of petitioners in contempt and to disbar them (Rollo, pp.
210-267). Attached to the "Omnibus Submission" as annexes were the orders and pleadings filed in
Administrative Case No. OBM-ADM-0-91-1051 against petitioners (Rollo, pp. 268-480).
The Motion for Disbarment charges the lawyers of petitioners with:
(1) unlawfully advising or otherwise causing or inducing their clients — petitioners Buenaseda, et al., to openly
defy, ignore, disregard, disobey or otherwise violate, maliciously evade their preventive suspension by Order of
July 7, 1992 of the Ombudsman . . ."; (2) "unlawfully interfering with and obstructing the implementation of the
said order (Omnibus Submission, pp. 50-52; Rollo, pp. 259-260); and (3) violation of the Canons of the Code of
Professional Responsibility and of unprofessional and unethical conduct "by foisting blatant lies, malicious
falsehood and outrageous deception" and by committing subornation of perjury, falsification and fabrication in
their pleadings (Omnibus Submission, pp. 52-54; Rollo, pp. 261-263).
On November 11, 1992, petitioners filed a "Manifestation and Supplement to 'Motion to Direct Respondent
Secretary of Health to Comply with 22 September 1992 Resolution'" (Manifestation attached to Rollo without
pagination between pp. 613 and 614 thereof).
On November 13, 1992, the Solicitor General submitted its Comment dated November 10, 1992, alleging that:
(a) "despite the issuance of the September 22, 1992 Resolution directing respondents to maintain the status
quo, respondent Secretary refuses to hold in abeyance the implementation of petitioners' preventive
suspension; (b) the clear intent and spirit of the Resolution dated September 22, 1992 is to hold in abeyance
the implementation of petitioners' preventive suspension, the status quo obtaining the time of the filing of the
instant petition; (c) respondent Secretary's acts in refusing to hold in abeyance implementation of petitioners'
preventive suspension and in tolerating and approving the acts of Dr. Abueva, the OIC appointed to replace
petitioner Buenaseda, are in violation of the Resolution dated September 22, 1992; and
(d) therefore, respondent Secretary should be directed to comply with the Resolution dated September 22,
1992 immediately, by restoring the status quo ante contemplated by the aforesaid resolution" (Comment
attached to Rollo without paginations between pp. 613-614 thereof).
In the Resolution dated November 25, 1992, this Court required respondent Secretary to comply with the
aforestated status quo order, stating inter alia, that:
It appearing that the status quo ante litem motam, or the last peaceable uncontested status which preceded
the present controversy was the situation obtaining at the time of the filing of the petition at bar on September
7, 1992 wherein petitioners were then actually occupying their respective positions, the Court hereby ORDERS
that petitioners be allowed to perform the duties of their respective positions and to receive such salaries and
benefits as they may be lawfully entitled to, and that respondents and/or any and all persons acting under their
authority desist and refrain from performing any act in violation of the aforementioned Resolution of September
22, 1992 until further orders from the Court (Attached to Rollo after p. 615 thereof).
On December 9, 1992, the Solicitor General, commenting on the Petition, Supplemental Petition and
Supplemental Manifestation, stated that (a) "The authority of the Ombudsman is only to recommend
suspension and he has no direct power to suspend;" and (b) "Assuming the Ombudsman has the power to
directly suspend a government official or employee, there are conditions required by law for the exercise of
such powers; [and] said conditions have not been met in the instant case" (Attached to Rollo without
pagination).

102
In the pleading filed on January 25, 1993, petitioners adopted the position of the Solicitor General that the
Ombudsman can only suspend government officials or employees connected with his office. Petitioners also
refuted private respondents' motion to disbar petitioners' counsel and to cite them for contempt (Attached
to Rollo without pagination).
The crucial issue to resolve is whether the Ombudsman has the power to suspend government officials and
employees working in offices other than the Office of the Ombudsman, pending the investigation of the
administrative complaints filed against said officials and employees.
In upholding the power of the Ombudsman to preventively suspend petitioners, respondents (Urgent Motion to
Lift Status Quo, etc, dated January 11, 1993, pp. 10-11), invoke Section 24 of R.A. No. 6770, which provides:
Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or
employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in
the performance of duty; (b) the charge would warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of Ombudsman but not
more than six months, without pay, except when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such
delay shall not be counted in computing the period of suspension herein provided.
Respondents argue that the power of preventive suspension given the Ombudsman under Section 24 of R.A.
No. 6770 was contemplated by Section 13 (8) of Article XI of the 1987 Constitution, which provides that the
Ombudsman shall exercise such other power or perform such functions or duties as may be provided by law."
On the other hand, the Solicitor General and the petitioners claim that under the 1987 Constitution, the
Ombudsman can only recommend to the heads of the departments and other agencies the preventive
suspension of officials and employees facing administrative investigation conducted by his office. Hence, he
cannot order the preventive suspension himself.
They invoke Section 13(3) of the 1987 Constitution which provides that the Office of the Ombudsman shall
have inter alia the power, function, and duty to:
Direct the officer concerned to take appropriate action against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure compliance
therewith.
The Solicitor General argues that under said provision of the Constitutions, the Ombudsman has three distinct
powers, namely: (1) direct the officer concerned to take appropriate action against public officials or employees
at fault; (2) recommend their removal, suspension, demotion fine, censure, or prosecution; and (3) compel
compliance with the recommendation (Comment dated December 3, 1992, pp. 9-10).
The line of argument of the Solicitor General is a siren call that can easily mislead, unless one bears in mind
that what the Ombudsman imposed on petitioners was not a punitive but only a preventive suspension.
When the constitution vested on the Ombudsman the power "to recommend the suspension" of a public official
or employees (Sec. 13 [3]), it referred to "suspension," as a punitive measure. All the words associated with
the word "suspension" in said provision referred to penalties in administrative cases, e.g. removal, demotion,
fine, censure. Under the rule of Noscitor a sociis, the word "suspension" should be given the same sense as
the other words with which it is associated. Where a particular word is equally susceptible of various meanings,
its correct construction may be made specific by considering the company of terms in which it is found or with
which it is associated (Co Kim Chan v. Valdez Tan Keh, 75 Phil. 371 [1945]; Caltex (Phils.) Inc. v. Palomar, 18
SCRA 247 [1966]).
103
Section 24 of R.A. No. 6770, which grants the Ombudsman the power to preventively suspend public officials
and employees facing administrative charges before him, is a procedural, not a penal statute. The preventive
suspension is imposed after compliance with the requisites therein set forth, as an aid in the investigation of
the administrative charges.
Under the Constitution, the Ombudsman is expressly authorized to recommend to the appropriate official the
discipline or prosecution of erring public officials or employees. In order to make an intelligent determination
whether to recommend such actions, the Ombudsman has to conduct an investigation. In turn, in order for him
to conduct such investigation in an expeditious and efficient manner, he may need to suspend the respondent.
The need for the preventive suspension may arise from several causes, among them, the danger of tampering
or destruction of evidence in the possession of respondent; the intimidation of witnesses, etc. The Ombudsman
should be given the discretion to decide when the persons facing administrative charges should be
preventively suspended.
Penal statutes are strictly construed while procedural statutes are liberally construed (Crawford, Statutory
Construction, Interpretation of Laws, pp. 460-461; Lacson v. Romero, 92 Phil. 456 [1953]). The test in
determining if a statute is penal is whether a penalty is imposed for the punishment of a wrong to the public or
for the redress of an injury to an individual (59 Corpuz Juris, Sec. 658; Crawford, Statutory Construction, pp.
496-497). A Code prescribing the procedure in criminal cases is not a penal statute and is to be interpreted
liberally (People v. Adler, 140 N.Y. 331; 35 N.E. 644).
The purpose of R.A. No. 6770 is to give the Ombudsman such powers as he may need to perform efficiently
the task committed to him by the Constitution. Such being the case, said statute, particularly its provisions
dealing with procedure, should be given such interpretation that will effectuate the purposes and objectives of
the Constitution. Any interpretation that will hamper the work of the Ombudsman should be avoided.
A statute granting powers to an agency created by the Constitution should be liberally construed for the
advancement of the purposes and objectives for which it was created (Cf. Department of Public Utilities v.
Arkansas Louisiana Gas. Co., 200 Ark. 983, 142 S.W. (2d) 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190
N.E., 438 [1934]).
In Nera v. Garcia, 106 Phil. 1031 [1960], this Court, holding that a preventive suspension is not a penalty, said:
Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are
established and the person investigated is found guilty of acts warranting his removal, then he is removed or
dismissed. This is the penalty.
To support his theory that the Ombudsman can only preventively suspend respondents in administrative cases
who are employed in his office, the Solicitor General leans heavily on the phrase "suspend any officer or
employee under his authority" in Section 24 of R.A. No. 6770.
The origin of the phrase can be traced to Section 694 of the Revised Administrative Code, which dealt with
preventive suspension and which authorized the chief of a bureau or office to "suspend any subordinate or
employee in his bureau or under his authority pending an investigation . . . ."
Section 34 of the Civil Service Act of 1959 (R.A. No. 2266), which superseded Section 694 of the Revised
Administrative Code also authorized the chief of a bureau or office to "suspend any subordinate officer or
employees, in his bureau or under his authority."
However, when the power to discipline government officials and employees was extended to the Civil Service
Commission by the Civil Service Law of 1975 (P.D. No. 805), concurrently with the President, the Department
Secretaries and the heads of bureaus and offices, the phrase "subordinate officer and employee in his bureau"
was deleted, appropriately leaving the phrase "under his authority." Therefore, Section 41 of said law only

104
mentions that the proper disciplining authority may preventively suspend "any subordinate officer or employee
under his authority pending an investigation . . ." (Sec. 41).
The Administrative Code of 1987 also empowered the proper disciplining authority to "preventively suspend
any subordinate officer or employee under his authority pending an investigation" (Sec. 51).
The Ombudsman Law advisedly deleted the words "subordinate" and "in his bureau," leaving the phrase to
read "suspend any officer or employee under his authority pending an investigation . . . ." The conclusion that
can be deduced from the deletion of the word "subordinate" before and the words "in his bureau" after "officer
or employee" is that the Congress intended to empower the Ombudsman to preventively suspend all officials
and employees under investigation by his office, irrespective of whether they are employed "in his office" or in
other offices of the government. The moment a criminal or administrative complaint is filed with the
Ombudsman, the respondent therein is deemed to be "in his authority" and he can proceed to determine
whether said respondent should be placed under preventive suspension.
In their petition, petitioners also claim that the Ombudsman committed grave abuse of discretion amounting to
lack of jurisdiction when he issued the suspension order without affording petitioners the opportunity to
confront the charges against them during the preliminary conference and even after petitioners had asked for
the disqualification of Director Arnaw and Atty. Villa-Rosero (Rollo, pp. 6-13). Joining petitioners, the Solicitor
General contends that assuming arguendo that the Ombudsman has the power to preventively suspend erring
public officials and employees who are working in other departments and offices, the questioned order remains
null and void for his failure to comply with the requisites in Section 24 of the Ombudsman Law (Comment
dated December 3, 1992, pp. 11-19).
Being a mere order for preventive suspension, the questioned order of the Ombudsman was validly issued
even without a full-blown hearing and the formal presentation of evidence by the parties. In Nera, supra,
petitioner therein also claimed that the Secretary of Health could not preventively suspend him before he could
file his answer to the administrative complaint. The contention of petitioners herein can be dismissed
perfunctorily by holding that the suspension meted out was merely preventive and therefore, as held in Nera,
there was "nothing improper in suspending an officer pending his investigation and before tho charges against
him are heard . . . (Nera v. Garcia., supra).
There is no question that under Section 24 of R.A. No. 6770, the Ombudsman cannot order the preventive
suspension of a respondent unless the evidence of guilt is strong and (1) the charts against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (2) the
charge would warrant removal from the service; or (3) the respondent's continued stay in office may prejudice
the case filed against him.
The same conditions for the exercise of the power to preventively suspend officials or employees under
investigation were found in Section 34 of R.A. No. 2260.
The import of the Nera decision is that the disciplining authority is given the discretion to decide when the
evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such
determination of guilt to the "judgment" of the Ombudsman on the basis of the administrative complaint. In the
case at bench, the Ombudsman issued the order of preventive suspension only after: (a) petitioners had filed
their answer to the administrative complaint and the "Motion for the Preventive Suspension" of petitioners,
which incorporated the charges in the criminal complaint against them (Annex 3, Omnibus Submission, Rollo,
pp. 288-289; Annex 4, Rollo,
pp. 290-296); (b) private respondent had filed a reply to the answer of petitioners, specifying 23 cases of
harassment by petitioners of the members of the private respondent (Annex 6, Omnibus Submission, Rollo, pp.
309-333); and (c) a preliminary conference wherein the complainant and the respondents in the administrative
case agreed to submit their list of witnesses and documentary evidence.

105
Petitioners herein submitted on November 7, 1991 their list of exhibits (Annex 8 of Omnibus Submission, Rollo,
pp. 336-337) while private respondents submitted their list of exhibits (Annex 9 of Omnibus Submission, Rollo,
pp. 338-348).
Under these circumstances, it can not be said that Director Raul Arnaw and Investigator Amy de Villa-Rosero
acted with manifest partiality and bias in recommending the suspension of petitioners. Neither can it be said
that the Ombudsman had acted with grave abuse of discretion in acting favorably on their recommendation.
The Motion for Contempt, which charges the lawyers of petitioners with unlawfully causing or otherwise
inducing their clients to openly defy and disobey the preventive suspension as ordered by the Ombudsman
and the Secretary of Health can not prosper (Rollo, pp. 259-261). The Motion should be filed, as in fact such a
motion was filed, with the Ombudsman. At any rate, we find that the acts alleged to constitute indirect contempt
were legitimate measures taken by said lawyers to question the validity and propriety of the preventive
suspension of their clients.
On the other hand, we take cognizance of the intemperate language used by counsel for private respondents
hurled against petitioners and their counsel (Consolidated: (1) Comment on Private Respondent" "Urgent
Motions, etc.;
(2) Adoption of OSG's Comment; and (3) Reply to Private Respondent's Comment and Supplemental
Comment, pp. 4-5).
A lawyer should not be carried away in espousing his client's cause. The language of a lawyer, both oral or
written, must be respectful and restrained in keeping with the dignity of the legal profession and with his
behavioral attitude toward his brethren in the profession (Lubiano v. Gordolla, 115 SCRA 459 [1982]). The use
of abusive language by counsel against the opposing counsel constitutes at the same time a disrespect to the
dignity of the court of justice. Besides, the use of impassioned language in pleadings, more often than not,
creates more heat than light.
The Motion for Disbarment (Rollo, p. 261) has no place in the instant special civil action, which is confined to
questions of jurisdiction or abuse of discretion for the purpose of relieving persons from the arbitrary acts of
judges and quasi-judicial officers. There is a set of procedure for the discipline of members of the bar separate
and apart from the present special civil action.
WHEREFORE, the petition is DISMISSED and the Status quo ordered to be maintained in the Resolution
dated September 22, 1992 is LIFTED and SET ASIDE.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo, Puno and
Vitug, JJ., concur.
Feliciano, J., is on leave.

Separate Opinions

BELLOSILLO, J., concurring:

I agree that the Ombudsman has the authority, under Sec. 24 of R.A.
No. 6770, to preventively suspend any government official or employee administratively charged before him
106
pending the investigation of the complaint, the reason being that respondent's continued stay in office may
prejudice the prosecution of the case.
However, in the case before us, I am afraid that the facts thus far presented may not provide adequate basis to
reasonably place petitioners under preventive suspension. For, it is not enough to rule that the Ombudsman
has authority to suspend petitioners preventively while the case is in progress before him. Equally important is
the determination whether it is necessary to issue the preventive suspension under the circumstances.
Regretfully, I cannot see any sufficient basis to justify the preventive suspension. That is why, I go for granting
oral argument to the parties so that we can truthfully determine whether the preventive suspension of
respondents are warranted by the facts. We may be suspending key government officials and employees on
the basis merely of speculations which may not serve the ends of justice but which, on the other hand, deprive
them of their right to due process. The simultaneous preventive suspension of top officials and employees of
the National Center for Mental Health may just disrupt, the hospital's normal operations, much to the detriment
of public service. We may safely assume that it is not easy to replace them in their respective functions as
those substituting them may be taking over for the first time. The proper care of mental patients may thus be
unduly jeopardized and their lives and limbs imperilled.
I would be amenable to holding oral argument to hear the parties if only to have enough factual and legal
bases to justify the preventive suspension of petitioners.

# Separate Opinions
BELLOSILLO, J., concurring:
I agree that the Ombudsman has the authority, under Sec. 24 of R.A.
No. 6770, to preventively suspend any government official or employee administratively charged before him
pending the investigation of the complaint, the reason being that respondent's continued stay in office may
prejudice the prosecution of the case.
However, in the case before us, I am afraid that the facts thus far presented may not provide adequate basis to
reasonably place petitioners under preventive suspension. For, it is not enough to rule that the Ombudsman
has authority to suspend petitioners preventively while the case is in progress before him. Equally important is
the determination whether it is necessary to issue the preventive suspension under the circumstances.
Regretfully, I cannot see any sufficient basis to justify the preventive suspension. That is why, I go for granting
oral argument to the parties so that we can truthfully determine whether the preventive suspension of
respondents are warranted by the facts. We may be suspending key government officials and employees on
the basis merely of speculations which may not serve the ends of justice but which, on the other hand, deprive
them of their right to due process. The simultaneous preventive suspension of top officials and employees of
the National Center for Mental Health may just disrupt, the hospital's normal operations, much to the detriment
of public service. We may safely assume that it is not easy to replace them in their respective functions as
those substituting them may be taking over for the first time. The proper care of mental patients may thus be
unduly jeopardized and their lives and limbs imperilled.
I would be amenable to holding oral argument to hear the parties if only to have enough factual and legal
bases to justify the preventive suspension of petitioners.

107
N. USE OF ASSOCIATED WORDS
2. MUTUC VS COMELEC (GR NO. 32717)
AMELITO R. MUTUC, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
Amelito R. Mutuc in his own behalf.
Romulo C. Felizmena for respondent.

FERNANDO, J.:
The invocation of his right to free speech by petitioner Amelito Mutuc, then a candidate for delegate to the
Constitutional Convention, in this special civil action for prohibition to assail the validity of a ruling of
respondent Commission on Elections enjoining the use of a taped jingle for campaign purposes, was not in
vain. Nor could it be considering the conceded absence of any express power granted to respondent by the
Constitutional Convention Act to so require and the bar to any such implication arising from any provision
found therein, if deference be paid to the principle that a statute is to be construed consistently with the
fundamental law, which accords the utmost priority to freedom of expression, much more so when utilized for
electoral purposes. On November 3, 1970, the very same day the case was orally argued, five days after its
filing, with the election barely a week away, we issued a minute resolution granting the writ of prohibition
prayed for. This opinion is intended to explain more fully our decision.
In this special civil action for prohibition filed on October 29, 1970, petitioner, after setting forth his being a
resident of Arayat, Pampanga, and his candidacy for the position of delegate to the Constitutional Convention,
alleged that respondent Commission on Elections, by a telegram sent to him five days previously, informed him
that his certificate of candidacy was given due course but prohibited him from using jingles in his mobile units
equipped with sound systems and loud speakers, an order which, according to him, is "violative of [his]
constitutional right ... to freedom of speech."1 There being no plain, speedy and adequate remedy, according to
petitioner, he would seek a writ of prohibition, at the same time praying for a preliminary injunction. On the very
next day, this Court adopted a resolution requiring respondent Commission on Elections to file an answer not
later than November 2, 1970, at the same time setting the case for hearing for Tuesday November 3, 1970. No
preliminary injunction was issued. There was no denial in the answer filed by respondent on November 2,
1970, of the factual allegations set forth in the petition, but the justification for the prohibition was premised on
a provision of the Constitutional Convention Act,2which made it unlawful for candidates "to purchase, produce,
request or distribute sample ballots, or electoral propaganda gadgets such as pens, lighters, fans (of whatever
nature), flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, cigarettes, and the
like, whether of domestic or foreign origin."3 It was its contention that the jingle proposed to be used by
petitioner is the recorded or taped voice of a singer and therefore a tangible propaganda material, under the
above statute subject to confiscation. It prayed that the petition be denied for lack of merit. The case was
argued, on November 3, 1970, with petitioner appearing in his behalf and Attorney Romulo C. Felizmena
arguing in behalf of respondent.
This Court, after deliberation and taking into account the need for urgency, the election being barely a week
away, issued on the afternoon of the same day, a minute resolution granting the writ of prohibition, setting forth
the absence of statutory authority on the part of respondent to impose such a ban in the light of the doctrine
of ejusdem generis as well as the principle that the construction placed on the statute by respondent
Commission on Elections would raise serious doubts about its validity, considering the infringement of the right

108
of free speech of petitioner. Its concluding portion was worded thus: "Accordingly, as prayed for, respondent
Commission on Elections is permanently restrained and prohibited from enforcing or implementing or
demanding compliance with its aforesaid order banning the use of political jingles by candidates. This
resolution is immediately executory."4
1. As made clear in our resolution of November 3, 1970, the question before us was one of power. Respondent
Commission on Elections was called upon to justify such a prohibition imposed on petitioner. To repeat, no
such authority was granted by the Constitutional Convention Act. It did contend, however, that one of its
provisions referred to above makes unlawful the distribution of electoral propaganda gadgets, mention being
made of pens, lighters, fans, flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches,
and cigarettes, and concluding with the words "and the like."5 For respondent Commission, the last three words
sufficed to justify such an order. We view the matter differently. What was done cannot merit our approval
under the well-known principle of ejusdem generis, the general words following any enumeration being
applicable only to things of the same kind or class as those specifically referred to.6 It is quite apparent that
what was contemplated in the Act was the distribution of gadgets of the kind referred to as a means of
inducement to obtain a favorable vote for the candidate responsible for its distribution.
The more serious objection, however, to the ruling of respondent Commission was its failure to manifest fealty
to a cardinal principle of construction that a statute should be interpreted to assure its being in consonance
with, rather than repugnant to, any constitutional command or prescription.7 Thus, certain Administrative Code
provisions were given a "construction which should be more in harmony with the tenets of the fundamental
law."8 The desirability of removing in that fashion the taint of constitutional infirmity from legislative enactments
has always commended itself. The judiciary may even strain the ordinary meaning of words to avert any
collision between what a statute provides and what the Constitution requires. The objective is to reach an
interpretation rendering it free from constitutional defects. To paraphrase Justice Cardozo, if at all possible, the
conclusion reached must avoid not only that it is unconstitutional, but also grave doubts upon that score.9
2. Petitioner's submission of his side of the controversy, then, has in its favor obeisance to such a cardinal
precept. The view advanced by him that if the above provision of the Constitutional Convention Act were to
lend itself to the view that the use of the taped jingle could be prohibited, then the challenge of
unconstitutionality would be difficult to meet. For, in unequivocal language, the Constitution prohibits an
abridgment of free speech or a free press. It has been our constant holding that this preferred freedom calls all
the more for the utmost respect when what may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage. What respondent Commission did, in effect, was to impose
censorship on petitioner, an evil against which this constitutional right is directed. Nor could respondent
Commission justify its action by the assertion that petitioner, if he would not resort to taped jingle, would be
free, either by himself or through others, to use his mobile loudspeakers. Precisely, the constitutional
guarantee is not to be emasculated by confining it to a speaker having his say, but not perpetuating what is
uttered by him through tape or other mechanical contrivances. If this Court were to sustain respondent
Commission, then the effect would hardly be distinguishable from a previous restraint. That cannot be validly
done. It would negate indirectly what the Constitution in express terms assures. 10
3. Nor is this all. The concept of the Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of
our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the
functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it
imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions
on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws
cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding
cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power
of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is
109
a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental
measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law.
To be more specific, the competence entrusted to respondent Commission was aptly summed up by the
present Chief Justice thus: "Lastly, as the branch of the executive department — although independent of the
President — to which the Constitution has given the 'exclusive charge' of the 'enforcement and administration
of all laws relative to the conduct of elections,' the power of decision of the Commission is limited to purely
'administrative questions.'" 11 It has been the constant holding of this Court, as it could not have been
otherwise, that respondent Commission cannot exercise any authority in conflict with or outside of the law, and
there is no higher law than the Constitution. 12 Our decisions which liberally construe its powers are precisely
inspired by the thought that only thus may its responsibility under the Constitution to insure free, orderly and
honest elections be adequately fulfilled. 13 There could be no justification then for lending approval to any ruling
or order issuing from respondent Commission, the effect of which would be to nullify so vital a constitutional
right as free speech. Petitioner's case, as was obvious from the time of its filing, stood on solid footing.
WHEREFORE, as set forth in our resolution of November 3, 1970, respondent Commission is permanently
restrained and prohibited from enforcing or implementing or demanding compliance with its aforesaid order
banning the use of political taped jingles. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Barredo and Villamor, JJ., concur.
Dizon and Makasiar, JJ., are on leave.

Separate Opinions

TEEHANKEE, J., concurring:

In line with my separate opinion in Badoy vs. Ferrer1 on the unconstitutionality of the challenged provisions of
the 1971 Constitutional Convention Act, I concur with the views of Mr. Justice Fernando in the main opinion
that "there could be no justification .... for lending approval to any ruling or order issuing from respondent
Commission, the effect of which would be to nullify so vital a constitutional right as free speech." I would only
add the following observations:
This case once again calls for application of the constitutional test of reasonableness required by the due
process clause of our Constitution. Originally, respondent Commission in its guidelines prescribed summarily
that the use by a candidate of a "mobile unit — roaming around and announcing a meeting and the name of
the candidate ... is prohibited. If it is used only for a certain place for a meeting and he uses his sound system
at the meeting itself, there is no violation."2Acting upon petitioner's application, however, respondent
Commission ruled that "the use of a sound system by anyone be he a candidate or not whether stationary or
part of a mobile unit is not prohibited by the 1971 Constitutional Convention Act" but imposed the condition —
"provided that there are no jingles and no streamers or posters placed in carriers."
Respondent Commission's narrow view is that "the use of a 'jingle,' a verbally recorded form of election
propaganda, is no different from the use of a 'streamer' or 'poster,' a printed form of election propaganda, and
both forms of election advertisement fall under the prohibition contained in sec. 12 of R.A. 6132," and "the
record disc or tape where said 'jingle' has been recorded can be subject of confiscation by the respondent
Commission under par. (E) of sec. 12 of R.A. 6132." In this modern day and age of the electronically recorded
or taped voice which may be easily and inexpensively disseminated through a mobile sound system
110
throughout the candidate's district, respondent Commission would outlaw "recorded or taped voices" and
would exact of the candidate that he make use of the mobile sound system only by personal transmission and
repeatedly personally sing his "jingle" or deliver his spoken message to the voters even if he loses his voice in
the process or employ another person to do so personally even if this should prove more expensive and less
effective than using a recorded or taped voice.
Respondent Commission's strictures clearly violate, therefore, petitioner's basic freedom of speech and
expression. They cannot pass the constitutional test of reasonableness in that they go far beyond a reasonable
relation to the proper governmental object and are manifestly unreasonable, oppressive and arbitrary.
Insofar as the placing of the candidate's "streamers" or posters on the mobile unit or carrier is concerned,
respondent Commission's adverse ruling that the same falls within the prohibition of section 12, paragraphs (C)
and (E) has not been appealed by petitioner. I would note that respondent Commission's premise that "the use
of a 'jingle' ... is no different from the use of a 'streamer' or 'poster' "in that these both represent forms of
election advertisements — to make the candidate and the fact of his candidacy known to the voters — is
correct, but its conclusion is not. The campaign appeal of the "jingle" is through the voters' ears while that of
the "streamers" is through the voters' eyes. But if it be held that the Commission's ban on "jingles" abridges
unreasonably, oppressively and arbitrarily the candidate's right of free expression, even though such "jingles"
may occasionally offend some sensitive ears, the Commission's ban on "streamers" being placed on the
candidate's mobile unit or carrier, which "streamers" are less likely to offend the voters' sense of sight should
likewise be held to be an unreasonable, oppressive and arbitrary curtailment of the candidate's same
constitutional right.
The intent of the law to minimize election expenses as invoked by respondent Commission, laudable as it may
be, should not be sought at the cost of the candidate's constitutional rights in the earnest pursuit of his
candidacy, but is to be fulfilled in the strict and effective implementation of the Act's limitation in section 12(G)
on the total expenditures that may be made by a candidate or by another person with his knowledge and
consent.

# Separate Opinions
TEEHANKEE, J., concurring:
In line with my separate opinion in Badoy vs. Ferrer1 on the unconstitutionality of the challenged provisions of
the 1971 Constitutional Convention Act, I concur with the views of Mr. Justice Fernando in the main opinion
that "there could be no justification .... for lending approval to any ruling or order issuing from respondent
Commission, the effect of which would be to nullify so vital a constitutional right as free speech." I would only
add the following observations:
This case once again calls for application of the constitutional test of reasonableness required by the due
process clause of our Constitution. Originally, respondent Commission in its guidelines prescribed summarily
that the use by a candidate of a "mobile unit — roaming around and announcing a meeting and the name of
the candidate ... is prohibited. If it is used only for a certain place for a meeting and he uses his sound system
at the meeting itself, there is no violation."2Acting upon petitioner's application, however, respondent
Commission ruled that "the use of a sound system by anyone be he a candidate or not whether stationary or
part of a mobile unit is not prohibited by the 1971 Constitutional Convention Act" but imposed the condition —
"provided that there are no jingles and no streamers or posters placed in carriers."
Respondent Commission's narrow view is that "the use of a 'jingle,' a verbally recorded form of election
propaganda, is no different from the use of a 'streamer' or 'poster,' a printed form of election propaganda, and

111
both forms of election advertisement fall under the prohibition contained in sec. 12 of R.A. 6132," and "the
record disc or tape where said 'jingle' has been recorded can be subject of confiscation by the respondent
Commission under par. (E) of sec. 12 of R.A. 6132." In this modern day and age of the electronically recorded
or taped voice which may be easily and inexpensively disseminated through a mobile sound system
throughout the candidate's district, respondent Commission would outlaw "recorded or taped voices" and
would exact of the candidate that he make use of the mobile sound system only by personal transmission and
repeatedly personally sing his "jingle" or deliver his spoken message to the voters even if he loses his voice in
the process or employ another person to do so personally even if this should prove more expensive and less
effective than using a recorded or taped voice.
Respondent Commission's strictures clearly violate, therefore, petitioner's basic freedom of speech and
expression. They cannot pass the constitutional test of reasonableness in that they go far beyond a reasonable
relation to the proper governmental object and are manifestly unreasonable, oppressive and arbitrary.
Insofar as the placing of the candidate's "streamers" or posters on the mobile unit or carrier is concerned,
respondent Commission's adverse ruling that the same falls within the prohibition of section 12, paragraphs (C)
and (E) has not been appealed by petitioner. I would note that respondent Commission's premise that "the use
of a 'jingle' ... is no different from the use of a 'streamer' or 'poster' "in that these both represent forms of
election advertisements — to make the candidate and the fact of his candidacy known to the voters — is
correct, but its conclusion is not. The campaign appeal of the "jingle" is through the voters' ears while that of
the "streamers" is through the voters' eyes. But if it be held that the Commission's ban on "jingles" abridges
unreasonably, oppressively and arbitrarily the candidate's right of free expression, even though such "jingles"
may occasionally offend some sensitive ears, the Commission's ban on "streamers" being placed on the
candidate's mobile unit or carrier, which "streamers" are less likely to offend the voters' sense of sight should
likewise be held to be an unreasonable, oppressive and arbitrary curtailment of the candidate's same
constitutional right.
The intent of the law to minimize election expenses as invoked by respondent Commission, laudable as it may
be, should not be sought at the cost of the candidate's constitutional rights in the earnest pursuit of his
candidacy, but is to be fulfilled in the strict and effective implementation of the Act's limitation in section 12(G)
on the total expenditures that may be made by a candidate or by another person with his knowledge and
consent.

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N. USE OF ASSOCIATED WORDS
3. CAGAYAN VALLEY VS C.A. (GR NO. 78413)
CAGAYAN VALLEY ENTERPRISES, INC., Represented by its President, Rogelio Q. Lim, petitioner,
vs.
THE HON. COURT OF APPEALS and LA TONDEÑA, INC., respondents.
Efren M. Cacatian for petitioners.
San Jose, Enrique, Lacas, Santos and Borje for private respondent.

REGALADO, J.:
This petition for review on certiorari seeks the nullification of the decision of the Court of Appeals of
December 5, 1986 in CA-G.R. CV No. 06685 which reversed the decision of the trial court, and its
resolution dated May 5, 1987 denying petitioner's motion for reconsideration.
The following antecedent facts generative of the present controversy are not in dispute.
Sometime in 1953, La Tondeña, Inc. (hereafter, LTI for short) registered with the Philippine Patent Office
pursuant to Republic Act No. 623 1 the 350 c.c. white flint bottles it has been using for its gin popularly
known as "Ginebra San Miguel". This registration was subsequently renewed on December 4, 1974. 2
On November 10, 1981, LTI filed Civil Case No. 2668 for injunction and damages in the then Branch 1,
Court of First Instance of Isabela against Cagayan Valley Enterprises, Inc. (Cagayan, for brevity) for using
the 350 c.c., white flint bottles with the mark "La Tondeña Inc." and "Ginebra San Miguel" stamped or
blown-in therein by filling the same with Cagayan's liquor product bearing the label "Sonny Boy" for
commercial sale and distribution, without LTI's written consent and in violation of Section 2 of Republic Act
No. 623, as amended by Republic Act No. 5700. On the same date, LTI further filed an ex parte petition
for the issuance of a writ of preliminary injunction against the defendant therein. 3 On November 16, 1981,
the court a quo issued a temporary restraining order against Cagayan and its officers and employees from
using the 350 c.c. bottles with the marks "La Tondeña" and "Ginebra San Miguel." 4
Cagayan, in its answer, 5 alleged the following defenses:
1. LTI has no cause of action due to its failure to comply with Section 21 of Republic Act No. 166 which
requires the giving of notice that its aforesaid marks are registered by displaying and printing the words
"Registered in the Phil. Patent Office" or "Reg Phil. Pat. Off.," hence no suit, civil or criminal, can be filed
against Cagayan;
2. LTI is not entitled to any protection under Republic Act No. 623, as amended by Republic Act No. 5700,
because its products, consisting of hard liquor, are not among those contemplated therein. What is
protected under said law are beverages like Coca-cola, Royal Tru-Orange, Lem-o-Lime and similar
beverages the bottles whereof bear the words "Reg Phil. Pat. Off.;"
3. No reservation of ownership on its bottles was made by LTI in its sales invoices nor does it require any
deposit for the retention of said bottles; and
4. There was no infringement of the goods or products of LTI since Cagayan uses its own labels and
trademark on its product.

113
In its subsequent pleadings, Cagayan contended that the bottles they are using are not the registered
bottles of LTI since the former was using the bottles marked with "La Tondeña, Inc." and "Ginebra San
Miguel" but without the words "property of" indicated in said bottles as stated in the sworn statement
attached to the certificate of registration of LTI for said bottles.
On December 18, 1981, the lower court issued a writ of preliminary injunction, upon the filing of a bond by
LTI in the sum of P50,000.00, enjoining Cagayan, its officers and agents from using the aforesaid
registered bottles of LTI. 6
After a protracted trial, which entailed five (5) motions for contempt filed by LTI against Cagayan, the trial
court rendered judgment 7 in favor of Cagayan, ruling that the complaint does not state a cause of action
and that Cagayan was not guilty of contempt. Furthermore, it awarded damages in favor of Cagayan.
LTI appealed to the Court of Appeals which, on December 5, 1986 rendered a decision in favor of said
appellant, the dispositive portion whereof reads:
WHEREFORE, the decision appealed from is hereby SET ASIDE and judgment is rendered permanently
enjoining the defendant, its officers and agents from using the 350 c.c. white flint bottles with the marks of
ownership "La Tondeña, Inc." and "Ginebra San Miguel", blown-in or stamped on said bottles as
containers for defendant's products.
The writ of preliminary injunction issued by the trial court is therefore made permanent.
Defendant is ordered to pay the amounts of:
(1) P15,000.00 as nominal or temperate damages;
(2) P50,000.00 as exemplary damages;
(3) P10,000.00 as attorney's fees; and
(4) Costs of suit. 8
On December 23, 1986, Cagayan filed a motion for reconsideration which was denied by the respondent
court in its resolution dated May 5, 1987, hence the present petition, with the following assignment of
errors:
I. The Court of Appeals gravely erred in the decision granting that "there is, therefore, no need for plaintiff
to display the words "Reg. Phil. Pat. Off." in order for it to succeed in bringing any injunction suit against
defendant for the illegal use of its bottles. Rep. Act No. 623, as amended by Rep. Act No. 5700 simply
provides and requires that the marks or names shall be stamped or marked on the containers."
II. The Court of Appeals gravely erred in deciding that "neither is there a reason to distinguish between the
two (2) sets of marked bottles-those which contain the marks "Property of La Tondeña, Inc., Ginebra San
Miguel," and those simply marked La Tondeña Inc., Ginebra San Miguel'. By omitting the words "property
of" plaintiff did not open itself to violation of Republic Act No. 623, as amended, as having registered its
marks or names it is protected under the law."
III. The Honorable Court of Appeals gravely erred in deciding that the words "La Tondeña, Inc. and
Ginebra San Miguel" are sufficient notice to the defendant which should have inquired from the plaintiff or
the Philippine Patent Office, if it was lawful for it to re-use the empty bottles of the plaintiff.
IV. The Honorable Court of Appeals gravely erred in deciding that defendant-appellee cannot claim good
faith from using the bottles of plaintiff with marks "La Tondeña, Inc." alone, short for the description

114
contained in the sworn statement of Mr. Carlos Palanca, Jr., which was a requisite of its original and
renewal registrations.
V. The Honorable Court of Appeals gravely erred in accommodating the appeal on the dismissals of the
five (5) contempt charges.
VI. The Honorable Court of Appeals gravely erred in deciding that the award of damages in favor of the
defendant-appellee, petitioner herein, is not in order. Instead it awarded nominal or temperate, exemplary
damages and attorney's fees without proof of bad faith. 9
The pertinent provisions of Republic Act No. 623, as amended by Republic Act No. 5700, provides:
SECTION 1. Persons engaged or licensed to engage in the manufacture, bottling, or selling of soda
water, mineral or aerated waters, cider, milk, cream or other lawful beverages in bottles, boxes, casks,
kegs, or barrels and other similar containers, or in the manufacturing, compressing or selling of gases
such as oxygen, acytelene, nitrogen, carbon dioxide ammonia, hydrogen, chloride, helium, sulphur,
dioxide, butane, propane, freon, melthyl chloride or similar gases contained in steel cylinders, tanks,
flasks, accumulators or similar containers, with the name or the names of their principals or products, or
other marks of ownership stamped or marked thereon, may register with the Philippine Patent Office a
description of the names or marks, and the purpose for which the containers so marked and used by
them, under the same conditions, rules, and regulations, made applicable by law or regulation to the
issuance of trademarks.
SEC. 2. It shall be unlawful for any person, without the written consent of the manufacturer, bottler, or
seller, who has succesfully registered the marks of ownership in accordance with the provisions of the
next preceding section, to fill such bottles, boxes, kegs, barrels, steel cylinders, tanks, flasks,
accumulators or other similar containers so marked or stamped, for the purpose of sale, or to sell,
disposed of, buy or traffic in, or wantonly destroy the same, whether filled or not, to use the same, for
drinking vessels or glasses or drain pipes, foundation pipes, for any other purpose than that registered by
the manufacturer, bottler or seller. Any violation of this section shall be punished by a fine of not more
than one thousand pesos or imprisonment of not more than one year or both.
SEC. 3. The use by any person other than the registered manufacturer, bottler or seller, without written
permission of the latter of any such bottle, cask, barrel, keg, box, steel cylinders, tanks, flask,
accumulators, or other similar containers, or the possession thereof without written permission of the
manufacturer, by any junk dealer or dealer in casks, barrels, kegs boxes, steel cylinders, tanks, flasks,
accumulators or other similar containers, the same being duly marked or stamped and registered as
herein provided, shall give rise to a prima facie presumption that such use or possession is unlawful.
The above-quoted provisions grant protection to a qualified manufacturer who successfully registered with
the Philippine Patent Office its duly stamped or marked bottles, boxes, casks and other similar containers.
The mere use of registered bottles or containers without the written consent of the manufacturer is
prohibited, the only exceptions being when they are used as containers for "sisi," bagoong," "patis" and
similar native products. 10
It is an admitted fact that herein petitioner Cagayan buys from junk dealers and retailers bottles which
bear the marks or names La Tondeña Inc." and "Ginebra San Miguel" and uses them as containers for its
own liquor products. The contention of Cagayan that the aforementioned bottles without the words
"property of" indicated thereon are not the registered bottles of LTI, since they do not conform with the
statement or description in the supporting affidavits attached to the original registration certificate and
renewal, is untenable.

115
Republic Act No. 623 which governs the registration of marked bottles and containers merely requires that
the bottles, in order to be eligible for registration, must be stamped or marked with the names of the
manufacturers or the names of their principals or products, or other marks of ownership. No drawings or
labels are required but, instead, two photographs of the container, duly signed by the applicant, showing
clearly and legibly the names and other marks of ownership sought to be registered and a bottle showing
the name or other mark or ownership, irremovably stamped or marked, shall be submitted. 11
The term "Name or Other Mark of Ownership" 12 means the name of the applicant or the name of his
principal, or of the product, or other mark of ownership. The second set of bottles of LTI without the words
"property of" substantially complied with the requirements of Republic Act No. 623, as amended, since
they bear the name of the principal, La Tondeña Inc., and of its product, Ginebra San Miguel. The omitted
words "property of" are not of such vital indispensability such that the omission thereof will remove the
bottles from the protection of the law. The owner of a trade-mark or trade-name, and in this case the
marked containers, does not abandon it by making minor modifications in the mark or name itself. 13 With
much more reason will this be true where what is involved is the mere omission of the words "property of"
since even without said words the ownership of the bottles is easily Identifiable. The words "La Tondeña
Inc." and "Ginebra San Miguel" stamped on the bottles, even without the words "property of," are sufficient
notice to the public that those bottles so marked are owned by LTI.
The claim of petitioner that hard liquor is not included under the term "other lawful beverages" as provided
in Section I of Republic Act No. 623, as amended by Republic Act No. 5700, is without merit. The title of
the law itself, which reads " An Act to Regulate the Use of Duly Stamped or Marked Bottles, Boxes,
Casks, Kegs, Barrels and Other Similar Containers" clearly shows the legislative intent to give protection
to all marked bottles and containers of all lawful beverages regardless of the nature of their contents. The
words "other lawful beverages" is used in its general sense, referring to all beverages not prohibited by
law. Beverage is defined as a liquor or liquid for drinking. 14 Hard liquor, although regulated, is not
prohibited by law, hence it is within the purview and coverage of Republic Act No. 623, as amended.
Republic Act No. 623, as amended, has for its purpose the protection of the health of the general public
and the prevention of the spread of contagious diseases. It further seeks to safeguard the property rights
of an important sector of Philippine industry. 15 As held by this Court in Destileria Ayala, Inc. vs. Tan Tay &
Co.,16 the purpose of then Act 3070, was to afford a person a means of Identifying the containers he uses
in the manufacture, preservation, packing or sale of his products so that he may secure their registration
with the Bureau of Commerce and Industry and thus prevent other persons from using them. Said Act
3070 was substantially reenacted as Republic Act No. 623. 17
The proposition that Republic Act No. 623, as amended, protects only the containers of the soft drinks
enumerated by petitioner and those similar thereto, is unwarranted and specious. The rule of ejusdem
generis cannot be applied in this case. To limit the coverage of the law only to those enumerated or of the
same kind or class as those specifically mentioned will defeat the very purpose of the law. Such rule
of ejusdem generis is to be resorted to only for the purpose of determining what the intent of the
legislature was in enacting the law. If that intent clearly appears from other parts of the law, and such
intent thus clearly manifested is contrary to the result which would be reached by the appreciation of the
rule of ejusdem generis, the latter must give way.18
Moreover, the above conclusions are supported by the fact that the Philippine Patent Office, which is the
proper and competent government agency vested with the authority to enforce and implement Republic
Act No. 623, registered the bottles of respondent LTI as containers for gin and issued in its name a
certificate of registration with the following findings:

116
It appearing, upon due examination that the applicant is entitled to have the said MARKS OR NAMES
registered under R.A. No. 623, the said marks or names have been duly registered this day in the
PATENT OFFICE under the said Act, for gin, Ginebra San Miguel. 19
While executive construction is not necessarily binding upon the courts, it is entitled to great weight and
consideration. The reason for this is that such construction comes from the particular branch of
government called upon to implement the particular law involved. 20
Just as impuissant is petitioners contention that respondent court erred in holding that there is no need for
LTI to display the words "Reg Phil. Pat. Off." in order to succeed in its injunction suit against Cagayan for
the illegal use of the bottles. To repeat, Republic Act No. 623 governs the registration of marked bottles
and containers and merely requires that the bottles and/or containers be marked or stamped by the
names of the manufacturer or the names of their principals or products or other marks of ownership. The
owner upon registration of its marked bottles, is vested by law with an exclusive right to use the same to
the exclusion of others, except as a container for native products. A violation of said right gives use to a
cause of action against the violator or infringer.
While Republic Act No. 623, as amended, provides for a criminal action in case of violation, a civil action
for damages is proper under Article 20 of the Civil Code which provides that every person who, contrary to
law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. This
particular provision of the Civil Case was clearly meant to complement all legal provisions which may
have inadvertently failed to provide for indemnification or reparation of damages when proper or called for.
In the language of the Code Commission "(t)he foregoing rule pervades the entire legal system, and
renders it impossible that a person who suffers damage because another has violated some legal
provisions, should find himself without relief." 21 Moreover, under Section 23 of Republic Act No. 166, as
amended, a person entitled to the exclusive use of a registered mark or tradename may recover damages
in a civil action from any person who infringes his rights. He may also, upon proper showing, be granted
injunction.
It is true that the aforesaid law on trademarks provides:
SEC. 21. Requirements of notice of registration of trade-mark.-The registrant of a trade-mark, heretofore
registered or registered under the provisions of this Act, shall give notice that his mark is registered by
displaying with the same as used the words 'Registered in the Philippines Patent Office' or 'Reg Phil. Pat.
Off.'; and in any suit for infringement under this Act by a registrant failing so to mark the goods bearing the
registered trade-mark, no damages shall be recovered under the provisions of this Act, unless the
defendant has actual notice of the registration.

Even assuming that said provision is applicable in this case, the failure of LTI to make said marking will
not bar civil action against petitioner Cagayan. The aforesaid requirement is not a condition sine qua
non for filing of a civil action against the infringer for other reliefs to which the plaintiff may be entitled. The
failure to give notice of registration will not deprive the aggrieved party of a cause of action against the
infringer but, at the most, such failure may bar recovery of damages but only under the provisions of
Republic Act No. 166.
However, in this case an award of damages to LTI is ineluctably called for. Petitioner cannot claim good
faith. The record shows that it had actual knowledge that the bottles with the blown-in marks "La Tondeña
Inc." and "Ginebra San Miguel" are duly registered. In Civil Case No. 102859 of the Court of First Instance
of Manila, entitled "La Tondeña Inc. versus Diego Lim, doing business under the name and style
'Cagayan Valley Distillery,' " a decision was rendered in favor of plaintiff therein on the basis of the
117
admission and/or acknowledgment made by the defendant that the bottles marked only with the words "La
Tondeña Inc." and "Ginebra San Miguel" are registered bottles of LTI. 22
Petitioner cannot avoid the effect of the admission and/or acknowledgment made by Diego Lim in the said
case. While a corporation is an entity separate and distinct from its stock-holders and from other
corporations with which it may be connected, where the discreteness of its personality is used to defeat
public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an
association of persons, or in the case of two corporations, merge them into one. When the corporation is
the mere alter ego or business conduit of a person, it may be disregaded. 23
Petitioner's claim that it is separate and distinct from the former Cagayan Valley Distillery is belied by the
evidence on record. The following facts warrant the conclusion that petitioner, as a corporate entity, and
Cagayan Valley Distillery are one and the same. to wit: (1) petitioner is being managed by Rogelio Lim,
the son of Diego Lim, the owner and manager of Cagayan Valley Distellery; (2) it is a family
corporation; 24 (3) it is an admitted fact that before petitioner was incorporated it was under a single
proprietorship; 25 (4) petitioner is engaged in the same business as Cagayan Valley Distillery, the
manufacture of wines and liquors; and (5) the factory of petitioner is located in the same place as the
factory of the former Cagayan Valley Distillery.
It is thus clear that herein petitioner is a mere continuation and successor of Cagayan Valley Distillery. It is
likewise indubitable that the admission made in the former case, as earlier explained, is binding on it as
cogent proof that even before the filing of this case it had actual knowledge that the bottles in dispute
were registered containers of LTI As held in La Campana Coffee Factory, Inc., et al. vs. Kaisahan Ng Mga
Manggagawa sa La Campana (KKM), et al., 26 where the main purpose in forming the corporation was to
evade one's subsidiary liability for damages in a criminal case, the corporation may not be heard to say
that it has a personality separate and distinct from its members, because to allow it to do so would be to
sanction the use of the fiction of corporate entity as a shield to further an end subversive of justice.
Anent the several motions of private respondent LTI to have petitioner cited for contempt, we reject the
argument of petitioner that an appeal from a verdict of acquittal in a contempt, proceeding constitutes
double jeopardy. A failure to do something ordered by the court for the benefit of a party constitutes civil
contempt. 27 As we held in Converse Rubber Corporation vs. Jacinto Rubber & Plastics Co., Inc.:
...True it is that generally, contempt proceedings are characterized as criminal in nature, but the more
accurate juridical concept is that contempt proceedings may actually be either civil or criminal, even if the
distinction between one and the other may be so thin as to be almost imperceptible. But it does exist in
law. It is criminal when the purpose is to vindicate the authority of the court and protect its outraged
dignity. It is civil when there is failure to do something ordered by a court to be done for the benefit of a
party (3 Moran Rules of Court, pp. 343-344, 1970 ed.; see also Perkins vs. Director of Prisons, 58 Phil.
272; Harden vs. Director of Prisons, 81 Phil. 741.) And with this distinction in mind, the fact that the
injunction in the instant case is manifestly for the benefit of plaintiffs makes of the contempt herein
involved civil, not criminal. Accordingly, the conclusion is inevitable that appellees have been virtually
found by the trial court guilty of civil contempt, not criminal contempt, hence, the rule on double jeopardy
may not be invoked. 28
The contempt involved in this case is civil and constructive in nature, it having arisen from the act of
Cagayan in violating the writ of preliminary injunction of the lower court which clearly defined the forbidden
act, to wit:

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NOW THEREFORE, pending the resolution of this case by the court, you are enjoined from using the 350
c.c. white flint bottles with the marks La Tondeña Inc.,' and 'Ginebra San Miguel' blown-in or stamped into
the bottles as containers for the defendant's products. 19
On this incident, two considerations must be borne in mind. Firstly, an injunction duly issued must be
obeyed, however erroneous the action of the court may be, until its decision is overruled by itself or by a
higher court. 30 Secondly, the American rule that the power to judge a contempt rests exclusively with the
court contemned does not apply in this Jurisdiction. The provision of the present Section 4, Rule 71 of the
Rules of Court as to where the charge may be filed is permissive in nature and is merely declaratory of
the inherent power of courts to punish contumacious conduct. Said rules do not extend to the
determination of the jurisdiction of Philippine courts. 31 In appropriate case therefore, this Court may, in
the interest of expedient justice, impose sanctions on contemners of the lower courts.
Section 3 of Republic Act No. 623, as amended, creates a prima facie presumption against Cagayan for
its unlawful use of the bottles registered in the name of LTI Corollarily, the writ of injunction directing
petitioner to desist from using the subject bottles was properly issued by the trial court. Hence, said writ
could not be simply disregarded by Cagayan without adducing proof sufficient to overcome the aforesaid
presumption. Also, based on the findings of respondent court, and the records before us being sufficient
for arbitrament without remanding the incident to the court a quo petitioner can be adjudged guilty of
contempt and imposed a sanction in this appeal since it is a cherished rule of procedure for this Court to
always strive to settle the entire controversy in a single proceeding, 32 We so impose such penalty
concordant with the preservative principle and as demanded by the respect due the orders, writs and
processes of the courts of justice.
WHEREFORE, judgment is hereby rendered DENYING the petition in this case and AFFIRMING the
decision of respondent Court of Appeals. Petitioner is hereby declared in contempt of court and
ORDERED to pay a fine of One Thousand Pesos (P1,000.00), with costs.
SO ORDERED.

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N. USE OF ASSOCIATED WORDS
4. EUSDEM GENERIS
4.1. GO TIACO VS UNION INSURANCE (GR NO. 13983)
LA RAZON SOCIAL "GO TIAOCO Y HERMANOS," plaintiff-appellant,
vs.
UNION INSURANCE SOCIETY OF CANTON, LTD., defendant-appellee.
P. E. del Rosario and W. F. Mueller for appellant.
Crossfield and O'Brien for appellee.
STREET, J.:
This is an action on a policy of marine insurance issued by the Union Insurance Society of Canton,
Ltd., upon a cargo of rice belonging to the plaintiffs, Go Tiaoco Brothers, which was transported in the
early days of May, 1915, on the steamship Hondagua from the port of Saigon to Cebu. On
discharging the rice from one of the compartments in the after hold, upon arrival at Cebu, it was
discovered that one thousand four hundred seventy-three sacks and been damages by sea water.
The loss so resulting to the owners of rice, after proper deduction had been made for the portion
saved, was three thousand eight hundred seventy five pesos and twenty-five centavos (P3,875.25).
The trial court found that the inflow of the sea water during the voyage was due to a defect in one of
the drain pipes of the ship and concluded that the loss was not covered by the policy of insurance.
Judgment was accordingly entered in favor of the defendant and the plaintiffs appealed.
The facts with reference to the manner in which the sea water effected entrance into the hold may be
summarized as follows, substantially in accordance with the findings of the trial court:
The drain pipe which served as a discharge from the water closet passed down through the
compartment where the rice in question was stowed and thence out to sea through the wall of the
compartment, which was a part of the wall of the ship. The joint or elbow where the pipe changed its
direction was of cast iron; and in course of time it had become corroded and abraded until a
longitudinal opening had appeared in the pipe about one inch in length. This hole had been in
existence before the voyage was begun, and an attempt had been made to repair it by filling with
cement and bolting over it a strip of iron. The effect of loading the boat was to submerge the vent, or
orifice, of the pipe until it was about 18 inches or 2 feet below the level of the sea. As a consequence
the sea water rose in the pipe. Navigation under these conditions resulted in the washing out of the
cement-filling from the action of the sea water, thus permitting the continued flow of the salt water into
the compartment of rice.
The court found in effect that the opening above described had resulted in course of time from
ordinary wear and tear and not from the straining of the ship in rough weather on that voyage. The
court also found that the repairs that had been made on the pipe were slovenly and defective and
that, by reason of the condition of this pipe, the ship was not properly equipped to receive the rice at
the time the voyage was begun. For this reason the court held that the ship was unseaworthy.
The policy of insurance was signed upon a form long in use among companies engaged in maritime
insurance. It purports to insure the cargo from the following among other risks: "Perils . . . of the seas,
men of war, fire, enemies, pirates, rovers, thieves, jettisons, . . . barratry of the master and mariners,
120
and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or
damage of the said goods and merchandise or any part thereof."
The question whether the insurer is liable on this policy for the loss caused in the manner above
stated presents two phases which are in a manner involved with each other. One has reference to the
meaning of the expression "perils of the seas and all other perils, losses, and misfortunes," as used in
the policy; the other has reference to the implied warranty, on the part of the insured, as to the
seaworthiness of the ship.
The meaning of the expression "perils . . . of the seas . . . and all other perils, losses, and
misfortunes," used in describing the risks covered by policies of marine insurance, has been the
subject of frequent discussion; and certain propositions relative thereto are now so generally
accepted as to be considered definitely settled.
In the first place it is determined that the words "all other perils, losses, and misfortunes" are to be
interpreted as covering risks which are of like kind (ejusdem generis) with the particular risks which
are enumerated in the preceding part of the same clause of the contract. "According to the ordinary
rules of construction," said Lord Macnaghten in Thames and Mersey Marine Insurance
Co. vs. Hamilton, Fraser & Co. ([1887]), 12 A. C., 484, 501), "these words must be interpreted with
reference to the words which immediately precede them. They were no doubt inserted in order to
prevent disputes founded on nice distinctions. Their office is to cover in terms whatever may be within
the spirit of the cases previously enumerated, and so they have a greater or less effect as a narrower
or broader view is taken of those cases. For example, if the expression 'perils of the seas' is given its
widest sense the general words have little or no effect as applied to that case. If no the other hand
that expression is to receive a limited construction, as apparently it did in Cullen vs. Butler (5 M. & S.,
461), and loss by perils of the seas is to be confined to loss ex marinae tempestatis discrimine, the
general words become most important. But still, ever since the case of Cullen vs. Butler, when they
first became the subject of judicial construction, they have always been held or assumed to be
restricted to cases 'akin to' or resembling' or 'of the same kind as' those specially mentioned. I see no
reason for departing from this settled rule. In marine insurance it is above all things necessary to
abide by settled rules and to avoid anything like novel refinements or a new departure."
It must be considered to be settled, furthermore, that a loss which, in the ordinary course of events,
results from the natural and inevitable action of the sea, from the ordinary wear and tear of the ship,
or from the negligent failure of the ship's owner to provide the vessel with proper equipment to convey
the cargo under ordinary conditions, is not a peril of the sea. Such a loss is rather due to what has
been aptly called the "peril of the ship." The insurer undertakes to insure against perils of the sea and
similar perils, not against perils of the ship. As was well said by Lord Herschell in Wilson, Sons &
Co. vs. Owners of Cargo per the Xantho ([1887], 12 A. C., 503,509), there must, in order to make the
insurer liable, be "some casualty, something which could not be foreseen as one of the necessary
incidents of the adventure. The purpose of the policy is to secure an indemnity against accidents
which may happen, not against events which must happen."
In the present case the entrance of the sea water into the ship's hold through the defective pipe
already described was not due to any accident which happened during the voyage, but to the failure
of the ship's owner properly to repair a defect of the existence of which he was apprised. The loss
was therefore more analogous to that which directly results from simple unseaworthiness than to that
which results from perils of the sea.

121
The first of the two decisions of the House of Lords from which we have quoted (Thames and Mersey
Marine Insurance Co. vs. Hamilton, Fraser & Co. [1887], 12 A. C., 484) arose upon the following state
of facts: In March, 1884, the Inchmaree was lying at anchor off Diamond Island and was about to start
upon her voyage. To this end it became necessary to fill up her boilers. There was a donkey-engine
with a donkey-pump on board, and the donkey-engine was set to pump up water from the sea into the
boilers. Those in charge of the operation did not take the precaution of making sure that the valve of
the aperture leading into one of the boilers was open. This valve happened to be closed. The result
was that the water being unable to make its way into the boiler was forced back and split the air-
chamber and so disabled the pump. It was held that whether the injury occurred through negligence
or accidentally without negligence, it was not covered by the policy, since the loss did not fall either
under the words "perils of the seas" or under the more general words "all other perils, losses, and
misfortunes." Lord Bramwell, in the course of his opinion quoted with approbation as definition given
by Lopes L.J. in Pandorf vs. Hamilton (16 Q. B. D., 629), which is as follows: In a sea-worthy ship
damage to goods caused by the action of the sea during transit not attributable to the fault of
anybody, is a damage from a peril of the sea.
The second of the decision from the House of Lords from which we have quoted (Wilson, Son &
Co. vs. owners of Cargo per the Xantho [1887], 12 A. C., 503) arose upon the following facts: The
owners of certain cargo embarked the same upon the steamship Xantho. A collision took place in a
fog between this vessel and another ship, Valuta. An action was thereupon instituted by the owners of
the cargo against the owners of the Xantho. It was held that if the collision occurred without fault on
the part of the carrying ship, the owners were not liable for the value of the cargo lost by such
collision.
Still another case was decided in the House of Lords upon the same date as the preceding two,
which is equally instructive as the others upon the question now under consideration. We refer to
Hamilton, Fraser & Co. vs. Pandorf & Co. ([1887], 12 A. C., 518), where it appeared that rice was
shipped under a charter party and bills of lading which expected "dangers and accident of the sea."
During the voyage rats gnawed a hole in a pipe on board the ship, whereby sea water effected an
entrance into the ship's hold and damaged the rice. It appeared that there was no neglect or default
on the part of the shipowners or their servants in the matter of attending to the cargo. It was held that
this loss resulted from an accident or peril of the sea and that the shipowners were not responsible.
Said Bramwell: "No question of negligence exists in this case. The damage was caused by the sea in
the course of navigation with no default in any one. I am, therefore, of opinion that the damage was
caused by peril of the sea within the meaning of the bill of lading." The point which discriminates this
decision from that now before us is that in the present case the negligence of the shipowners must be
accepted as established. Undoubtedly, if in Hamilton, Fraser & Co. vs. Pandorf & Co. [1887], 12 A.
C., 518), it had appeared that this hold had been gnawed by the rats prior to this voyage and the
owners, after having their attention directed to it, had failed to make adequate repairs, the ship would
have been liable.
The three decisions in the House of Lords above referred to contain elaborate discussions concerning
the liability of shipowners and insurers, respectively, for damage happening to cargo in the course of
a sea voyage; and it would be presumptuous for us to undertake to add to what has been there said
by the learned judges of that high court. Suffice it to say that upon the authority of those cases there
is no room to doubt the liability of the shipowner for such a loss as occurred in this case. By parity of
reasoning the insurer is not liable; for, generally speaking, the shipowner excepts the perils of the sea
from his engagement under the bill of lading, while this is the very peril against which the insurer
122
intends to give protection. As applied to the present case it results that the owners of the damages
rice must look to the shipowner for redress and not to the insurer.
The same conclusion must be reached if the question be discussed with reference to the
seaworthiness of the ship. It is universally accepted that in every contract of insurance upon anything
which is the subject of marine insurance, a warranty is implied that the ship shall be seaworthy at the
time of the inception of the voyage. This rule is accepted in our own Insurance Law (Act No. 2427,
sec. 106). It is also well settled that a ship which is seaworthy for the purpose of insurance upon the
ship may yet be unseaworthy for the purpose of insurance upon the cargo (Act No. 2427, sec. 106).
In Steel vs. State Line Steamship Co. ([1877], L. R. 3 A. C., 72), a cargo of wheat was laden upon a
ship which had a port-hole insecurely fastened at the time of the lading. This port-hole was about one
foot above the water line; and in the course of the voyage sea water entered the compartment where
the wheat was stores and damaged the cargo. It was held that the ship was unseaworthy with
reference to the cargo in question. In Gilroy, Sons & Co. vs. Price & Co. ([1893], 18 A. C., 56), a
cargo of jute was shipped. During the voyage the vessel encountered stormy weather, as a
consequence of which the cargo shifted its position and broke a pipe leading down through the hold
from the water closet, with result that water entered the vessel and the jute was damaged. It was
found that the cargo was improperly stowed and that the owners of the ship were chargeable with
negligence for failure to protect the pipe by putting a case over it. It was accordingly held that the ship
was unseaworthy.
From what has been said it follows that the trial court committed no error in absolving the defendant
from the complaint. The judgment must therefore be affirmed, and it is so ordered, with costs.

123
N. USE OF ASSOCIATED WORDS
4. EUSDEM GENERIS
4.2. ARCHBISHOP OF MNL VS SOCIAL SECURITY COMMISSION(GR NO.L-15045)
IN RE: PETITION FOR EXEMPTION FROM COVERAGE BY THE SOCIAL SECURITY SYSTEM.
ROMAN CATHOLIC ARCHBISHOP OF MANILA, petitioner-appellant,
vs.
SOCIAL SECURITY COMMISSION, respondent-appellee.
Feria, Manglapus and Associates for petitioner-appellant.
Legal Staff, Social Security System and Solicitor General for respondent-appellee.
GUTIERREZ DAVID, J.:
On September 1, 1958, the Roman Catholic Archbishop of Manila, thru counsel, filed with the Social
Security Commission a request that "Catholic Charities, and all religious and charitable institutions
and/or organizations, which are directly or indirectly, wholly or partially, operated by the Roman
Catholic Archbishop of Manila," be exempted from compulsory coverage of Republic Act No. 1161, as
amended, otherwise known as the Social Security Law of 1954. The request was based on the claim
that the said Act is a labor law and does not cover religious and charitable institutions but is limited to
businesses and activities organized for profit. Acting upon the recommendation of its Legal Staff, the
Social Security Commission in its Resolution No. 572, series of 1958, denied the request. The Roman
Catholic Archbishop of Manila, reiterating its arguments and raising constitutional objections,
requested for reconsideration of the resolution. The request, however, was denied by the
Commission in its Resolution No. 767, series of 1958; hence, this appeal taken in pursuance of
section 5(c) of Republic Act No. 1161, as amended.
Section 9 of the Social Security Law, as amended, provides that coverage "in the System shall be
compulsory upon all members between the age of sixteen and sixty rears inclusive, if they have been
for at least six months a the service of an employer who is a member of the System, Provided, that
the Commission may not compel any employer to become member of the System unless he shall
have been in operation for at least two years and has at the time of admission, if admitted for
membership during the first year of the System's operation at least fifty employees, and if admitted for
membership the following year of operation and thereafter, at least six employees x x x." The term
employer" as used in the law is defined as any person, natural or juridical, domestic or foreign, who
carries in the Philippines any trade, business, industry, undertaking, or activity of any kind and uses
the services of another person who is under his orders as regards the employment, except the
Government and any of its political subdivisions, branches or instrumentalities, including corporations
owned or controlled by the Government" (par. [c], see. 8), while an "employee" refers to "any person
who performs services for an 'employer' in which either or both mental and physical efforts are used
and who receives compensation for such services" (par. [d], see. 8). "Employment", according to
paragraph [i] of said section 8, covers any service performed by an employer except those expressly
enumerated thereunder, like employment under the Government, or any of its political subdivisions,
branches or instrumentalities including corporations owned and controlled by the Government,
domestic service in a private home, employment purely casual, etc.

124
From the above legal provisions, it is apparent that the coverage of the Social Security Law is
predicated on the existence of an employer-employee relationship of more or less permanent nature
and extends to employment of all kinds except those expressly excluded.
Appellant contends that the term "employer" as defined in the law should — following the principle
of ejusdem generis — be limited to those who carry on "undertakings or activities which have the
element of profit or gain, or which are pursued for profit or gain," because the phrase ,activity of any
kind" in the definition is preceded by the words "any trade, business, industry, undertaking." The
contention cannot be sustained. The rule ejusdem generis applies only where there is uncertainty. It
is not controlling where the plain purpose and intent of the Legislature would thereby be hindered and
defeated. (Grosjean vs. American Paints Works [La], 160 So. 449). In the case at bar, the definition of
the term "employer" is, we think, sufficiently comprehensive as to include religious and charitable
institutions or entities not organized for profit, like herein appellant, within its meaning. This is made
more evident by the fact that it contains an exception in which said institutions or entities are not
included. And, certainly, had the Legislature really intended to limit the operation of the law to entities
organized for profit or gain, it would not have defined an "employer" in such a way as to include the
Government and yet make an express exception of it.
It is significant to note that when Republic Act No. 1161 was enacted, services performed in the
employ of institutions organized for religious or charitable purposes were by express provisions of
said Act excluded from coverage thereof (sec. 8, par. [j] subpars. 7 and 8). That portion of the law,
however, has been deleted by express provision of Republic Act No. 1792, which took effect in 1957.
This is clear indication that the Legislature intended to include charitable and religious institutions
within the scope of the law.
In support of its contention that the Social Security Law was intended to cover only employment for
profit or gain, appellant also cites the discussions of the Senate, portions of which were quoted in its
brief. There is, however, nothing whatsoever in those discussions touching upon the question of
whether the law should be limited to organizations for profit or gain. Of course, the said discussions
dwelt at length upon the need of a law to meet the problems of industrializing society and upon the
plight of an employer who fails to make a profit. But this is readily explained by the fact that the
majority of those to be affected by the operation of the law are corporations and industries which are
established primarily for profit or gain.
Appellant further argues that the Social Security Law is a labor law and, consequently, following the
rule laid down in the case of Boy Scouts of the Philippines vs. Araos (G.R. No. L-10091, January 29,
1958) and other cases1, applies only to industry and occupation for purposes of profit and gain. The
cases cited, however, are not in point, for the reason that the law therein involved expressly limits its
application either to commercial, industrial, or agricultural establishments, or enterprises. .
Upon the other hand, the Social Security Law was enacted pursuant to the "policy of the Republic of
the Philippines to develop, establish gradually and perfect a social security system which shall be
suitable to the needs of the people throughout the Philippines and shall provide protection to
employees against the hazards of disability, sickness, old age and death." (See. 2, Republic Act No.
1161, as amended.) Such enactment is a legitimate exercise of the police power. It affords protection
to labor, especially to working women and minors, and is in full accord with the constitutional
provisions on the "promotion of social justice to insure the well-being and economic security of all the
people." Being in fact a social legislation, compatible with the policy of the Church to ameliorate living

125
conditions of the working class, appellant cannot arbitrarily delimit the extent of its provisions to
relations between capital and labor in industry and agriculture.
There is no merit in the claim that the inclusion of religious organizations under the coverage of the
Social Security Law violates the constitutional prohibition against the application of public funds for
the use, benefit or support of any priest who might be employed by appellant. The funds contributed
to the System created by the law are not public funds, but funds belonging to the members which are
merely held in trust by the Government. At any rate, assuming that said funds are impressed with the
character of public funds, their payment as retirement death or disability benefits would not constitute
a violation of the cited provisions of the Constitution, since such payment shall be made to the priest
not because he is a priest but because he is an employee.
Neither may it be validly argued that the enforcement of the Social Security Law impairs appellant's
right to disseminate religious information. All that is required of appellant is to make monthly
contributions to the System for covered employees in its employ. These contributions, contrary to
appellant's contention, are not in the nature of taxes on employment." Together with the contributions
imposed upon the employees and the Government, they are intended for the protection of said
employees against the hazards of disability, sickness, old age and death in line with the constitutional
mandate to promote social justice to insure the well-being and economic security of all the people.
IN VIEW OF THE FOREGOING, Resolutions Nos. 572 kind 767, series of 1958, of the Social
Security Commission are hereby affirmed. So ordered with costs against appellant.

126
N. USE OF ASSOCIATED WORDS
4. EUSDEM GENERIS
4.3. PNOC VS COA (GR NO. 107518)
PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner,
vs.
HONORABLE COURT OF APPEALS and MARIA EFIGENIA FISHING CORPORATION, respondents.

ROMERO, J.:
A party is entitled to adequate compensation only for such pecuniary loss actually suffered and duly
proved.1 Indeed, basic is the rule that to recover actual damages, the amount of loss must not only be capable
of proof but must actually be proven with a reasonable degree of certainty, premised upon competent proof or
best evidence obtainable of the actual amount thereof.2 The claimant is duty-bound to point out specific facts
that afford a basis for measuring whatever compensatory damages are borne.3 A court cannot merely rely on
speculations, conjectures, or guesswork as to the fact and amount of damages4 as well as hearsay5 or
uncorroborated testimony whose truth is suspect.6 Such are the jurisprudential precepts that the Court now
applies in resolving the instant petition.
The records disclose that in the early morning of September 21, 1977, the M/V Maria Efigenia XV, owned by
private respondent Maria Efigenia Fishing Corporation, was navigating the waters near Fortune Island in
Nasugbu, Batangas on its way to Navotas, Metro Manila when it collided with the vessel Petroparcel which at
the time was owned by the Luzon Stevedoring Corporation (LSC).
After investigation was conducted by the Board of Marine Inquiry, Philippine Coast Guard Commandant
Simeon N. Alejandro rendered a decision finding the Petroparcel at fault. Based on this finding by the Board
and after unsuccessful demands on petitioner, 7 private respondent sued the LSC and the Petroparcel captain,
Edgardo Doruelo, before the then Court of First Instance of Caloocan City, paying thereto the docket fee of one
thousand two hundred fifty-two pesos (P1,252.00) and the legal research fee of two pesos (P2.00). 8 In
particular, private respondent prayed for an award of P692,680.00, allegedly representing the value of the
fishing nets, boat equipment and cargoes of M/V Maria Efigenia XV, with interest at the legal rate plus 25%
thereof as attorney's fees. Meanwhile, during the pendency of the case, petitioner PNOC Shipping and
Transport Corporation sought to be substituted in place of LSC as it had already acquired ownership of
the Petroparcel. 9
For its part, private respondent later sought the amendment of its complaint on the ground that the original
complaint failed to plead for the recovery of the lost value of the hull of M/V Maria Efigenia XV. 10 Accordingly,
in the amended complaint, private respondent averred that M/V Maria Efigenia XV had an actual value of
P800,000.00 and that, after deducting the insurance payment of P200,000.00, the amount of P600,000.00
should likewise be claimed. The amended complaint also alleged that inflation resulting from the devaluation of
the Philippine peso had affected the replacement value of the hull of the vessel, its equipment and its lost
cargoes, such that there should be a reasonable determination thereof. Furthermore, on account of the sinking
of the vessel, private respondent supposedly incurred unrealized profits and lost business opportunities that
would thereafter be proven. 11
Subsequently, the complaint was further amended to include petitioner as a defendant 12 which the lower court
granted in its order of September 16,
1985. 13 After petitioner had filed its answer to the second amended complaint, on February 5, 1987, the lower
court issued a pre-trial order 14 containing, among other things, a stipulations of facts, to wit:

127
1. On 21 September 1977, while the fishing boat "M/V MARIA EFIGENIA" owned by plaintiff was navigating in
the vicinity of Fortune Island in Nasugbu, Batangas, on its way to Navotas, Metro Manila, said fishing boat was
hit by the LSCO tanker "Petroparcel" causing the former to sink.
2. The Board of Marine Inquiry conducted an investigation of this marine accident and on 21 November 1978,
the Commandant of the Philippine Coast Guard, the Honorable Simeon N. Alejandro, rendered a decision
finding the cause of the accident to be the reckless and imprudent manner in which Edgardo Doruelo
navigated the LSCO "Petroparcel" and declared the latter vessel at fault.
3. On 2 April 1978, defendant Luzon Stevedoring Corporation (LUSTEVECO), executed in favor of PNOC
Shipping and Transport Corporation a Deed of Transfer involving several tankers, tugboats, barges and
pumping stations, among which was the LSCO Petroparcel.
4. On the same date on 2 April 1979 (sic), defendant PNOC STC again entered into an Agreement of Transfer
with co-defendant Lusteveco whereby all the business properties and other assets appertaining to the tanker
and bulk oil departments including the motor tanker LSCO Petroparcel of defendant Lusteveco were sold to
PNOC STC.
5. The aforesaid agreement stipulates, among others, that PNOC-STC assumes, without qualifications, all
obligations arising from and by virtue of all rights it obtained over the LSCO "Petroparcel".
6. On 6 July 1979, another agreement between defendant LUSTEVECO and PNOC-STC was executed
wherein Board of Marine Inquiry Case No. 332 (involving the sea accident of 21 September 1977) was
specifically identified and assumed by the latter.
7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed by the Ministry of National Defense,
in its decision dismissing the appeal of Capt. Edgardo Doruelo and Chief mate Anthony Estenzo of LSCO
"Petroparcel".
8. LSCO "Petroparcel" is presently owned and operated by PNOC-STC and likewise Capt. Edgardo Doruelo is
still in their employ.
9. As a result of the sinking of M/V Maria Efigenia caused by the reckless and imprudent manner in which
LSCO Petroparcel was navigated by defendant Doruelo, plaintiff suffered actual damages by the loss of its
fishing nets, boat equipments (sic) and cargoes, which went down with the ship when it sank the replacement
value of which should be left to the sound discretion of this Honorable Court.
After trial, the lower court 15 rendered on November 18, 1989 its decision disposing of Civil Case No. C-9457
as follows:
WHEREFORE, and in view of the foregoing, judgment is hereby rendered in favor of the plaintiff and against
the defendant PNOC Shipping & Transport Corporation, to pay the plaintiff:
a. The sum of P6,438,048.00 representing the value of the fishing boat with interest from the date of the filing
of the complaint at the rate of 6% per annum;
b. The sum of P50,000.00 as and for attorney's fees; and
c. The costs of suit.
The counterclaim is hereby DISMISSED for lack of merit. Likewise, the case against defendant Edgardo
Doruelo is hereby DISMISSED, for lack of jurisdiction.
SO ORDERED.
In arriving at the above disposition, the lower court cited the evidence presented by private respondent
consisting of the testimony of its general manager and sole witness, Edilberto del Rosario. Private
128
respondent's witness testified that M/V Maria Efigenia XV was owned by private respondent per Exhibit A, a
certificate of ownership issued by the Philippine Coast Guard showing that M/V Maria Efigenia XV was a
wooden motor boat constructed in 1965 with 128.23 gross tonnage. According to him, at the time the vessel
sank, it was then carrying 1,060 tubs (bañeras) of assorted fish the value of which was never recovered. Also
lost with the vessel were two cummins engines (250 horsepower), radar, pathometer and compass. He further
added that with the loss of his flagship vessel in his fishing fleet of fourteen (14) vessels, he was constrained to
hire the services of counsel whom he paid P10,000 to handle the case at the Board of Marine Inquiry and
P50,000.00 for commencing suit for damages in the lower court.
As to the award of P6,438,048.00 in actual damages, the lower court took into account the following pieces of
documentary evidence that private respondent proffered during trial:
(a) Exhibit A — certified xerox copy of the certificate of ownership of M/V Maria Efigenia XV;
(b) Exhibit B — a document titled "Marine Protest" executed by Delfin Villarosa, Jr. on September 22, 1977
stating that as a result of the collision, the M/V Maria Efigenia XV sustained a hole at its left side that caused it
to sink with its cargo of 1,050 bañeras valued at P170,000.00;
(c) Exhibit C — a quotation for the construction of a 95-footer trawler issued by Isidoro A. Magalong of I. A.
Magalong Engineering and Construction on January 26, 1987 to Del Rosario showing that construction of such
trawler would cost P2,250,000.00;
(d) Exhibit D — pro forma invoice No. PSPI-05/87-NAV issued by E.D. Daclan of Power Systems, Incorporated
on January 20, 1987 to Del Rosario showing that two (2) units of CUMMINS Marine Engine model N855-M,
195 bhp. at 1800 rpm. would cost P1,160,000.00;
(e) Exhibit E — quotation of prices issued by Scan Marine Inc. on January 20, 1987 to Del Rosario showing
that a unit of Furuno Compact Daylight Radar, Model FR-604D, would cost P100,000.00 while a unit of Furuno
Color Video Sounder, Model FCV-501 would cost P45,000.00 so that the two units would cost P145,000.00;
(f) Exhibit F — quotation of prices issued by Seafgear Sales, Inc. on January 21, 1987 to Del Rosario showing
that two (2) rolls of nylon rope (5" cir. X 300fl.) would cost P140,000.00; two (2) rolls of nylon rope (3" cir. X
240fl.), P42,750.00; one (1) binocular (7 x 50), P1,400.00, one (1) compass (6"), P4,000.00 and 50 pcs. of
floats, P9,000.00 or a total of P197,150.00;
(g) Exhibit G — retainer agreement between Del Rosario and F. Sumulong Associates Law Offices stipulating
an acceptance fee of P5,000.00, per appearance fee of P400.00, monthly retainer of P500.00, contingent fee
of 20% of the total amount recovered and that attorney's fee to be awarded by the court should be given to Del
Rosario; and
(h) Exhibit H — price quotation issued by Seafgear Sales, Inc. dated April 10, 1987 to Del Rosario showing the
cost of poly nettings as: 50 rolls of 400/18 3kts. 100md x 100mtrs., P70,000.00; 50 rolls of 400/18 5kts. 100md
x 100mtrs., P81,500.00; 50 rolls of 400/18 8kts. 100md x 100mtrs., P116,000.00, and 50 rolls of 400/18 10kts.
100md x 100mtrs., P146,500 and bañera (tub) at P65.00 per piece or a total of P414,065.00.
The lower court held that the prevailing replacement value of P6,438,048.00 of the fishing boat and all its
equipment would regularly increase at 30% every year from the date the quotations were given.
On the other hand, the lower court noted that petitioner only presented Lorenzo Lazaro, senior estimator at
PNOC Dockyard & Engineering Corporation, as sole witness and it did not bother at all to offer any
documentary evidence to support its position. Lazaro testified that the price quotations submitted by private
respondent were "excessive" and that as an expert witness, he used the quotations of his suppliers in making
his estimates. However, he failed to present such quotations of prices from his suppliers, saying that he could
not produce a breakdown of the costs of his estimates as it was "a sort of secret scheme." For this reason, the
lower court concluded:
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Evidently, the quotation of prices submitted by the plaintiff relative to the replacement value of the fishing boat
and its equipments in the tune of P6,438,048.00 which were lost due to the recklessness and imprudence of
the herein defendants were not rebutted by the latter with sufficient evidence. The defendants through their
sole witness Lorenzo Lazaro relied heavily on said witness' bare claim that the amount afore-said is excessive
or bloated, but they did not bother at all to present any documentary evidence to substantiate such claim.
Evidence to be believed must not only proceed from the mouth of the credible witness, but it must be credible
in itself. (Vda. de Bonifacio vs. B. L. T. Bus Co., Inc. L-26810, August 31, 1970).
Aggrieved, petitioner filed a motion for the reconsideration of the lower court's decision contending that: (1) the
lower court erred in holding it liable for damages; that the lower court did not acquire jurisdiction over the case
by paying only P1,252.00 as docket fee; (2) assuming that plaintiff was entitled to damages, the lower court
erred in awarding an amount greater than that prayed for in the second amended complaint; and (3) the lower
court erred when it failed to resolve the issues it had raised in its memorandum. 16 Petitioner likewise filed a
supplemental motion for reconsideration expounding on whether the lower court acquired jurisdiction over the
subject matter of the case despite therein plaintiff's failure to pay the prescribed docket fee. 17
On January 25, 1990, the lower court declined reconsideration for lack of merit. 18 Apparently not having
received the order denying its motion for reconsideration, petitioner still filed a motion for leave to file a reply to
private respondent's opposition to said motion. 19 Hence, on February 12, 1990, the lower court denied said
motion for leave to file a reply on the ground that by the issuance of the order of January 25, 1990, said motion
had become moot and academic. 20
Unsatisfied with the lower court's decision, petitioner elevated the matter to the Court of Appeals which,
however, affirmed the same in toto on October 14, 1992. 21 On petitioner's assertion that the award of
P6,438,048.00 was not convincingly proved by competent and admissible evidence, the Court of Appeals ruled
that it was not necessary to qualify Del Rosario as an expert witness because as the owner of the lost vessel,
"it was well within his knowledge and competency to identify and determine the equipment installed and the
cargoes loaded" on the vessel. Considering the documentary evidence presented as in the nature of market
reports or quotations, trade journals, trade circulars and price lists, the Court of Appeals held, thus:
Consequently, until such time as the Supreme Court categorically rules on the admissibility or inadmissibility of
this class of evidence, the reception of these documentary exhibits (price quotations) as evidence rests on the
sound discretion of the trial court. In fact, where the lower court is confronted with evidence which appears to
be of doubtful admissibility, the judge should declare in favor of admissibility rather than of non-admissibility
(The Collector of Palakadhari, 124 [1899], p. 13, cited in Francisco, Revised Rules of Court, Evidence, Volume
VII, Part I, 1990 Edition, p. 18). Trial courts are enjoined to observe the strict enforcement of the rules of
evidence which crystallized through constant use and practice and are very useful and effective aids in the
search for truth and for the effective administration of justice. But in connection with evidence which may
appear to be of doubtful relevancy or incompetency or admissibility, it is the safest policy to be liberal, not
rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or
incompetent, for the reason that their rejection places them beyond the consideration of the court. If they are
thereafter found relevant or competent, can easily be remedied by completely discarding or ignoring them.
(Banaria vs. Banaria, et al., C.A. No. 4142, May 31, 1950; cited in Francisco, Supra). [Emphasis supplied].
Stressing that the alleged inadmissible documentary exhibits were never satisfactorily rebutted by appellant's
own sole witness in the person of Lorenzo Lazaro, the appellate court found that petitioner ironically situated
itself in an "inconsistent posture by the fact that its own witness, admittedly an expert one, heavily relies on the
very same pieces of evidence (price quotations) appellant has so vigorously objected to as inadmissible
evidence." Hence, it concluded:
. . . The amount of P6,438,048.00 was duly established at the trial on the basis of appellee's documentary
exhibits (price quotations) which stood uncontroverted, and which already included the amount by way of
adjustment as prayed for in the amended complaint. There was therefore no need for appellee to amend the
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second amended complaint in so far as to the claim for damages is concerned to conform with the evidence
presented at the trial. The amount of P6,438,048.00 awarded is clearly within the relief prayed for in appellee's
second amended complaint.
On the issue of lack of jurisdiction, the respondent court held that following the ruling in Sun Insurance Ltd. v.
Asuncion, 22 the additional docket fee that may later on be declared as still owing the court may be enforced as
a lien on the judgment.
Hence, the instant recourse.
In assailing the Court of Appeals' decision, petitioner posits the view that the award of P6,438,048 as actual
damages should have been in light of these considerations, namely: (1) the trial court did not base such award
on the actual value of the vessel and its equipment at the time of loss in 1977; (2) there was no evidence on
extraordinary inflation that would warrant an adjustment of the replacement cost of the lost vessel, equipment
and cargo; (3) the value of the lost cargo and the prices quoted in respondent's documentary evidence only
amount to P4,336,215.00; (4) private respondent's failure to adduce evidence to support its claim for
unrealized profit and business opportunities; and (5) private respondent's failure to prove the extent and actual
value of damages sustained as a result of the 1977 collision of the vessels. 23
Under Article 2199 of the Civil Code, actual or compensatory damages are those awarded in satisfaction of, or
in recompense for, loss or injury sustained. They proceed from a sense of natural justice and are designed to
repair the wrong that has been done, to compensate for the injury inflicted and not to impose a penalty. 24 In
actions based on torts or quasi-delicts, actual damages include all the natural and probable consequences of
the act or omission complained of. 25 There are two kinds of actual or compensatory damages: one is the loss
of what a person already possesses (daño emergente), and the other is the failure to receive as a benefit that
which would have pertained to him (lucro cesante). 26 Thus:
Where goods are destroyed by the wrongful act of the defendant the plaintiff is entitled to their value at the time
of destruction, that is, normally, the sum of money which he would have to pay in the market for identical or
essentially similar goods, plus in a proper case damages for the loss of use during the period before
replacement. In other words, in the case of profit-earning chattels, what has to be assessed is the value of the
chattel to its owner as a going concern at the time and place of the loss, and this means, at least in the case of
ships, that regard must be had to existing and pending engagements, . . .
. . . . If the market value of the ship reflects the fact that it is in any case virtually certain of profitable
employment, then nothing can be added to that value in respect of charters actually lost, for to do so would
be pro tanto to compensate the plaintiff twice over. On the other hand, if the ship is valued without reference to
its actual future engagements and only in the light of its profit-earning potentiality, then it may be necessary to
add to the value thus assessed the anticipated profit on a charter or other engagement which it was unable to
fulfill. What the court has to ascertain in each case is the "capitalised value of the vessel as a profit-earning
machine not in the abstract but in view of the actual circumstances," without, of course, taking into account
considerations which were too remote at the time of the loss. 27 [Emphasis supplied].
As stated at the outset, to enable an injured party to recover actual or compensatory damages, he is required
to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and on
the best evidence available. 28 The burden of proof is on the party who would be defeated if no evidence would
be presented on either side. He must establish his case by a preponderance of evidence which means that the
evidence, as a whole, adduced by one side is superior to that of the other. 29 In other words, damages cannot
be presumed and courts, in making an award must point out specific facts that could afford a basis for
measuring whatever compensatory or actual damages are borne. 30
In this case, actual damages were proven through the sole testimony of private respondent's general manager
and certain pieces of documentary evidence. Except for Exhibit B where the value of the 1,050 bañeras of fish
were pegged at their September 1977 value when the collision happened, the pieces of documentary evidence
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proffered by private respondent with respect to items and equipment lost show similar items and equipment
with corresponding prices in early 1987 or approximately ten (10) years after the collision. Noticeably,
petitioner did not object to the exhibits in terms of the time index for valuation of the lost goods and equipment.
In objecting to the same pieces of evidence, petitioner commented that these were not duly authenticated and
that the witness (Del Rosario) did not have personal knowledge on the contents of the writings and neither was
he an expert on the subjects thereof. 31 Clearly ignoring petitioner's objections to the exhibits, the lower court
admitted these pieces of evidence and gave them due weight to arrive at the award of P6,438,048.00 as actual
damages.
The exhibits were presented ostensibly in the course of Del Rosario's testimony. Private respondent did not
present any other witnesses especially those whose signatures appear in the price quotations that became the
bases of the award. We hold, however, that the price quotations are ordinary private writings which under the
Revised Rules of Court should have been proffered along with the testimony of the authors thereof. Del
Rosario could not have testified on the veracity of the contents of the writings even though he was the
seasoned owner of a fishing fleet because he was not the one who issued the price quotations. Section 36,
Rule 130 of the Revised Rules of Court provides that a witness can testify only to those facts that he knows of
his personal knowledge.
For this reason, Del Rosario's claim that private respondent incurred losses in the total amount of
P6,438,048.00 should be admitted with extreme caution considering that, because it was a bare assertion, it
should be supported by independent evidence. Moreover, because he was the owner of private respondent
corporation 32 whatever testimony he would give with regard to the value of the lost vessel, its equipment and
cargoes should be viewed in the light of his self-interest therein. We agree with the Court of Appeals that his
testimony as to the equipment installed and the cargoes loaded on the vessel should be given
credence 33 considering his familiarity thereto. However, we do not subscribe to the conclusion that his
valuation of such equipment, cargo and the vessel itself should be accepted as gospel truth. 34 We must,
therefore, examine the documentary evidence presented to support Del Rosario's claim as regards the amount
of losses.
The price quotations presented as exhibits partake of the nature of hearsay evidence considering that the
persons who issued them were not presented as witnesses. 35 Any evidence, whether oral or documentary, is
hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of
another person who is not on the witness stand. Hearsay evidence, whether objected to or not, has no
probative value unless the proponent can show that the evidence falls within the exceptions to the hearsay
evidence rule. 36 On this point, we believe that the exhibits do not fall under any of the exceptions provided
under Sections 37 to 47 of Rule 130. 37
It is true that one of the exceptions to the hearsay rule pertains to "commercial lists and the like" under Section
45, Rule 130 of the Revised Rules on Evidence. In this respect, the Court of Appeals considered private
respondent's exhibits as "commercial lists." It added, however, that these exhibits should be admitted in
evidence "until such time as the Supreme Court categorically rules on the admissibility or inadmissibility of this
class of evidence" because "the reception of these documentary exhibits (price quotations) as evidence rests
on the sound discretion of the trial court." 38 Reference to Section 45, Rule 130, however, would show that the
conclusion of the Court of Appeals on the matter was arbitrarily arrived at. This rule states:
Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other published compilation is admissible as tending to
prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in
that occupation and is generally used and relied upon by them there.
Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is a statement of matters of
interest to persons engaged in an occupation; (2) such statement is contained in a list, register, periodical or

132
other published compilation; (3) said compilation is published for the use of persons engaged in that
occupation, and (4) it is generally used and relied upon by persons in the same occupation.
Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F and H 39 are not
"commercial lists" for these do not belong to the category of "other published compilations" under Section 45
aforequoted. Under the principle of ejusdem generis, "(w)here general words follow an enumeration of persons
or things, by words of a particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same kind or class as those
specifically mentioned." 40 The exhibits mentioned are mere price quotations issued personally to Del Rosario
who requested for them from dealers of equipment similar to the ones lost at the collision of the two vessels.
These are not published in any list, register, periodical or other compilation on the relevant subject matter.
Neither are these "market reports or quotations" within the purview of "commercial lists" as these are not
"standard handbooks or periodicals, containing data of everyday professional need and relied upon in the work
of the occupation." 41 These are simply letters responding to the queries of Del Rosario. Thus, take for example
Exhibit D which reads:
January 20, 1987
PROFORMA INVOICE NO. PSPI-05/87-NAV
MARIA EFIGINIA FISHING CORPORATION
Navotas, Metro Manila
Attention: MR. EDDIE DEL ROSARIO
Gentlemen:
In accordance to your request, we are pleated to quote our Cummins Marine Engine, to wit.
Two (2) units CUMMINS Marine Engine model N855-M, 195 bhp. at 1800 rpm., 6-cylinder in-line, 4-stroke
cycle, natural aspirated, 5 1/2 in. x 6 in. bore and stroke, 855 cu. In. displacement, keel-cooled, electric starting
coupled with Twin-Disc Marine gearbox model MG-509, 4.5:1 reduction ratio, includes oil cooler, companion
flange, manual and standard accessories as per attached sheet.
Price FOB Manila P580,000.00/unit
Total FOB Manila P1,160,000.00
TERMS : CASH
DELIVERY : 60-90 days from date of order.
VALIDITY : Subject to our final confirmation.
WARRANTY : One (1) full year against factory defect.
Very truly yours,
POWER SYSTEMS, INC.
(Sgd.)
E. D. Daclan
To be sure, letters and telegrams are admissible in evidence but these are, however, subject to the general
principles of evidence and to various rules relating to documentary evidence. 42 Hence, in one case, it was held
that a letter from an automobile dealer offering an allowance for an automobile upon purchase of a new
automobile after repairs had been completed, was not a "price current" or "commercial list" within the statute
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which made such items presumptive evidence of the value of the article specified therein. The letter was not
admissible in evidence as a "commercial list" even though the clerk of the dealer testified that he had written
the letter in due course of business upon instructions of the dealer. 43
But even on the theory that the Court of Appeals correctly ruled on the admissibility of those letters or
communications when it held that unless "plainly irrelevant, immaterial or incompetent," evidence should better
be admitted rather than rejected on "doubtful or technical grounds," 44 the same pieces of evidence, however,
should not have been given probative weight. This is a distinction we wish to point out. Admissibility of
evidence refers to the question of whether or not the circumstance (or evidence) is to considered at all. 45 On
the other hand, the probative value of evidence refers to the question of whether or not it proves an
issue. 46 Thus, a letter may be offered in evidence and admitted as such but its evidentiary weight depends
upon the observance of the rules on evidence. Accordingly, the author of the letter should be presented as
witness to provide the other party to the litigation the opportunity to question him on the contents of the letter.
Being mere hearsay evidence, failure to present the author of the letter renders its contents suspect. As earlier
stated, hearsay evidence, whether objected to or not, has no probative value. Thus:
The courts differ as to the weight to be given to hearsay evidence admitted without objection. Some hold that
when hearsay has been admitted without objection, the same may be considered as any other properly
admitted testimony. Others maintain that it is entitled to no more consideration than if it had been excluded.
The rule prevailing in this jurisdiction is the latter one. Our Supreme Court held that although the question of
admissibility of evidence can not be raised for the first time on appeal, yet if the evidence is hearsay it has no
probative value and should be disregarded whether objected to or not. "If no objection is made" — quoting
Jones on Evidence — "it (hearsay) becomes evidence by reason of the want of such objection even though its
admission does not confer upon it any new attribute in point of weight. Its nature and quality remain the same,
so far as its intrinsic weakness and incompetency to satisfy the mind are concerned, and as opposed to direct
primary evidence, the latter always prevails.
The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence
or evidence that violates the rules of res inter alios acta, or his failure to ask for the striking out of the same
does not give such evidence any probative value. But admissibility of evidence should not be equated with
weight of evidence. Hearsay evidence whether objected to or not has no probative value. 47
48
Accordingly, as stated at the outset, damages may not be awarded on the basis of hearsay evidence.
Nonetheless, the non-admissibility of said exhibits does not mean that it totally deprives private respondent of
any redress for the loss of its vessel. This is because in Lufthansa German Airlines v. Court of Appeals, 49 the
Court said:
In the absence of competent proof on the actual damage suffered, private respondent is "entitled to nominal
damages which, as the law says, is adjudicated in order that a right of the plaintiff, which has been violated or
invaded by defendant, may be vindicated and recognized, and not for the purpose of indemnifying the plaintiff
for any loss suffered." [Emphasis supplied].
Nominal damages are awarded in every obligation arising from law, contracts, quasi-contracts, acts or
omissions punished by law, and quasi-delicts, or in every case where property right has been
invaded. 50 Under Article 2223 of the Civil Code, "(t)he adjudication of nominal damages shall preclude further
contest upon the right involved and all accessory questions, as between the parties to the suit, or their
respective heirs and assigns."
Actually, nominal damages are damages in name only and not in fact. Where these are allowed, they are not
treated as an equivalent of a wrong inflicted but simply in recognition of the existence of a technical
injury. 51 However, the amount to be awarded as nominal damages shall be equal or at least commensurate to

134
the injury sustained by private respondent considering the concept and purpose of such damages. 52 The
amount of nominal damages to be awarded may also depend on certain special reasons extant in the case. 53
Applying now such principles to the instant case, we have on record the fact that petitioner's
vessel Petroparcel was at fault as well as private respondent's complaint claiming the amount of P692,680.00
representing the fishing nets, boat equipment and cargoes that sunk with the M/V Maria Efigenia XV. In its
amended complaint, private respondent alleged that the vessel had an actual value of P800,000.00 but it had
been paid insurance in the amount of P200,000.00 and, therefore, it claimed only the amount of P600,000.00.
Ordinarily, the receipt of insurance payments should diminish the total value of the vessel quoted by private
respondent in his complaint considering that such payment is causally related to the loss for which it claimed
compensation. This Court believes that such allegations in the original and amended complaints can be the
basis for determination of a fair amount of nominal damages inasmuch as a complaint alleges the ultimate
facts constituting the plaintiffs cause of
action. 54 Private respondent should be bound by its allegations on the amount of its claims.
With respect to petitioner's contention that the lower court did not acquire jurisdiction over the amended
complaint increasing the amount of damages claimed to P600,000.00, we agree with the Court of Appeals that
the lower court acquired jurisdiction over the case when private respondent paid the docket fee corresponding
to its claim in its original complaint. Its failure to pay the docket fee corresponding to its increased claim for
damages under the amended complaint should not be considered as having curtailed the lower court's
jurisdiction. Pursuant to the ruling in Sun Insurance Office, Ltd. (SIOL) v. Asuncion, 55 the unpaid docket fee
should be considered as a lien on the judgment even though private respondent specified the amount of
P600,000.00 as its claim for damages in its amended complaint.
Moreover, we note that petitioner did not question at all the jurisdiction of the lower court on the ground of
insufficient docket fees in its answers to both the amended complaint and the second amended complaint. It
did so only in its motion for reconsideration of the decision of the lower court after it had received an adverse
decision. As this Court held in Pantranco North Express, Inc. v. Court of Appeals, 56 participation in all stages
of the case before the trial court, that included invoking its authority in asking for affirmative relief, effectively
barred petitioner by estoppel from challenging the court's jurisdiction. Notably, from the time it filed its answer
to the second amended complaint on April 16, 1985, 57 petitioner did not question the lower court's jurisdiction.
It was only on December 29, 1989 58 when it filed its motion for reconsideration of the lower court's decision
that petitioner raised the question of the lower court's lack of jurisdiction. Petitioner thus foreclosed its right to
raise the issue of jurisdiction by its own inaction.
WHEREFORE, the challenged decision of the Court of Appeals dated October 14, 1992 in CA-G.R. CV No.
26680 affirming that of the Regional Trial Court of Caloocan City, Branch 121, is hereby MODIFIED insofar as
it awarded actual damages to private respondent Maria Efigenia Fishing Corporation in the amount of
P6,438,048.00 for lack of evidentiary bases therefor. Considering the fact, however, that: (1) technically
petitioner sustained injury but which, unfortunately, was not adequately and properly proved, and (2) this case
has dragged on for almost two decades, we believe that an award of Two Million (P2,000,000.00) 59 in favor of
private respondent as and for nominal damages is in order.
No pronouncement as to costs.
SO ORDERED.

135
N. USE OF ASSOCIATED WORDS
5. NOSCITUR A SOCIIS
5.1. ONGC VS C.A. (GR NO. 114323)
OIL AND NATURAL GAS COMMISSION, petitioner,
vs.
COURT OF APPEALS and PACIFIC CEMENT COMPANY, INC., respondents.

MARTINEZ, J.:
This proceeding involves the enforcement of a foreign judgment rendered by the Civil Judge of Dehra Dun,
India in favor of the petitioner, OIL AND NATURAL GAS COMMISSION and against the private respondent,
PACIFIC CEMENT COMPANY, INCORPORATED.
The petitioner is a foreign corporation owned and controlled by the Government of India while the private
respondent is a private corporation duly organized and existing under the laws of the Philippines. The present
conflict between the petitioner and the private respondent has its roots in a contract entered into by and
between both parties on February 26, 1983 whereby the private respondent undertook to supply the petitioner
FOUR THOUSAND THREE HUNDRED (4,300) metric tons of oil well cement. In consideration therefor, the
petitioner bound itself to pay the private respondent the amount of FOUR HUNDRED SEVENTY-SEVEN
THOUSAND THREE HUNDRED U.S. DOLLARS ($477,300.00) by opening an irrevocable, divisible, and
confirmed letter of credit in favor of the latter. The oil well cement was loaded on board the ship MV
SURUTANA NAVA at the port of Surigao City, Philippines for delivery at Bombay and Calcutta, India.
However, due to a dispute between the shipowner and the private respondent, the cargo was held up in
Bangkok and did not reach its point destination. Notwithstanding the fact that the private respondent had
already received payment and despite several demands made by the petitioner, the private respondent failed
to deliver the oil well cement. Thereafter, negotiations ensued between the parties and they agreed that the
private respondent will replace the entire 4,300 metric tons of oil well cement with Class "G" cement cost free
at the petitioner's designated port. However, upon inspection, the Class "G" cement did not conform to the
petitioner's specifications. The petitioner then informed the private respondent that it was referring its claim to
an arbitrator pursuant to Clause 16 of their contract which stipulates:
Except where otherwise provided in the supply order/contract all questions and disputes, relating to the
meaning of the specification designs, drawings and instructions herein before mentioned and as to quality of
workmanship of the items ordered or as to any other question, claim, right or thing whatsoever, in any way
arising out of or relating to the supply order/contract design, drawing, specification, instruction or these
conditions or otherwise concerning the materials or the execution or failure to execute the same during
stipulated/extended period or after the completion/abandonment thereof shall be referred to the sole arbitration
of the persons appointed by Member of the Commission at the time of dispute. It will be no objection to any
such appointment that the arbitrator so appointed is a Commission employer (sic) that he had to deal with the
matter to which the supply or contract relates and that in the course of his duties as Commission's employee
he had expressed views on all or any of the matter in dispute or difference.
The arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable
to act for any reason the Member of the Commission shall appoint another person to act as arbitrator in
accordance with the terms of the contract/supply order. Such person shall be entitled to proceed with reference
from the stage at which it was left by his predecessor. Subject as aforesaid the provisions of the Arbitration

136
Act, 1940, or any Statutory modification or re-enactment there of and the rules made there under and for the
time being in force shall apply to the arbitration proceedings under this clause.
The arbitrator may with the consent of parties enlarge the time, from time to time, to make and publish the
award.
The venue for arbitration shall be at Dehra dun. 1*
On July 23, 1988, the chosen arbitrator, one Shri N.N. Malhotra, resolved the dispute in petitioner's favor
setting forth the arbitral award as follows:
NOW THEREFORE after considering all facts of the case, the evidence, oral and documentarys adduced by
the claimant and carefully examining the various written statements, submissions, letters, telexes, etc. sent by
the respondent, and the oral arguments addressed by the counsel for the claimants, I, N.N. Malhotra, Sole
Arbitrator, appointed under clause 16 of the supply order dated 26.2.1983, according to which the parties, i.e.
M/S Oil and Natural Gas Commission and the Pacific Cement Co., Inc. can refer the dispute to the sole
arbitration under the provision of the Arbitration Act. 1940, do hereby award and direct as follows: —
The Respondent will pay the following to the claimant: —
1. Amount received by the Respondent
against the letter of credit No. 11/19
dated 28.2.1983 US $ 477,300.00
2. Re-imbursement of expenditure incurred
by the claimant on the inspection team's
visit to Philippines in August 1985 US $ 3,881.00
3. L.C. Establishment charges incurred
by the claimant US $ 1,252.82
4. Loss of interest suffered by claimant
from 21.6.83 to 23.7.88 US $ 417,169.95
Total amount of award US $ 899,603.77
In addition to the above, the respondent would also be liable to pay to the claimant the interest at the rate of
6% on the above amount, with effect from 24.7.1988 up to the actual date of payment by the Respondent in full
settlement of the claim as awarded or the date of the decree, whichever is earlier.
I determine the cost at Rs. 70,000/- equivalent to US $5,000 towards the expenses on Arbitration, legal
expenses, stamps duly incurred by the claimant. The cost will be shared by the parties in equal proportion.
Pronounced at Dehra Dun to-day, the 23rd of July 1988. 2
To enable the petitioner to execute the above award in its favor, it filed a Petition before the Court of the Civil
Judge in Dehra Dun. India (hereinafter referred to as the foreign court for brevity), praying that the decision of
the arbitrator be made "the Rule of Court" in India. The foreign court issued notices to the private respondent
for filing objections to the petition. The private respondent complied and sent its objections dated January 16,
1989. Subsequently, the said court directed the private respondent to pay the filing fees in order that the
latter's objections could be given consideration. Instead of paying the required filing fees, the private
respondent sent the following communication addressed to the Civil judge of Dehra Dun:

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The Civil Judge
Dehra Dun (U.P.) India
Re: Misc. Case No. 5 of 1989
M/S Pacific Cement Co.,
Inc. vs. ONGC Case
Sir:
1. We received your letter dated 28 April 1989 only last 18 May 1989.
2. Please inform us how much is the court fee to be paid. Your letter did not mention the amount to be paid.
3. Kindly give us 15 days from receipt of your letter advising us how much to pay to comply with the same.
Thank you for your kind consideration.
Pacific Cement Co., Inc.
By:
Jose Cortes, Jr.
President 3
Without responding to the above communication, the foreign court refused to admit the private respondent's
objections for failure to pay the required filing fees, and thereafter issued an Order on February 7, 1990, to wit:
ORDER
Since objections filed by defendant have been rejected through Misc. Suit No. 5 on 7.2.90, therefore, award
should be made Rule of the Court.
ORDER
Award dated 23.7.88, Paper No. 3/B-1 is made Rule of the Court. On the basis of conditions of award decree is
passed. Award Paper No. 3/B-1 shall be a part of the decree. The plaintiff shall also be entitled to get from
defendant (US$ 899,603.77 (US$ Eight Lakhs ninety nine thousand six hundred and three point seventy seven
only) along with 9% interest per annum till the last date of realisation. 4
Despite notice sent to the private respondent of the foregoing order and several demands by the petitioner for
compliance therewith, the private respondent refused to pay the amount adjudged by the foreign court as
owing to the petitioner. Accordingly, the petitioner filed a complaint with Branch 30 of the Regional Trial Court
(RTC) of Surigao City for the enforcement of the aforementioned judgment of the foreign court. The private
respondent moved to dismiss the complaint on the following grounds: (1) plaintiffs lack of legal capacity to sue;
(2) lack of cause of action; and (3) plaintiffs claim or demand has been waived, abandoned, or otherwise
extinguished. The petitioner filed its opposition to the said motion to dismiss, and the private respondent, its
rejoinder thereto. On January 3, 1992, the RTC issued an order upholding the petitioner's legal capacity to sue,
albeit dismissing the complaint for lack of a valid cause of action. The RTC held that the rule prohibiting foreign
corporations transacting business in the Philippines without a license from maintaining a suit in Philippine
courts admits of an exception, that is, when the foreign corporation is suing on an isolated transaction as in this
case. 5 Anent the issue of the sufficiency of the petitioner's cause of action, however, the RTC found the
referral of the dispute between the parties to the arbitrator under Clause 16 of their contract erroneous.
According to the RTC,

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[a] perusal of the shove-quoted clause (Clause 16) readily shows that the matter covered by its terms is limited
to "ALL QUESTIONS AND DISPUTES, RELATING TO THE MEANING OF THE SPECIFICATION, DESIGNS,
DRAWINGS AND INSTRUCTIONS HEREIN BEFORE MENTIONED and as to the QUALITY OF
WORKMANSHIP OF THE ITEMS ORDERED or as to any other questions, claim, right or thing whatsoever,
but qualified to "IN ANY WAY ARISING OR RELATING TO THE SUPPLY ORDER/CONTRACT, DESIGN,
DRAWING, SPECIFICATION, etc.," repeating the enumeration in the opening sentence of the clause.
The court is inclined to go along with the observation of the defendant that the breach, consisting of the non-
delivery of the purchased materials, should have been properly litigated before a court of law, pursuant to
Clause No. 15 of the Contract/Supply Order, herein quoted, to wit:
"JURISDICTION
All questions, disputes and differences, arising under out of or in connection with this supply order, shall be
subject to the EXCLUSIVE JURISDICTION OF THE COURT, within the local limits of whose jurisdiction and
the place from which this supply order is situated."6
The RTC characterized the erroneous submission of the dispute to the arbitrator as a "mistake of law or fact
amounting to want of jurisdiction". Consequently, the proceedings had before the arbitrator were null and void
and the foreign court had therefore, adopted no legal award which could be the source of an enforceable
right. 7
The petitioner then appealed to the respondent Court of Appeals which affirmed the dismissal of the complaint.
In its decision, the appellate court concurred with the RTC's ruling that the arbitrator did not have jurisdiction
over the dispute between the parties, thus, the foreign court could not validly adopt the arbitrator's award. In
addition, the appellate court observed that the full text of the judgment of the foreign court contains the
dispositive portion only and indicates no findings of fact and law as basis for the award. Hence, the said
judgment cannot be enforced by any Philippine court as it would violate the constitutional provision that no
decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law
on which it is based. 8 The appellate court ruled further that the dismissal of the private respondent's objections
for non-payment of the required legal fees, without the foreign court first replying to the private respondent's
query as to the amount of legal fees to be paid, constituted want of notice or violation of due process. Lastly, it
pointed out that the arbitration proceeding was defective because the arbitrator was appointed solely by the
petitioner, and the fact that the arbitrator was a former employee of the latter gives rise to a presumed bias on
his part in favor of the petitioner. 9
A subsequent motion for reconsideration by the petitioner of the appellate court's decision was denied, thus,
this petition for review on certiorari citing the following as grounds in support thereof:
RESPONDENT COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE LOWER COURT'S ORDER
OF DISMISSAL SINCE:
A. THE NON-DELIVERY OF THE CARGO WAS A MATTER PROPERLY COGNIZABLE BY THE
PROVISIONS OF CLAUSE 16 OF THE CONTRACT;
B. THE JUDGMENT OF THE CIVIL COURT OF DEHRADUN, INDIA WAS AN AFFIRMATION OF THE
FACTUAL AND LEGAL FINDINGS OF THE ARBITRATOR AND THEREFORE ENFORCEABLE IN THIS
JURISDICTION;
C. EVIDENCE MUST BE RECEIVED TO REPEL THE EFFECT OF A PRESUMPTIVE RIGHT UNDER A
FOREIGN JUDGMENT. 10
The threshold issue is whether or not the arbitrator had jurisdiction over the dispute between the petitioner and
the private respondent under Clause 16 of the contract. To reiterate, Clause 16 provides as follows:

139
Except where otherwise provided in the supply order/contract all questions and disputes, relating to the
meaning of the specification designs, drawings and instructions herein before mentioned and as to quality of
workmanship of the items ordered or as to any other question, claim, right or thing whatsoever, in any way
arising out of or relating to the supply order/contract design, drawing, specification, instruction or these
conditions or otherwise concerning the materials or the execution or failure to execute the same during
stipulated/extended period or after the completion/abandonment thereof shall be referred to the sole arbitration
of the persons appointed by Member of the Commission at the time of dispute. It will be no objection to any
such appointment that the arbitrator so appointed is a Commission employer (sic) that he had to deal with the
matter to which the supply or contract relates and that in the course of his duties as Commission's employee
he had expressed views on all or any of the matter in dispute or difference. 11
The dispute between the parties had its origin in the non-delivery of the 4,300 metric tons of oil well cement to
the petitioner. The primary question that may be posed, therefore, is whether or not the non-delivery of the said
cargo is a proper subject for arbitration under the above-quoted Clause 16. The petitioner contends that the
same was a matter within the purview of Clause 16, particularly the phrase, ". . . or as to any other questions,
claim, right or thing whatsoever, in any way arising or relating to the supply order/contract, design, drawing,
specification, instruction . . .". 12 It is argued that the foregoing phrase allows considerable latitude so as to
include non-delivery of the cargo which was a "claim, right or thing relating to the supply order/contract". The
contention is bereft of merit. First of all, the petitioner has misquoted the said phrase, shrewdly inserting a
comma between the words "supply order/contract" and "design" where none actually exists. An accurate
reproduction of the phrase reads, ". . . or as to any other question, claim, right or thing whatsoever, in any way
arising out of or relating to the supply order/contract design, drawing, specification, instruction or these
conditions . . .". The absence of a comma between the words "supply order/contract" and "design" indicates
that the former cannot be taken separately but should be viewed in conjunction with the words "design,
drawing, specification, instruction or these conditions". It is thus clear that to fall within the purview of this
phrase, the "claim, right or thing whatsoever" must arise out of or relate to the design, drawing, specification, or
instruction of the supply order/contract. The petitioner also insists that the non-delivery of the cargo is not only
covered by the foregoing phrase but also by the phrase, ". . . or otherwise concerning the materials or the
execution or failure to execute the same during the stipulated/extended period or after
completion/abandonment thereof . . .".
The doctrine of noscitur a sociis, although a rule in the construction of statutes, is equally applicable in the
ascertainment of the meaning and scope of vague contractual stipulations, such as the aforementioned
phrase. According to the maxim noscitur a sociis, where a particular word or phrase is ambiguous in itself or is
equally susceptible of various meanings, its correct construction may be made clear and specific by
considering the company of the words in which it is found or with which it is associated, or stated differently, its
obscurity or doubt may be reviewed by reference to associated words. 13 A close examination of Clause 16
reveals that it covers three matters which may be submitted to arbitration namely,
(1) all questions and disputes, relating to the meaning of the specification designs, drawings and instructions
herein before mentioned and as to quality of workmanship of the items ordered; or
(2) any other question, claim, right or thing whatsoever, in any way arising out of or relating to the supply
order/contract design, drawing, specification, instruction or these conditions; or
(3) otherwise concerning the materials or the execution or failure to execute the same during
stipulated/extended period or after the completion/abandonment thereof.
The first and second categories unmistakably refer to questions and disputes relating to the design, drawing,
instructions, specifications or quality of the materials of the supply/order contract. In the third category, the
clause, "execution or failure to execute the same", may be read as "execution or failure to execute the supply
order/contract". But in accordance with the doctrine of noscitur a sociis, this reference to the supply
order/contract must be construed in the light of the preceding words with which it is associated, meaning to
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say, as being limited only to the design, drawing, instructions, specifications or quality of the materials of the
supply order/contract. The non-delivery of the oil well cement is definitely not in the nature of a dispute arising
from the failure to execute the supply order/contract design, drawing, instructions, specifications or quality of
the materials. That Clause 16 should pertain only to matters involving the technical aspects of the contract is
but a logical inference considering that the underlying purpose of a referral to arbitration is for such technical
matters to be deliberated upon by a person possessed with the required skill and expertise which may be
otherwise absent in the regular courts.
This Court agrees with the appellate court in its ruling that the non-delivery of the oil well cement is a matter
properly cognizable by the regular courts as stipulated by the parties in Clause 15 of their contract:
All questions, disputes and differences, arising under out of or in connection with this supply order, shall be
subject to the exclusive jurisdiction of the court, within the local limits of whose jurisdiction and the place from
which this supply order is situated. 14
The following fundamental principles in the interpretation of contracts and other instruments served as our
guide in arriving at the foregoing conclusion:
Art. 1373. If some stipulation of any contract should admit of several meanings, it shall be understood as
bearing that import which is most adequate to render it effectual. 15
Art. 1374. The various stipulations of a contract shall be interpreted together, attributing the doubtful ones that
sense which may result from all of them taken jointly. 16
Sec. 11. Instrument construed so as to give effect to all provisions. In the construction of an instrument, where
there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect
to all. 17
Thus, this Court has held that as in statutes, the provisions of a contract should not be read in isolation from
the rest of the instrument but, on the contrary, interpreted in the light of the other related provisions. 18 The
whole and every part of a contract must be considered in fixing the meaning of any of its harmonious whole.
Equally applicable is the canon of construction that in interpreting a statute (or a contract as in this case), care
should be taken that every part thereof be given effect, on the theory that it was enacted as an integrated
measure and not as a hodge-podge of conflicting provisions. The rule is that a construction that would render a
provision inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled
whenever possible as parts of a coordinated and harmonious whole. 19
The petitioner's interpretation that Clause 16 is of such latitude as to contemplate even the non-delivery of the
oil well cement would in effect render Clause 15 a mere superfluity. A perusal of Clause 16 shows that the
parties did not intend arbitration to be the sole means of settling disputes. This is manifest from Clause 16 itself
which is prefixed with the proviso, "Except where otherwise provided in the supply order/contract . . .", thus
indicating that the jurisdiction of the arbitrator is not all encompassing, and admits of exceptions as may be
provided elsewhere in the supply order/contract. We believe that the correct interpretation to give effect to both
stipulations in the contract is for Clause 16 to be confined to all claims or disputes arising from or relating to the
design, drawing, instructions, specifications or quality of the materials of the supply order/contract, and for
Clause 15 to cover all other claims or disputes.
The petitioner then asseverates that granting, for the sake of argument, that the non-delivery of the oil well
cement is not a proper subject for arbitration, the failure of the replacement cement to conform to the
specifications of the contract is a matter clearly falling within the ambit of Clause 16. In this contention, we find
merit. When the 4,300 metric tons of oil well cement were not delivered to the petitioner, an agreement was
forged between the latter and the private respondent that Class "G" cement would be delivered to the petitioner
as replacement. Upon inspection, however, the replacement cement was rejected as it did not conform to the
specifications of the contract. Only after this latter circumstance was the matter brought before the arbitrator.
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Undoubtedly, what was referred to arbitration was no longer the mere non-delivery of the cargo at the first
instance but also the failure of the replacement cargo to conform to the specifications of the contract, a matter
clearly within the coverage of Clause 16.
The private respondent posits that it was under no legal obligation to make replacement and that it undertook
the latter only "in the spirit of liberality and to foster good business relationship". 20 Hence, the undertaking to
deliver the replacement cement and its subsequent failure to conform to specifications are not anymore subject
of the supply order/contract or any of the provisions thereof. We disagree.
As per Clause 7 of the supply order/contract, the private respondent undertook to deliver the 4,300 metric tons
of oil well cement at "BOMBAY (INDIA) 2181 MT and CALCUTTA 2119 MT". 21 The failure of the private
respondent to deliver the cargo to the designated places remains undisputed. Likewise, the fact that the
petitioner had already paid for the cost of the cement is not contested by the private respondent. The private
respondent claims, however, that it never benefited from the transaction as it was not able to recover the cargo
that was unloaded at the port of Bangkok. 22 First of all, whether or not the private respondent was able to
recover the cargo is immaterial to its subsisting duty to make good its promise to deliver the cargo at the
stipulated place of delivery. Secondly, we find it difficult to believe this representation. In its Memorandum filed
before this Court, the private respondent asserted that the Civil Court of Bangkok had already ruled that the
non-delivery of the cargo was due solely to the fault of the carrier. 23 It is, therefore, but logical to assume that
the necessary consequence of this finding is the eventual recovery by the private respondent of the cargo or
the value thereof. What inspires credulity is not that the replacement was done in the spirit of liberality but that
it was undertaken precisely because of the private respondent's recognition of its duty to do so under the
supply order/contract, Clause 16 of which remains in force and effect until the full execution thereof.
We now go to the issue of whether or not the judgment of the foreign court is enforceable in this jurisdiction in
view of the private respondent's allegation that it is bereft of any statement of facts and law upon which the
award in favor of the petitioner was based. The pertinent portion of the judgment of the foreign court reads:
ORDER
Award dated 23.7.88, Paper No. 3/B-1 is made Rule of the Court. On the basis of conditions of award decree is
passed. Award Paper No. 3/B-1 shall be a part of the decree. The plaintiff shall also be entitled to get from
defendant (US$ 899,603.77 (US$ Eight Lakhs ninety nine thousand six hundred and three point seventy seven
only) along with 9% interest per annum till the last date of realisation. 24
As specified in the order of the Civil Judge of Dehra Dun, "Award Paper No. 3/B-1 shall be a part of the
decree". This is a categorical declaration that the foreign court adopted the findings of facts and law of the
arbitrator as contained in the latter's Award Paper. Award Paper No. 3/B-1, contains an exhaustive discussion
of the respective claims and defenses of the parties, and the arbitrator's evaluation of the same. Inasmuch as
the foregoing is deemed to have been incorporated into the foreign court's judgment the appellate court was in
error when it described the latter to be a "simplistic decision containing literally, only the dispositive portion". 25
The constitutional mandate that no decision shall be rendered by any court without expressing therein dearly
and distinctly the facts and the law on which it is based does not preclude the validity of "memorandum
decisions" which adopt by reference the findings of fact and conclusions of law contained in the decisions of
inferior tribunals. In Francisco v. Permskul, 26 this Court held that the following memorandum decision of the
Regional Trial Court of Makati did not transgress the requirements of Section 14, Article VIII of the Constitution:
MEMORANDUM DECISION
After a careful perusal, evaluation and study of the records of this case, this Court hereby adopts by reference
the findings of fact and conclusions of law contained in the decision of the Metropolitan Trial Court of Makati,
Metro Manila, Branch 63 and finds that there is no cogent reason to disturb the same.

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WHEREFORE, judgment appealed from is hereby affirmed in toto. 27 (Emphasis supplied.)
This Court had occasion to make a similar pronouncement in the earlier case of Romero v. Court of
Appeals, 28 where the assailed decision of the Court of Appeals adopted the findings and disposition of the
Court of Agrarian Relations in this wise:
We have, therefore, carefully reviewed the evidence and made a re-assessment of the same, and We are
persuaded, nay compelled, to affirm the correctness of the trial court's factual findings and the soundness of its
conclusion. For judicial convenience and expediency, therefore, We hereby adopt by way of reference, the
findings of facts and conclusions of the court a quo spread in its decision, as integral part of this Our
decision. 29 (Emphasis supplied)
Hence, even in this jurisdiction, incorporation by reference is allowed if only to avoid the cumbersome
reproduction of the decision of the lower courts, or portions thereof, in the decision of the higher court. 30 This
is particularly true when the decision sought to be incorporated is a lengthy and thorough discussion of the
facts and conclusions arrived at, as in this case, where Award Paper No. 3/B-1 consists of eighteen (18) single
spaced pages.
Furthermore, the recognition to be accorded a foreign judgment is not necessarily affected by the fact that the
procedure in the courts of the country in which such judgment was rendered differs from that of the courts of
the country in which the judgment is relied on. 31 This Court has held that matters of remedy and procedure are
governed by the lex fori or the internal law of the forum. 32 Thus, if under the procedural rules of the Civil Court
of Dehra Dun, India, a valid judgment may be rendered by adopting the arbitrator's findings, then the same
must be accorded respect. In the same vein, if the procedure in the foreign court mandates that an Order of the
Court becomes final and executory upon failure to pay the necessary docket fees, then the courts in this
jurisdiction cannot invalidate the order of the foreign court simply because our rules provide otherwise.
The private respondent claims that its right to due process had been blatantly violated, first by reason of the
fact that the foreign court never answered its queries as to the amount of docket fees to be paid then refused
to admit its objections for failure to pay the same, and second, because of the presumed bias on the part of the
arbitrator who was a former employee of the petitioner.
Time and again this Court has held that the essence of due process is to be found in the reasonable
opportunity to be heard and submit any evidence one may have in support of one's defense 33 or stated
otherwise, what is repugnant to due process is the denial of opportunity to be heard. 34 Thus, there is no
violation of due process even if no hearing was conducted, where the party was given a chance to explain his
side of the controversy and he waived his right to do so. 35
In the instant case, the private respondent does not deny the fact that it was notified by the foreign court to file
its objections to the petition, and subsequently, to pay legal fees in order for its objections to be given
consideration. Instead of paying the legal fees, however, the private respondent sent a communication to the
foreign court inquiring about the correct amount of fees to be paid. On the pretext that it was yet awaiting the
foreign court's reply, almost a year passed without the private respondent paying the legal fees. Thus, on
February 2, 1990, the foreign court rejected the objections of the private respondent and proceeded to
adjudicate upon the petitioner's claims. We cannot subscribe to the private respondent's claim that the foreign
court violated its right to due process when it failed to reply to its queries nor when the latter rejected its
objections for a clearly meritorious ground. The private respondent was afforded sufficient opportunity to be
heard. It was not incumbent upon the foreign court to reply to the private respondent's written communication.
On the contrary, a genuine concern for its cause should have prompted the private respondent to ascertain
with all due diligence the correct amount of legal fees to be paid. The private respondent did not act with
prudence and diligence thus its plea that they were not accorded the right to procedural due process cannot
elicit either approval or sympathy from this Court. 36

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The private respondent bewails the presumed bias on the part of the arbitrator who was a former employee of
the petitioner. This point deserves scant consideration in view of the following stipulation in the contract:
. . . . It will be no objection any such appointment that the arbitrator so appointed is a Commission employer
(sic) that he had to deal with the matter to which the supply or contract relates and that in the course of his
duties as Commission's employee he had expressed views on all or any of the matter in dispute or
difference. 37 (Emphasis supplied.)
Finally, we reiterate hereunder our pronouncement in the case of Northwest Orient Airlines, Inc. v. Court of
Appeals 38 that:
A foreign judgment is presumed to be valid and binding in the country from which it comes, until the contrary is
shown. It is also proper to presume the regularity of the proceedings and the giving of due notice therein.
Under Section 50, Rule 39 of the Rules of Court, a judgment in an action in personam of a tribunal of a foreign
country having jurisdiction to pronounce the same is presumptive evidence of a right as between the parties
and their successors-in-interest by a subsequent title. The judgment may, however, be assailed by evidence of
want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. Also, under
Section 3 of Rule 131, a court, whether of the Philippines or elsewhere, enjoys the presumption that it was
acting in the lawful exercise of jurisdiction and has regularly performed its official duty. 39
Consequently, the party attacking a foreign judgment, the private respondent herein, had the burden of
overcoming the presumption of its validity which it failed to do in the instant case.
The foreign judgment being valid, there is nothing else left to be done than to order its enforcement, despite
the fact that the petitioner merely prays for the remand of the case to the RTC for further proceedings. As this
Court has ruled on the validity and enforceability of the said foreign judgment in this jurisdiction, further
proceedings in the RTC for the reception of evidence to prove otherwise are no longer necessary.
WHEREFORE, the instant petition is GRANTED, and the assailed decision of the Court of Appeals sustaining
the trial court's dismissal of the OIL AND NATURAL GAS COMMISSION's complaint in Civil Case No. 4006
before Branch 30 of the RTC of Surigao City is REVERSED, and another in its stead is hereby rendered
ORDERING private respondent PACIFIC CEMENT COMPANY, INC. to pay to petitioner the amounts
adjudged in the foreign judgment subject of said case.
SO ORDERED.

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N. USE OF ASSOCIATED WORDS
5. NOSCITUR A SOCIIS
5.2. MAGTAJAS VS PRYCE (GR NO. 111097)
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING
CORPORATION, respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.

CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City.
Civic organizations angrily denounced the project. The religious elements echoed the objection and so did the
women's groups and the youth. Demonstrations were led by the mayor and the city legislators. The media
trumpeted the protest, describing the casino as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to
expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce
Properties Corporation, Inc., one of the herein private respondents, renovated and equipped the same, and
prepared to inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7,
1992, it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING
BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS
PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that:
Sec. 1. — That pursuant to the policy of the city banning the operation of casino within its territorial jurisdiction,
no business permit shall be issued to any person, partnership or corporation for the operation of casino within
the city limits.
Sec. 2. — That it shall be a violation of existing business permit by any persons, partnership or corporation to
use its business establishment or portion thereof, or allow the use thereof by others for casino operation and
other gambling activities.
Sec. 3. — PENALTIES. — Any violation of such existing business permit as defined in the preceding section
shall suffer the following penalties, to wit:
a) Suspension of the business permit for sixty (60) days for the first offense and a fine of P1,000.00/day
b) Suspension of the business permit for Six (6) months for the second offense, and a fine of P3,000.00/day

145
c) Permanent revocation of the business permit and imprisonment of One (1) year, for the third and
subsequent offenses.
Sec. 4. — This Ordinance shall take effect ten (10) days from publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR
VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No.
2295;
WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy
against the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of
Business Permit and to cancel existing Business Permit to any establishment for the using and allowing to be
used its premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep.
Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code,
the City Council as the Legislative Body shall enact measure to suppress any activity inimical to public morals
and general welfare of the people and/or regulate or prohibit such activity pertaining to amusement or
entertainment in order to protect social and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. — The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited.
Sec. 2. — Any violation of this Ordinance shall be subject to the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation
undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof;
b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of
P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person
responsible in the establishment, conduct and maintenance of gambling CASINO.
Sec. 3. — This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general
circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and
supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of Appeals declared the
ordinances invalid and issued the writ prayed for to prohibit their enforcement. 1 Reconsideration of this
decision was denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the Rules of
Court. 3 They aver that the respondent Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the power
and authority to prohibit the establishment and operation of a PAGCOR gambling casino within the City's
territorial limits.

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2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1) — (v)
of R.A. 7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore invalid
on that point.
5. The questioned Ordinances are not reasonable, not consonant with the general powers and purposes of the
instrumentality concerned and inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14,
1991, 197 SCRA 53 in disposing of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance,
including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine
Amusements and Gaming Corporation, 4 this Court sustained the constitutionality of the decree and even cited
the benefits of the entity to the national economy as the third highest revenue-earner in the government, next
only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes
indicated in the Local Government Code. It is expressly vested with the police power under what is known as
the General Welfare Clause now embodied in Section 16 as follows:
Sec. 16. — General Welfare. — Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve the comfort and convenience of
their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. — Powers, Duties, Functions and Compensation. — (a) The Sangguniang Panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in
this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness
in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill
repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing,
distribution or exhibition of obscene or pornographic materials or publications, and such other activities inimical
to the welfare and morals of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and businesses within their
territorial limits in the interest of the general welfare. 5

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The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the
operation of casinos because they involve games of chance, which are detrimental to the people. Gambling is
not allowed by general law and even by the Constitution itself. The legislative power conferred upon local
government units may be exercised over all kinds of gambling and not only over "illegal gambling" as the
respondents erroneously argue. Even if the operation of casinos may have been permitted under P.D. 1869,
the government of Cagayan de Oro City has the authority to prohibit them within its territory pursuant to the
authority entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article II,
Section 25, and Article X of the Constitution, as well as various other provisions therein seeking to strengthen
the character of the nation. In giving the local government units the power to prevent or suppress gambling and
other social problems, the Local Government Code has recognized the competence of such communities to
determine and adopt the measures best expected to promote the general welfare of their inhabitants in line
with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local government units to prevent and
suppress gambling and other prohibited games of chance, like craps, baccarat, blackjack and roulette, it
meant all forms of gambling without distinction. Ubi lex non distinguit, nec nos distinguere
debemos. 6 Otherwise, it would have expressly excluded from the scope of their power casinos and other
forms of gambling authorized by special law, as it could have easily done. The fact that it did not do so simply
means that the local government units are permitted to prohibit all kinds of gambling within their territories,
including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of the
PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case of
inconsistencies between them. More than this, the powers of the PAGCOR under the decree are expressly
discontinued by the Code insofar as they do not conform to its philosophy and provisions, pursuant to Par. (f)
of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on P.D.
1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction in the Code
calling for its liberal interpretation in favor of the local government units. Section 5 of the Code specifically
provides:
Sec. 5. Rules of Interpretation. — In the interpretation of the provisions of this Code, the following rules shall
apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of
doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local
government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of
the local government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local
government units in accelerating economic development and upgrading the quality of life for the people in the
community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the
Constitution and several decisions of this Court expressive of the general and official disapprobation of the

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vice. They invoke the State policies on the family and the proper upbringing of the youth and, as might be
expected, call attention to the old case of U.S. v. Salaveria,7 which sustained a municipal ordinance prohibiting
the playing of panguingue. The petitioners decry the immorality of gambling. They also impugn the wisdom of
P.D. 1869 (which they describe as "a martial law instrument") in creating PAGCOR and authorizing it to
operate casinos "on land and sea within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally
considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing
or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity
as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it
without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may
consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting and horse-
racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to
review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting
theories. 8 That is the prerogative of the political departments. It is settled that questions regarding the wisdom,
morality, or practicibility of statutes are not addressed to the judiciary but may be resolved only by the
legislative and executive departments, to which the function belongs in our scheme of government. That
function is exclusive. Whichever way these branches decide, they are answerable only to their own conscience
and the constituents who will ultimately judge their acts, and not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and Ordinance
No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only by
the criteria laid down by law and not by our own convictions on the propriety of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an
ordinance must conform to the following substantive requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government Code, local government units are
authorized to prevent or suppress, among others, "gambling and other prohibited games of chance."
Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by law.
The petitioners are less than accurate in claiming that the Code could have excluded such games of chance
but did not. In fact it does. The language of the section is clear and unmistakable. Under the rule of noscitur a
sociis, a word or phrase should be interpreted in relation to, or given the same meaning of, words with which it
is associated. Accordingly, we conclude that since the word "gambling" is associated with "and other prohibited
games of chance," the word should be read as referring to only illegal gambling which, like the other prohibited
games of chance, must be prevented or suppressed.
We could stop here as this interpretation should settle the problem quite conclusively. But we will not. The
vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the earnestness of
their advocacy, deserve more than short shrift from this Court.

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The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy
embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to operate a
casino in Cagayan de Oro City. The petitioners have an ingenious answer to this misgiving. They deny that it is
the ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail against a statute. Their
theory is that the change has been made by the Local Government Code itself, which was also enacted by the
national lawmaking authority. In their view, the decree has been, not really repealed by the Code, but merely
"modified pro tanto" in the sense that PAGCOR cannot now operate a casino over the objection of the local
government unit concerned. This modification of P.D. 1869 by the Local Government Code is permissible
because one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting that the decree has only been
"modified pro tanto," they are actually arguing that it is already dead, repealed and useless for all intents and
purposes because the Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly
speaking, its operations may now be not only prohibited by the local government unit; in fact, the prohibition is
not only discretionary but mandated by Section 458 of the Code if the word "shall" as used therein is to be
given its accepted meaning. Local government units have now no choice but to prevent and suppress
gambling, which in the petitioners' view includes both legal and illegal gambling. Under this construction,
PAGCOR will have no more games of chance to regulate or centralize as they must all be prohibited by the
local government units pursuant to the mandatory duty imposed upon them by the Code. In this situation,
PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will no longer be
able to exercise its powers as a prime source of government revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the
rest of the provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or
modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause,
which is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government
Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and
issuances related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3)
and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as
amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential
Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464,
477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the
provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of Presidential
Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No.
463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and
unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court explained:

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The cases relating to the subject of repeal by implication all proceed on the assumption that if the act of later
date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this intention
must be given effect; but there must always be a sufficient revelation of this intention, and it has become an
unbending rule of statutory construction that the intention to repeal a former law will not be imputed to the
Legislature when it appears that the two statutes, or provisions, with reference to which the question arises
bear to each other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent
points out, PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A.
7309, creating a Board of Claims under the Department of Justice for the benefit of victims of unjust
punishment or detention or of violent crimes, and R.A. 7648, providing for measures for the solution of the
power crisis. PAGCOR revenues are tapped by these two statutes. This would show that the PAGCOR charter
has not been repealed by the Local Government Code but has in fact been improved as it were to make the
entity more responsive to the fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive
confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a
becoming respect as the handiwork of a coordinate branch of the government. On the assumption of a conflict
between P.D. 1869 and the Code, the proper action is not to uphold one and annul the other but to give effect
to both by harmonizing them if possible. This is possible in the case before us. The proper resolution of the
problem at hand is to hold that under the Local Government Code, local government units may (and indeed
must) prevent and suppress all kinds of gambling within their territories except only those allowed by statutes
like P.D. 1869. The exception reserved in such laws must be read into the Code, to make both the Code and
such laws equally effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those
authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not
indeed more so. The petitioners' suggestion that the Code authorizes them to prohibit all kinds of gambling
would erase the distinction between these two forms of gambling without a clear indication that this is the will of
the legislature. Plausibly, following this theory, the City of Manila could, by mere ordinance, prohibit the
Philippine Charity Sweepstakes Office from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or
stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the
petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances violate P.D.
1869, which has the character and force of a statute, as well as the public policy expressed in the decree
allowing the playing of certain games of chance despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal
governments are only agents of the national government. Local councils exercise only delegated legislative
powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to
the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local
government units can undo the acts of Congress, from which they have derived their power in the first place,
and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It
breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may
destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no
limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the
mere tenants at will of the legislature. 11

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This basic relationship between the national legislature and the local government units has not been enfeebled
by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to
detract from that policy, we here confirm that Congress retains control of the local government units although in
significantly reduced degree now than under our previous Constitutions. The power to create still includes the
power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain
notable innovations in the Constitution, like the direct conferment on the local government units of the power to
tax, 12 which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still
the principal of the local government units, which cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of their constituents and their
apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of the casino. We
share the view that "the hope of large or easy gain, obtained without special effort, turns the head of the
workman" 13 and that "habitual gambling is a cause of laziness and ruin." 14 In People v. Gorostiza, 15 we
declared: "The social scourge of gambling must be stamped out. The laws against gambling must be enforced
to the limit." George Washington called gambling "the child of avarice, the brother of iniquity and the father of
mischief." Nevertheless, we must recognize the power of the legislature to decide, in its own wisdom, to
legalize certain forms of gambling, as was done in P.D. 1869 and impliedly affirmed in the Local Government
Code. That decision can be revoked by this Court only if it contravenes the Constitution as the touchstone of all
official acts. We do not find such contravention here.
We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land
and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been
modified by the Local Government Code, which empowers the local government units to prevent or suppress
only those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended
or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de
Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these
ordinances are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires and
void.
WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is
AFFIRMED, with costs against the petitioners. It is so ordered.
Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and
Mendoza, JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur with the majority holding that the city ordinances in question cannot modify much less repeal
PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under
Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate
opinion that:
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. . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity
known as gambling properly pertain to "state policy". It is, therefore, the political departments of government,
namely, the legislative and the executive that should decide on what government should do in the entire area
of gambling, and assume full responsibility to the people for such policy." (Emphasis supplied)
However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent
PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to
re-establish and resurrect the Filipino moral character which is generally perceived to be in a state of
continuing erosion.
It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and
disadvantages of setting up more gambling facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up
more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration
in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always
justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not
render it any less reprehensible even if substantial revenue for the government can be realized from it. The
same is true of gambling.
In the present case, it is my considered view that the national government (through PAGCOR) should re-
examine and re-evaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro
City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must
be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further
destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring:

While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the
Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to
issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action
therein is one for declaratory relief: to declare null and unconstitutional — for, inter alia, having been enacted
without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with
public policy — the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan
de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation
(PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances
for being contrary to the non-impairment and equal protection clauses of the Constitution, violative of the Local
Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly, the Court of
Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one
for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should
have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason
why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable
verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by
tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant

153
to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217
SCRA 633 [1993]). In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts
(formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions.
It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly,
Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14,
1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate
jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of
the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed.
There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of appeals, and should
also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there are special and important reasons therefor, clearly and
specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate
demands upon the Court's time and attention which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of
the jurisdiction of the Court of Appeals in this regard, supra — resulting from the deletion of the qualifying
phrase, "in aid of its appellate jurisdiction" — was evidently intended precisely to relieve this Court pro tanto of
the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate
Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for
that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the
hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same
is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by
law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous
time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the
adjudication of the case which often has to be remanded or referred to the lower court as the proper forum
under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts.
We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances
justify availment of a remedy within and calling for the exercise of our primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of
Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to
be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled,
"An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were
enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit
and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was
promulgated on 19 November 1990 — nearly two years before PRYCE and PAGCOR entered into a contract
of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a
gambling casino — which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers
conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local
154
Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause)
which reads:
Sec. 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve the comfort and convenience of
their inhabitants.
The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de
Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869
insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the
Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.
The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it
is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention
of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No.
1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be
construed as not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious
reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be
inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a
government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro
and should not impose its will upon them in an arbitrary, if not despotic, manner.

# Separate Opinions

PADILLA, J., concurring:

I concur with the majority holding that the city ordinances in question cannot modify much less repeal
PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under
Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate
opinion that:
. . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity
known as gambling properly pertain to "state policy". It is, therefore, the political departments of government,
namely, the legislative and the executive that should decide on what government should do in the entire area
of gambling, and assume full responsibility to the people for such policy. (emphasis supplied)

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However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent
PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to
re-establish and resurrect the Filipino moral character which is generally perceived to be in a state of
continuing erosion.
It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and
disadvantages of setting up more gambling facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up
more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration
in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always
justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not
render it any less reprehensible even if substantial revenue for the government can be realized from it. The
same is true of gambling.
In the present case, it is my considered view that the national government (through PAGCOR) should re-
examine and re-evaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro
City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must
be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further
destruction of the Filipino sense of values?
DAVIDE, JR., J., concurring:
While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the
Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to
issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action
therein is one for declaratory relief: to declare null and unconstitutional — for, inter alia, having been enacted
without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with
public policy — the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan
de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation
(PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances
for being contrary to the non-impairment and equal protection clauses of the Constitution, violative of the Local
Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly, the Court of
Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one
for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should
have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason
why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable
verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by
tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant
to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217
SCRA 633 [1993]). In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts
(formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions.
It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly,

156
Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14,
1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate
jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of
the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed.
There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of appeals, and should
also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there are special and important reasons therefor, clearly and
specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate
demands upon the Court's time and attention which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of
the jurisdiction of the Court of Appeals in this regard, supra — resulting from the deletion of the qualifying
phrase, "in aid of its appellate jurisdiction" — was evidently intended precisely to relieve this Court pro tanto of
the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate
Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for
that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the
hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same
is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by
law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous
time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the
adjudication of the case which often has to be remanded or referred to the lower court as the proper forum
under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts.
We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances
justify availment of a remedy within and calling for the exercise of our primary jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of
Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to
be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled,
"An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were
enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit
and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was
promulgated on 19 November 1990 — nearly two years before PRYCE and PAGCOR entered into a contract
of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a
gambling casino — which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers
conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local
Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause)
which reads:
Sec. 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support, among other things, the
157
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve the comfort and convenience of
their inhabitants.
The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de
Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869
insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the
Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.
The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it
is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention
of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No.
1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be
construed as not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious
reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be
inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a
government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro
and should not impose its will upon them in an arbitrary, if not despotic, manner.

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O. EXPRESS MENTION AND IMPLIED EXCLUSION
1. SARMIENTO III VS MISON
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND
GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET,
respondents, COMMISSION ON APPOINTMENTS, intervenor.

PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the
petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of
Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of
Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the
Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the
ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of
its not having been confirmed by the Commission on Appointments. The respondents, on the other hand,
maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission
on Appointments.
Because of the demands of public interest, including the need for stability in the public service, the Court
resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether
prohibition is the proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of
Customs and of whether the petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on Appointments to
intervene and file a petition in intervention. Comment was required of respondents on said petition. The
comment was filed, followed by intervenor's reply thereto. The parties were also heard in oral argument on 8
December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between two (2) great
departments of government, the Executive and Legislative Departments. It also occurs early in the life of the
1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In
cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos
stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the intent of the framers of the
organic law and of the people adopting it. The intention to which force is to be given is that which is embodied
and expressed in the constitutional provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive
or the legislative department may want them construed, but in accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of
the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces

159
from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest
the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of
officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to
time, are:
First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the
armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution; 2
3
Second, all other officers of the Government whose appointments are not otherwise provided for by law;
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone.
The first group of officers is clearly appointed with the consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the
Commission on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention. Should they be appointed
by the President with or without the consent (confirmation) of the Commission on Appointments? By following
the accepted rule in constitutional and statutory construction that an express enumeration of subjects excludes
others not enumerated, it would follow that only those appointments to positions expressly stated in the first
group require the consent (confirmation) of the Commission on Appointments. But we need not rely solely on
this basic rule of constitutional construction. We can refer to historical background as well as to the records of
the 1986 Constitutional Commission to determine, with more accuracy, if not precision, the intention of the
framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President,
under the second, third and fourth groups, require the consent (confirmation) of the Commission on
Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is
apropos:
In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been
framed and adopted in the light and understanding of prior and existing laws and with reference to them.
"Courts are bound to presume that the people adopting a constitution are familiar with the previous and
existing laws upon the subjects to which its provisions relate, and upon which they express their judgment and
opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that —
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and
Air Forces from the rank of captain or commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint;

160
but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or
in the heads of departments.
(4) The President shall havethe power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public
ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-
Section 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of
the Philippines from the rank of Brigadier General or Commodore, and all other officers of The government
whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to
appoint. However, the Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet,
the Executive Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior
officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the
Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the
Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a
venue of "horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and
remolded by successive amendments, placed the absolute power of appointment in the President with hardly
any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is
not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a
"middle ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group
of appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e.,
those in the second and third groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section
16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as
follows:
Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint
the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain and all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the
courts, or in the heads of departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the
frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling was
manifestly expressed to make the power of the Commission on Appointments over presidential appointments
more limited than that held by the Commission in the 1935 Constitution. Thus-
Mr. Rama: ... May I ask that Commissioner Monsod be recognized
The President: We will call Commissioner Davide later.

161
Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to lay the basis for some
of the amendments that I would like to propose to the Committee this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the
department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes proposed and
approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the
requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made
under the second sentence 9 of the section from the same requirement. The records of the deliberations of the
Constitutional Commission show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the
words "and bureaus," and on line 28 of the same page, to change the phrase 'colonel or naval captain to
MAJOR GENERAL OR REAR ADMIRAL. This last amendment which is co-authored by Commissioner de
Castro is to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence
with: HE SHALL ALSO APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one. The first proposed amendment is to delete the
words "and bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent
for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require
further confirmation of presidential appointment of heads of bureaus would subject them to political influence.
MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as
distinguished from merely staff directors, because the regional directors have quite a plenitude of powers
within the regions as distinguished from staff directors who only stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment
to delete 'and bureaus on Section 16. Who will then appoint the bureau directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to
confirmation by the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the Committee?

162
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for
a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase
'and bureaus on line 26, such that appointments of bureau directors no longer need confirmation by the
Commission on Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on
Appointments, shall appoint the heads of the executive departments, ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The
Chair hears none; the amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1 propose to put a
period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts the proposed amendment because it makes it
clear that those other officers mentioned therein do not have to be confirmed by the Commission on
Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that after "captain" we
insert the following words: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for in the Constitution whose appointments are
vested in the President, as a matter of fact like those of the different constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list of those
appointments which constitutionally require confirmation of the Commission on Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE
VESTED IN HIM IN THIS CONSTITUTION.
FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE CONFIRMATION
UNDER THIS CONSTITUTION"?

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MR. DAVIDE: Yes, Madam President, that is modified by the Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes those officers which the Constitution does not
require confirmation by the Commission on Appointments, like the members of the judiciary and the
Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the modification made by Commissioner Bernas.
THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners Foz and Davide as
accepted by the Committee? (Silence) The Chair hears none; the amendment, as amended, is
approved 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of officers can be made by the President
without the consent (confirmation) of the Commission on Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII
reading-
He (the President) shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law and those whom he may be authorized by law to appoint . . . . (Emphasis
supplied)
with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers
mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said
second sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by
nomination and with the consent (confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the
conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well;
besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary,
stress that the word "also" in said second sentence means that the President, in addition to nominating and,
with the consent of the Commission on Appointments, appointing the officers enumerated in the first sentence,
can appoint (without such consent (confirmation) the officers mentioned in the second sentence-
Rather than limit the area of consideration to the possible meanings of the word "also" as used in the context of
said second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks
of nomination by the President and appointment by the President with the consent of the Commission on
Appointments, whereas, the second sentence speaks only of appointment by the President. And, this use of
different language in two (2) sentences proximate to each other underscores a difference in message
conveyed and perceptions established, in line with Judge Learned Hand's observation that "words are not
pebbles in alien juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional
Commission clearly and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers
whose appointments require no confirmation of the Commission on Appointments, even if such officers may be
higher in rank, compared to some officers whose appointments have to be confirmed by the Commission on
Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the

164
Central Bank Governor requires no confirmation by the Commission on Appointments, even if he is higher in
rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate
judgment of the framers of the 1987 Constitution that, except as to those officers whose appointments require
the consent of the Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII,
appointments of other officers are left to the President without need of confirmation by the Commission on
Appointments. This conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987
Constitution were knowledgeable of what they were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or
qualifications of such power should be strictly construed against them. Such limitations or qualifications must
be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is
clearly stated that appointments by the President to the positions therein enumerated require the consent of
the Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments
underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:
The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone,
this implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President
subject to confirmation by the Commission on Appointments; and, if this is so, as to lower-ranked officers, it
follows that higher-ranked officers should be appointed by the President, subject also to confirmation by the
Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely
declares that, as to lower-ranked officers, the Congress may by law vest their appointment in the President, in
the courts, or in the heads of the various departments, agencies, commissions, or boards in the government.
No reason however is submitted for the use of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the
deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the word "President"
in said third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will
be recalled that, in the 1935 Constitution, the following provision appears at the end of par. 3, section 1 0,
Article VII thereof —
...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts,
or in the heads of departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision which makes practically
all presidential appointments subject to confirmation by the Commission on Appointments, thus-
3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy
and Air Forces from the rank of captain or commander, and all other officers of the Government whose
appointments are not herein provided for, and those whom he may be authorized by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to
confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception
to such rule, to provide that Congress may, however, by law vest the appointment of inferior officers
(equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the President alone, in the
courts, or in the heads of departments,
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In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to
exclude presidential appointments from confirmation by the Commission on Appointments, except
appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there
was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in
providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in
the courts, or in the heads of departments, because the power to appoint officers whom he (the President) may
be authorized by law to appoint is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked
officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of
various departments of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII
of the 1987 Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the 1935
Constitution, appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this
redundancy cannot prevail over the clear and positive intent of the framers of the 1987 Constitution that
presidential appointments, except those mentioned in the first sentence of Sec. 16, Article VII, are not subject
to confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the
Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the
consent of the Commission on Appointments is required. As a matter of fact, as already pointed out, while the
1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of
the Commission on Appointments, the 1987 Constitution on the other hand, deliberately excluded the position
of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on
Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of
Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs
Code of the Philippines, which was enacted by the Congress of the Philippines on 22 June 1957, reads as
follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant chief, to be
known respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant
Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates
prescribed by existing laws. The Assistant Commissioner of Customs shall be appointed by the proper
department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34,
amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and one
assistant chief, to be known respectively as the Commissioner (hereinafter known as Commissioner) and
Deputy Commissioner of Customs, who shall each receive an annual compensation in accordance with the
rates prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be
appointed by the President of the Philippines (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935
Constitution, under which the President may nominate and, with the consent of the Commission on
Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in
harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of
Customs is one that devolves on the President, as an appointment he is authorizedby law to make, such
appointment, however, no longer needs the confirmation of the Commission on Appointments.
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Consequently, we rule that the President of the Philippines acted within her constitutional authority and power
in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his
nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full
authority and functions of the office and to receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without
costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate
promptly the issue at bar and to rule that the direct appointment of respondent Salvador Mison as
Commissioner of the Bureau of Customs (without need of submitting a prior nomination to the Commission on
Appointments and securing its confirmation) is valid and in accordance with the President's constitutional
authority to so appoint officers of the Government as defined in Article VII, section 16 of the 1987 Constitution.
The paramount public interest and the exigencies of the public service demand that any doubts over the
validity of such appointments be resolved expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of
December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the
Confirmation By the Commission on Appointments of All Nominations and Appointments Made by the
President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the House of
Representatives. " This omission has been deliberate. The Court has resolved the case at bar on the basis of
the issues joined by the parties. The contingency of approval of the bill mentioned by intervenor clearly has no
bearing on and cannot affect retroactively the validity of the direct appointment of respondent Mison and other
appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The
Court does not deal with constitutional questions in the abstract and without the same being properly raised
before it in a justiciable case and after thorough discussion of the various points of view that would enable it to
render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any discussion of
the reported bill and its validity or invalidity is premature and irrelevant and outside the scope of the issues
resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to add
my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of
the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this
Constitution.

167
He shall also appoint all other officers of the Government whose appointments are not otherwise provided for
by law, and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of the departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it is clear that the President
"nominates" and with the consent of the Commission on Appointments "appoints" the officials enumerated. The
second sentence, however, significantly uses only the term "appoint" all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint. Deliberately eliminated was any reference to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second sentence
from confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the fact that the
term "appoint" used in said sentence was not meant to include the three distinct acts in the appointing process,
namely, nomination, appointment, and commission. For if that were the intent, the same terminologies in the
first sentence could have been easily employed.
There should be no question either that the participation of the Commission on Appointments in the
appointment process has been deliberately decreased in the 1987 Constitution compared to that in the 1935
Constitution, which required that all presidential appointments be with the consent of the Commission on
Appointments.
The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in the
dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of constitutional
construction is to ascertain the intent of the framers of the Constitution and thereafter to assure its realization
(J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413).
And the primary source from which to ascertain constitutional intent is the language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior
Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in
this Constitution. He shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may,
by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during recess of the Congress, whether voluntary or
compulsory, but such appointment shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress. 1
By its plain language, the Constitution has intended that only those grouped under the first sentence are
required to undergo a consenting process. This is a significant departure from the procedure set forth in the
1935 Charter:

168
(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy
and Air Forces from the rank of captain to commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint;
but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or
in the heads of departments. 2
under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no extrinsic
aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to require all
Presidential appointments clearance from the Commission on Appointments, they could have simply reenacted
the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments that the President may make: (1)
appointments of heads of executive departments, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain, and those of other officers whose appointments
are vested in him under the Constitution, including the regular members of the Judicial and Bar Council, 5 the
Chairman and Commissioners of the Civil Service Commission, 6 the Chairman and Commissioners of the
Commission on Elections, 7 and the Chairman and Commissioners of the Commission on Audit; 8 (2) those
officers whose appointments are not otherwise provided for by law; (3) those whom he may be authorized by
law to appoint; and (4) officers lower in rank whose appointments the Congress may vest in the President
alone.
But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written a "rather
confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a certain extent,
to the appointing clause itself, in the sense that it leaves us for instance, with the incongruous situation where a
consul's appointment needs confirmation whereas that of Undersecretary of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge. That is a
question addressed to the electorate, and who, despite those "eccentricities," have stamped their approval on
that Charter. "The Court," avers the majority, "will thus construe the applicable constitutional provisions, not in
accordance with how the executive or the legislative department may want them construed, but in accordance
with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of executive power. 11 The
fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of
such a power, much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we
stated in no uncertain terms that "[a]ppointment to office is intrinsically an executive act involving the exercise
of discretion." 12 Springer v. Philippine Islands 13 on the other hand, underscored the fact that while the
legislature may create a public office, it cannot name the official to discharge the functions appurtenant thereto.
And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications, which would
unduly narrow the President's choice. In that event, it is as if it is the legislature itself conferring the
appointment.
Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains his
supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of the
appointing power.
It is the essence of a republican form of government, like ours, that "[e]ach department of the government has
exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican systems, no power is
absolutely separate from the other. For republicanism operates on a process of checks and balances as well,
not only to guard against excesses by one branch, but more importantly, "to secure coordination in the
workings of the various departments of the government." 15 Viewed in that light, the Commission on

169
Appointments acts as a restraint against abuse of the appointing authority, but not as a means with which to
hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson as the majority notes, in
our history under the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the provision on appointments. The prohibition, for
instance, against the enactment of a bill of attainder operates as a bar against legislative encroachment upon
both judicial and executive domains, since the determination of guilt and punishment of the guilty address
judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both ways. In a
very real sense, the power of appointment constitutes a check against legislative authority. In Springer v.
Philippine Islands, 17 we are told that "Congress may not control the law enforcement process by retaining a
power to appoint the individual who will execute the laws." 18 This is so, according to one authority, because
"the appointments clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an
executive check upon legislative authority in the interest of avoiding an undue concentration of power in
Congress. " 19
The President has sworn to "execute [the] laws. 20 For that matter, no other department of the Government
may discharge that function, least of all Congress. Accordingly, a statute conferring upon a commission the
responsibility of administering that very legislation and whose members have been determined therein, has
been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is the concern of the President,
and in going about this business, he acts by himself or through his men and women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22 Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the
power of removal . . . [is] incident to the power of appointment, 23 although this has since been tempered in a
subsequent case, 24 where it was held that the President may remove only "purely executive officers, 25 that is,
officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court held that the President may remove
incumbents of offices confidential in nature, but we likewise made clear that in such a case, the incumbent is
not "removed" within the meaning of civil service laws, but that his term merely expires.
It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987 Constitution,
is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all appointments submitted to
it within thirty session days of the Congress from their submission. 27 Accordingly, the failure of the
Commission to either consent or not consent to the appointments preferred before it within the prescribed
period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred by the
predominance of checks and counterchecks, yet amid such a rubble of competing powers emerges a structure
whose parts are at times jealous of each other, but which are ultimately necessary in assuring a dynamic, but
stable, society. As Mr. Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more
specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. ...
When we come to the fundamental distinctions it is still more obvious that they must be received with a certain
latitude or our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling words we do not and
cannot carry out the distinction between legislative and executive action with mathematical precision and divide

170
the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing
that it is, or that the Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton might readily have
recognized as suggestive of the mechanism of the heavens," (W. Wilson, Constitutional Government in the
United States 56 (1908)] can represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192: "The
Constitution cannot be regarded as a mere legal document, to be read as a will or a contract would be. It must,
of the necessity of the case, be a vehicle of life.") The great difficulty of any theory less rich, Woodrow Wilson
once warned, "is that government is not a machine, but a living thing. It falls, not under the theory of the
universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is . . . shaped to its
functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks,
and five." (Id. at 56.) Yet because no complex society can have its centers of power not "offset against each
other as checks," and resist tyranny, the Model of Separated and Divided Powers offers continuing testimony
to the undying dilemmas of progress and justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the
legislature (the National Assembly under the 1971 draft Constitution) the power to check executive
appointments, and hence, granted the President absolute appointing power. 30 As a delegate to, and Vice-
President of, the ill-fated 1971 Constitutional Convention, and more so as the presiding officer of most of its
plenary session, I am aware that the Convention did not provide for a commission on appointments on the
theory that the Prime Minister, the head of the Government and the sole appointing power, was himself a
member of parliament. For this reason, there was no necessity for a separate body to scrutinize his
appointees. But should such appointees forfeit the confidence of the assembly, they are, by tradition, required
to resign, unless they should otherwise have been removed by the Prime Minister. 31 In effect, it is parliament
itself that "approves" such appointments. Unfortunately, supervening events forestalled our parliamentary
experiment, and beginning with the 1976 amendments and some 140 or so amendments thereafter, we had
reverted to the presidential form, 32 without provisions for a commission on appointments.
In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the present
Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere safeguard against
abuse with respect to those appointments. It does not accord Congress any more than the power to check, but
not to deny, the Chief Executive's appointing power or to supplant his appointees with its own. It is but an
exception to the rule. In limiting the Commission's scope of authority, compared to that under the 1935
Constitution, I believe that the 1987 Constitution has simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land,
should never have any of its provisions interpreted in a manner that results in absurd or irrational
consequences.
The Commission on Appointments is an important constitutional body which helps give fuller expression to the
principles inherent in our presidential system of government. Its functions cannot be made innocuous or
unreasonably diminished to the confirmation of a limited number of appointees. In the same manner that the
President shares in the enactment of laws which govern the nation, the legislature, through its Commission on
Appointments, gives assurance that only those who can pass the scrutiny of both the President and Congress

171
will help run the country as officers holding high appointive positions. The third sentence of the first paragraph
— " ... The Congress may, by law, vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of departments, agencies, commissions, or boards." — specifies only "officers
lower in rank" as those who may, by law, be appointed by the President alone. If as expounded in the majority
opinion, only the limited number of officers in the first sentence of Section 16 require confirmation, the clear
intent of the third sentence is lost. In fact both the second and third sentences become meaningless or
superfluous. Superfluity is not to be read into such an important part of the Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read together. In
providing for the appointment of members of the Supreme Court and judges of lower courts (Section 9, Article
VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of cabinet
(Section 3, Article VII) and, of course, those who by law the President alone may appoint, the Constitution
clearly provides no need for confirmation. This can only mean that all other appointments need confirmation.
Where there is no need for confirmation or where there is an alternative process to confirmation, the
Constitution expressly so declares. Without such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the
government it set up was supposed to be a parliamentary one. The Prime Minister, as head of government,
was constantly accountable to the legislature. In our presidential system, the interpretation which Justice Cruz
and myself espouse, is more democratic and more in keeping with the system of government organized under
the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is required
only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the executive
departments; (2) ambassadors, other public ministers and consuls; (3) officers of the armed forces from the
rank of colonel or naval captain; and (4) other officers whose appointments are vested in the President in the
Constitution. No confirmation is required under the second sentence for (1) all other officers whose
appointments are not otherwise provided for by law, and (2) those whom the President may be authorized by
law to appoint. Neither is confirmation required by the third sentence for those other officers lower in rank
whose appointment is vested by law in the President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department, does
not have to be confirmed by the Commission on Appointments, but the ordinary consul, who is under his
jurisdiction, must be confirmed. The colonel is by any standard lower in rank than the Chairman of the
Commission on Human Rights, which was created by the Constitution; yet the former is subject to confirmation
but the latter is not because he does not come under the first sentence. The Special Prosecutor, whose
appointment is not vested by the Constitution in the President, is not subject to confirmation under the first
sentence, and neither are the Governor of the Central Bank and the members of the Monetary Board because
they fall under the second sentence as interpreted by the majority opinion. Yet in the case of the multi-sectoral
members of the regional consultative commission, whose appointment is vested by the Constitution in the
President under Article X, Section 18, their confirmation is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they would lead to the absurd
consequences we should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first sentence of Section
16, but that is not the provision we ought to interpret. It is the second sentence we must understand for a
proper resolution of the issues now before us. Significantly, although there was a long discussion of the first
sentence in the Constitutional Commission, there is none cited on the second sentence either in the Solicitor-

172
General's comment or in the majority opinion. We can therefore only speculate on the correct interpretation of
this provision in the light of the first and third sentences of Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and holds that the two
sets of officers specified therein may be appointed by the President without the concurrence of the
Commission on Appointments. This interpretation is pregnant with mischievous if not also ridiculous results
that presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the majority
opinion that the enumeration in the first sentence of the officers subject to confirmation is exclusive on the
basis of expressio unius est exclusio alterius. If that be so, the first sentence would have been sufficient by
itself to convey the Idea that all other appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was still
felt necessary to provide in the third sentence that the appointment of the other officers lower in rank will also
not need confirmation as long as their appointment is vested by law in the President alone. The third sentence
would appear to be superfluous, too, again in view of the first sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the appointment of
those other officers lower in rank mentioned in the third sentence? Conformably to the language thereof, these
lower officers will need the confirmation of the Commission on Appointments while, by contrast, the higher
officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than the
bureau director, will have to be confirmed if the Congress does not vest their appointment in the President
alone under the third sentence. On the other hand, their superior, the bureau director himself, will not need to
be confirmed because, according to the majority opinion, he falls not under the first sentence but the second.
This is carefulness in reverse, like checking the bridesmaids but forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the powers
of the Presidency and so prevent the recurrence of another dictatorship. Among the many measures taken was
the restoration of the Commission on Appointments to check the appointing power which had been much
abused by President Marcos. We are now told that even as this body was revived to limit appointments, the
scope of its original authority has itself been limited in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation of the Idea expressed in the first sentence
and simply mentions the other officers appointed by the President who are also subject to confirmation. The
second sentence is the later expression of the will of the framers and so must be interpreted as complementing
the rule embodied in the first sentence or, if necessary, reversing the original intention to exempt bureau
directors from confirmation. I repeat that there were no debates on this matter as far as I know, which simply
means that my humble conjecture on the meaning of Section 16 is as arguable, at least, as the suppositions of
the majority. We read and rely on the same records. At any rate, this view is more consistent with the general
purpose of Article VII, which, to repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record of the
Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on page 7, line 28, 1 propose to put a period
(.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.
Mr. Regalado: Madam President, the Committee accepts the proposed amendment because it makes it clear
that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.
However, the records do not show what particular part of Section 16 the committee chairman was referring to,
and a reading in its entirety of this particular debate will suggest that the body was considering
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the first sentence of the said section, which I reiterate is not the controversial provision. In any case, although
the excerpt shows that the proposed amendment of Commissioner Foz was accepted by the committee, it is
not reflected, curiously enough, in the final version of Section 16 as a perusal thereof will readily reveal.
Whether it was deleted later in the session or reworded by the style committee or otherwise replaced for
whatever reason will need another surmise on this rather confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at best
persuasive only and not necessarily conclusive. Interestingly, some quarters have observed that the Congress
is not prevented from adding to the list of officers subject to confirmation by the Commission on Appointments
and cite the debates on this matter in support of this supposition. It is true enough that there was such a
consensus, but it is equally true that this thinking is not at all expressed, or even only implied, in the language
of Section 16 of Article VII. Which should prevail then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question either that it is
not absolute or unlimited. The rule re- established by the new Constitution is that the power requires
confirmation by the Commission on Appointments as a restraint on presidential excesses, in line with the
system of checks and balances. I submit it is the exception to this rule, and not the rule, that should be strictly
construed.
In my view, the only officers appointed by the President who are not subject to confirmation by the Commission
on Appointments are (1) the members of the judiciary and the Ombudsman and his deputies, who are
nominated by the Judicial and Bar Council; (2) the Vice-President when he is appointed to the Cabinet; and (3)
"other officers lower in rank," but only when their appointment is vested by law in the President alone. It is clear
that this enumeration does not include the respondent Commissioner of Customs who, while not covered by
the first sentence of Section 16, comes under the second sentence thereof as I would interpret it and so is also
subject to confirmation.
I vote to grant the petition.

Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate
promptly the issue at bar and to rule that the direct appointment of respondent Salvador Mison as
Commissioner of the Bureau of Customs (without need of submitting a prior nomination to the Commission on
Appointments and securing its confirmation) is valid and in accordance with the President's constitutional
authority to so appoint officers of the Government as defined in Article VII, section 16 of the 1987 Constitution.
The paramount public interest and the exigencies of the public service demand that any doubts over the
validity of such appointments be resolved expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of
December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the
Confirmation By the Commission on Appointments of All Nominations and Appointments Made by the
President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the House of
Representatives. " This omission has been deliberate. The Court has resolved the case at bar on the basis of
the issues joined by the parties. The contingency of approval of the bill mentioned by intervenor clearly has no
bearing on and cannot affect retroactively the validity of the direct appointment of respondent Mison and other
appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The
Court does not deal with constitutional questions in the abstract and without the same being properly raised

174
before it in a justiciable case and after thorough discussion of the various points of view that would enable it to
render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any discussion of
the reported bill and its validity or invalidity is premature and irrelevant and outside the scope of the issues
resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to add
my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of
the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this
Constitution.
He shall also appoint all other officers of the Government whose appointments are not otherwise provided for
by law, and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of the departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it is clear that the President
"nominates" and with the consent of the Commission on Appointments "appoints" the officials enumerated. The
second sentence, however, significantly uses only the term "appoint" all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint. Deliberately eliminated was any reference to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second sentence
from confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the fact that the
term "appoint" used in said sentence was not meant to include the three distinct acts in the appointing process,
namely, nomination, appointment, and commission. For if that were the intent, the same terminologies in the
first sentence could have been easily employed.
There should be no question either that the participation of the Commission on Appointments in the
appointment process has been deliberately decreased in the 1987 Constitution compared to that in the 1935
Constitution, which required that all presidential appointments be with the consent of the Commission on
Appointments.
The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in the
dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of constitutional
construction is to ascertain the intent of the framers of the Constitution and thereafter to assure its realization
(J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413).
And the primary source from which to ascertain constitutional intent is the language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior
Congressional confirmation, thus:

175
Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in
this Constitution. He shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may,
by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during recess of the Congress, whether voluntary or
compulsory, but such appointment shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress. 1
By its plain language, the Constitution has intended that only those grouped under the first sentence are
required to undergo a consenting process. This is a significant departure from the procedure set forth in the
1935 Charter:
(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy
and Air Forces from the rank of captain to commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint;
but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or
in the heads of departments. 2
under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no extrinsic
aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to require all
Presidential appointments clearance from the Commission on Appointments, they could have simply reenacted
the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments that the President may make: (1)
appointments of heads of executive departments, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain, and those of other officers whose appointments
are vested in him under the Constitution, including the regular members of the Judicial and Bar Council, 5 the
Chairman and Commissioners of the Civil Service Commission, 6 the Chairman and Commissioners of the
Commission on Elections, 7 and the Chairman and Commissioners of the Commission on Audit; 8 (2) those
officers whose appointments are not otherwise provided for by law; (3) those whom he may be authorized by
law to appoint; and (4) officers lower in rank whose appointments the Congress may vest in the President
alone.
But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written a "rather
confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a certain extent,
to the appointing clause itself, in the sense that it leaves us for instance, with the incongruous situation where a
consul's appointment needs confirmation whereas that of Undersecretary of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge. That is a
question addressed to the electorate, and who, despite those "eccentricities," have stamped their approval on
that Charter. "The Court," avers the majority, "will thus construe the applicable constitutional provisions, not in
accordance with how the executive or the legislative department may want them construed, but in accordance
with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of executive power. 11 The
fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of
such a power, much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we
stated in no uncertain terms that "[a]ppointment to office is intrinsically an executive act involving the exercise
176
of discretion." 12 Springer v. Philippine Islands 13 on the other hand, underscored the fact that while the
legislature may create a public office, it cannot name the official to discharge the functions appurtenant thereto.
And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications, which would
unduly narrow the President's choice. In that event, it is as if it is the legislature itself conferring the
appointment.
Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains his
supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of the
appointing power.
It is the essence of a republican form of government, like ours, that "[e]ach department of the government has
exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican systems, no power is
absolutely separate from the other. For republicanism operates on a process of checks and balances as well,
not only to guard against excesses by one branch, but more importantly, "to secure coordination in the
workings of the various departments of the government." 15 Viewed in that light, the Commission on
Appointments acts as a restraint against abuse of the appointing authority, but not as a means with which to
hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson as the majority notes, in
our history under the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the provision on appointments. The prohibition, for
instance, against the enactment of a bill of attainder operates as a bar against legislative encroachment upon
both judicial and executive domains, since the determination of guilt and punishment of the guilty address
judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both ways. In a
very real sense, the power of appointment constitutes a check against legislative authority. In Springer v.
Philippine Islands, 17 we are told that "Congress may not control the law enforcement process by retaining a
power to appoint the individual who will execute the laws." 18 This is so, according to one authority, because
"the appointments clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an
executive check upon legislative authority in the interest of avoiding an undue concentration of power in
Congress. " 19
The President has sworn to "execute [the] laws. 20 For that matter, no other department of the Government
may discharge that function, least of all Congress. Accordingly, a statute conferring upon a commission the
responsibility of administering that very legislation and whose members have been determined therein, has
been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is the concern of the President,
and in going about this business, he acts by himself or through his men and women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22 Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the
power of removal . . . [is] incident to the power of appointment, 23 although this has since been tempered in a
subsequent case, 24 where it was held that the President may remove only "purely executive officers, 25 that is,
officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court held that the President may remove
incumbents of offices confidential in nature, but we likewise made clear that in such a case, the incumbent is
not "removed" within the meaning of civil service laws, but that his term merely expires.
It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987 Constitution,
is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all appointments submitted to
it within thirty session days of the Congress from their submission. 27 Accordingly, the failure of the
Commission to either consent or not consent to the appointments preferred before it within the prescribed
period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred by the
predominance of checks and counterchecks, yet amid such a rubble of competing powers emerges a structure
177
whose parts are at times jealous of each other, but which are ultimately necessary in assuring a dynamic, but
stable, society. As Mr. Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more
specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. ...
When we come to the fundamental distinctions it is still more obvious that they must be received with a certain
latitude or our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling words we do not and
cannot carry out the distinction between legislative and executive action with mathematical precision and divide
the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing
that it is, or that the Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton might readily have
recognized as suggestive of the mechanism of the heavens," (W. Wilson, Constitutional Government in the
United States 56 (1908)] can represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192: "The
Constitution cannot be regarded as a mere legal document, to be read as a will or a contract would be. It must,
of the necessity of the case, be a vehicle of life.") The great difficulty of any theory less rich, Woodrow Wilson
once warned, "is that government is not a machine, but a living thing. It falls, not under the theory of the
universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is . . . shaped to its
functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks,
and five." (Id. at 56.) Yet because no complex society can have its centers of power not "offset against each
other as checks," and resist tyranny, the Model of Separated and Divided Powers offers continuing testimony
to the undying dilemmas of progress and justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the
legislature (the National Assembly under the 1971 draft Constitution) the power to check executive
appointments, and hence, granted the President absolute appointing power. 30 As a delegate to, and Vice-
President of, the ill-fated 1971 Constitutional Convention, and more so as the presiding officer of most of its
plenary session, I am aware that the Convention did not provide for a commission on appointments on the
theory that the Prime Minister, the head of the Government and the sole appointing power, was himself a
member of parliament. For this reason, there was no necessity for a separate body to scrutinize his
appointees. But should such appointees forfeit the confidence of the assembly, they are, by tradition, required
to resign, unless they should otherwise have been removed by the Prime Minister. 31 In effect, it is parliament
itself that "approves" such appointments. Unfortunately, supervening events forestalled our parliamentary
experiment, and beginning with the 1976 amendments and some 140 or so amendments thereafter, we had
reverted to the presidential form, 32 without provisions for a commission on appointments.
In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the present
Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere safeguard against
abuse with respect to those appointments. It does not accord Congress any more than the power to check, but
not to deny, the Chief Executive's appointing power or to supplant his appointees with its own. It is but an

178
exception to the rule. In limiting the Commission's scope of authority, compared to that under the 1935
Constitution, I believe that the 1987 Constitution has simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land,
should never have any of its provisions interpreted in a manner that results in absurd or irrational
consequences.
The Commission on Appointments is an important constitutional body which helps give fuller expression to the
principles inherent in our presidential system of government. Its functions cannot be made innocuous or
unreasonably diminished to the confirmation of a limited number of appointees. In the same manner that the
President shares in the enactment of laws which govern the nation, the legislature, through its Commission on
Appointments, gives assurance that only those who can pass the scrutiny of both the President and Congress
will help run the country as officers holding high appointive positions. The third sentence of the first paragraph
— " ... The Congress may, by law, vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of departments, agencies, commissions, or boards." — specifies only "officers
lower in rank" as those who may, by law, be appointed by the President alone. If as expounded in the majority
opinion, only the limited number of officers in the first sentence of Section 16 require confirmation, the clear
intent of the third sentence is lost. In fact both the second and third sentences become meaningless or
superfluous. Superfluity is not to be read into such an important part of the Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read together. In
providing for the appointment of members of the Supreme Court and judges of lower courts (Section 9, Article
VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of cabinet
(Section 3, Article VII) and, of course, those who by law the President alone may appoint, the Constitution
clearly provides no need for confirmation. This can only mean that all other appointments need confirmation.
Where there is no need for confirmation or where there is an alternative process to confirmation, the
Constitution expressly so declares. Without such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the
government it set up was supposed to be a parliamentary one. The Prime Minister, as head of government,
was constantly accountable to the legislature. In our presidential system, the interpretation which Justice Cruz
and myself espouse, is more democratic and more in keeping with the system of government organized under
the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is required
only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the executive
departments; (2) ambassadors, other public ministers and consuls; (3) officers of the armed forces from the
rank of colonel or naval captain; and (4) other officers whose appointments are vested in the President in the
Constitution. No confirmation is required under the second sentence for (1) all other officers whose
appointments are not otherwise provided for by law, and (2) those whom the President may be authorized by
law to appoint. Neither is confirmation required by the third sentence for those other officers lower in rank
whose appointment is vested by law in the President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department, does
not have to be confirmed by the Commission on Appointments, but the ordinary consul, who is under his
jurisdiction, must be confirmed. The colonel is by any standard lower in rank than the Chairman of the
Commission on Human Rights, which was created by the Constitution; yet the former is subject to confirmation
but the latter is not because he does not come under the first sentence. The Special Prosecutor, whose
179
appointment is not vested by the Constitution in the President, is not subject to confirmation under the first
sentence, and neither are the Governor of the Central Bank and the members of the Monetary Board because
they fall under the second sentence as interpreted by the majority opinion. Yet in the case of the multi-sectoral
members of the regional consultative commission, whose appointment is vested by the Constitution in the
President under Article X, Section 18, their confirmation is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they would lead to the absurd
consequences we should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first sentence of Section
16, but that is not the provision we ought to interpret. It is the second sentence we must understand for a
proper resolution of the issues now before us. Significantly, although there was a long discussion of the first
sentence in the Constitutional Commission, there is none cited on the second sentence either in the Solicitor-
General's comment or in the majority opinion. We can therefore only speculate on the correct interpretation of
this provision in the light of the first and third sentences of Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and holds that the two
sets of officers specified therein may be appointed by the President without the concurrence of the
Commission on Appointments. This interpretation is pregnant with mischievous if not also ridiculous results
that presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the majority
opinion that the enumeration in the first sentence of the officers subject to confirmation is exclusive on the
basis of expressio unius est exclusio alterius. If that be so, the first sentence would have been sufficient by
itself to convey the Idea that all other appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was still
felt necessary to provide in the third sentence that the appointment of the other officers lower in rank will also
not need confirmation as long as their appointment is vested by law in the President alone. The third sentence
would appear to be superfluous, too, again in view of the first sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the appointment of
those other officers lower in rank mentioned in the third sentence? Conformably to the language thereof, these
lower officers will need the confirmation of the Commission on Appointments while, by contrast, the higher
officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than the
bureau director, will have to be confirmed if the Congress does not vest their appointment in the President
alone under the third sentence. On the other hand, their superior, the bureau director himself, will not need to
be confirmed because, according to the majority opinion, he falls not under the first sentence but the second.
This is carefulness in reverse, like checking the bridesmaids but forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the powers
of the Presidency and so prevent the recurrence of another dictatorship. Among the many measures taken was
the restoration of the Commission on Appointments to check the appointing power which had been much
abused by President Marcos. We are now told that even as this body was revived to limit appointments, the
scope of its original authority has itself been limited in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation of the Idea expressed in the first sentence
and simply mentions the other officers appointed by the President who are also subject to confirmation. The
second sentence is the later expression of the will of the framers and so must be interpreted as complementing
the rule embodied in the first sentence or, if necessary, reversing the original intention to exempt bureau
directors from confirmation. I repeat that there were no debates on this matter as far as I know, which simply
means that my humble conjecture on the meaning of Section 16 is as arguable, at least, as the suppositions of
180
the majority. We read and rely on the same records. At any rate, this view is more consistent with the general
purpose of Article VII, which, to repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record of the
Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on page 7, line 28, 1 propose to put a period
(.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.
Mr. Regalado: Madam President, the Committee accepts the proposed amendment because it makes it clear
that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.
However, the records do not show what particular part of Section 16 the committee chairman was referring to,
and a reading in its entirety of this particular debate will suggest that the body was considering
the first sentence of the said section, which I reiterate is not the controversial provision. In any case, although
the excerpt shows that the proposed amendment of Commissioner Foz was accepted by the committee, it is
not reflected, curiously enough, in the final version of Section 16 as a perusal thereof will readily reveal.
Whether it was deleted later in the session or reworded by the style committee or otherwise replaced for
whatever reason will need another surmise on this rather confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at best
persuasive only and not necessarily conclusive. Interestingly, some quarters have observed that the Congress
is not prevented from adding to the list of officers subject to confirmation by the Commission on Appointments
and cite the debates on this matter in support of this supposition. It is true enough that there was such a
consensus, but it is equally true that this thinking is not at all expressed, or even only implied, in the language
of Section 16 of Article VII. Which should prevail then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question either that it is
not absolute or unlimited. The rule re- established by the new Constitution is that the power requires
confirmation by the Commission on Appointments as a restraint on presidential excesses, in line with the
system of checks and balances. I submit it is the exception to this rule, and not the rule, that should be strictly
construed.
In my view, the only officers appointed by the President who are not subject to confirmation by the Commission
on Appointments are (1) the members of the judiciary and the Ombudsman and his deputies, who are
nominated by the Judicial and Bar Council; (2) the Vice-President when he is appointed to the Cabinet; and (3)
"other officers lower in rank," but only when their appointment is vested by law in the President alone. It is clear
that this enumeration does not include the respondent Commissioner of Customs who, while not covered by
the first sentence of Section 16, comes under the second sentence thereof as I would interpret it and so is also
subject to confirmation.
I vote to grant the petition.

181
O. EXPRESS MENTION AND IMPLIED EXCLUSION
2. PEOPLE VS MACARANDANG (GR NO. L-12088)
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MORO SUMAGUINA MACARANDANG, defendant-appellant.
Valeriano V. Rovira for appellant.
Assistant Solicitor General Guillermo E. Torres and Assistant Solicitor General Florencio Villamor for appellee.

PARAS, C. J.:
Moro Sumaguina Macarandang was accused an, after trial, convicted of the crime of illegal possesion of fire-
arms in the Court of First Instance of Lanao under the following information:
That on or about June 8, 1954, in the Municipality of Marantao, Province of Lanao, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, wilfully,
unlawfully and feloniously keep and have his custody and control one Riot Gun, Winchester, 12 GA. SN-
924131 and (8) rounds of ammunitions, without firs having obtained in proper license or permit therefore from
competent authority.
In the present appeal the accused, admitting the ownership and of the firearm and ammunitions in question,
invokes as his legal excuse or authority therefor, the appointment issued him by Governor Dimakuta as secret
agent on October 1, 1953, which reads as follows:1awphi1.net
TO WHOM IT MAY CONCERN:
For having shown good faith by previously surrending to this Office a firearm, Datu Sumaguina Macarandang
of Kamalig, Marantao, Lanao, has been appointed SECRET AGENT of peace and order campaigns and
detention of crimes. Accordingly, he is hereby authorized to hold and carry in his possession one (1) Riot
Winchester Shotgun, 12 GA. Serial No. 942131 with twenty(20) rounds of ammunitions for the successful
execution of his hazardous mission.
Datu Sumaguina Macarandang shall personally report to me from time to time all activities and whereabouts of
lawless and wanted elements roaming in the Municipal District of Marantoa, as well as all matters affecting
tranquility therein existing.lawphi1.net
It may be true that, as held by the trial court, the Governor has no authority to issue any firearm license or
permit; but section 879 of the Revise Administrative Code provides, as shown at lease by the subject matter
therefor, that "peace officers" are exempted from the requirements relating to the issuance of license to
possess firearms. The appointment of the accused as secret agent to the assist in the maintenance of peace
and order campaigns and detention of crimes, sufficiently put him within the category of a "peace officer"
equivalent even to a member of the municipal police expressly covered by section 879.
Wherefore, the decision appealed from is reversed and accused acquitted, with costs de officio. So ordered.

182
O. EXPRESS MENTION AND IMPLIED EXCLUSION
3. PEOPLE VS MAPA (GR NO. L-22301)
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARIO MAPA Y MAPULONG, defendant-appellant.
Francisco P. Cabigao for defendant-appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General F. R. Rosete and Solicitor O. C.
Hernandez for plaintiff-appellee.
FERNANDO, J.:
The sole question in this appeal from a judgment of conviction by the lower court is whether or not the
appointment to and holding of the position of a secret agent to the provincial governor would constitute a
sufficient defense to a prosecution for the crime of illegal possession of firearm and ammunition. We hold that it
does not.
The accused in this case was indicted for the above offense in an information dated August 14, 1962 reading
as follows: "The undersized accuses MARIO MAPA Y MAPULONG of a violation of Section 878 in connection
with Section 2692 of the Revised Administrative Code, as amended by Commonwealth Act No. 56 and as
further amended by Republic Act No. 4, committed as follows: That on or about the 13th day of August, 1962,
in the City of Manila, Philippines, the said accused did then and there wilfully and unlawfully have in his
possession and under his custody and control one home-made revolver (Paltik), Cal. 22, without serial
number, with six (6) rounds of ammunition, without first having secured the necessary license or permit
therefor from the corresponding authorities. Contrary to law."
When the case was called for hearing on September 3, 1963, the lower court at the outset asked the counsel
for the accused: "May counsel stipulate that the accused was found in possession of the gun involved in this
case, that he has neither a permit or license to possess the same and that we can submit the same on a
question of law whether or not an agent of the governor can hold a firearm without a permit issued by the
Philippine Constabulary." After counsel sought from the fiscal an assurance that he would not question the
authenticity of his exhibits, the understanding being that only a question of law would be submitted for decision,
he explicitly specified such question to be "whether or not a secret agent is not required to get a license for his
firearm."
Upon the lower court stating that the fiscal should examine the document so that he could pass on their
authenticity, the fiscal asked the following question: "Does the accused admit that this pistol cal. 22 revolver
with six rounds of ammunition mentioned in the information was found in his possession on August 13, 1962, in
the City of Manila without first having secured the necessary license or permit thereof from the corresponding
authority?" The accused, now the appellant, answered categorically: "Yes, Your Honor." Upon which, the lower
court made a statement: "The accused admits, Yes, and his counsel Atty. Cabigao also affirms that the
accused admits."
Forthwith, the fiscal announced that he was "willing to submit the same for decision." Counsel for the accused
on his part presented four (4) exhibits consisting of his appointment "as secret agent of the Hon. Feliciano
Leviste," then Governor of Batangas, dated June 2, 1962;1 another document likewise issued by Gov. Leviste
also addressed to the accused directing him to proceed to Manila, Pasay and Quezon City on a confidential
mission;2 the oath of office of the accused as such secret agent,3 a certificate dated March 11, 1963, to the
effect that the accused "is a secret agent" of Gov. Leviste.4 Counsel for the accused then stated that with the
presentation of the above exhibits he was "willing to submit the case on the question of whether or not a secret
agent duly appointed and qualified as such of the provincial governor is exempt from the requirement of having

183
a license of firearm." The exhibits were admitted and the parties were given time to file their respective
memoranda.1äwphï1.ñët
Thereafter on November 27, 1963, the lower court rendered a decision convicting the accused "of the crime of
illegal possession of firearms and sentenced to an indeterminate penalty of from one year and one day to two
years and to pay the costs. The firearm and ammunition confiscated from him are forfeited in favor of the
Government."
The only question being one of law, the appeal was taken to this Court. The decision must be affirmed.
The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any person to . . .
possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used
or intended to be used in the manufacture of firearms, parts of firearms, or ammunition."5 The next section
provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of
the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of
Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal
treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such
firearms are in possession of such officials and public servants for use in the performance of their official
duties."6
The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our task is
equally clear. The first and fundamental duty of courts is to apply the law. "Construction and interpretation
come only after it has been demonstrated that application is impossible or inadequate without them."7 The
conviction of the accused must stand. It cannot be set aside.
Accused however would rely on People v. Macarandang,8 where a secret agent was acquitted on appeal on
the assumption that the appointment "of the accused as a secret agent to assist in the maintenance of peace
and order campaigns and detection of crimes, sufficiently put him within the category of a "peace officer"
equivalent even to a member of the municipal police expressly covered by section 879." Such reliance is
misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of a statutory
provision. To the extent therefore that this decision conflicts with what was held in People v. Macarandang, it
no longer speaks with authority.
Wherefore, the judgment appealed from is affirmed.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ.,
concur.

184
O. EXPRESS MENTION AND IMPLIED EXCLUSION
4. PEOPLE VS SANTAYANA (GR NO. L-22291)
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JESUS SANTAYANA Y ESCUDERO, defendant-appellant.
Ernesto C. Hidalgo and Enrique Jocson for appellant.
Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro and Trial Attorney Josefina
Domingo de Leon for appellee.

CONCEPCION, JR., J:
Accused, Jesus Santayana y Escudero, was found guilty of the crime of illegal possesion of firearms and
sentenced to an indeterminate penalty of from one (1) year and one (1) day to two (2) years and to pay the
costs.
The essential facts are not in dispute. On February 19, 1962, accused Jesus Santayana, was appointed as
"Special Agent" 1 by then Colonel Jose C. Maristela, Chief of the CIS. On March 9, 1962, a Memorandum
Receipt 2 for equipment was issued in the name of the accused regarding one pistol Melior SN-122137 with
one (1) mag and stock. Col. Maristela likewise issued an undated certification 3 to the effect that the accused
was an accredited member of the CIS and the pistol described in the said Memorandum Receipt was given to
him by virtue of his appointment as special agent and that he was authorized to carry and possess the same in
the performance of his official duty and for his personal protection. On October 29, 1962, the accused was
found in Plaza Miranda in possession of the above-described pistol with four rounds of ammunition, cal. 25,
without a license to possess them. An investigation was conducted and thereupon, a corresponding complaint
was filed against the accused. The case underwent trial after which the accused was convicted of the crime
charged with its corresponding penalty. Hence, the case was appealed to US and the accused assigned three
errors allegedly committed by the trial court in disposing of this case.
Of these assigned errors, the two main issued posed are whether or not the present subject matter falls within
the exclusive jurisdiction of the municipal court pursuant to Republic Act No. 2613; and whether or not the
appointment of the appellant as special agent of the CIS which apparently authorizes him to carry and posses
firearms exempts him from securing a license or permit corresponding thereto.
Resolving the issue of jurisdiction, there is no doubt that under Section 87 of Republic Act No. 286, as
amended by Republic Act No. 2613, the justice over cases of illegal possession of firearms. But equally the
Court of First Instance of Manila, which took cognizance of this case had jurisdiction over the offense charged
because under Section 44 of Republic Act No. 296, Court of First Instance have original jurisdiction "in all
criminal cases in which the penalty provided by law is imprisonment for more than six (6) months, or a fine of
more than two hundred pesos (P200.00)"; and the offense charged in the information is punishable by
imprisonment for a period of not less than one (1) year and one (1) day nor more than five (5) years, or both
such imprisonment and a fine of not less than one thousand pesos (P1,000.00) or more than five thousand
pesos (P5,000.00).
From the foregoing, it is evident that the jurisdiction of the Municipal Courts over Criminal Cases in which the
penalty provided by law is imprisonment for not more than six (6) months or fine of not more than two hundred
(P200.00) pesos or both such imprisonment and fine is exclusive and original to said courts. But considering
that the offense of illegal possession of firearms with which the appellant was charged is penalized by
185
imprisonment for a period of not less than one (1) year and one (1) day or more than five (5) years, or both
such imprisonment and a fine of not less than one thousand (P1,000.00) pesos or more than five thousand
(P5,000.00) pesos (Republic Act No. 4), the offense, therefore, does not fall within the exclusive original
jurisdiction of the Municipal Court. The Court of First Instance has concurrent jurisdiction over the same.
As to the second issue to be resolved, there is no question that appellant was appointed as CIS secret agent
with the authority to carry and possess firearms. 4 Indeed, appellant was issued a firearm in the performance of
his official duties and for his personal protection. 5 It also appears that appellant was informed by Col. Maristela
that it was not necessary for him to apply for a license or to register the said firearm because it was
government property and therefore could not legally be registered or licensed in appellant's name. 6 Capt.
Adolfo M. Bringas from whom appellant received the firearm also informed the latter that no permit to carry the
pistol was necessary "because you are already appointed as CIS agent."
At the time of appellant's apprehension, the doctrine then prevailing is enunciated in the case of People vs.
Macarandang 7 wherein We held that the appointment of a civilian as "secret agent to assist in the maintenace
of peace and order campaigns and detection of crimes sufficiently puts him within the category of a 'peace
officer' equivalent even to a member of the municipal police expressly covered by Section 879." The case
of People vs. Mapa 8 revoked the doctrine in the Macarandang case only on August 30, 1967. Under the
Macarandang rule therefore obtaining at the time of appellant's appointment as secret agent, he incurred no
criminal liability for possession of the pistol in question.
Wherefore, and conformably with the recommendation of the Solicitor General, the decision appealed from is
hereby reversed and appellant Jesus Santayana y Escudero is hereby acquitted. The bond for his provisional
release is cancelled. Costs de oficio.
SO ORDERED.

186
O. EXPRESS MENTION AND IMPLIED EXCLUSION
5. MALINIAS VS COMELEC (GR NO. 146943)
SARIO MALINIAS, petitioner,
vs.
THE COMMISSION ON ELECTIONS, TEOFILO CORPUZ, ANACLETO TANGILAG and VICTOR
DOMINGUEZ, respondents.
DECISION
CARPIO, J.:
The Case
Before us is a petition for review on certiorari1 of the Resolutions of the Commission on Elections ("COMELEC"
for brevity) en banc2 dated June 10, 1999 and October 26, 2000. The assailed Resolutions dismissed the
complaint3 filed by petitioner Sario Malinias ("Malinias" for brevity) and Roy S. Pilando ("Pilando" for brevity) for
insufficiency of evidence to establish probable cause for violation of Section 25 of Republic Act No. 66464 and
Sections 232 and 261 (i) of Batas Pambansa Blg. 881.5
The Facts
Petitioner Malinias was a candidate for governor whereas Pilando was a candidate for congressional
representative of Mountain Province in the May 11, 1998 elections.6
The Provincial Board of Canvassers held the canvassing of election returns at the second floor of the
Provincial Capitol Building in Bontoc, Mountain Province from May 11, 1998 to May 15, 1998.7
On July 31, 1998, Malinias and Pilando filed a complaint with the COMELEC's Law Department for violation of
Section 25 of R.A. No. 6646, and Sections 232 and 261 (i) of B.P. Blg. 881, against Victor Dominguez, Teofilo
Corpuz, Anacleto Tangilag, Thomas Bayugan, Jose Bagwan who was then Provincial Election Supervisor, and
the members of the Provincial Board of Canvassers. Victor Dominguez ("Dominguez" for brevity) was then the
incumbent Congressman of Poblacion, Sabangan, Mountain Province. Teofilo Corpuz ("Corpuz" for brevity)
was then the Provincial Director of the Philippine National Police in Mountain Province while Anacleto Tangilag
("Tangilag" for brevity) was then the Chief of Police of the Municipality of Bontoc, Mountain Province.
Malinias and Pilando alleged that on May 15, 1998 a police checkpoint at Nacagang, Sabangan, Mountain
Province blocked their supporters who were on their way to Bontoc, and prevented them from proceeding to
the Provincial Capitol Building. Malinias and Pilando further alleged that policemen, upon orders of private
respondents, prevented their supporters, who nevertheless eventually reached the Provincial Capitol Building,
from entering the capitol grounds.
In their complaint, Malinias and Pilando requested the COMELEC and its Law Department to investigate and
prosecute private respondents for the following alleged unlawful acts.
"3. That on May 15, 1998 at the site of the canvassing of election returns for congressional and provincial
returns located at the second floor of the Provincial Capitol Building the public and particularly the designated
representatives/watchers of both affiants were prevented from attending the canvassing.
xxx
4. That the aforementioned "Mass-affidavits" support our allegations in this affidavit-complaint that we and our
supporters were prevented from attending the provincial canvassing because of the illegal checkpoint/blockade
set-up by policemen in Nakagang, Tambingan, Sabangan, Mt. Province and as an evidence to these
allegations, Certification of the Police Station is hereto attached as Annex "D" and affidavits of supporters
187
hereto attached as Annex "E", both made an integral part of this affidavit-complaint; and that said "mass-
affidavits" show that the Provincial canvassing were not made public or (sic) candidates and their
representatives/watchers prevented because of barricade, closure of canvassing rooms, blockade by armed
policemen that coerce or threaten the people, the candidates or their representatives from attending the
canvassing;8
In support of the complaint, several supporters of Malinias and Pilando executed so-called "mass affidavits"
uniformly asserting that private respondents, among others, (1) prevented them from attending the provincial
canvassing, (2) padlocked the canvassing area, and (3) threatened the people who wanted to enter the
canvassing room. They likewise alleged that the Provincial Board of Canvassers never allowed the canvassing
to be made public and consented to the exclusion of the public or representatives of other candidates except
those of Dominguez.9
Consequently, the COMELEC's Law Department conducted a preliminary investigation during which only
Corpuz and Tangilag submitted their joint Counter-Affidavit.
In their Counter-Affidavit, Corpuz and Tangilag admitted ordering the setting up of a checkpoint at Nacagang,
Sabangan, Mountain Province and securing the vicinity of the Provincial Capitol Building, to wit:
"3. We admit having ordered the setting up of check points in Nakagang, Tambingan, Sabangan, Mountain
Province; as in fact, this is not the only checkpoint set up in the province. There are other checkpoints
established in other parts of the province, to enforce the COMELEC gun ban and other pertinent rules issued
by the Commission on Election during the election period.
4. Policemen were posted within the vicinity of the capitol grounds in response to earlier information that some
groups were out to disrupt the canvass proceedings which were being conducted in the second floor of the
Provincial Capitol Building. This is not remote considering that this had happened in the past elections. In fact,
during the canvass proceeding on May 15, 1998 a large group of individuals identified with no less than
affiants-complainants Roy S. Pilando and Sario Malinias was conducting a rally just in front of the capitol,
shouting invectives at certain candidates and their leaders. This group likewise were holding placards and
posted some in front of the capitol building.
x x x"10
After the investigation, in a study dated May 26, 1999, the COMELEC's Law Department recommended to the
COMELEC en banc the dismissal of the complaint for lack of probable cause.11
In a Resolution dated June 10, 1999, the COMELEC en banc dismissed the complaint of Malinias and Pilando
for insufficiency of evidence to establish probable cause against private respondents. On October 26, 2000,
the COMELEC dismissed Malinias' Motion for Reconsideration.
Hence, Malinias filed the instant petition.
The Comelec's Ruling
In dismissing the complaint against private respondents, the COMELEC ruled as follows:
"As appearing in the Minutes of Provincial Canvass, complainant Roy Pilando was present during the May 15,
1998 Provincial Canvass. He even participated actively in a discussion with the members of the Board and the
counsel of Congressman Dominguez. The minutes also disclosed that the lawyers of LAMMP, the watchers,
supporters of other candidates and representatives of the Integrated Bar of the Philippines were present at one
time or another during the canvass proceedings. The minutes does not indicate any charges of irregularities
inside and within the vicinity of the canvassing room.
Pursuant to Comelec Res. No. 2968 promulgated on January 7, 1998, checkpoints were established in the
entire country to effectively implement the firearms ban during the election period from January 11, 1998 to
188
June 10, 1998. In Mountain Province, there were fourteen (14) checkpoints established by the Philippine
National Police way before the start of the campaign period for the May 11, 1998 elections including the
subject checkpoint at Nacagang, Tambingan, Sabangan, Mountain Province. Thus, the checkpoint at
Sabangan, Mountain Province was not established as alleged only upon request of Congressman Dominguez
on May 15, 1998 but way before the commencement of the campaign period. Granting arguendo that the
Congressman did make a request for a checkpoint at Sitio Nacagang, it would be a mere surplusage as the
same was already existing.
Furthermore, an alleged text of a radio message requesting advice from the PNP Provincial Director at Bontoc,
Mt. Province was attached to complainants' affidavit-complaint. However, said person by the name of Mr.
Palicos was never presented to affirm the truth of the contents and the signature appearing therein."12
Finding that Malinias failed to adduce new evidence, the COMELEC dismissed Malinias' Motion for
Reconsideration.13
The Court's Ruling
The sole issue for resolution is whether the COMELEC gravely abused its discretion in dismissing Malinias and
Pilando's complaint for insufficiency of evidence to establish probable cause for alleged violation of Section 25
of R.A. No. 6646 and Sections 232 and 261 (i) of B.P. 881.
We rule that the COMELEC did not commit grave abuse of discretion.
For this Court to issue the extraordinary writ of certiorari, the tribunal or administrative body must have issued
the assailed decision, order or resolution in a capricious and despotic manner.
"There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction; where the power is exercised in an
arbitrary or despotic manner by reason of passion, prejudice, or personal hostility, amounting to an evasion of
positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law." 14
Such is not the situation in the instant case. The COMELEC dismissed properly the complaint of Malinias and
Pilando for insufficient evidence, and committed no grave abuse of discretion amounting to lack or excess of
jurisdiction.
First, Malinias charged private respondents with alleged violation of Section 25 of Republic Act No. 6646,
quoted, as follows:
"Sec. 25. Right to be Present and to Counsel During the Canvass. – Any registered political party, coalition of
parties, through their representatives, and any candidate has the right to be present and to counsel during the
canvass of the election returns; Provided, That only one counsel may argue for each political party or
candidate. They shall have the right to examine the returns being canvassed without touching them, make their
observations thereon, and file their challenge in accordance with the rules and regulations of the Commission.
No dilatory action shall be allowed by the board of canvassers."
In the present case, Malinias miserably failed to substantiate his claim that private respondents denied him his
right to be present during the canvassing. There was even no showing that Malinias was within the vicinity of
the Provincial Capitol Building or that private respondents prevented him from entering the canvassing room.
As found by the COMELEC and admitted by Malinias, Pilando was present and even participated actively in
the canvassing.15 Malinias failed to show that his rights as a gubernatorial candidate were prejudiced by the
alleged failure of his supporters to attend the canvassing. Malinias claimed that even though Pilando was
present during the canvassing, the latter was only able to enter the room after eluding the policemen and
passing through the rear entrance of the Provincial Capitol Building.16 This allegation, however, is not
supported by any clear and convincing evidence. Pilando himself, who was purportedly prevented by

189
policemen from entering the canvassing room, failed to attest to the veracity of this statement rendering the
same self-serving and baseless.
In an analogous case where a political candidate's watcher failed to attend the canvass proceedings, this Court
held:
"Another matter which militates against the cause of petitioner is that he has not shown that he suffered
prejudice because of the failure of his watcher to attend the canvassing. Had the watcher been present, what
substantive issues would he have raised? Petitioner does not disclose. Could it be that even if the watcher was
present, the result of the canvassing would have been the same?"
There is therefore no merit in petitioner's claim that respondent Commission on Elections gravely abused its
discretion in issuing its questioned decision. And, as emphatically stated in Sidro v. Comelec, 102 SCRA 853,
this Court has invariably followed the principle that "in the absence of any jurisdictional infirmity or an error of
law of the utmost gravity, the conclusion reached by the respondent Commission on a matter that falls within
its competence is entitled to the utmost respect, xxx." There is justification in this case to reiterate this
principle."17
Assuming that Pilando in fact entered the canvassing room only after successfully evading the policemen
surrounding the Provincial Capitol grounds, Pilando could have easily complained of this alleged unlawful act
during the canvass proceedings. He could have immediately reported the matter to the Provincial Board of
Canvassers as a violation of Section 25 of R.A. No. 6646. However, Pilando opted simply to raise questions on
alleged irregularities in the municipal canvassing.18 While he had the opportunity to protest the alleged
intimidation committed by policemen against his person, it is quite surprising that he never mentioned anything
about it to the Provincial Board of Canvassers.
Surprisingly, the COMELEC and private respondents apparently overlooked that R.A. No. 6646 does not
punish a violation of Section 25 of the law as a criminal election offense. Section 25 merely highlights one of
the recognized rights of a political party or candidate during elections, aimed at providing an effective
safeguard against fraud or irregularities in the canvassing of election returns. Section 2719 of R.A. No. 6646,
which specifies the election offenses punishable under this law, does not include Section 25.
Malinias further claims that, in violation of this right, his supporters were blocked by a checkpoint set-up at
Nacagang, Sabangan, Mountain Province. This allegation is devoid of any basis to merit a reversal of the
COMELEC's ruling. Malinias' supporters who were purportedly blocked by the checkpoint did not confirm or
corroborate this allegation of Malinias.
Moreover, the police established checkpoints in the entire country to implement the firearms ban during the
election period. Clearly, this is in consonance with the constitutionally ordained power of the COMELEC to
deputize government agencies and instrumentalities of the Government for the exclusive purpose of ensuring
free, orderly, honest, peaceful and credible elections.20
Second, Malinias maintains that Corpuz and Tangilag entered the canvassing room in blatant violation of
Section 232 of B.P. Blg. 881. His sole basis for this allegation is the affidavit of his supporters who expressly
stated that they saw Dominguez and Corpuz (only) enter the canvassing room.21 Malinias likewise contends
that "Corpuz and Tangilag impliedly admitted that they were inside or at least within the fifty (50) meter radius
of the canvassing room as they were able to mention the names of the persons who were inside the
canvassing room in their Counter-Affidavit."22
The provision of law which Corpuz and Tangilag allegedly violated is quoted as follows:
"Sec. 232. Persons not allowed inside the canvassing room. – It shall be unlawful for any officer or member of
the Armed Forces of the Philippines, including the Philippine Constabulary, or the Integrated National Police or
any peace officer or any armed or unarmed persons belonging to an extra-legal police agency, special forces,

190
reaction forces, strike forces, home defense forces, barangay self-defense units, barangay tanod, or of any
member of the security or police organizations or government ministries, commissions, councils, bureaus,
offices, instrumentalities, or government-owned or controlled corporation or their subsidiaries or of any member
of a privately owned or operated security, investigative, protective or intelligence agency performing identical or
similar functions to enter the room where the canvassing of the election returns are held by the board of
canvassers and within a radius of fifty meters from such room: Provided, however, That the board of
canvassers by a majority vote, if it deems necessary, may make a call in writing for the detail of policemen or
any peace officers for their protection or for the protection of the election documents and paraphernalia in the
possession of the board, or for the maintenance of peace and order, in which case said policemen or peace
officers, who shall be in proper uniform, shall stay outside the room within a radius of thirty meters near enough
to be easily called by the board of canvassers at any time."
Again, the COMELEC and private respondents overlooked that Section 232 of B.P. Blg. 881 is not one of the
election offenses explicitly enumerated in Sections 261 and 262 of B.P. Blg. 881. While Section 232
categorically states that it is unlawful for the persons referred therein to enter the canvassing room, this act is
not one of the election offenses criminally punishable under Sections 261 and 262 of B.P. Blg. 881. Thus, the
act involved in Section 232 of B.P. Blg. 881 is not punishable as a criminal election offense. Section 264 of
B.P. Blg. 881 provides that the penalty for an election offense under Sections 261 and 262 is imprisonment of
not less than one year but not more than six years.
Under the rule of statutory construction of expressio unius est exclusio alterius, there is no ground to order the
COMELEC to prosecute private respondents for alleged violation of Section 232 of B.P. Blg. 881 precisely
because this is a non-criminal act.
"It is a settled rule of statutory construction that the express mention of one person, thing, or consequence
implies the exclusion of all others. The rule is expressed in the familiar maxim, expressio unius est exclusio
alterius.
The rule of expressio unius est exclusio alterius is formulated in a number of ways. One variation of the rule is
the principle that what is expressed puts an end to that which is implied. Expressium facit cessare tacitum.
Thus, where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or
construction, be extended to other matters.
xxx
The rule of expressio unius est exclusio alterius and its variations are canons of restrictive interpretation. They
are based on the rules of logic and the natural workings of the human mind. They are predicated upon one's
own voluntary act and not upon that of others. They proceed from the premise that the legislature would not
have made specified enumeration in a statute had the intention been not to restrict its meaning and confine its
terms to those expressly mentioned."23
Also, since private respondents are being charged with a criminal offense, a strict interpretation in favor of
private respondents is required in determining whether the acts mentioned in Section 232 are criminally
punishable under Sections 26124 and 26225 of B.P. Blg. 881. Since Sections 261 and 262, which lists the
election offenses punishable as crimes, do not include Section 232, a strict interpretation means that private
respondents cannot be held criminally liable for violation of Section 232.
This is not to say that a violation of Section 232 of B.P. Blg. 881 is without any sanction. Though not a criminal
election offense, a violation of Section 232 certainly warrants, after proper hearing, the imposition of
administrative penalties. Under Section 2, Article IX-C of the Constitution, the COMELEC may recommend to
the President the imposition of disciplinary action on any officer or employee the COMELEC has deputized for
violation of its directive, order or decision.26 Also, under the Revised Administrative Code,27 the COMELEC
may recommend to the proper authority the suspension or removal of any government official or employee
found guilty of violation of election laws or failure to comply with COMELEC orders or rulings.
191
In addition, a careful examination of the evidence presented by Malinias shows that the same are insufficient to
justify a finding of grave abuse of discretion on the part of the COMELEC. Obviously, the evidence relied upon
by Malinias to support his charges consisted mainly of affidavits prepared by his own supporters. The affidavits
of Malinias' own supporters, being self-serving, cannot be accepted at face value under the circumstances. As
this Court has often stated, "reliance should not be placed on mere affidavits."28
Besides, if Corpuz really entered the canvassing room, then why did Pilando and the representatives of other
candidates, who were inside the room, fail to question this alleged wrongful act during the canvassing?
Malinias' contention that Corpuz and Tangilag impliedly admitted they were inside the canvassing room
because they mentioned the names of the persons present during the canvassing deserves scant
consideration as the same is not supported by any evidence.
Finally, Malinias asserts that private respondents should be held liable for allegedly violating Section 261 (i) of
B. P. Blg. 881 because the latter engaged in partisan political activity. This provision states:
"Sec. 261 (i) Intervention of public officers and employees. – Any officer or employee in the civil service, except
those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any
police force, special forces, home defense forces, barangay self-defense units and all other para-military units
that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election
campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a
peace officer."
Section 79, Article X of B.P. Blg. 881 defines the term "partisan political activity" as an act designed to promote
the election or defeat of a particular candidate or candidates to a public office."29 Malinias asserts that, in
setting up a checkpoint at Nacagang, Tambingan, Sabangan, Mountain Province and in closing the canvassing
room, Corpuz and Tangilag unduly interfered with his right to be present and to counsel during the canvassing.
This interference allegedly favored the other candidate.
While Corpuz and Tangilag admitted ordering the setting up of the checkpoint, they did so to enforce the
COMELEC's firearms ban, pursuant to COMELEC Resolution No. 2968, among others. 30 There was no clear
indication that these police officers, in ordering the setting up of checkpoint, intended to favor the other
candidates. Neither was there proof to show that Corpuz and Tangilag unreasonably exceeded their authority
in implementing the COMELEC rules. Further, there is no basis to rule that private respondents arbitrarily
deprived Malinias of his right to be present and to counsel during the canvassing.
The act of Corpuz and Tangilag in setting up the checkpoint was plainly in accordance with their avowed duty
to maintain effectively peace and order within the vicinity of the canvassing site. Thus, the act is untainted with
any color of political activity. There was also no showing that the alleged closure of the provincial capitol
grounds favored the election of the other candidates.
In summary, we find that there is no proof that the COMELEC issued the assailed resolutions with grave abuse
of discretion. We add that this Court has limited power to review findings of fact made by the COMELEC
pursuant to its constitutional authority to investigate and prosecute actions for election offenses.31 Thus, where
there is no proof of grave abuse of discretion, arbitrariness, fraud or error of law, this Court may not review the
factual findings of the COMELEC, nor substitute its own findings on the sufficiency of evidence. 32
WHEREFORE, the instant Petition is DISMISSED. The assailed Resolutions of public respondent COMELEC
are AFFIRMED. Costs against petitioner.
SO ORDERED.

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O. EXPRESS MENTION AND IMPLIED EXCLUSION
6. CANET VS DECENA (GR NO. 155344)
ROLANDO N. CANET, Petitioner,
vs.
MAYOR JULIETA A. DECENA, Respondent.
DECISION
YNARES-SANTIAGO, J.:
On July 27, 1998, the Sangguniang Bayan of Bula, Camarines Sur, passed Resolution No. 049, Series of
1998,1 authorizing petitioner Rolando N. Canet to establish, operate and maintain a cockpit in Sitio, Cabaya,
San Roque, Bula, Camarines Sur.
Subsequently, the Sangguniang Bayan passed Ordinance No. 001, Series of 1999, entitled "An Ordinance
Regulating the Operation of Cockpits and Other Related Game-Fowl Activities in the Municipality of Bula,
Camarines Sur and Providing Penalties for any Violation to (sic) the Provisions Thereof." 2 Upon transmittal to
respondent Mayor Julieta A. Decena of the said municipality, it was noted that the Ordinance does not contain
rules and regulations on cockfighting and other related game fowl activities and a separability clause. The
Ordinance was returned to the Sangguniang Bayan. In Resolution No. 078, Series of 1999, Sangguniang
Bayan resolved to withdraw, set aside and shelf indefinitely Ordinance No. 001, Series of 1999. 3
Meanwhile, petitioner, relying on Resolution No. 049, Series of 1998, of the Sangguniang Bayan, filed an
application for a mayor’s permit to operate, establish and maintain a cockpit in Sitio Cabuya, San Roque, Bula,
Camarines Sur. Respondent Mayor Julieta Decena denied the application on the ground, among others, that
under the Local Government Code of 1991, the authority to give licenses for the establishment, operation and
maintenance of cockpits as well as the regulation of cockfighting and commercial breeding of gamecocks is
vested in the Sangguniang Bayan.4
Therefore, she cannot issue the said permit inasmuch as there was no ordinance passed by the Sangguniang
Bayan authorizing the same.
On July 26, 1999, petitioner filed a complaint5 against respondent Mayor with the Regional Trial Court of Pili,
Camarines Sur, Branch XXXI, which was docketed as Special Civil Action No. P-84-99, for Mandamus and
Damages with Application for Preliminary Mandatory Injunction. Respondent moved for the dismissal of the
complaint.
A Resolution was issued by the trial court on January 27, 2000, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the motion to dismiss is hereby denied. Let a writ of preliminary
mandatory injunction issue upon the posting of an injunction bond by the plaintiff in the amount of FIFTY
THOUSAND PESOS (P50,000.00) executed to defendant to stand for all the damages which she may sustain
if it should be finally found that plaintiff is not entitled thereto, said mandatory injunction ordering and
commanding herein defendant, incumbent Mayor of the Municipality of Bula, Camarines Sur to approve and
issue forthwith the Mayor’s Permit and to accept the fees therefor for plaintiff to establish, maintain and operate
a cockpit in Cabaya, San Roque, Bula, Camarines Sur. Upon finality of this resolution, let the main case be set
for further proceedings.
SO ORDERED.6
The writ of preliminary mandatory injunction was issued on February 1, 2000.7

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Respondent filed a petition for certiorari and prohibition with the Court of Appeals, docketed as CA-G.R. SP
No. 57797.8 On April 3, 2000, the Court of Appeals issued a temporary restraining order,9 directing petitioner
and the presiding judge to temporarily cease and desist from enforcing the writ of preliminary mandatory
injunction issued on February 1, 2000 in Special Civil Action No. P-84-99.
On June 3, 2002, the Court of Appeals rendered the assailed Decision, the dispositive portion of which reads:
WHEREFORE, the petition is granted and the questioned January 27, 2000 Resolution and February 1, 2000
writ of preliminary mandatory injunction issued by respondent Judge are ANNULLED AND SET ASIDE while
the writ of preliminary injunction heretofore issued by this Court on July 10, 2000 is made permanent. No costs.
SO ORDERED.10
Petitioner filed a Motion for Reconsideration which was denied for lack of merit in a Resolution dated August
2002.11
Hence, this petition for review.
The core issue in this petition is whether or not respondent, in her capacity as Municipal Mayor, can be
compelled to issue the necessary business permit to petitioner absent a municipal ordinance which would
empower her to do so.
The pertinent provision of law in contention is Section 447 (a) (3) (v) of the Local Government Code of 1991
(Republic Act No. 7160), which reads:
SEC. 447. Powers, Functions and Compensation. (a) The Sangguniang Bayan as the legislative body of the
municipality shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the
municipality and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate
powers of the municipality as provided for under Section 22, and shall:
xxx xxx xxx
(3) Subject to the provisions of Book II of this Code, grant franchises, enact ordinances levying taxes, fees and
charges upon such conditions and for such purposes intended to promote the general welfare of the
inhabitants of the municipality, and pursuant to this legislative authority shall:
xxx xxx xxx
(v) Any law to the contrary notwithstanding, authorize and license the establishment, operation and
maintenance of cockpits and regulate cockfighting and commercial breeding of gamecocks: Provided, That
existing rights should not be prejudiced.
Petitioner admits that there is no ordinance in Bula, Camarines Sur which authorizes the grant of a mayor’s
permit to operate and maintain a cockfighting arena. However, he invokes Resolution No. 049, S. 1998,
wherein the Sangguniang Bayan authorized him to operate a cockpit. Furthermore, he cites Municipal Tax
Ordinances Nos. 01, S. 1989, and 05, S. 1993, which generally provide for the issuance of a mayor’s permit for
the operation of businesses.
Municipal Tax Ordinances Nos. 01, S. 1989 and 05, S. 1993 contain general provisions for the issuance of
business permits but do not contain specific provisions prescribing the reasonable fees to be paid in the
operation of cockpits and other game fowl activities.
It was Ordinance No. 001, S. 1999 which provided for the collection of application filing fees, ocular inspection
fees, mayor’s permit fees, filing fees for the institution of complaints, entrance fees and special derby
assessments for the operation of cockpits.12 This Ordinance, however, was withdrawn by the Sangguniang
Bayan.

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Hence, there being in effect no ordinance allowing the operation of a cockpit, Resolution No. 049, S. 1998,
authorizing petitioner to establish, operate and maintain a cockpit in Bula, Camarines Sur cannot be
implemented. Suffice it to state in this regard that to compel respondent to issue the mayor’s permit would not
only be a violation of the explicit provisions of Section 447 of the Local Government Code of 1991, but would
also be an undue encroachment on respondent’s administrative prerogatives.
Along the same vein, to read into the ordinances relied upon by petitioner objects which were neither
specifically mentioned nor enumerated would be to run afoul of the dictum that where a statute, by its terms, is
expressly limited to certain matters, it may not, by interpretation or construction, be extended to other
matters.13 In other words, it is a basic precept of statutory construction that the express mention of one person,
thing, act, or consequence excludes all others, as expressed in the oft-repeated maxim expression unius est
exlusio alterius.14 Elsewise stated, expressium facit cessare tacitum – what is expressed puts an end to what is
implied.15 The rule proceeds from the premise that the legislative body would not have made specific
enumerations in a statute, if it had the intention not to restrict its meaning and confine its terms to those
expressly mentioned.
Even on the assumption that there is in fact a legislative gap caused by such an omission, neither could the
Court presume otherwise and supply the details thereof, because a legislative lacuna cannot be filled by
judicial fiat.16 Indeed, courts may not, in the guise of interpretation, enlarge the scope of a statute and include
therein situations not provided nor intended by the lawmakers. An omission at the time of the enactment,
whether careless or calculated, cannot be judicially supplied however after later wisdom may recommend the
inclusion.17 Courts are not authorized to insert into the law what they think should be in it or to supply what they
think the legislature would have supplied if its attention has been called to the omission.18 1âwphi1
Courts should not, by construction, revise even the most arbitrary and unfair action of the legislature, nor
rewrite the law to conform with what they think should be the law.19 Nor may they interpret into the law a
requirement which the law does not prescribe.20 Where a statute contains no limitations in its operation or
scope, courts should not engraft any.21 And where a provision of law expressly limits its application to certain
transactions, it cannot be extended to other transactions by interpretation.22 To do any of such things would be
to do violence to the language of the law and to invade the legislative sphere.23
It should, furthermore, be borne in mind that cockfighting although authorized by law is still a form of gambling.
Gambling is essentially antagonistic to the aims of enhancing national productivity and self-reliance.24 As has
been previously said, a statute which authorizes a gambling activity or business should be strictly construed,
and every reasonable doubt resolved so as to limit rather than expand the powers and rights claimed by
franchise holders under its authority.25
WHEREFORE, in view of all the foregoing, the petition is hereby DENIED for lack of merit. The Decision of the
Court of Appeals dated June 3, 2002 in CA-G.R. SP No. 57797 is AFFIRMED in toto.
SO ORDERED.

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