United States Supreme Court

MARBURY v. MADISON, (1803)

Argued: Decided: February 1, 1803
AT the December term 1801, William Marbury, Dennis Ramsay, Robert Townsend
Hooe, and William Harper, by their counsel [5 U.S. 137, 138] severally moved the
court for a rule to James Madison, secretary of state of the United States, to show
cause why a mandamus should not issue commanding him to cause to be delivered
to them respectively their several commissions as justices of the peace in the district
of Columbia.

This motion was supported by affidavits of the following facts: that notice of this motion
had been given to Mr. Madison; that Mr. Adams, the late president of the United States,
nominated the applicants to the senate for their advice and consent to be appointed
justices of the peace of the district of Columbia; that the senate advised and consented
to the appointments; that commissions in due form were signed by the said president
appointing them justices, &c. and that the seal of the United States was in due form
affixed to the said commissions by the secretary of state; that the applicants have
requested Mr. Madison to deliver them their said commissions, who has not complied
with that request; and that their said commissions are withheld from them; that the
applicants have made application to Mr. Madison as secretary of state of the United
States at his office, for information whether the commissions were signed and sealed
as aforesaid; that explicit and satisfactory information has not been given in answer to
that inquiry, either by the secretary of state, or any officer in the department of state;
that application has been made to the secretary of the senate for a certificate of the
nomination of the applicants, and of the advice and consent of the senate, who has
declined giving such a certificate; whereupon a rule was made to show cause on the
fourth day of this term. This rule having been duly served-- [5 U.S. 137, 139] Mr.
Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court,
and were required to give evidence, objected to be sworn, alleging that they were
clerks in the department of state, and not bound to disclose any facts relating to the
business or transactions of the office.

The court ordered the witnesses to be sworn, and their answers taken in writing; but
informed them that when the questions were asked they might state their objections
to answering each particular question, if they had any.

Mr. Lincoln, who had been the acting secretary of state, when the circumstances
stated in the affidavits occurred, was called upon to give testimony. He objected to
answering. The questions were put in writing.

The court said there was nothing confidential required to be disclosed. If there had
been, he was not obliged to answer it, and if he thought any thing was communicated
to him confidentially he was not bound to disclose, nor was he obliged to state any
thing which would criminate himself.

The questions argued by the counsel for the relators were, 1. Whether the supreme
court can award the writ of mandamus in any case. 2. Whether it will lie to a secretary
of state, in any case whatever. 3. Whether in the present case the court may award a
mandamus to James Madison, secretary of state.
[5 U.S. 137, 153]

Mr. Chief Justice MARSHALL delivered the opinion of the court.

At the last term, on the affidavits then read and filed with the clerk, a rule was granted
in this case, requiring the secretary of state to show cause why a mandamus [5 U.S.
137, 154] should not issue, directing him to deliver to William Marbury his
commission as a justice of the peace for the county of Washington, in the district of
Columbia.

No cause has been shown, and the present motion is for a mandamus. The peculiar
delicacy of this case, the novelty of some of its circumstances, and the real difficulty
attending the points which occur in it, require a complete exposition of the principles
on which the opinion to be given by the court is founded.

These principles have been, on the side of the applicant, very ably argued at the bar.
In rendering the opinion of the court, there will be some departure in form, though not
in substance, from the points stated in that argument.

In the order in which the court has viewed this subject, the following questions have
been considered and decided.

1. Has the applicant a right to the commission he demands?

2. If he has a right, and that right has been violated, do the laws of his country afford
him a remedy?

3. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is,

1. Has the applicant a right to the commission he demands?

His right originates in an act of congress passed in February 1801, concerning the
district of Columbia.

After dividing the district into two counties, the eleventh section of this law enacts, 'that
there shall be appointed in and for each of the said counties, such number of discreet
persons to be justices of the peace as the president of the United States shall, from
time to time, think expedient, to continue in office for five years.[5 U.S. 137, 155] It
appears from the affidavits, that in compliance with this law, a commission for William
Marbury as a justice of peace for the county of Washington was signed by John
Adams, then president of the United States; after which the seal of the United States
was affixed to it; but the commission has never reached the person for whom it was
made out.

In order to determine whether he is entitled to this commission, it becomes necessary

to inquire whether he has been appointed to the office. For if he has been appointed,
the law continues him in office for five years, and he is entitled to the possession of
those evidences of office, which, being completed, became his property.

The second section of the second article of the constitution declares, 'the president
shall nominate, and, by and with the advice and consent of the senate, shall appoint
ambassadors, other public ministers and consuls, and all other officers of the United
States, whose appointments are not otherwise provided for.'

The third section declares, that 'he shall commission all the officers of the United
States.'

An act of congress directs the secretary of state to keep the seal of the United States,
'to make out and record, and affix the said seal to all civil commissions to officers of
the United States to be appointed by the president, by and with the consent of the
senate, or by the president alone; provided that the said seal shall not be affixed to
any commission before the same shall have been signed by the president of the United
States.'

These are the clauses of the constitution and laws of the United States, which affect
this part of the case. They seem to contemplate three distinct operations:

1. The nomination. This is the sole act of the president, and is completely voluntary.

2. The appointment. This is also the act of the president, and is also a voluntary act,
though it can only be performed by and with the advice and consent of the senate. [5
U.S. 137, 156] 3. The commission. To grant a commission to a person appointed,
might perhaps be deemed a duty enjoined by the constitution. 'He shall,' says that
instrument, 'commission all the officers of the United States.'

The acts of appointing to office, and commissioning the person appointed, can
scarcely be considered as one and the same; since the power to perform them is given
in two separate and distinct sections of the constitution. The distinction between the
appointment and the commission will be rendered more apparent by adverting to that
provision in the second section of the second article of the constitution, which
authorises congress 'to vest by law the appointment of such inferior officers as they
think proper, in the president alone, in the courts of law, or in the heads of
departments;' thus contemplating cases where the law may direct the president to
commission an officer appointed by the courts or by the heads of departments. In such
a case, to issue a commission would be apparently a duty distinct from the
appointment, the performance of which perhaps, could not legally be refused.

Although that clause of the constitution which requires the president to commission all
the officers of the United States, may never have been applied to officers appointed
otherwise than by himself, yet it would be difficult to deny the legislative power to apply
it to such cases. Of consequence the constitutional distinction between the
appointment to an office and the commission of an officer who has been appointed,
remains the same as if in practice the president had commissioned officers appointed
by an authority other than his own.

It follows too, from the existence of this distinction, that, if an appointment was to be
evidenced by any public act other than the commission, the performance of such
public act would create the officer; and if he was not removable at the will of the
president, would either give him a right to his commission, or enable him to perform
the duties without it.

These observations are premised solely for the purpose of rendering more intelligible
those which apply more directly to the particular case under consideration. [5 U.S.
137, 157] This is an appointment made by the president, by and with the advice and
consent of the senate, and is evidenced by no act but the commission itself. In such a
case therefore the commission and the appointment seem inseparable; it being almost
impossible to show an appointment otherwise than by proving the existence of a
commission: still the commission is not necessarily the appointment; though
conclusive evidence of it.

But at what stage does it amount to this conclusive evidence?

The answer to this question seems an obvious one. The appointment being the sole
act of the president, must be completely evidenced, when it is shown that he has done
every thing to be performed by him.

Should the commission, instead of being evidence of an appointment, even be

considered as constituting the appointment itself; still it would be made when the last
act to be done by the president was performed, or, at furthest, when the commission
was complete.

The last act to be done by the president, is the signature of the commission. He has
then acted on the advice and consent of the senate to his own nomination. The time
for deliberation has then passed. He has decided. His judgment, on the advice and
consent of the senate concurring with his nomination, has been made, and the officer
is appointed. This appointment is evidenced by an open, unequivocal act; and being
the last act required from the person making it, necessarily excludes the idea of its
being, so far as it respects the appointment, an inchoate and incomplete transaction.

Some point of time must be taken when the power of the executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional
power of appointment has been exercised. And this power has been exercised when
the last act, required from the person possessing the power, has been performed. This
last act is the signature of the commission. This idea seems to have prevailed with the
legislature, when the act passed converting the department [5 U.S. 137, 158] of
foreign affairs into the department of state. By that act it is enacted, that the secretary
of state shall keep the seal of the United States, 'and shall make out and record, and
shall affix the said seal to all civil commissions to officers of the United States, to be
appointed by the president:' 'provided that the said seal shall not be affixed to any
commission, before the same shall have been signed by the president of the United
States; nor to any other instrument or act, without the special warrant of the president
therefor.'

The signature is a warrant for affixing the great seal to the commission; and the great
seal is only to be affixed to an instrument which is complete. It attests, by an act
supposed to be of public notoriety, the verity of the presidential signature.

It is never to be affixed till the commission is signed, because the signature, which
gives force and effect to the commission, is conclusive evidence that the appointment
is made.

The commission being signed, the subsequent duty of the secretary of state is
prescribed by law, and not to be guided by the will of the president. He is to affix the
seal of the United States to the commission, and is to record it.
This is not a proceeding which may be varied, if the judgment of the executive shall
suggest one more eligible, but is a precise course accurately marked out by law, and
is to be strictly pursued. It is the duty of the secretary of state to conform to the law,
and in this he is an officer of the United States, bound to obey the laws. He acts, in
this respect, as has been very properly stated at the bar, under the authority of law,
and not by the instructions of the president. It is a ministerial act which the law enjoins
on a particular officer for a particular purpose.

If it should be supposed, that the solemnity of affixing the seal, is necessary not only
to the validity of the commission, but even to the completion of an appointment, still
when the seal is affixed the appointment is made, and [5 U.S. 137, 159] the
commission is valid. No other solemnity is required by law; no other act is to be
performed on the part of government. All that the executive can do to invest the person
with his office, is done; and unless the appointment be then made, the executive
cannot make one without the co- operation of others.

After searching anxiously for the principles on which a contrary opinion may be
supported, none have been found which appear of sufficient force to maintain the
opposite doctrine.

Such as the imagination of the court could suggest, have been very deliberately
examined, and after allowing them all the weight which it appears possible to give
them, they do not shake the opinion which has been formed.

In considering this question, it has been conjectured that the commission may have
been assimilated to a deed, to the validity of which, delivery is essential.

This idea is founded on the supposition that the commission is not merely evidence of
an appointment, but is itself the actual appointment; a supposition by no means
unquestionable. But for the purpose of examining this objection fairly, let it be
conceded, that the principle, claimed for its support, is established.

The appointment being, under the constitution, to be made by the president personally,
the delivery of the deed of appointment, if necessary to its completion, must be made
by the president also. It is not necessary that the livery should be made personally to
the grantee of the office: it never is so made. The law would seem to contemplate that
it should be made to the secretary of state, since it directs the secretary to affix the
seal to the commission after it shall have been signed by the president. If then the act
of livery be necessary to give validity to the commission, it has been delivered when
executed and given to the secretary for the purpose of being sealed, recorded, and
transmitted to the party.

But in all cases of letters patent, certain solemnities are required by law, which
solemnities are the evidences [5 U.S. 137, 160] of the validity of the instrument. A
formal delivery to the person is not among them. In cases of commissions, the sign
manual of the president, and the seal of the United States, are those solemnities. This
objection therefore does not touch the case.

It has also occurred as possible, and barely possible, that the transmission of the
commission, and the acceptance thereof, might be deemed necessary to complete the
right of the plaintiff.
The transmission of the commission is a practice directed by convenience, but not by
law. It cannot therefore be necessary to constitute the appointment which must
precede it, and which is the mere act of the president. If the executive required that
every person appointed to an office, should himself take means to procure his
commission, the appointment would not be the less valid on that account. The
appointment is the sole act of the president; the transmission of the commission is the
sole act of the officer to whom that duty is assigned, and may be accelerated or
retarded by circumstances which can have no influence on the appointment. A
commission is transmitted to a person already appointed; not to a person to be
appointed or not, as the letter enclosing the commission should happen to get into the
post-office and reach him in safety, or to miscarry.

It may have some tendency to elucidate this point, to inquire, whether the possession
of the original commission be indispensably necessary to authorize a person,
appointed to any office, to perform the duties of that office. If it was necessary, then a
loss of the commission would lose the office. Not only negligence, but accident or
fraud, fire or theft, might deprive an individual of his office. In such a case, I presume
it could not be doubted, but that a copy from the record of the office of the secretary
of state, would be, to every intent and purpose, equal to the original. The act of
congress has expressly made it so. To give that copy validity, it would not be
necessary to prove that the original had been transmitted and afterwards lost. The
copy would be complete evidence that the original had existed, and that the
appointment had been made, but not that the original had been transmitted. If indeed
it should appear that [5 U.S. 137, 161] the original had been mislaid in the office of
state, that circumstance would not affect the operation of the copy. When all the
requisites have been performed which authorize a recording officer to record any
instrument whatever, and the order for that purpose has been given, the instrument is
in law considered as recorded, although the manual labour of inserting it in a book
kept for that purpose may not have been performed.

In the case of commissions, the law orders the secretary of state to record them. When
therefore they are signed and sealed, the order for their being recorded is given; and
whether inserted in the book or not, they are in law recorded.

A copy of this record is declared equal to the original, and the fees to be paid by a
person requiring a copy are ascertained by law. Can a keeper of a public record erase
therefrom a commission which has been recorded? Or can he refuse a copy thereof
to a person demanding it on the terms prescribed by law?

Such a copy would, equally with the original, authorize the justice of peace to proceed
in the performance of his duty, because it would, equally with the original, attest his
appointment.

If the transmission of a commission be not considered as necessary to give validity to

an appointment; still less is its acceptance. The appointment is the sole act of the
president; the acceptance is the sole act of the officer, and is, in plain common sense,
posterior to the appointment. As he may resign, so may he refuse to accept: but neither
the one nor the other is capable of rendering the appointment a nonentity.

That this is the understanding of the government, is apparent from the whole tenor of
its conduct.
A commission bears date, and the salary of the officer commences from his
appointment; not from the transmission or acceptance of his commission. When a
person, appointed to any office, refuses to accept that office, the successor is
nominated in the place of the person who [5 U.S. 137, 162] has declined to accept,
and not in the place of the person who had been previously in office and had created
the original vacancy.

It is therefore decidedly the opinion of the court, that when a commission has been
signed by the president, the appointment is made; and that the commission is
complete when the seal of the United States has been affixed to it by the secretary of
state.

Where an officer is removable at the will of the executive, the circumstance which
completes his appointment is of no concern; because the act is at any time revocable;
and the commission may be arrested, if still in the office. But when the officer is not
removable at the will of the executive, the appointment is not revocable and cannot be
annulled. It has conferred legal rights which cannot be resumed.

The discretion of the executive is to be exercised until the appointment has been
made. But having once made the appointment, his power over the office is terminated
in all cases, where by law the officer is not removable by him. The right to the office is
then in the person appointed, and he has the absolute, unconditional power of
accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the president and sealed by
the secretary of state, was appointed; and as the law creating the office gave the officer
a right to hold for five years independent of the executive, the appointment was not
revocable; but vested in the officer legal rights which are protected by the laws of his
country.

To withhold the commission, therefore, is an act deemed by the court not warranted
by law, but violative of a vested legal right.

This brings us to the second inquiry; which is,

2. If he has a right, and that right has been violated, do the laws of his country afford
him a remedy? [5 U.S. 137, 163] The very essence of civil liberty certainly consists
in the right of every individual to claim the protection of the laws, whenever he receives
an injury. One of the first duties of government is to afford that protection. In Great
Britain the king himself is sued in the respectful form of a petition, and he never fails
to comply with the judgment of his court.

In the third volume of his Commentaries, page 23, Blackstone states two cases in
which a remedy is afforded by mere operation of law.

'In all other cases,' he says, 'it is a general and indisputable rule, that where there is a
legal right, there is also a legal remedy by suit or action at law whenever that right is
invaded.'
And afterwards, page 109 of the same volume, he says, 'I am next to consider such
injuries as are cognizable by the courts of common law. And herein I shall for the
present only remark, that all possible injuries whatsoever, that did not fall within the
exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are,
for that very reason, within the cognizance of the common law courts of justice; for it
is a settled and invariable principle in the laws of England, that every right, when
withheld, must have a remedy, and every injury its proper redress.'

The government of the United States has been emphatically termed a government of
laws, and not of men. It will certainly cease to deserve this high appellation, if the laws
furnish no remedy for the violation of a vested legal right.

If this obloquy is to be cast on the jurisprudence of our country, it must arise from the
peculiar character of the case.

It behoves us then to inquire whether there be in its composition any ingredient which
shall exempt from legal investigation, or exclude the injured party from legal redress.
In pursuing this inquiry the first question which presents itself, is, whether this can be
arranged [5 U.S. 137, 164] with that class of cases which come under the description
of damnum absque injuria-a loss without an injury.

This description of cases never has been considered, and it is believed never can be
considered as comprehending offices of trust, of honour or of profit. The office of
justice of peace in the district of Columbia is such an office; it is therefore worthy of
the attention and guardianship of the laws. It has received that attention and
guardianship. It has been created by special act of congress, and has been secured,
so far as the laws can give security to the person appointed to fill it, for five years. It is
not then on account of the worthlessness of the thing pursued, that the injured party
can be alleged to be without remedy.

Is it in the nature of the transaction? Is the act of delivering or withholding a

commission to be considered as a mere political act belonging to the executive
department alone, for the performance of which entire confidence is placed by our
constitution in the supreme executive; and for any misconduct respecting which, the
injured individual has no remedy.

That there may be such cases is not to be questioned; but that every act of duty to be
performed in any of the great departments of government constitutes such a case, is
not to be admitted.

By the act concerning invalids, passed in June 1794, the secretary at war is ordered
to place on the pension list all persons whose names are contained in a report
previously made by him to congress. If he should refuse to do so, would the wounded
veteran be without remedy? Is it to be contended that where the law in precise terms
directs the performance of an act in which an individual is interested, the law is
incapable of securing obedience to its mandate? Is it on account of the character of
the person against whom the complaint is made? Is it to be contended that the heads
of departments are not amenable to the laws of their country?

Whatever the practice on particular occasions may be, the theory of this principle will
certainly never be main-[5 U.S. 137, 165] tained. No act of the legislature confers so
extraordinary a privilege, nor can it derive countenance from the doctrines of the
common law. After stating that personal injury from the king to a subject is presumed
to be impossible, Blackstone, Vol. III. p. 255, says, 'but injuries to the rights of property
can scarcely be committed by the crown without the intervention of its officers: for
whom, the law, in matters of right, entertains no respect or delicacy; but furnishes
various methods of detecting the errors and misconduct of those agents by whom the
king has been deceived and induced to do a temporary injustice.'

By the act passed in 1796, authorizing the sale of the lands above the mouth of
Kentucky river, the purchaser, on paying his purchase money, becomes completely
entitled to the property purchased; and on producing to the secretary of state the
receipt of the treasurer upon a certificate required by the law, the president of the
United States is authorized to grant him a patent. It is further enacted that all patents
shall be countersigned by the secretary of state, and recorded in his office. If the
secretary of state should choose to withhold this patent; or the patent being lost, should
refuse a copy of it; can it be imagined that the law furnishes to the injured person no
remedy?

It is not believed that any person whatever would attempt to maintain such a
proposition.

It follows then that the question, whether the legality of an act of the head of a
department be examinable in a court of justice or not, must always depend on the
nature of that act.

If some acts be examinable, and others not, there must be some rule of law to guide
the court in the exercise of its jurisdiction.

In some instances there may be difficulty in applying the rule to particular cases; but
there cannot, it is believed, be much difficulty in laying down the rule.

By the constitution of the United States, the president is invested with certain important
political powers, in the [5 U.S. 137, 166] exercise of which he is to use his own
discretion, and is accountable only to his country in his political character, and to his
own conscience. To aid him in the performance of these duties, he is authorized to
appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the
manner in which executive discretion may be used, still there exists, and can exist, no
power to control that discretion. The subjects are political. They respect the nation, not
individual rights, and being entrusted to the executive, the decision of the executive is
conclusive. The application of this remark will be perceived by adverting to the act of
congress for establishing the department of foreign affairs. This officer, as his duties
were prescribed by that act, is to conform precisely to the will of the president. He is
the mere organ by whom that will is communicated. The acts of such an officer, as an
officer, can never be examinable by the courts.

But when the legislature proceeds to impose on that officer other duties; when he is
directed peremptorily to perform certain acts; when the rights of individuals are
dependent on the performance of those acts; he is so far the officer of the law; is
amenable to the laws for his conduct; and cannot at his discretion sport away the
vested rights of others.

The conclusion from this reasoning is, that where the heads of departments are the
political or confidential agents of the executive, merely to execute the will of the
president, or rather to act in cases in which the executive possesses a constitutional
or legal discretion, nothing can be more perfectly clear than that their acts are only
politically examinable. But where a specific duty is assigned by law, and individual
rights depend upon the performance of that duty, it seems equally clear that the
individual who considers himself injured has a right to resort to the laws of his country
for a remedy.

If this be the rule, let us inquire how it applies to the case under the consideration of
the court. [5 U.S. 137, 167] The power of nominating to the senate, and the power of
appointing the person nominated, are political powers, to be exercised by the president
according to his own discretion. When he has made an appointment, he has exercised
his whole power, and his discretion has been completely applied to the case. If, by
law, the officer be removable at the will of the president, then a new appointment may
be immediately made, and the rights of the officer are terminated. But as a fact which
has existed cannot be made never to have existed, the appointment cannot be
annihilated; and consequently if the officer is by law not removable at the will of the
president, the rights he has acquired are protected by the law, and are not resumable
by the president. They cannot be extinguished by executive authority, and he has the
privilege of asserting them in like manner as if they had been derived from any other
source.

The question whether a right has vested or not, is, in its nature, judicial, and must be
tried by the judicial authority, If, for example, Mr. Marbury had taken the oaths of a
magistrate, and proceeded to act as one; in consequence of which a suit had been
instituted against him, in which his defence had depended on his being a magistrate;
the validity of his appointment must have been determined by judicial authority.

So, if he conceives that by virtue of his appointment he has a legal right either to the
commission which has been made out for him or to a copy of that commission, it is
equally a question examinable in a court, and the decision of the court upon it must
depend on the opinion entertained of his appointment.

That question has been discussed, and the opinion is, that the latest point of time
which can be taken as that at which the appointment was complete, and evidenced,
was when, after the signature of the president, the seal of the United States was affixed
to the commission.

It is then the opinion of the court,

1. That by signing the commission of Mr. Marbury, the president of the United States
appointed him a justice[5 U.S. 137, 168] of peace for the county of Washington in the
district of Columbia; and that the seal of the United States, affixed thereto by the
secretary of state, is conclusive testimony of the verity of the signature, and of the
completion of the appointment; and that the appointment conferred on him a legal right
to the office for the space of five years.

2. That, having this legal title to the office, he has a consequent right to the
commission; a refusal to deliver which is a plain violation of that right, for which the
laws of his country afford him a remedy.

It remains to be inquired whether,

3. He is entitled to the remedy for which he applies. This depends on,

1. The nature of the writ applied for. And,

2. The power of this court.

1. The nature of the writ.

Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus
to be, 'a command issuing in the king's name from the court of king's bench, and
directed to any person, corporation, or inferior court of judicature within the king's
dominions, requiring them to do some particular thing therein specified which
appertains to their office and duty, and which the court of king's bench has previously
determined, or at least supposes, to be consonant to right and justice.'

Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al. states with
much precision and explicitness the cases in which this writ may be used.

'Whenever,' says that very able judge, 'there is a right to execute an office, perform a
service, or exercise a franchise (more especially if it be in a matter of public concern
or attended with profit), and a person is kept out of possession, or dispossessed of
such right, and [5 U.S. 137, 169] has no other specific legal remedy, this court ought
to assist by mandamus, upon reasons of justice, as the writ expresses, and upon
reasons of public policy, to preserve peace, order and good government.' In the same
case he says, 'this writ ought to be used upon all occasions where the law has
established no specific remedy, and where in justice and good government there ought
to be one.'
In addition to the authorities now particularly cited, many others were relied on at the
bar, which show how far the practice has conformed to the general doctrines that have
been just quoted.

This writ, if awarded, would be directed to an officer of government, and its mandate
to him would be, to use the words of Blackstone, 'to do a particular thing therein
specified, which appertains to his office and duty, and which the court has previously
determined or at least supposes to be consonant to right and justice.' Or, in the words
of Lord Mansfield, the applicant, in this case, has a right to execute an office of public
concern, and is kept out of possession of that right.

These circumstances certainly concur in this case.

Still, to render the mandamus a proper remedy, the officer to whom it is to be directed,
must be one to whom, on legal principles, such writ may be directed; and the person
applying for it must be without any other specific and legal remedy.

1. With respect to the officer to whom it would be directed. The intimate political
relation, subsisting between the president of the United States and the heads of
departments, necessarily renders any legal investigation of the acts of one of those
high officers peculiarly irksome, as well as delicate; and excites some hesitation with
respect to the propriety of entering into such investigation. Impressions are often
received without much reflection or examination; and it is not wonderful that in such a
case as this, the assertion, by an individual, of his legal claims in a court of justice, to
which claims it is the duty of that court to attend, should at first view be considered [5
U.S. 137, 170] by some, as an attempt to intrude into the cabinet, and to intermeddle
with the prerogatives of the executive.
It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction.
An extravagance, so absurd and excessive, could not have been entertained for a
moment. The province of the court is, solely, to decide on the rights of individuals, not
to inquire how the executive, or executive officers, perform duties in which they have
a discretion. Questions, in their nature political, or which are, by the constitution and
laws, submitted to the executive, can never be made in this court.

But, if this be not such a question; if so far from being an intrusion into the secrets of
the cabinet, it respects a paper, which, according to law, is upon record, and to a copy
of which the law gives a right, on the payment of ten cents; if it be no intermeddling
with a subject, over which the executive can be considered as having exercised any
control; what is there in the exalted station of the officer, which shall bar a citizen from
asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the
claim; or to issue a mandamus, directing the performance of a duty, not depending on
executive discretion, but on particular acts of congress and the general principles of
law?

If one of the heads of departments commits any illegal act, under colour of his office,
by which an individual sustains an injury, it cannot be pretended that his office alone
exempts him from being sued in the ordinary mode of proceeding, and being
compelled to obey the judgment of the law. How then can his office exempt him from
this particular mode of deciding on the legality of his conduct, if the case be such a
case as would, were any other individual the party complained of, authorize the
process?

It is not by the office of the person to whom the writ is directed, but the nature of the
thing to be done, that the propriety or impropriety of issuing a mandamus is to be
determined. Where the head of a department acts in a case in which executive
discretion is to be exercised; in which he is the mere organ of executive will; it is [5
U.S. 137, 171] again repeated, that any application to a court to control, in any
respect, his conduct, would be rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of
individuals, in the performance of which he is not placed under the particular direction
of the president, and the performance of which the president cannot lawfully forbid,
and therefore is never presumed to have forbidden; as for example, to record a
commission, or a patent for land, which has received all the legal solemnities; or to
give a copy of such record; in such cases, it is not perceived on what ground the courts
of the country are further excused from the duty of giving judgment, that right to be
done to an injured individual, than if the same services were to be performed by a
person not the head of a department.

This opinion seems not now for the first time to be taken up in this country.

It must be well recollected that in 1792 an act passed, directing the secretary at war
to place on the pension list such disabled officers and soldiers as should be reported
to him by the circuit courts, which act, so far as the duty was imposed on the courts,
was deemed unconstitutional; but some of the judges, thinking that the law might be
executed by them in the character of commissioners, proceeded to act and to report
in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a different
system was established; but the question whether those persons, who had been
reported by the judges, as commissioners, were entitled, in consequence of that
report, to be placed on the pension list, was a legal question, properly determinable in
the courts, although the act of placing such persons on the list was to be performed
by the head of a department.

That this question might be properly settled, congress passed an act in February 1793,
making it the duty of the secretary of war, in conjunction with the attorney general, to
take such measures as might be necessary to obtain an adjudication of the supreme
court of the United [5 U.S. 137, 172] States on the validity of any such rights, claimed
under the act aforesaid.

After the passage of this act, a mandamus was moved for, to be directed to the
secretary at war, commanding him to place on the pension list a person stating himself
to be on the report of the judges.

There is, therefore, much reason to believe, that this mode of trying the legal right of
the complainant, was deemed by the head of a department, and by the highest law
officer of the United States, the most proper which could be selected for the purpose.

When the subject was brought before the court the decision was, not, that a
mandamus would not lie to the head of a department, directing him to perform an act,
enjoined by law, in the performance of which an individual had a vested interest; but
that a mandamus ought not to issue in that case-the decision necessarily to be made
if the report of the commissioners did not confer on the applicant a legal right.

The judgment in that case is understood to have decided the merits of all claims of
that description; and the persons, on the report of the commissioners, found it
necessary to pursue the mode prescribed by the law subsequent to that which had
been deemed unconstitutional, in order to place themselves on the pension list.

The doctrine, therefore, now advanced is by no means a novel one.

It is true that the mandamus, now moved for, is not for the performance of an act
expressly enjoined by statute.

It is to deliver a commission; on which subjects the acts of congress are silent. This
difference is not considered as affecting the case. It has already been stated that the
applicant has, to that commission, a vested legal right, of which the executive cannot
deprive him. He has been appointed to an office, from which he is not removable at
the will of the executive; and being so [5 U.S. 137, 173] appointed, he has a right to
the commission which the secretary has received from the president for his use. The
act of congress does not indeed order the secretary of state to send it to him, but it is
placed in his hands for the person entitled to it; and cannot be more lawfully withheld
by him, than by another person.

It was at first doubted whether the action of detinue was not a specific legal remedy
for the commission which has been withheld from Mr. Marbury; in which case a
mandamus would be improper. But this doubt has yielded to the consideration that the
judgment in detinue is for the thing itself, or its value. The value of a public office not
to be sold, is incapable of being ascertained; and the applicant has a right to the office
itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of
it from the record.

This, then, is a plain case of a mandamus, either to deliver the commission, or a copy
of it from the record; and it only remains to be inquired,

Whether it can issue from this court.

The act to establish the judicial courts of the United States authorizes the supreme
court 'to issue writs of mandamus, in cases warranted by the principles and usages of
law, to any courts appointed, or persons holding office, under the authority of the
United States.'

The secretary of state, being a person, holding an office under the authority of the
United States, is precisely within the letter of the description; and if this court is not
authorized to issue a writ of mandamus to such an officer, it must be because the law
is unconstitutional, and therefore absolutely incapable of conferring the authority, and
assigning the duties which its words purport to confer and assign.

The constitution vests the whole judicial power of the United States in one supreme
court, and such inferior courts as congress shall, from time to time, ordain and
establish. This power is expressly extended to all cases arising under the laws of the
United States; and consequently, in some form, may be exercised over the present[5
U.S. 137, 174] case; because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that 'the supreme court shall have original
jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and
those in which a state shall be a party. In all other cases, the supreme court shall have
appellate jurisdiction.'

It has been insisted at the bar, that as the original grant of jurisdiction to the supreme
and inferior courts is general, and the clause, assigning original jurisdiction to the
supreme court, contains no negative or restrictive words; the power remains to the
legislature to assign original jurisdiction to that court in other cases than those
specified in the article which has been recited; provided those cases belong to the
judicial power of the United States.

If it had been intended to leave it in the discretion of the legislature to apportion the
judicial power between the supreme and inferior courts according to the will of that
body, it would certainly have been useless to have proceeded further than to have
defined the judicial power, and the tribunals in which it should be vested. The
subsequent part of the section is mere surplusage, is entirely without meaning, if such
is to be the construction. If congress remains at liberty to give this court appellate
jurisdiction, where the constitution has declared their jurisdiction shall be original; and
original jurisdiction where the constitution has declared it shall be appellate; the
distribution of jurisdiction made in the constitution, is form without substance.

Affirmative words are often, in their operation, negative of other objects than those
affirmed; and in this case, a negative or exclusive sense must be given to them or they
have no operation at all.
It cannot be presumed that any clause in the constitution is intended to be without
effect; and therefore such construction is inadmissible, unless the words require it. [5
U.S. 137, 175] If the solicitude of the convention, respecting our peace with foreign
powers, induced a provision that the supreme court should take original jurisdiction in
cases which might be supposed to affect them; yet the clause would have proceeded
no further than to provide for such cases, if no further restriction on the powers of
congress had been intended. That they should have appellate jurisdiction in all other
cases, with such exceptions as congress might make, is no restriction; unless the
words be deemed exclusive of original jurisdiction.

When an instrument organizing fundamentally a judicial system, divides it into one

supreme, and so many inferior courts as the legislature may ordain and establish; then
enumerates its powers, and proceeds so far to distribute them, as to define the
jurisdiction of the supreme court by declaring the cases in which it shall take original
jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the
words seems to be, that in one class of cases its jurisdiction is original, and not
appellate; in the other it is appellate, and not original. If any other construction would
render the clause inoperative, that is an additional reason for rejecting such other
construction, and for adhering to the obvious meaning.

To enable this court then to issue a mandamus, it must be shown to be an exercise of

appellate jurisdiction, or to be necessary to enable them to exercise appellate
jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety
of forms, and that if it be the will of the legislature that a mandamus should be used
for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be
appellate, not original.

It is the essential criterion of appellate jurisdiction, that it revises and corrects the
proceedings in a cause already instituted, and does not create that case. Although,
therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer
for the delivery of a paper, is in effect the same as to sustain an original action for that
paper, and therefore seems not to belong to [5 U.S. 137, 176] appellate, but to
original jurisdiction. Neither is it necessary in such a case as this, to enable the court
to exercise its appellate jurisdiction.

The authority, therefore, given to the supreme court, by the act establishing the judicial
courts of the United States, to issue writs of mandamus to public officers, appears not
to be warranted by the constitution; and it becomes necessary to inquire whether a
jurisdiction, so conferred, can be exercised.

The question, whether an act, repugnant to the constitution, can become the law of
the land, is a question deeply interesting to the United States; but, happily, not of an
intricacy proportioned to its interest. It seems only necessary to recognise certain
principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such
principles as, in their opinion, shall most conduce to their own happiness, is the basis
on which the whole American fabric has been erected. The exercise of this original
right is a very great exertion; nor can it nor ought it to be frequently repeated. The
principles, therefore, so established are deemed fundamental. And as the authority,
from which they proceed, is supreme, and can seldom act, they are designed to be
permanent.

This original and supreme will organizes the government, and assigns to different
departments their respective powers. It may either stop here; or establish certain limits
not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the
legislature are defined and limited; and that those limits may not be mistaken or
forgotten, the constitution is written. To what purpose are powers limited, and to what
purpose is that limitation committed to writing; if these limits may, at any time, be
passed by those intended to be restrained? The distinction between a government
with limited and unlimited powers is abolished, if those limits do not confine the
persons on whom they are imposed, and if acts pro- [5 U.S. 137, 177] hibited and
acts allowed are of equal obligation. It is a proposition too plain to be contested, that
the constitution controls any legislative act repugnant to it; or, that the legislature may
alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a

superior, paramount law, unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and like other acts, is alterable when the legislature shall
please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the
constitution is not law: if the latter part be true, then written constitutions are absurd
attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming
the fundamental and paramount law of the nation, and consequently the theory of
every such government must be, that an act of the legislature repugnant to the
constitution is void.

This theory is essentially attached to a written constitution, and is consequently to be

considered by this court as one of the fundamental principles of our society. It is not
therefore to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the constitution, is void, does it,

notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in
other words, though it be not law, does it constitute a rule as operative as if it was a
law? This would be to overthrow in fact what was established in theory; and would
seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive
a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law
is. Those who apply the rule to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other, the courts must decide on the
operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if
both the law and the constitution apply to a particular case, so that the court must
either decide that case conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law: the court must determine which
of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and he constitution is superior to any
ordinary act of the legislature; the constitution, and not such ordinary act, must govern
the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in
court, as a paramount law, are reduced to the necessity of maintaining that courts
must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would
declare that an act, which, according to the principles and theory of our government,
is entirely void, is yet, in practice, completely obligatory. It would declare, that if the
legislature shall do what is expressly forbidden, such act, notwithstanding the express
prohibition, is in reality effectual. It would be giving to the legislature a practical and
real omnipotence with the same breath which professes to restrict their powers within
narrow limits. It is prescribing limits, and declaring that those limits may be passed at
pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on
political institutions-a written constitution, would of itself be sufficient, in America where
written constitutions have been viewed with so much reverence, for rejecting the
construction. But the peculiar expressions of the constitution of the United States
furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the
constitution. [5 U.S. 137, 179] Could it be the intention of those who gave this power,
to say that, in using it, the constitution should not be looked into? That a case arising
under the constitution should be decided without examining the instrument under
which it arises?

This is too extravagant to be maintained.

In some cases then, the constitution must be looked into by the judges. And if they
can open it at all, what part of it are they forbidden to read, or to obey?

There are many other parts of the constitution which serve to illustrate this subject.

It is declared that 'no tax or duty shall be laid on articles exported from any state.'
Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to
recover it. Ought judgment to be rendered in such a case? ought the judges to close
their eyes on the constitution, and only see the law.

The constitution declares that 'no bill of attainder or ex post facto law shall be passed.'

If, however, such a bill should be passed and a person should be prosecuted under it,
must the court condemn to death those victims whom the constitution endeavours to
preserve?

'No person,' says the constitution, 'shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on confession in open court.'
Here the language of the constitution is addressed especially to the courts. It
prescribes, directly for them, a rule of evidence not to be departed from. If the
legislature should change that rule, and declare one witness, or a confession out of
court, sufficient for conviction, must the constitutional principle yield to the legislative
act?

From these and many other selections which might be made, it is apparent, that the
framers of the consti- [5 U.S. 137, 180] tution contemplated that instrument as a rule
for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath
certainly applies, in an especial manner, to their conduct in their official character. How
immoral to impose it on them, if they were to be used as the instruments, and the
knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the
legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will
administer justice without respect to persons, and do equal right to the poor and to the
rich; and that I will faithfully and impartially discharge all the duties incumbent on me
as according to the best of my abilities and understanding, agreeably to the
constitution and laws of the United States.'

Why does a judge swear to discharge his duties agreeably to the constitution of the
United States, if that constitution forms no rule for his government? if it is closed upon
him and cannot be inspected by him.

If such be the real state of things, this is worse than solemn mockery. To prescribe, or
to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the
supreme law of the land, the constitution itself is first mentioned; and not the laws of
the United States generally, but those only which shall be made in pursuance of the
constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void, and that courts, as well as other departments,
are bound by that instrument.

The rule must be discharged.

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 78687 January 31, 1989

ELENA SALENILLAS AND BERNARDINO SALENILLAS, petitioners,

vs.
HONORABLE COURT OF APPEALS and HONORABLE RAYMUNDO SEVA,
JUDGE OF BRANCH 38 OF THE REGIONAL TRIAL COURT OF CAMARINES
NORTE and WILLIAM GUERRA, respondents.

Jose L. Lapak for petitioners.

Jose T. Atienza for private respondent.

SARMIENTO, J.:

This petition for review on certiorari which seeks the reversal and setting aside of the
decision 1 of the Court of Appeals 2 dismissing the petition for certiorari against Judge
Raymundo Seva of the Regional Trial Court of Camarines Norte and the private
respondent, William Guerra, involves a pure question of law i.e., the coverage and
application of Section 119 of Commonwealth Act No. 141, as amended, known
otherwise as the Public Land Act.

The facts are undisputed.

The property subject matter of the case was formerly covered by Original Certificate
of Title No. P-1248, issued by virtue of Free Patent Application No. 192765, in favor
of the spouses, Florencia H. de Enciso and Miguel Enciso. The said original certificate
of title was inscribed in the Registration Book for the Province of Camarines Norte on
December 10, 1961. On February 28, 1970, the patentees, the Enciso spouses, by an
Absolute Deed of Sale, sold the property in favor of the petitioners, the spouses Elena
Salenillas and Bernardino Salenillas for a consideration of P900.00. Petitioner Elena
Salenillas is a daughter of the Encisos. As a result of the aforementioned sale, Transfer
Certificate of Title No. T-8104 of the Register of Deeds of Camarines Norte was issued
in the name of the Salenillas, cancelling Original Certificate of Title No. P-1248. On
June 30, 1971, the petitioners mortgaged the property now covered by T.C.T. No. T-
8104 with the Rural Bank of Daet, Inc. The mortgage was subsequently released on
November 22, 1973 after the petitioners paid the amount of P1,000.00. Later, or on
December 4, 1975, the petitioners again mortgaged the property, this time in favor of
the Philippine National Bank Branch, Daet, Camarines Norte as security for a loan of
P2,500.00.

For failure of the petitioners to pay their loan, extrajudicial foreclosure proceeding,
pursuant to Act No. 3135, was instituted by the Philippine National Bank against the
mortgage and the property was sold at a public auction held on February 27, 1981.
The private respondent, William Guerra, emerged as the highest bidder in the said
public auction and as a result thereof a "Certificate of Sale" was issued to him by
the Ex Officio Provincial Sheriff of Camarines Norte. Ultimately, on July 12, 1983, a
"Sheriff's Final Deed" was executed in favor of the private respondent.

On August 17,1983, the Philippine National Bank filed with the Regional Trial Court of
Camarines Norte at Daet, a motion for a writ of possession. The public respondent,
Judge Raymundo Seva of the trial court, acting on the motion, issued on September
22, 1983 an order for the issuance of a writ of possession in favor of the private
respondent. When the deputy sheriff of Camarines Norte however, attempted on
November 17, 1983, to place the property in the possession of the private respondent,
the petitioners refused to vacate and surrender the possession of the same and
instead offered to repurchase it under Section 119 of the Public Land Act. On August
15, 1984, another motion, this time for the issuance of an alias writ of possession was
filed by the private respondent with the trial court. The petitioners, on August 31, 1984,
opposed the private respondents' motion and instead made a formal offer to
repurchase the property. Notwithstanding the petitioners' opposition and formal offer,
the trial court judge on October 12, 1984 issued the alias writ of possession prayed for
the private respondent. The petitioners moved for a reconsideration of the order but
their motion was denied.

Undeterred by their initial setback, the petitioners elevated the case to the respondent
Court of Appeals by way of a petition for certiorari claiming that the respondent trial
court judge acted with grave abuse of discretion in issuing the order dated October 12,
1984 granting the writ of possession, and the order dated October 22, 1984, denying
their motion for reconsider consideration.

In a resolution dated January 23, 1985, the respondent appellate court gave due
course to the petition; required the parties to submit simultaneous memoranda in
support to their respective positions; and restrained the trial court and the private
respondent from executing, implementing or otherwise giving effect to the assailed writ
of possession until further orders from the court. 3 However, in a decision promulgated
on September 17, 1986, the respondent Court of Appeals dismissed the case for lack
of merit. According to the appellate court:

It must be noted that when the original owner, Florencia H. Enciso whose
title, OCT No. P-1248, was issued on August 9, 1961, executed a deed
of absolute sale on February 28, 1970 of the property covered by said
title to spouses Elena Salenillas and Bernardino Salenillas, the five year
period to repurchase the property provided for in Section 119 of
Commonwealth Act No. 141 as amended could have already started.
Prom this fact alone, the petition should have been dismissed. However,
granting that the transfer from parent to child for a nominal sum may not
be the "conveyance" contemplated by the law. We will rule on the issue
raised by the petitioners. 4

xxx xxx xxx

Applying the case of Monge, et al. vs. Angeles, et al., 5 the appellate court went on to
hold that the five-year period of the petitioners to repurchase under Section 119 of the
Public Land Act had already prescribed. The point of reckoning, ruled the respondent
court in consonance with Monge is from the date the petitioners mortgaged the
property on December 4, 1973. Thus, when the petitioners made their formal offer to
repurchase on August 31, 1984, the period had clearly expired.

In an effort to still overturn the decision, the petitioners moved for reconsideration.
Their motion apparently went for naught because on May 7, 1987, the respondent
appellate court resolved to deny the same. Hence, this petition.

Before us, the petitioners maintain that contrary to the rulings of the courts below, their
right to repurchase within five years under Section 119 of the Public Land Act has not
yet prescribed. To support their contention, the petitioners cite the cases of Paras vs.
Court of Appeals 6 and Manuel vs. Philippine National Bank, et al. 7

On the other side, the private respondent, in support of the appellate court's decision,
states that the sale of the contested property by the patentees to the petitioners
disqualified the latter from being legal heirs vis-a-vis the said property. As such, they
(the petitioners) no longer enjoy the right granted to heirs under the provisions of
Section 119 of the Public Land Act. 8

In fine, what need be determined and resolved here are: whether or not the petitioners
have the right to repurchase the contested property under Section 119 of the Public
Land Act; and assuming the answer to the question is in the affirmative, whether or
not their right to repurchase had already prescribed.

We rule for the petitioners. They are granted by the law the right to repurchase their
property and their right to do so subsists.

Section 119 of the Public Land Act, as amended, provides in full:

Sec. 119. Every conveyance of land acquired under the free patent or
homestead provisions, when proper, shall be subject to repurchase by
the applicant, his widow, or legal heirs within a period of five years from
the date of the conveyance.

From the foregoing legal provision, it is explicit that only three classes of persons are
bestowed the right to repurchase — the applicant-patentee, his widow, or other legal
heirs. Consequently, the contention of the private respondent sustained by the
respondent appellate court that the petitioners do not belong to any of those classes
of repurchasers because they acquired the property not through inheritance but by
sale, has no legal basis. The petitioners-spouses are the daughter and son-in-law of
the Encisos, patentees of the contested property. At the very least, petitioner Elena
Salenillas, being a child of the Encisos, is a "legal heir" of the latter. As such, and even
on this score alone, she may therefore validly repurchase. This must be so because
Section 119 of the Public Land Act, in speaking of "legal heirs," makes no
distinction. Ubi lex non distinguit nec nos distinguere debemos.
Moreover, to indorse the distinction made by the private respondent and the appellate
court would be to contravene the very purpose of Section 119 of the Public Land Act
which is to give the homesteader or patentee every chance to preserve for himself and
his family the land that the State had gratuitously given him as a reward for his labor
in clearing and cultivating it. 9 Considering that petitioner Salenillas is a daughter of
the spouses Florencia H. Enciso and Miguel Enciso, there is no gainsaying that
allowing her (Elena) and her husband to repurchase the property would be more in
keeping with the spirit of the law. We have time and again said that between two
statutory interpretations, that which better serves the purpose of the law should prevail.

Guided by the same purpose of the law, and proceeding to the other issue here raised,
we rule that the five-year period for the petitioners to repurchase their property had not
yet prescribed.

The case of Monge et al. vs. Angeles, et al., 10 cited as authority by the respondent
Court of Appeals is inapplicable to the present controversy. The facts obtaining there
are substantially different from those in this case. In Monge the conveyance involved
was a pacto de retro sale and not a foreclosure sale. More importantly, the question
raised there was whether the five-year period provided for in Section 119 "should be
counted from the date of the sale even if the same is with an option to repurchase or
from the date the ownership of the land has become consolidated in favor of the
purchaser because of the homesteader's failure to redeem it. 11 It is therefore
understandable why the Court ruled there as it did. A sale on pacto de
retro immediately vests title, ownership, and, generally possession over the property
on the vendee a retro, subject only to the right of the vendor a retro to repurchase
within the stipulated period. It is an absolute sale with a resolutory condition.

The cases 12 pointed to by the petitioner in support of their position, on the other hand,
present facts that are quite identical to those in the case at bar. Both cases involved
properties the titles over which were obtained either through homestead or free patent.
These properties were mortgaged to a bank as collateral for loans, and, upon failure
of the owners to pay their indebtedness, the mortgages were foreclosed. In both
instances, the Court ruled that the five-year period to. repurchase a homestead sold
at public auction or foreclosure sale under Act 3135 begins on the day after the
expiration of the period of redemption when the deed of absolute sale is executed
thereby formally transferring the property to the purchaser, and not otherwise. Taking
into account that the mortgage was foreclosed and the mortgaged property sold at a
public auction to the private respondent on February 27, 1981, with the "Sheriff's Final
Deed" issued on July 12, 1983, the two offers of the petitioners to repurchase the first
on November 17, 1983, and the second, formally, on August 31, 1984 were both made
within the prescribed five-year period.

Now, as regards the redemption price, applying Sec. 30 of Rule 39 of the Revised
Rules of Court, the petitioners should reimburse the private respondent the amount of
the purchase price at the public auction plus interest at the rate of one per centum per
month up to November 17, 1983, together with the amounts of assessments and taxes
on the property that the private respondent might have paid after purchase and interest
on the last named amount at the same rate as that on the purchase price. 13
WHEREFORE, the petition is GRANTED. The Decision dated September 17, 1986,
and the Resolution dated May 7, 1987 of the Court of Appeals, and the Orders dated
September 22, 1983, October 12, 1984, and October 22, 1984 of the Regional Trial
Court of Daet, Camarines Norte, are hereby REVERSED and SET ASIDE, and
another one ENTERED directing the private respondent to reconvey the subject
property and to execute the corresponding deed of reconveyance therefor in favor of
the petitioners upon the return to him by the latter of the purchase price and the
amounts, if any, of assessments or taxes he paid plus interest of one (1%) per centum
per month on both amounts up to November 17, 1983.

No costs.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur.

 THIRD DIVISION

[G.R. No. 116695. June 20, 1997]

VICTORIA G. GACHON and ALEX GUEVARA, petitioners, vs. HON. NORBERTO

C. DEVERA, JR., Presiding Judge, Branch XXIV, RTC, Iloilo City; HON.
JOSE R. ASTORGA, Presiding Judge, Branch I, Municipal Trial Court in
Cities, Iloilo City; and SUSANA GUEVARA, represented by her attorney-
in-fact, ROSALIE GUEVARA, respondents.

DECISION
PANGANIBAN, J.:

May the Rule on Summary Procedure be interpreted liberally to allow the

admission of an answer filed out of time due to alleged oversight?
This is the main legal question raised in this petition for review assailing the
Decision of the Regional Trial Court of Iloilo City, Branch 24, [1] which dismissed a
special civil action for certiorari and injunction filed by herein petitioners. The
dispositive portion of the assailed RTC Decision reads:[2]

WHEREFORE premises considered, the prayer for the issuance of a writ of preliminary
injunction is denied and, with respect to the merits, the instant case is hereby ordered dismissed.

Double costs against petitioners.

Facts

The factual antecedents of this case as found by the Regional Trial Court are
undisputed and admitted as correct by the parties. A complaint for forcible entry[3] was
filed by Private Respondent Susana Guevara against Patricio Guevara and Petitioners
Victoria Gachon and Alex Guevara before the Municipal Trial Court for Cities (MTCC)
of Iloilo City. Summons was served on and received by petitioners on August 25, 1993,
directing them to file an answer within the reglementary period of ten (10)
days. Patricio Guevara was abroad at that time; hence, the MTCC did not acquire
jurisdiction over him. On September 4, 1993, petitioners filed with the MTCC an urgent
motion for extension of time to file an answer.[4] On September 7, 1993, the MTCC
denied the motion on the ground that it was a prohibited pleading under the Rule on
Summary Procedure.[5] On September 8, 1993, or more than ten days from their
receipt of the summons, petitioner submitted an urgent motion praying for the
admission of their answer,[6] which was attached thereto. Two days later, petitioners
filed another motion pleading for the admission of an amended answer. On September
23, 1993, the MTCC denied the motions and considered the case submitted for
resolution.[7] On October 27, 1993, the MTCC also denied the petitioners motion for
reconsideration.[8] Thereafter, on November 26, 1993, the MTCC[9] issued a
decision[10] resolving the complaint for forcible entry in favor of herein private
respondents.
Instead of filing an appeal, petitioners filed a petition for certiorari and injunction
before the Regional Trial Court (RTC) of Iloilo City,[11] Branch 24, praying mainly that
the MTCC be ordered to admit the amended answer and to conduct further
proceedings in the civil case for forcible entry. As prayed for, a temporary restraining
order was issued by the RTC.
Thereafter, the RTC issued the assailed Decision[12] dismissing the
petition. Respondent Judge Norberto E. Devera, Jr., ratiocinated:[13]

Section 36 of Batas Pambansa Blg. 129, otherwise known as The Judiciary Reorganization Act
of 1980 provides, among others, as follows:

Sec. 36 - Summary Procedures in Special Cases x x x The Supreme Court shall adopt special
rules or proceduresapplicable to such cases in order to achieve an expeditions (sic) and
inexpensive determination thereof without regard to technical rules. Such simplified
procedures may provide that affidavits and counter-affidavits may be admitted in lieu of oral
testimony and that the periods for filing pleadings shall be non-extendible.

Pursuant to the aforequoted legislative mandate, the Supreme Court promulgated the Rule on
Summary Procedure, the pertinent provisions of which, as related to the issues raised in this
case, are hereunder set forth -

II - Civil Cases

Section 3 - Pleadings

A. (P)leadings allowed - The only pleadings allowed to be filed are the complaints, compulsory
counter-claims and cross-claims pleaded in the answer, and the answers thereto

xxxxxxxxx

Section 5 Answer - Within ten (10) days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff x x x

Section 6. Effect of Failure to answer - Should the defendant fail to answer the complaint within
the period above provided, the Court, motu proprio, or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint and limited to what is
prayed for therein: x x x

xxxxxxxxx

Section 19. Prohibited Pleadings and Motions - The following pleadings, motions, or petitions
shall not be allowed in the cases covered by this Rule:

(a) Motion for extension of time to file pleadings, affidavits or any other paper.

xxxxxxxxx
The foregoing should underscore quite clearly the reality that the ten-day-period to file an
answer reckoned from the date of the receipt of the summons is mandatory and no reason of
any kind is acceptable to operate as an excuse. The rule is explicit. It is addressed more, being
one of procedure, to counsels than to litigants. Counsels, therefore cannot assert the validity of
their clients cause to evade the mandate of the law.

Accordingly, the Court cannot fault the respondent judge [referring to Judge Jose R. Astorga]
in acting the way he did in Civil Case No. 130 (93) taking into account the admitted facts and
circumstances.

Hence, this petition directly filed before this Court.

The Issues

Petitioners submit for resolution the following questions of law:[14]

I. Are the provisions of the Rules on Summary Procedure on the period of
pleadings to be applied STRICTLY or LIBERALLY.
II. What is the legal effect of a belated answer under the Rules on Summary
Procedure.
Petitioners argue that the technical rules of procedure must yield to the higher
interest of justice.Petitioners explain that they filed the motion for extension of time to
file an answer, a prohibited pleading under the Rule on Summary Procedure, because
of oversight. That was why immediately upon receipt of the denial of that motion,
petitioners filed their motion to admit answer which was later verified and had to be
amended. All these (actions) were done in a period of five (5) days from the lapse of
the reglementary period to file an answer.[15] Furthermore, petitioners contend that no
prejudice to private respondent has been claimed or alleged by reason of the delay in
filing an answer.[16] Petitioners also argue that their defense in the action for forcible
entry is based on substantial grounds, because they were in prior physical possession
of the premises subject of the action and that their houses have long been standing
on the land in question because the land on which said houses are standing are (sic)
the common properties of the parties.
Citing Section 2, Rule 1[17] of the Rules of Court, petitioners pray that the
provisions in the Rule on Summary Procedure regarding prohibited pleadings and the
period for filing an answer be given liberal interpretation. Petitioners concede that said
provisions appear to be couched in mandatory language.They contend, however, that
other similarly worded provisions in the Rules of Court have nonetheless been liberally
applied by this Court to promote substantial justice.[18]
Private respondent, on the other hand, submits that the provisions in question
have to be strictly construed in order to avoid delay, considering that the Rule on
Summary Procedure is aimed at inexpensive, expeditious and summary determination
of cases.[19] Private respondent adds that the petition can also be dismissed on the
ground of violation of Revised Circular 28-91 on forum shopping, because three (3)
months after the rendition of the assailed Decision, a petition for quieting of title and
partition, and damages, involving the same parcel of residential land (Cadastral Lot
No. 709 x x x ), was filed xxx docketed as Civil Case No. 21618, by (Petitioner) Victoria
Guevara-Gachon (x x x), Patricio Guevara (father of Petitioner Alex Guevara), Lilia
Guevara-Doreza and Fe Guevara-Burgos against herein private respondent. Private
respondent contends that the subsequent case is the appropriate forum where
ownership of the property in question may be threshed out.[20]
As observed at the outset, the issue to be resolved is whether, under the
undisputed facts of this case, the Rule on Summary Procedure may be liberally
construed in order to allow the admission of petitioners answer which unquestionably
was filed beyond the reglementary period.

Preliminary Matter

It bears noting that petitioners filed directly before this Court a petition for review
assailing the RTC Decision. This remedy is allowed under paragraph 2 of Circular 2-
90[21] which provides:

Section 2. Appeals from Regional Trial Courts to the Supreme Court. -- Except in criminal
cases where the penalty imposed is life imprisonment or reclusion perpetua, judgments of
regional trial courts may be appealed to the Supreme Court only by petition for review on
certiorari in accordance with Rule 45 of the Rules of Court in relation to Section 17 of the
Judiciary Act of 1948, as amended,[22] this being the clear intendment of the provision of the
Interim Rules that (a)ppeals to the Supreme Court shall be taken by petition for certiorari which
shall be governed by Rule 45 of the Rules of Court.

Petitioners ask the Court to interpret a provision of the Rule on Summary

Procedure. This is a pure question of law that may be properly raised in this petition
for review.

The Courts Ruling

The petition has no merit.

First Issue: Interpretation of the Period

The pertinent provisions of the Rule on Summary Procedure are as follows:

Section 5. Answer. - Within ten (10) days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff x x x

Section 6. Effect of failure to answer. - Should the defendant fail to answer the complaint
within the period above provided, the Court, motu proprio, or on motion of the
plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and
limited to what is prayed for therein: x x x

xxxxxxxxx
Section 19. Prohibited pleadings and motions. - The following pleadings, motions, or
petitions shall not be allowed in the cases covered by this Rule:

(a) Motion for extension of time to file pleadings, affidavits or any other paper.

x x x x x x x x x (Underscoring supplied.)
The word shall ordinarily connotes an imperative and indicates the mandatory
character of a statute.[23] This, however, is not an absolute rule in statutory
construction. The import of the word ultimately depends upon a consideration of the
entire provision, its nature, object and the consequences that would follow from
construing it one way or the other.[24]
As a general principle, rules prescribing the time within which certain acts must be
done, or certain proceedings taken, are considered absolutely indispensable to the
prevention of needless delays and to the orderly and speedy discharge of judicial
business. By their very nature, these rules are regarded as mandatory.[25]
The Rule on Summary Procedure, in particular, was promulgated for the purpose
of achieving an expeditious and inexpensive determination of cases. [26] For this
reason, the Rule frowns upon delays and prohibits altogether the filing of motions for
extension of time. Consistent with this reasoning is Section 6 of the Rule which allows
the trial court to render judgment, even motu proprio, upon the failure of a defendant
to file an answer within the reglementary period.
Indeed, the Judiciary Reorganization Act of 1980, mandating the promulgation of
the Rule on Summary Procedure, authorizes the Court to stipulate that the period for
filing pleadings in cases covered by the Rule on Summary Procedure shall be non-
extendible.[27]
Furthermore, speedy resolution of unlawful detainer cases is a matter of public
policy,[28] and this rule should equally apply with full force in forcible entry cases where
the possession of the premises at the start is already illegal.
From the foregoing, it is clear that the use of the word shall in the Rule on
Summary Procedure underscores the mandatory character of the challenged
provisions. Giving the provisions a directory application would subvert the nature of
the Rule on Summary Procedure and defeat its objective of expediting the adjudication
of suits. Indeed, to admit a late answer, as petitioners suggest, is to put premium on
dilatory maneuvers -- the very mischief that the Rule seeks to redress. In this light,
petitioners invocation of the general principle in Rule 1, Section 2 of the Rules of Court
is misplaced.
Other than a plea for the liberal interpretation of the Rule on Summary Procedure,
petitioners do not provide an adequate justification for the admission of their late
answer. Oversight, which they candidly cite as the reason for their filing a motion for
extension of time to file an answer, is not a justification.Oversight, at best, implies
negligence; at worst, ignorance. The negligence displayed by petitioners is clearly
inexcusable; ignorance of so basic a rule, on the other hand, can never be
condoned. In either case, the directory application of the questioned provision is not
warranted.
Petitioners also cite Rosales vs. Court of Appeals[29] and Co Keng Kian vs.
Intermediate Appellate Court,[30] but these cases do not support their position.
 In Rosales vs. Court of Appeals,[31] this Court applied the Rule on Summary
Procedure liberally when the defendant, instead of filing an answer, filed within the
reglementary period a pleading labeled as a motion to dismiss. In treating the motion
to dismiss as an answer, the Court ruled:[32]

Parenthetically, petitioner argues in the present petition that, notwithstanding its being labeled
as a motion to dismiss, said pleading should have been considered as his answer pursuant to
the liberal interpretation accorded the rules and inasmuch as the grounds involved therein also
qualify as defenses proper in an answer. In this instance the Court agrees. Indeed, the rule on
summary procedure was conceptualized to facilitate the immediate resolution of cases such as
the present one. Well-settled is the rule that forcible entry and detainer cases being summary
in nature and involving disturbance of social order, procedural technicalities should be
carefully avoided and should not be allowed to override substantial justice. With this premise
in mind and having insisted, however erroneously, on its jurisdiction over the case, it certainly
would have been more prudent for the lower court to have treated the motion to dismiss as the
answer of petitioner and examined the case on its merits. As will be shown shortly, the long
drawn out proceedings that took place would have been avoided.

Furthermore, the said case did not involve the question of extension in the period
for filing pleadings under the Rule on Summary Procedure.
In Co Keng Kian vs. Intermediate Appellate Court,[33] this Court allowed the notice
to vacate, served upon the tenant, by registered mail instead of personal service as
required by the Rules of Court. We thus ruled:[34]

At this juncture it bears repeating that actions for forcible entry and unlawful detainer are
summary in nature because they involve a disturbance a social order which must be abated as
promptly as possible without any undue reliance on technical and procedural rules which only
cause delays. In the ultimate analysis, it matters not how the notice to vacate was conveyed, so
long as the lessee or his agent has personally received the written demand, whether handed to
him by the lessor, his attorney, a messenger or even a postman. The undisputed facts in the
instant case show that the Manila Times Publishing Company, through its manager, had
informed petitioner that Plaza Arcade Inc. was the new owner of the subject building; that on
October 18, 1979, a demand letter was sent to petitioner advising him to leave the premises but
petitioner refused to receive the letter; that a second demand on January 12, 1981 elicited the
same reaction; that a final demand dated November 16, 1981 was sent to petitioner by
registered mail which he again refused. And even on the supposition that there was no personal
service as claimed by petitioner, this could only be due to petitioners blatant attempts at evasion
which compelled the new landlord to resort to registered mail. The Court cannot countenance
an unfair situation where the plaintiff in an eviction case suffers further injustice by the
unwarranted delay resulting from the obstinate refusal of the defendant to acknowledge the
existence of a valid demand.

In both cases, there was substantial compliance with the law, something that
cannot be said of herein petitioners.

Second Issue: Forum-Shopping

 Private respondent assails petitioners for engaging in forum-shopping by pursuing
the present ejectment suit, notwithstanding the pendency of an action for quieting of
title involving the same property and parties. We are unable to find basis for this
charge.
For forum-shopping to exist, both actions must involve the same transactions,
essential facts and circumstances; and the actions must raise identical causes of
action, subject matter, and issues.[35]Suffice it to say that an action for quieting of title
and partition has a different cause of action than that in an ejectment suit. As private
respondent herself contended, ownership of a certain portion of the property which is
determined in a case of partition does not necessarily mean that the successful litigant
has the right to possess the property adjudged in his favor. In ejectment cases, the
only issue for resolution is physical or material possession of the property involved,
independent of any claim of ownership set forth by any of the party litigants. Anyone
of them who can prove prior possession de facto may recover such possession even
from the owner himself. This rule holds true regardless of the character of a partys
possession, provided that he has in his favor priority of time which entitles him to stay
on the property until he is lawfully ejected by a person having a better right by
either accion publiciana or accion reivindicatoria.[36] It has even been ruled that the
institution of a separate action for quieting of title is not a valid reason for defeating the
execution of the summary remedy of ejectment.[37]
WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed
Decision is AFFIRMED in toto. Double costs against petitioners.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., and Melo, JJ., concur.
Francisco, J., on leave.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-28742 April 30, 1982

VIRGILIO CAPATI, plaintiff-appellant,

vs.
DR. JESUS P. OCAMPO, defendant-appellee.

ESCOLIN, J.:

We set aside the order of the Court of First Instance of Pampanga in Civil Case No. 3188 which
dismissed the plaintiff's complaint on ground of improper venue.

Plaintiff Virgilio Capati a resident of Bacolor, Pampanga, was the contractor of the Feati Bank for
the construction of its building in Iriga, Camarines Sur. On May 23, 1967, plaintiff entered into a
sub-contract with the defendant Dr. Jesus Ocampo, a resident of Naga City, whereby the latter, in
consideration of the amount of P2,200.00, undertook to construct the vault walls, exterior walls and
columns of the said Feati building in accordance with the specifications indicated therein.
Defendant further bound himself to complete said construction on or before June 5, 1967 and, to
emphasize this time frame for the completion of the construction job, defendant affixed his
signature below the following stipulation written in bold letters in the sub-contract: "TIME IS
ESSENTIAL, TO BE FINISHED 5 JUNE' 67."

Claiming that defendant finished the construction in question only on June 20, 1967, plaintiff filed
in the Court of First Instance of Pampanga an action for recovery of consequential damages in the
sum of P85,000.00 with interest, plus attorney's fees and costs. The complaint alleged inter
alia that "due to the long unjustified delay committed by defendant, in open violation of his express
written agreement with plaintiff, the latter has suffered great irreparable loss and damage ... "

Defendant filed a motion to dismiss the complaint on the ground that venue of action was
improperly laid. The motion was premised on the stipulation printed at the back of the contract
which reads:

14. That all actions arising out, or relating to this contract may be instituted in the
Court of First Instance of the City of Naga.

Plaintiff filed an opposition to the motion, claiming that their agreement to hold the venue in the
Court of First Instance of Naga City was merely optional to both contracting parties. In support
thereof, plaintiff cited the use of the word "may " in relation with the institution of any action arising
out of the contract.

The lower court, in resolving the motion to dismiss, ruled that "there was no sense in providing the
aforequoted stipulation, pursuant to Sec. 3 of Rule 4 of the Revised Rules of Court, if after all, the
parties are given the discretion or option of filing the action in their respective residences," and
thereby ordered the dismissal of the complaint.

Hence, this appeal.

The rule on venue of personal actions cognizable by the courts of first instance is found in Section
2 (b), Rule 4 of the Rules of Court, which provides that such "actions may be commenced and tried
where the defendant or any of the defendants resides or may be found, or where the plaintiff or
any of the plaintiffs resides, at the election of the plaintiff." The said section is qualified by the
following provisions of Section 3 of the same rule:

By written agreement of the parties the venue of an action may be changed or

transferred from one province to another.

Defendant stands firm on his contention that because of the aforequoted covenant
contained in par. 14 of the contract, he cannot be sued in any court except the
Court of First Instance of Naga City. We are thus called upon to rule on the issue
as to whether the stipulation of the parties on venue is restrictive in the sense that
any litigation arising from the contract can be filed only in the court of Naga City, or
merely permissive in that the parties may submit their disputes not only in Naga
City but also in the court where the defendant or the plaintiff resides, at the election
of the plaintiff, as provided for by Section 2 (b) Rule 4 of the Rules of Court.

It is well settled that the word "may" is merely permissive and operates to confer
discretion upon a party. Under ordinary circumstances, the term "may be" connotes
possibility; it does not connote certainty. "May" is an auxillary verb indicating liberty,
opportunity, permission or possibility. 1

In Nicolas vs. Reparations Commission 2, a case involving the interpretation of a stipulation as to

venue along lines similar to the present one, it was held that the agreement of the parties which provided
that "all legal actions arising out of this contract ... may be brought in and submitted to the jurisdiction
of the proper courts in the City of Manila," is not mandatory.

We hold that the stipulation as to venue in the contract in question is simply permissive. By the
said stipulation, the parties did not agree to file their suits solely and exclusively with the Court of
First Instance of Naga. They merely agreed to submit their disputes to the said court, without
waiving their right to seek recourse in the court specifically indicated in Section 2 (b), Rule 4 of the
Rules of Court.

Since the complaint has been filed in the Court of First Instance of Pampanga, where the plaintiff
resides, the venue of action is properly laid in accordance with Section 2 (b), Rule 4 of the Rules
of Court.

WHEREFORE, the order appealed from is hereby set aside. Let the records be returned to the
court of origin for further proceedings. Costs against defendant-appellee.

SO ORDERED.

Barredo (Chairman), Aquino, De Castro and Ericta, JJ., concur.

Concepcion, Jr. and Abad Santos, J., are on leave.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office,
and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in
Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be
valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish,
and/or cause the publication in the Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders, letter of implementation and
administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368,
404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566,
573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923,
935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246,
1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-
1840, 1842-1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150,
153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213,
215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-
283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349,
357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473,
486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611,
612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964,997,1149-1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526,
1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-
1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723,
1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-
1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829,
1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858,
1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963,
 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-
2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-
507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563,
567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707,
712-786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-
81, 92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view
is submitted that in the absence of any showing that petitioners are personally and directly affected
or prejudiced by the alleged non-publication of the presidential issuances in question 2 said
petitioners are without the requisite legal personality to institute this mandamus proceeding, they
are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court,
which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person

unlawfully neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use a rd enjoyment of a right or office to which such other is entitled, and there
is no other plain, speedy and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in the proper court alleging the
facts with certainty and praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do the act required to
be done to Protect the rights of the petitioner, and to pay the damages sustained
by the petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted
to a private individual only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the writ when public rights
are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is
one of public right and the object of the mandamus is to procure the enforcement of a public duty,
the people are regarded as the real party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special interest in the result, it
being sufficient to show that he is a citizen and as such interested in the execution of the laws
[High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking
for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think
 that it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for
the rule does not exist, the rule itself is not applicable and reliance upon the rule
may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are
different from those in the United States, inasmuch as if the relator is not a proper
party to these proceedings no other person could be, as we have seen that it is not
the duty of the law officer of the Government to appear and represent the people
in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land.
If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive
of any other person to initiate the same, considering that the Solicitor General, the government
officer generally empowered to represent the people, has entered his appearance for respondents
in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special
provisions as to the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In
a long line of decisions,4 this Court has ruled that publication in the Official Gazette is necessary in
those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of
laws with the fact of publication. Considered in the light of other statutes applicable to the issue at
hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus,
Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and proclamations, except
such as have no general applicability; [3] decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or classes of
documents as may be required so to be published by law; and [5] such documents
or classes of documents as the President of the Philippines shall determine from
time to time to have general applicability and legal effect, or which he may authorize
so to be published. ...

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

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad.5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters
of public concern is to be given substance and reality. The law itself makes a list of what should
be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures,
fall within this category. Other presidential issuances which apply only to particular persons or
class of persons such as administrative and executive orders need not be published on the
assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form
part of the law of the land, the requirement of due process and the Rule of Law
demand that the Official Gazette as the official government repository promulgate
and publish the texts of all such decrees, orders and instructions so that the people
may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not
been published, shall have no force and effect. Some members of the Court, quite apprehensive
about the possible unsettling effect this decision might have on acts done in reliance of the validity
of those presidential decrees which were published only during the pendency of this petition, have
put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been
enforced or implemented prior to their publication. The answer is all too familiar. In similar situations
in the past this Court had taken the pragmatic and realistic course set forth in Chicot County
Drainage District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements
as to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is
 an operative fact and may have consequences which cannot justly be ignored. The
past cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various aspects-
with respect to particular conduct, private and official. Questions of rights claimed
to have become vested, of status, of prior determinations deemed to have finality
and acted upon accordingly, of public policy in the light of the nature both of the
statute and of its previous application, demand examination. These questions are
among the most difficult of those which have engaged the attention of courts, state
and federal and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a
party under the Moratorium Law, albeit said right had accrued in his favor before said law was
declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the

Official Gazette is "an operative fact which may have consequences which cannot be justly
ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees
Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so
published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no
copies thereof are available. But whatever their subject matter may be, it is undisputed that none
of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan
vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to
apprise the public of the contents of [penal] regulations and make the said penalties binding on the
persons affected thereby. " The cogency of this holding is apparently recognized by respondent
officials considering the manifestation in their comment that "the government, as a matter of policy,
refrains from prosecuting violations of criminal laws until the same shall have been published in
the Official Gazette or in some other publication, even though some criminal laws provide that they
shall take effect immediately.

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

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need
not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to
be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure
to do so would in all cases and under all circumstances result in a statute, presidential decree or
any other executive act of the same category being bereft of any binding force and effect. To so
hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to
what is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is
the doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack
of publication in the Official Gazette, then serious problems could arise. Previous transactions
based on such "Presidential Issuances" could be open to question. Matters deemed settled could
still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision.
Where such presidential decree or executive act is made the basis of a criminal prosecution, then,
of course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such
is not conclusive on the due process aspect. There must still be a showing of arbitrariness.
Moreover, where the challenged presidential decree or executive act was issued under the police
power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case
be tainted by infirmity. 6 In traditional terminology, there could arise then a question of
unconstitutional application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I
am not in agreement with the view that such publication must be in the Official Gazette. The Civil
Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen
days following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command.
A later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such
a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair
play and justice that a reasonable opportunity to be informed must be afforded to the people who
are commanded to obey before they can be punished for its violation,1 citing the settled principle
based on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of
Article 3 of the Civil Code (based on constructive notice that the provisions of the law are
ascertainable from the public and official repository where they are duly published) that "Ignorance
of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity"
is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect
after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso
perforce refers to a law that has been duly published pursuant to the basic constitutional
requirements of due process. The best example of this is the Civil Code itself: the same Article 2
provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To
sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and
for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to
nullify and render nugatory the Civil Code's indispensable and essential requirement of prior
publication in the Official Gazette by the simple expedient of providing for immediate effectivity or
an earlier effectivity date in the law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a
date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15)
days after its publication in the Official Gazette, it will not mean that the decree can have retroactive
effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision
as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law
may prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale
and distribution, and defines the authority of the Director of Printing in relation thereto. It also
enumerates what shall be published in the Official Gazette, among them, "important legislative
acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in
the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are
equal and stand on the same footing. A law, especially an earlier one of general application such
as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that
has a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.
DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature
or general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need
not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to
be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure
to do so would in all cases and under all circumstances result in a statute, presidential decree or
any other executive act of the same category being bereft of any binding force and effect. To so
hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to
what is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is
the doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack
of publication in the Official Gazette, then serious problems could arise. Previous transactions
based on such "Presidential Issuances" could be open to question. Matters deemed settled could
still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision.
Where such presidential decree or executive act is made the basis of a criminal prosecution, then,
of course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such
is not conclusive on the due process aspect. There must still be a showing of arbitrariness.
Moreover, where the challenged presidential decree or executive act was issued under the police
power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case
be tainted by infirmity. 6 In traditional terminology, there could arise then a question of
unconstitutional application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I
am not in agreement with the view that such publication must be in the Official Gazette. The Civil
Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen
days following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command.
A later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such
a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair
play and justice that a reasonable opportunity to be informed must be afforded to the people who
are commanded to obey before they can be punished for its violation,1 citing the settled principle
based on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of
Article 3 of the Civil Code (based on constructive notice that the provisions of the law are
ascertainable from the public and official repository where they are duly published) that "Ignorance
of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity"
is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect
after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso
perforce refers to a law that has been duly published pursuant to the basic constitutional
requirements of due process. The best example of this is the Civil Code itself: the same Article 2
provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To
sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and
for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to
nullify and render nugatory the Civil Code's indispensable and essential requirement of prior
publication in the Official Gazette by the simple expedient of providing for immediate effectivity or
an earlier effectivity date in the law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a
date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15)
days after its publication in the Official Gazette, it will not mean that the decree can have retroactive
effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision
as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law
may prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale
and distribution, and defines the authority of the Director of Printing in relation thereto. It also
enumerates what shall be published in the Official Gazette, among them, "important legislative
acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in
the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are
equal and stand on the same footing. A law, especially an earlier one of general application such
as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that
has a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

 SECOND DIVISION

[G.R. No. 117188. August 7, 1997]

LOYOLA GRAND VILLAS HOMEOWNERS (SOUTH) ASSOCIATION,

INC., petitioner, vs. HON. COURT OF APPEALS,
HOME INSURANCE AND GUARANTY CORPORATION, EMDEN
ENCARNACION and HORATIO AYCARDO, respondents.

DECISION
ROMERO, J.:

May the failure of a corporation to file its by-laws within one month from
the date of its incorporation, as mandated by Section 46 of the Corporation
Code, result in its automatic dissolution?
This is the issue raised in this petition for review on certiorari of the
Decision of the Court of Appeals affirming the decision of the Home
[1]

Insurance and Guaranty Corporation (HIGC). This quasi-judicial body

recognized Loyola Grand Villas Homeowners Association (LGVHA) as the
sole homeowners association in Loyola Grand Villas, a duly registered
subdivision in Quezon City and Marikina City that was owned and developed
by Solid Homes, Inc. It revoked the certificates of registration issued to
Loyola Grand Villas Homeowners (North) Association Incorporated (the
North Association for brevity) and Loyola Grand Villas Homeowners (South)
Association Incorporated (the South Association).
LGVHAI was organized on February 8, 1983 as the association of
homeowners and residents of the Loyola Grand Villas. It was registered with
the Home Financing Corporation, the predecessor of herein respondent
HIGC, as the sole homeowners organization in the said subdivision under
Certificate of Registration No. 04-197. It was organized by the developer of
the subdivision and its first president was Victorio V. Soliven, himself the
owner of the developer. For unknown reasons, however, LGVHAI did not file
its corporate by-laws.
Sometime in 1988, the officers of the LGVHAI tried to register its by-laws.
They failed to do so. To the officers consternation, they discovered that
[2]

there were two other organizations within the subdivision the North
Association and the South Association. According to private respondents, a
non-resident and Soliven himself, respectively headed these
associations. They also discovered that these associations had five (5)
registered homeowners each who were also the incorporators, directors and
officers thereof.None of the members of the LGVHAI was listed as member
of the North Association while three (3) members of LGVHAI were listed as
members of the South Association. The North Association was registered
[3]

with the HIGC on February 13, 1989 under Certificate of Registration No. 04-
1160 covering Phases West II, East III, West III and East IV. It submitted its
by-laws on December 20, 1988.
In July, 1989, when Soliven inquired about the status of LGVHAI, Atty.
Joaquin A. Bautista, the head of the legal department of the HIGC, informed
him that LGVHAI had been automatically dissolved for two reasons. First, it
did not submit its by-laws within the period required by the Corporation Code
and, second, there was non-user of corporate charter because HIGC had not
received any report on the associations activities. Apparently, this
information resulted in the registration of the South Association with the
HIGC on July 27, 1989 covering Phases West I, East I and East 11. It filed
its by-laws on July 26, 1989.
These developments prompted the officers of the LGVHAI to lodge a
complaint with the HIGC. They questioned the revocation of LGVHAIs
certificate of registration without due notice and hearing and concomitantly
prayed for the cancellation of the certificates of registration of the North and
South Associations by reason of the earlier issuance of a certificate of
registration in favor of LGVHAI.
On January 26, 1993, after due notice and hearing, private respondents
obtained a favorable ruling from HIGC Hearing Officer Danilo C. Javier who
disposed of HIGC Case No. RRM-5-89 as follows:

WHEREFORE, judgment is hereby rendered recognizing the Loyola Grand Villas

Homeowners Association, Inc., under Certificate of Registration No. 04-197 as the
duly registered and existing homeowners association for Loyola Grand Villas
homeowners, and declaring the Certificates of Registration of Loyola Grand Villas
Homeowners (North) Association, Inc. and Loyola Grand Villas Homeowners
(South) Association, Inc. as hereby revoked or cancelled; that the receivership be
terminated and the Receiver is hereby ordered to render an accounting and turn-over
to Loyola Grand Villas Homeowners Association, Inc., all assets and records of the
Association now under his custody and possession.

The South Association appealed to the Appeals Board of the HIGC. In its
Resolution of September 8, 1993, the Board dismissed the appeal for lack
[4]

of merit.
Rebuffed, the South Association in turn appealed to the Court of Appeals,
raising two issues. First, whether or not LGVHAIs failure to file its by-laws
within the period prescribed by Section 46 of the Corporation Code resulted
in the automatic dissolution of LGVHAI. Second, whether or not two
homeowners associations may be authorized by the HIGC in one sprawling
subdivision. However, in the Decision of August 23, 1994 being assailed
here, the Court of Appeals affirmed the Resolution of the HIGC Appeals
Board.
In resolving the first issue, the Court of Appeals held that under the
Corporation Code, a private corporation commences to have corporate
existence and juridical personality from the date the Securities and
Exchange Commission (SEC) issues a certificate of incorporation under its
official seal.The requirement for the filing of by-laws under Section 46 of the
Corporation Code within one month from official notice of the issuance of the
certificate of incorporation presupposes that it is already incorporated,
although it may file its by-laws with its articles of incorporation. Elucidating
on the effect of a delayed filing of by-laws, the Court of Appeals said:

We also find nothing in the provisions cited by the petitioner, i.e., Sections 46 and
22, Corporation Code, or in any other provision of the Code and other laws which
provide or at least imply that failure to file the by-laws results in an automatic
dissolution of the corporation. While Section 46, in prescribing that by-laws must be
adopted within the period prescribed therein, may be interpreted as a mandatory
provision, particularly because of the use of the word must, its meaning cannot be
stretched to support the argument that automatic dissolution results from non-
compliance.

We realize that Section 46 or other provisions of the Corporation Code are silent on
the result of the failure to adopt and file the by-laws within the required period. Thus,
Section 46 and other related provisions of the Corporation Code are to be construed
with Section 6 (1) of P.D. 902-A. This section empowers the SEC to suspend or
revoke certificates of registration on the grounds listed therein. Among the grounds
stated is the failure to file by-laws (see also II Campos: The Corporation Code, 1990
ed., pp. 124-125). Such suspension or revocation, the same section provides, should
be made upon proper notice and hearing. Although P.D. 902-A refers to the SEC,
the same principles and procedures apply to the public respondent HIGC as it
exercises its power to revoke or suspend the certificates of registration or
homeowners associations. (Section 2 [a], E.O. 535, series 1979, transferred the
powers and authorities of the SEC over homeowners associations to the HIGC.)

We also do not agree with the petitioners interpretation that Section 46, Corporation
Code prevails over Section 6, P.D. 902-A and that the latter is invalid because it
contravenes the former. There is no basis for such interpretation considering that
these two provisions are not inconsistent with each other. They are, in fact,
complementary to each other so that one cannot be considered as invalidating the
other.

The Court of Appeals added that, as there was no showing that the
registration of LGVHAI had been validly revoked, it continued to be the duly
registered homeowners association in the Loyola Grand Villas. More
importantly, the South Association did not dispute the fact that LGVHAI had
been organized and that, thereafter, it transacted business within the period
prescribed by law.
On the second issue, the Court of Appeals reiterated its previous
ruling that the HIGC has the authority to order the holding of a referendum
[5]

to determine which of two contending associations should represent the

entire community, village or subdivision.
Undaunted, the South Association filed the instant petition for review
on certiorari. It elevates as sole issue for resolution the first issue it had
raised before the Court of Appeals, i.e., whether or not the LGVHAIs failure
to file its by-laws within the period prescribed by Section 46 of the
Corporation Code had the effect of automatically dissolving the said
corporation.
Petitioner contends that, since Section 46 uses the word must with
respect to the filing of by-laws, noncompliance therewith would result in self-
extinction either due to non-occurrence of a suspensive condition or the
occurrence of a resolutory condition under the hypothesis that (by) the
issuance of the certificate of registration alone the corporate personality is
deemed already formed. It asserts that the Corporation Code provides for a
gradation of violations of requirements. Hence, Section 22 mandates that the
corporation must be formally organized and should commence transactions
within two years from date of incorporation. Otherwise, the corporation would
be deemed dissolved. On the other hand, if the corporation commences
operations but becomes continuously inoperative for five years, then it may
be suspended or its corporate franchise revoked.
Petitioner concedes that Section 46 and the other provisions of the
Corporation Code do not provide for sanctions for non-filing of the by-laws.
However, it insists that no sanction need be provided because the mandatory
nature of the provision is so clear that there can be no doubt about its being
an essential attribute of corporate birth. To petitioner, its submission is
buttressed by the facts that the period for compliance is spelled out distinctly;
that the certification of the SEC/HIGC must show that the by-laws are not
inconsistent with the Code, and that a copy of the by-laws has to be attached
to the articles of incorporation. Moreover, no sanction is provided for because
in the first place, no corporate identity has been completed. Petitioner asserts
that non-provision for remedy or sanction is itself the tacit proclamation that
non-compliance is fatal and no corporate existence had yet evolved, and
therefore, there was no need to proclaim its demise. In a bid to convince the
[6]

Court of its arguments, petitioner stresses that:

x x x the word MUST is used in Sec. 46 in its universal literal meaning and corollary
human implication its compulsion is integrated in its very essence MUST is always
enforceable by the inevitable consequence that is, OR ELSE. The use of the
word MUST in Sec. 46 is no exception it means file the by-laws within one month
after notice of issuance of certificate of registration OR ELSE. The OR ELSE,
though not specified, is inextricably a part of MUST. Do this or if you do not you
are Kaput. The importance of the by-laws to corporate existence compels such
meaning for as decreed the by-laws is `the government of the corporation. Indeed,
how can the corporation do any lawful act as such without by-laws. Surely, no law
is intended to create chaos.
[7]

Petitioner asserts that P.D. No. 902-A cannot exceed the scope and
power of the Corporation Codewhich itself does not provide sanctions for
non-filing of by-laws. For the petitioner, it is not proper to assess the true
meaning of Sec. 46 x x x on an unauthorized provision on such matter
contained in the said decree.
In their comment on the petition, private respondents counter that the
requirement of adoption of by-laws is not mandatory. They point to P.D. No.
902-A as having resolved the issue of whether said requirement is
mandatory or merely directory. Citing Chung Ka Bio v. Intermediate
Appellate Court, private respondents contend that Section 6(I) of that
[8]

decree provides that non-filing of by-laws is only a ground for suspension or

revocation of the certificate of registration of corporations and, therefore, it
may not result in automatic dissolution of the corporation. Moreover, the
adoption and filing of by-laws is a condition subsequent which does not affect
the corporate personality of a corporation like the LGVHAI.This is so because
Section 9 of the Corporation Code provides that the corporate existence and
juridical personality of a corporation begins from the date the SEC issues a
certificate of incorporation under its official seal. Consequently, even if the
by-laws have not yet been filed, a corporation may be considered a de
facto corporation. To emphasize the fact the LGVHAI was registered as the
sole homeowners association in the Loyola Grand Villas, private
respondents point out that membership in the LGVHAI was an unconditional
restriction in the deeds of sale signed by lot buyers.
In its reply to private respondents comment on the petition, petitioner
reiterates its argument that the word must in Section 46 of the Corporation
Code is mandatory. It adds that, before the ruling in Chung Ka Bio v.
Intermediate Appellate Court could be applied to this case, this Court must
first resolve the issue of whether or not the provisions of P.D. No. 902-A
prescribing the rules and regulations to implement the Corporation Code can
rise above and change the substantive provisions of the Code.
The pertinent provision of the Corporation Code that is the focal point of
controversy in this case states:
Sec. 46. Adoption of by-laws. Every corporation formed under this Code, must
within one (1) month after receipt of official notice of the issuance of its certificate
of incorporation by the Securities and Exchange Commission, adopt a code of by-
laws for its government not inconsistent with this Code. For the adoption of by-laws
by the corporation, the affirmative vote of the stockholders representing at least a
majority of the outstanding capital stock, or of at least a majority of the members, in
the case of non-stock corporations, shall be necessary. The by-laws shall be signed
by the stockholders or members voting for them and shall be kept in the principal
office of the corporation, subject to the stockholders or members voting for them
and shall be kept in the principal office of the corporation, subject to inspection of
the stockholders or members during office hours; and a copy thereof, shall be filed
with the Securities and Exchange Commission which shall be attached to the original
articles of incorporation.

Notwithstanding the provisions of the preceding paragraph, by-laws may be adopted

and filed prior to incorporation; in such case, such by-laws shall be approved and
signed by all the incorporators and submitted to the Securities and Exchange
Commission, together with the articles of incorporation.

In all cases, by-laws shall be effective only upon the issuance by the Securities and
Exchange Commission of a certification that the by-laws are not inconsistent with
this Code.

The Securities and Exchange Commission shall not accept for filing the by-laws or
any amendment thereto of any bank, banking institution, building and loan
association, trust company, insurance company, public utility, educational
institution or other special corporations governed by special laws, unless
accompanied by a certificate of the appropriate government agency to the effect that
such by-laws or amendments are in accordance with law.

As correctly postulated by the petitioner, interpretation of this provision

of law begins with the determination of the meaning and import of the
word must in this section. Ordinarily, the word must connotes an imperative
act or operates to impose a duty which may be enforced. It is synonymous
[9]

with ought which connotes compulsion or mandatoriness. However, the [10]

word must in a statute, like shall, is not always imperative. It may be

consistent with an exercise of discretion. In this jurisdiction, the tendency has
been to interpret shall as the context or a reasonable construction of the
statute in which it is used demands or requires. This is equally true as
[11]

regards the word must. Thus, if the language of a statute considered as a

whole and with due regard to its nature and object reveals that the legislature
intended to use the words shall and must to be directory, they should be
given that meaning. [12]
 In this respect, the following portions of the deliberations of the Batasang
Pambansa No. 68 are illuminating:
MR. FUENTEBELLA. Thank you, Mr. Speaker.
On page 34, referring to the adoption of by-laws, are we made to understand
here, Mr. Speaker, that by-laws must immediately be filed within one month after
the issuance? In other words, would this be mandatory or directory in character?
MR. MENDOZA. This is mandatory.
MR. FUENTEBELLA. It being mandatory, Mr. Speaker, what would be the
effect of the failure of the corporation to file these by-laws within one month?
MR. MENDOZA. There is a provision in the latter part of the Code which
identifies and describes the consequences of violations of any provision of this
Code. One such consequence is the dissolution of the corporation for its inability,
or perhaps, incurring certain penalties.
MR. FUENTEBELLA. But it will not automatically amount to a dissolution of
the corporation by merely failing to file the by-laws within one month. Supposing
the corporation was late, say, five days, what would be the mandatory penalty?
MR. MENDOZA. I do not think it will necessarily result in the automatic
or ipso facto dissolution of the corporation. Perhaps, as in the case, as you
suggested, in the case of El Hogar Filipino where a quo warranto action is
brought, one takes into account the gravity of the violation committed. If the by-
laws were late the filing of the by-laws were late by, perhaps, a day or two, I
would suppose that might be a tolerable delay, but if they are delayed over a
period of months as is happening now because of the absence of a clear
requirement that by-laws must be completed within a specified period of time,
the corporation must suffer certain consequences.[13]
This exchange of views demonstrates clearly that automatic corporate
dissolution for failure to file the by-laws on time was never the intention of
the legislature. Moreover, even without resorting to the records of
deliberations of the Batasang Pambansa, the law itself provides the answer
to the issue propounded by petitioner.
Taken as a whole and under the principle that the best interpreter of a
statute is the statute itself (optima statuli interpretatix est ipsum
statutum), Section 46 aforequoted reveals the legislative intent to attach a
[14]

directory, and not mandatory, meaning for the word must in the first sentence
thereof.Note should be taken of the second paragraph of the law which
allows the filing of the by-laws even prior to incorporation. This provision in
the same section of the Code rules out mandatory compliance with the
requirement of filing the by-laws within one (1) month after receipt of official
notice of the issuance of its certificate of incorporation by the Securities and
Exchange Commission. It necessarily follows that failure to file the by-laws
within that period does not imply the demise of the corporation. By-laws may
be necessary for the government of the corporation but these are
subordinate to the articles of incorporation as well as to the Corporation Code
and related statutes. There are in fact cases where by-laws are
[15]
unnecessary to corporate existence or to the valid exercise of corporate
powers, thus:

In the absence of charter or statutory provisions to the contrary, by-laws are not
necessary either to the existence of a corporation or to the valid exercise of the
powers conferred upon it, certainly in all cases where the charter sufficiently
provides for the government of the body; and even where the governing statute in
express terms confers upon the corporation the power to adopt by-laws, the failure
to exercise the power will be ascribed to mere nonaction which will not render void
any acts of the corporation which would otherwise be valid. (Italics supplied.)
[16]

As Fletcher aptly puts it:

It has been said that the by-laws of a corporation are the rule of its life, and that until
by-laws have been adopted the corporation may not be able to act for the purposes
of its creation, and that the first and most important duty of the members is to adopt
them. This would seem to follow as a matter of principle from the office and
functions of by-laws. Viewed in this light, the adoption of by-laws is a matter of
practical, if not one of legal, necessity. Moreover, the peculiar circumstances
attending the formation of a corporation may impose the obligation to adopt certain
by-laws, as in the case of a close corporation organized for specific purposes. And
the statute or general laws from which the corporation derives its corporate existence
may expressly require it to make and adopt by-laws and specify to some extent what
they shall contain and the manner of their adoption. The mere fact, however, of the
existence of power in the corporation to adopt by-laws does not ordinarily and of
necessity make the exercise of such power essential to its corporate life, or to the
validity of any of its acts.
[17]

Although the Corporation Code requires the filing of by-laws, it does not
expressly provide for the consequences of the non-filing of the same within
the period provided for in Section 46. However, such omission has been
rectified by Presidential Decree No. 902-A, the pertinent provisions on the
jurisdiction of the SEC of which state:

SEC. 6. In order to effectively exercise such jurisdiction, the Commission shall

possess the following powers:

xxx xxx xxx xxx

(l) To suspend, or revoke, after proper notice and hearing, the franchise or
certificate of registration of corporations, partnerships or associations, upon any of
the grounds provided by law, including the following:

xxx xxx xxx xxx

5. Failure to file by-laws within the required period;

xxx xxx xxx xxx

In the exercise of the foregoing authority and jurisdiction of the Commissions or by

a Commissioner or by such other bodies, boards, committees and/or any officer as
may be created or designated by the Commission for the purpose. The decision,
ruling or order of any such Commissioner, bodies, boards, committees and/or officer
may be appealed to the Commission sitting en banc within thirty (30) days after
receipt by the appellant of notice of such decision, ruling or order. The Commission
shall promulgate rules of procedures to govern the proceedings, hearings and appeals
of cases falling within its jurisdiction.

The aggrieved party may appeal the order, decision or ruling of the Commission
sitting en banc to the Supreme Court by petition for review in accordance with the
pertinent provisions of the Rules of Court.

Even under the foregoing express grant of power and authority, there can
be no automatic corporate dissolution simply because the incorporators
failed to abide by the required filing of by-laws embodied in Section 46 of the
Corporation Code. There is no outright demise of corporate
existence. Proper notice and hearing are cardinal components of due
process in any democratic institution, agency or society. In other words, the
incorporators must be given the chance to explain their neglect or omission
and remedy the same.
That the failure to file by-laws is not provided for by the Corporation Code
but in another law is of no moment. P.D. No. 902-A, which took effect
immediately after its promulgation on March 11, 1976, is very much apposite
to the Code. Accordingly, the provisions abovequoted supply the law
governing the situation in the case at bar, inasmuch as the Corporation Code
and P.D. No. 902-A are statutes in pari materia. Interpretare et
concordare legibus est optimus interpretandi. Every statute must be so
construed and harmonized with other statutes as to form a uniform system
of jurisprudence. [18]

As the rules and regulations or private laws enacted by the corporation

to regulate, govern and control its own actions, affairs and concerns and its
stockholders or members and directors and officers with relation thereto and
among themselves in their relation to it, by-laws are indispensable to
[19]

corporations in this jurisdiction. These may not be essential to corporate birth

but certainly, these are required by law for an orderly governance and
management of corporations. Nonetheless, failure to file them within the
period required by law by no means tolls the automatic dissolution of a
corporation.
 In this regard, private respondents are correct in relying on the
pronouncements of this Court in Chung Ka Bio v. Intermediate Appellate
Court, as follows:
[20]

x x x. Moreover, failure to file the by-laws does not automatically operate to dissolve
a corporation but is now considered only a ground for such dissolution.

Section 19 of the Corporation Law, part of which is now Section 22 of the

Corporation Code, provided that the powers of the corporation would cease if it did
not formally organize and commence the transaction of its business or the
continuation of its works within two years from date of its incorporation. Section 20,
which has been reproduced with some modifications in Section 46 of the
Corporation Code, expressly declared that every corporation formed under this Act,
must within one month after the filing of the articles of incorporation with the
Securities and Exchange Commission, adopt a code of by-laws. Whether this
provision should be given mandatory or only directory effect remained a
controversial question until it became academic with the adoption of PD 902-
A.Under this decree, it is now clear that the failure to file by-laws within the required
period is only a ground for suspension or revocation of the certificate of registration
of corporations.

Non-filing of the by-laws will not result in automatic dissolution of the corporation.
Under Section 6(I) of PD 902-A, the SEC is empowered to suspend or revoke, after
proper notice and hearing, the franchise or certificate of registration of a corporation
on the ground inter alia of failure to file by-laws within the required period. It is
clear from this provision that there must first of all be a hearing to determine the
existence of the ground, and secondly, assuming such finding, the penalty is not
necessarily revocation but may be only suspension of the charter. In fact, under the
rules and regulations of the SEC, failure to file the by-laws on time may be penalized
merely with the imposition of an administrative fine without affecting the corporate
existence of the erring firm.

It should be stressed in this connection that substantial compliance with conditions

subsequent will suffice to perfect corporate personality. Organization and
commencement of transaction of corporate business are but conditions subsequent
and not prerequisites for acquisition of corporate personality. The adoption and filing
of by-laws is also a condition subsequent. Under Section 19 of the Corporation Code,
a corporation commences its corporate existence and juridical personality and is
deemed incorporated from the date the Securities and Exchange Commission issues
certificate of incorporation under its official seal. This may be done even before the
filing of the by-laws, which under Section 46 of the Corporation Code, must be
adopted within one month after receipt of official notice of the issuance of its
certificate of incorporation.[21]
 That the corporation involved herein is under the supervision of the HIGC
does not alter the result of this case. The HIGC has taken over the
specialized functions of the former Home Financing Corporation by virtue of
Executive Order No. 90 dated December 17, 1986. With respect to
[22]

homeowners associations, the HIGC shall exercise all the powers,

authorities and responsibilities that are vested on the Securities and
Exchange Commission x x x, the provision of Act 1459, as amended by P.D.
902-A, to the contrary notwithstanding.
[23]

WHEREFORE, the instant petition for review on certiorari is hereby

DENIED and the questioned Decision of the Court of Appeals
AFFIRMED. This Decision is immediately executory. Costs against
petitioner.
SO ORDERED.
Regalado, (Chairman), Puno, and Mendoza, JJ., concur.
Torres, Jr., J., on leave.
 EN BANC

[G.R. No. 118651. October 16, 1997]

PIONEER TEXTURIZING CORP. and/or JULIANO LIM, petitioners,

vs. NATIONAL LABOR RELATIONS COMMISSION, PIONEER
TEXTURIZING WORKERS UNION and LOURDES A. DE
JESUS, respondents.

DECISION
FRANCISCO, J.:

The facts are as follows:

Private respondent Lourdes A. de Jesus is petitioners reviser/trimmer
since 1980. As reviser/trimmer, de Jesus based her assigned work on a
paper note posted by petitioners. The posted paper which contains the
corresponding price for the work to be accomplished by a worker is identified
by its P.O. Number. On August 15, 1992, de Jesus worked on P.O. No. 3853
by trimming the cloths ribs.She thereafter submitted tickets corresponding to
the work done to her supervisor. Three days later, de Jesus received from
petitioners personnel manager a memorandum requiring her to explain why
no disciplinary action should be taken against her for dishonesty and
tampering of official records and documents with the intention of cheating as
P.O. No. 3853 allegedly required no trimming. The memorandum also
placed her under preventive suspension for thirty days starting from August
19, 1992. In her handwritten explanation, de Jesus maintained that she
merely committed a mistake in trimming P.O. No. 3853 as it has the same
style and design as P.O. No. 3824 which has an attached price list for
trimming the ribs and admitted that she may have been negligent in
presuming that the same work was to be done with P.O. No. 3853, but not
for dishonesty or tampering Petitioners personnel department, nonetheless,
terminated her from employment and sent her a notice of termination dated
September 18, 1992.
On September 22, 1992, de Jesus filed a complaint for illegal dismissal
against petitioners. The Labor Arbiter who heard the case noted that de
Jesus was amply accorded procedural due process in her termination from
service. Nevertheless, after observing that de Jesus made some further
trimming on P.O. No. 3853 and that her dismissal was not justified, the Labor
Arbiter held petitioners guilty of illegal dismissal. Petitioners were
accordingly ordered to reinstate de Jesus to her previous position without
loss of seniority rights and with full backwages from the time of her
suspension on August 19, 1992. Dissatisfied with the Labor Arbiters
decision, petitioners appealed to the public respondent National Labor
Relations Commission (NLRC). In its July 21, 1994 decision, the
NLRC ruled that de Jesus was negligent in presuming that the ribs of P.O.
[1]

No. 3853 should likewise be trimmed for having the same style and design
as P.O. No. 3824, thus petitioners cannot be entirely faulted for dismissing
de Jesus. The NLRC declared that the status quo between them should be
maintained and affirmed the Labor Arbiters order of reinstatement, but
without backwages. The NLRC further directed petitioner to pay de Jesus
her back salaries from the date she filed her motion for execution on
September 21, 1993 up to the date of the promulgation of [the]
decision. Petitioners filed their partial motion for reconsideration which the
[2]

NLRC denied, hence this petition anchored substantially on the alleged

NLRCs error in holding that de Jesus is entitled to reinstatement and back
salaries. On March 6, 1996, petitioners filed its supplement to the petition
amplifying further their arguments. In a resolution dated February 20, 1995,
the Court required respondents to comment thereon. Private respondent de
Jesus and the Office of the Solicitor General, in behalf of public respondent
NLRC, subsequently filed their comments. Thereafter, petitioners filed two
rejoinders [should be replies] to respondents respective
comments. Respondents in due time filed their rejoinders.

These are two interrelated and crucial issues, namely: (1) whether or not de Jesus
was illegally dismissed, and (2) whether or not an order for reinstatement needs a
writ of execution.

Petitioners insist that the NLRC gravely abused its discretion in holding that de Jesus
is entitled to reinstatement to her previous position for she was not illegally
dismissed in the first place. In support thereof, petitioners quote portions of the
NLRC decision which stated that respondent [petitioners herein] cannot be entirely
faulted for dismissing the complaint and that there was no illegal dismissal to speak
[3]

of in the case at bar. Petitioners further add that de Jesus breached the trust reposed
[4]

in her, hence her dismissal from service is proper on the basis of loss of confidence,
citing as authority the cases of Ocean Terminal Services, Inc. v. NLRC, 197 SCRA
491; Coca-Cola Bottlers Phil., Inc. v. NLRC, 172 SCRA 751, and Piedad v. Lanao
del Norte Electric Cooperative, 154 SCRA 500.
[5]

The arguments lack merit.

The entire paragraph which comprises the gist of the NLRCs decision
from where petitioners derived and isolated the aforequoted portions of the
NLRCs observation reads in full as follows:
We cannot fully subscribe to the complainants claim that she trimmed the
ribs of PO3853 in the light of the sworn statement of her supervisor Rebecca
Madarcos (Rollo, p. 64) that no trimming was necessary because the ribs
 were already of the proper length. The complainant herself admitted in her
sinumpaang salaysay (Rollo, p. 45) that Aking napansin na hindi pantay-
pantay ang lapad ng mga ribs PO3853 - mas maigsi ang nagupit ko sa mga
ribs ng PO3853 kaysa sa mga ribs ng mga nakaraang POs. The complaint
being an experienced reviser/trimmer for almost twelve (12) years should
have called the attention of her supervisor regarding her observation of
PO3853. It should be noted that complainant was trying to claim as
production output 447 pieces of trimmed ribs of PO3853 which respondents
insists that complainant did not do any. She was therefore negligent in
presuming that the ribs of PO3853 should likewise be trimmed for having
the same style and design as PO3824. Complainant cannot pass on the blame
to her supervisor whom she claimed checked the said tickets prior to the
submission to the Accounting Department. As explained by respondent,
what the supervisor does is merely not the submission of tickets and do some
checking before forwarding the same to the Accounting Department. It was
never disputed that it is the Accounting Department who does the detailed
checking and computation of the tickets as has been the company policy and
practice. Based on the foregoing and considering that respondent cannot be
entirely faulted for dismissing complainant as the complainant herself was
also negligent in the performance of her job, We hereby rule that
status quo between them should be maintained as a matter of course. We thus
affirm the decision of Labor Arbiter reinstating the complainant but without
backwages. The award of backwages in general are granted on grounds of
equity for earnings which a worker or employee has lost due to his illegal
dismissal. (Indophil Acrylic Mfg. Corporation vs. NLRC, G.R. No. 96488
September 27, 1993) There being no illegal dismissal to speak in the case at
bar, the award for backwages should necessarily be deleted. [6]

We note that the NLRCs decision is quite categorical in finding that de

Jesus was merely negligent in the performance of her duty. Such
negligence, the Labor Arbiter delineated, was brought about by the
petitioners plain improvidence. Thus:
After careful assessment of the allegations and documents available on
record, we are convinced that the penalty of dismissal was not justified.
At the outset, it is remarkable that respondents did not deny nor dispute that
P.O. 3853 has the same style and design as P.O. 3824; that P.O. 3824 was
made as guide for the work done on P.O. 3853; and, most importantly, that
the notation correction on P.O. 3824 was made only after the error was
discovered by respondents Accounting Department.
Be sure that as it may, the factual issue in this case is whether or not
complaint trimmed the ribs of P.O. 3853?
 Respondents maintained that she did not because the record in Accounting
Department allegedly indicates that no trimming is to be done on P.O.
3853. Basically, this allegation is unsubstantiated.
It must be emphasized that in termination cases the burdent of proof rests
upon the employer.
In the instant case, respondents mere allegation that P.O. 3853 need not be
trimmed does not satisfy the proof required to warrant complainants
dismissal.
Now, granting that the Accounting record is correct, we still believe that
complainant did some further trimming on P.O. 3853 based on the following
grounds:
First, Supervisor Rebecca Madarcos who ought to know the work to be
performed because she was in-charged of assigning jobs, reported no
anomally when the tickets were submitted to her.
Incidentally, supervisor Madarcos testimony is suspect because if she could
recall what she ordered the complainant to do seven (7) months ago (to revise
the collars and plackets of shirts) there was no reason for her not to detect
the alleged tampering at the time complainant submitted her tickets, after all,
that was part of her job, if not her main job.
Secondly, she did not exceed her quota, otherwise she could have simply
asked for more.
That her output was remarkably big granting misinterpreted it is true, is well
explained in that the parts she had trimmed were lesser compared to those
which she had cut before.
In this connection, respondents misinterpreted the handwritten explanation
of the complainant dated 20 August 1992, because the letter never admits
that she never trimmed P.O. 3853, on the contrary the following sentence,
Sa katunayan nakapagbawas naman talaga ako na di ko inaasahang inalis na
pala ang presyo ng Sec. 9 P.O. 3853 na ito.
is crystal clear that she did trim the ribs on P.O. 3853. [7]

Gleaned either from the Labor Arbiters observations or from the NLRCs
assessment, it distinctly appears that petitioners accusation of dishonesty
and tampering of official records and documents with intention of cheating
against de Jesus was not substantiated by clear and convincing evidence.
Petitioners simply failed, both before the Labor Arbiter and the NLRC, to
discharge the burdent of proof and to validly justify de Jesus dismissal from
service. The law, in this light, directs the employers, such as herein
petitioners, not to terminate the services of an employee except for a just or
authorized cause under the Labor Code. Lack of a just cause in the
[8]
dismissal from service of an employee, as in this case, renders the dismissal
illegal, despite the employers observance of procedural due process. And [9]

while the NLRC stated that there was no illegal dismissal to speak of in the
case at bar and that petitioners cannot be entirely faulted therefor, said
statements are inordinate pronouncements which did not remove the
assailed dismissal from the realm of illegality. Neither can these
pronouncements preclude us from holding otherwise.
We also find the imposition of the extreme penalty of dismissal against
de Jesus as certainly harsh and grossly disproportionate to the negligence
committed, especially where said employee holds a faithful and an
untarnished twelve-year service record. While an employer has the inherent
right to discipline its employees, we have always held that this right must
always be exercised humanely, and the penalty it must impose should be
commensurate to the offense involved and to the degree of its
infraction. The employer should bear in mind that, in the exercise of such
[10]

right, what is at stake is not only the employees position but her livelihood as
well.
Equally unmeritorious is petitioners assertion that the dismissal is
justified on the basis of loss of confidence. While loss of confidence, as
correctly argued by petitioners, is one of the valid grounds for termination of
employment, the same, however, cannot be used as a pretext to vindicate
each and every instance of unwarranted dismissal. To be a valid ground, it
must shown that the employee concerned is responsible for the misconduct
or infraction and that the nature of his participation therein rendered him
absolutely unworthy of the trust and confidence demanded by his
position. In this cae, petitioners were unsuccessful in establishing their
[11]

accusations of dishonesty and tampering of records with intention of

cheating. Indeed, even if petitioners allegations against de Jesus were true,
they just the same failed to prove that her position needs the continued and
unceasing trust of her employees functions. Surely, de Jesus who occupies
[12]

the position of a reviser/trimmer does not require the petitioners perpetual

and full confidence. In this regard, petitioners reliance on the cases of Ocean
Terminal Services, Inc. v. NLRC; Coca-Cola Bottlers Phil., Inc. v. NLRC;
and Piedad v. Lanao del Norte Electric Cooperative, which when perused
involve positions that require the employers full trust and confidence, is
wholly misplaced. In Ocean Terminal Services, for instance, the dismissed
employee was designated as expediter and canvasser whose responsibility
is mainly to make emergency procurements of tools and equipments and
was entrusted with the necessary cash for buying them. The case of Coca-
Cola Bottlers, on the other hand, involves a sales agent whose job exposes
him to the everyday financial transactions involving the employers goods and
funds, while that of Piedad concerns a bill collector who essentially handles
the employers cash collections. Undoubtedly, the position of a
reviser/trimmer could not be equated with that of a canvasser, sales agent,
or a bill collector. Besides, the involved employees in the three
aforementioned cases were clearly proven guilty of infractions unlike private
respondent in the case at bar. Thus, petitioners dependence on these cited
cases is inaccurate, to say the least. More, whether or not de Jesus meets
the days quota of work she, just the same, is paid the daily minimum wage. [13]

Corollary to our determination that de Jesus was illegally dismissed is

her imperative entitlement to reinstatement and backwages as mandated by
law. Whence, we move to the second issue, i.e., whether or not an order
[14]

for reinstatement needs a writ of execution.

Petitioners theory is that an order for reinstatement is not self-
executory. They stress that there must be a writ of execution which may be
issued by the NLRC or by the Labor Arbiter motu proprio or on motion of an
interested party. They further maintain that even if a writ of execution was
issued, a timely appeal coupled by the posting of appropriate supersedeas
bond, which they did in this case, effectively forestalled and stayed execution
of the reinstatement order of the Labor Arbiter. As supporting authority,
petitioners emphatically cite and bank on the case of Maranaw Hotel Resort
Corporation (Century Park Sheraton Manila) v. NLRC, 238 SCRA 190.
Private respondent de Jesus, for her part, maintains that petitioners
should have reinstated her immediately after the decision of the Labor Arbiter
ordering her reinstatement was promulgated since the law mandates that an
order for reinstatement is immediately executory. An appeal, she says, could
not stay the execution of a reinstatement order for she could either be
admitted back to work or merely reinstated in the payroll without need of a
writ of execution. De Jesus argues that a writ of execution is necessary only
for the enforcement of decisions, orders, or awards which have acquired
finality. In effect, de Jesus is urging the Court to re-examine the ruling laid
down in Maranaw.
Article 223 of the Labor Code, as amended by R.A. No. 6715 which took
effect on March 21, 1989, pertinently provides:
ART. 223. Appeal. --Decisions, awards, or orders of the Labor Arbiter are
final and executory unless appealed to the Commission by any or both parties
within ten (10) calendar days from receipt of such decisions, awards, or
orders. Such appeal maybe entertained only on any of the following grounds:
xxx xxx xxx
In an event, the decision of the Labor Arbiter reinstating a dismissed or
separated employee, insofar as the reinstatement aspect is concerned, shall
immediately be executory, even pending appeal. The employee shall either
be admitted back to work under the same terms and conditions prevailing
prior to his dismissal or separation or, at the option of the employer, merely
 reistated in the payroll. The posting of a bond by the employer shall not stay
the execution for reinstatement provided herein.
xxx xxx xxx
We initially interpreted the aforequoted provision in Inciong v.
NLRC. The Court made this brief comment:
[15] [16]

The decision of the Labor Arbiter in this case was rendered on December 18,
1988, or three (3) months before Article 223 of the Labor Code was amended
by Republic Act 6715 (which became law on March 21, 1989), providing that
a decision of the Labor Arbiter ordering the reinstatement of a dismissed or
separated employee shall be immediately executory insofar as the
reinstatement aspect is concerned, and the posting of an appeal bond by the
employer shall not stay such execution. Since this new law contains no
provision giving it retroactive effect (Art. 4, Civil Code), the amendment may
not be applied to this case.
which the Court adopted and applied in Callanta v. NLRC. In Zamboanga
[17]

City Water District v. Buat, the Court construed Article 223 to mean exactly
[18]

what it says. We said:

Under the said provision of law, the decision of the Labor Arbiter reinstating
a dismissed or separated employee insofar as the reinstatement aspect is
concerned, shall be immediately executory, even pending appeal. The
employer shall reinstate the employee concerned either by: (a) actually
admitting him back to work under the same terms and conditions prevailing
prior to his dismissal or separation; or (b) at the option of the employer,
merely reinstating him in the payroll. Immediate reinstatement is
mandated and is not stayed by the fact that the employer has appealed, or has
posted a cash or surety bond pending appeal. [19]

We expressed a similar view a year earlier in Medina v. Consolidated

Broadcasting System (CBS) DZWX and laid down the rule that an employer
[20]

who fails to comply with an order of reinstatement makes him liable for the
employees salaries. Thus:

Petitioners construe the above paragraph to mean that the refusal of the employer to
reinstate an employee as directed in an executory order of reinstatement would make
it liable to pay the latters salaries. This interpretation is correct. Under Article 223
of the Labor Code, as amended, an employer has two options in order for him to
comply with an order of reinstatement, which is immediately executory, even
pending appeal. Firstly, he can admit the dismissed employee back to work under
the same terms and conditions prevailing prior to his dismissal or separation or to a
substantially equivalent position if the former position is already filled up as we have
ruled in Union of Supervisors (RB) NATU vs. Sec. of Labor, 128 SCRA 442 [1984];
and Pedroso vs. Castro, 141 SCRA 252 [1986]. Secondly, he can reinstate the
employee merely in the payroll. Failing to exercise any of the above options, the
employer can be compelled under pain of contempt, to pay instead the salary of the
employee. This interpretation is more in consonance with the constitutional
protection to labor (Section 3, Art. XIII, 1987 Constitution). The right of a person to
his labor is deemed to be property within the meaning of the constitutional guaranty
that no one shall be deprived of life, liberty, and property without due process of
law. Therefore, he should be protected against any arbitrary and unjust deprivation
of his job (Bondoc vs. Peoples Bank and Trust Co., Inc., 103 SCRA 599 [1981]). The
employee should not be left without any remedy in case the employer unreasonably
delays reinstatement. Therefore, we hold that the unjustified refusal of the employer
to reinstate an illegally dismissed employee entitles the employee to payment of his
salaries x x x.
[21]

The Court, however, deviated from this construction in the case

of Maranaw. Reinterpreting the import of Article 223 in Maranaw, the
Court declared that the reinstatement aspect of the Labor Arbiters decision
[22]

needs a writ of execution as it is not self-executory, a declaration the Court

recently reiterated and adopted in Archilles Manufacturing Corp. v. NLRC. [23]

We note that prior to the enactment of R.A. No. 6715, Article 223 of the [24]

Labor Code contains no provision dealing with the reinstatement of an

illegally dismissed employee. The amendment introduced by R.A. No. 6715
is an innovation and a far departure from the old law indicating therby the
legislatures unequivocal intent to insert a new rule that will govern the
reinstatement aspect of a decision or resolution in any given labor dispute. In
fact, the law as now worded employs the phrase shall immediately be
executory without qualification emphasizing the need for prompt
compliance. As a rule, shall in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that the[25]

presumption is that the word shall, when used in a statute, is mandatory. An [26]

appeal or posting of bond, by plain mandate of the law, could not even
forestall nor stay the executory nature of an order of reinstatement. The law,
moreover, is unambiguous and clear. Thus, it must be applied according to
its plain and obvious meaning, according to its express terms. In Globe-
Mackay Cable and Radio Corporation v. NLRC, we held that:
[27]

Under the principles of statutory construction, if a statute is clear, plain and free from
ambiguity, it must be given its literal meaning and applied without attempted
interpretation. This plain-meaning rule or verba legis derived from the maxim index
animi sermo est (speech is the index of intention) rests on the valid presumption that
the words employed by the legislature in a statute correctly express its intent by the
use of such words as are found in the statute. Verba legis non est recedendum, or
from the words of a statute there should be no departure. [28]

And in conformity with the executory nature of the reinstatement order, Rule
V, Section 16 (3) of the New Rules of Procedure of the NLRC strictly
requires the Labor Arbiter to direct the employer to immediately
reinstate the dismissed employee. Thus:

In case the decision includes an order of reinstatement, the Labor Arbiter shall direct
the employer to immediately reinstate the dismissed or separated employee even
pending appeal. The order of reinstatement shall indicate that the employee shall
either be admitted back to work under the same terms and conditions prevailing prior
to his dismissal or separation or, at the option of the employer, merely reinstated in
the payroll.

In declaring that reinstatement order is not self-executory and needs a

writ of execution, the Court, in Maranaw, adverted to the rule provided under
Article 224. We said:
It must be stressed, however, that although the reinstatement aspect of the
decision is immediately executory, it does not follow that it is self-
executory. There must be a writ of execution which may be issued motu
proprio or on motion of an interested party. Article 224 of the Labor Code
provides:
ART. 224. Execution of decisions, orders or awards. (a) The Secretary of
Labor and Employment or any Regional Director, the Commission or any
Labor Arbiter, or med-arbiter or voluntary arbitrator may, motu propio or
on motion of any interested party, issue a writ of execution on a judgment
within five (5) years from the date it becomes final and executory (emphasis
supplied)
The second paragraph of Section 1, Rule VIII of the New Rules of
Procedure of the NLRC also provides:

The Labor Arbiter, POEA Administrator, or the Regional Director, or his duly
authorized hearing officer of origin shall, motu propio or on motion of any interested
party, issue a writ of execution on a judgment within five (5) years from the date it
becomes final and executory . No motion for execution shall be entertained nor a
writ be issued unless the Labor Arbiter is in possession of the records of the case
which shall include an entry of judgment. (emphasis supplied)

xxx xxx xxx

In the absence them of an order for the issuance of a writ of execution on
the reinstatement aspect of the decision of the Labor Arbiter, the petitioner
was under no legal obligation to admit back to work the private respondent
under the terms and conditions prevailing prior to her dismissal or, at the
petitioners option, to merely reinstate her in the payroll. An option is a right
of election to exercise a privilege, and the option in Article 223 of the Labor
Code is exclusively granted to the employer. The event that gives rise for
its exercise is not the reinstatement decree of a Labor Arbiter, but the writ
 for its execution commanding the employer to reinstate the employee, while
the final act which compels the employer to exercise the option is the service
upon it of the writ of execution when, instead of admitting the employee
back to his work, the employer chooses to reinstate the employee in the
payroll only. If the employer does not exercise this option, it must forthwith
admit the employee back to work, otherwise it may be punished for
contempt. [29]

A closer examination, however, shows that the necessity for a writ of

execution under Article 224 applies only to final and executory decisions
which are not within the coverage of Article 223. For comparison, we quote
the material portions of the subject articles:

ART. 223. Appeal. x x x

In any event, the decision of the Labor Arbiter reinstating a dismissed or

separated employee, insofar as the reinstatement aspect is concerned,
shall immediately be executory, even pending appeal. The employee shall
either be admitted back to work under the same terms and conditions
prevailing prior to his dismissal or separation or, at the option of the
employer, merely reinstated in the payroll. The posting of a bond by the
employer shall not stay the execution for reinstatement provided herein.
xxx xxx xxx
ART. 224. Execution of decisions, orders, or awards. --(a) The Secretary of
Labor and Employment or any Regional Director, the Commission or any
Labor Arbiter, or med-arbiter or voluntary arbitrator may, motu propio or
on motion of any interested party, issue a writ of execution on a judgment
within five (5) years from the date it becomes final and executory,
requiring a sheriff or a duly deputized officer to execute or enforce final
decicions, orders or awards of the Secretary of Labor and Employment or
regional director, the Commission, the arbiter or med-arbiter, or voluntary
arbitrators. In any case, it shall be the duty of the responsible officer to
separately furnish immediately the counsels of record and the parties with
copies of said decisions, orders or awards. Failure to comply with the duty
prescribed herein shall subject such responsible officer to appropriate
administrative sanctions."
Article 224 states that the need for a writ of execution applies only within
five (5) years from the date a decision, an order or awards becomes
final and executory. It cannot relate to an award or order of reinstatement
still to be appealed or pending appeal which Article 223 contemplates. The
provision of Article 223 is clear that an award for reinstatement shall be
immediately executory even pending appeal and the posting of a bond
by the employer shall not stay the execution for reinstatement.The
legislative content is quite obvious, i.e., to make an award of reinstatement
immediately enforceable, even pending appeal. To require the application
for and issuance of a writ of execution as prerequisites for the execution of
a reinstatement award would certainly betray and run counter to the very
object and intent of Article 223, i. e., the immediate execution of a
reinstatement order. The reason is simple. An application for a writ of
execution and its issuance could be delayed for numerous reasons.A mere
continuance or postponement of a scheduled hearing, for instance, or an
inaction on the part of the Labor Arbiter or the NLRC could easily delay the
issuance of the writ thereby setting at naught the strict mandate and noble
purpose envisioned by Article 223. In other words, if the requirements of
Article 224 were to govern, as we so declared in Maranaw, then the
executory nature of a reinstatement order or award contemplated by Article
223 will be unduly circumscribed and rendered ineffectual. In enacting the
law, the legislature is presumed to have ordaineda valid and sensible law,
one which operates no further than may be necessary to achieve its specific
purpose. Statutes, as a rule, are to be construed in the light of the purpose
to be achieved and the evil sought to be remedied. And where statues are
[30]

fairly susceptible of two or more construction, that construction should be

adopted which will most tend to give effect to the manifest intent of the law
maker 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. In introducing a new rule on the reinstatement
[31]

aspect of a labor decision under R.A. No. 6715, Congress should not be
considered to be indulging in mere semantic exercise. On appeal, however,
the appellate tribunal concerned may enjoin or suspend the reinstatement
order in the exercise of its sound discretion.
Furthermore, the rule is that all doubts in the interpretation and
implementation of labor laws should be resolved in favor of labor. In ruling
that an order or award for reinstatement does not require a writ of execution
the Court is simply adhering and giving meaning to this rule. Henceforth, we
rule that an award or order for reinstatement is self-executory. After receipt
of the decision or resolution ordering the employee's reinstatement, the
employer has the right to choose whether to re-admit the employee to work
under the same terms and conditions prevailing prior to his dismissal or to
reinstate the employee in the payroll. In either instance, the employer has to
inform the employee of his choice. The notification is based on practical
considerations for without notice, the employee has no way of knowing if he
has to report for work or not.
WHEREFORE, the petition is DENIED and the decision of the Labor
Arbiter is hereby REINSTATED.
Costs against petitioner.
SO ORDERED.
 Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Mendoza, Hermosisima, Jr., Panganiban, and Torres, Jr.,
JJ., concur.
 SECOND DIVISION

[G.R. Nos. 107297-98. December 19, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN DEL

ROSARIO y VICENTE, ARTHUR CAEDO y REYES, ABNER
PERALTA and JESUS GARCIA @ "TUPAK", accused,
EDWIN DEL ROSARIO y VICENTE, ABNER PERALTA and JESUS
GARCIA @ "TUPAK", accused-appellants.

DECISION
QUISUMBING, J.:

By filing forged bail bonds,[1] appellants are considered not merely to have jumped
bail, but for all intents and purposes to have escaped from detention. Hence, their
pending appeal should be dismissed, subject to the filing of the proper criminal cases
against the parties responsible therefor.
The antecedents of this case are as follows:
Appellants Peralta and Garcia were charged as principals and appellant Del
Rosario as an accomplice in Criminal Case No. 87-12132-P before the Regional Trial
Court of Pasay City, Branch 115, for the murder of Bennet Begaso y Cruz. Appellants
Peralta and Garcia were likewise charged as principals and appellant Del Rosario and
accused Caedo as accessories in the crime of theft for taking away the Armalite rifle
of said victim in Criminal Case No. 87-12133 before the same court.[2]
After trial, on June 16, 1989, the trial court rendered a joint decision[3] finding
appellants Peralta and Garcia guilty as principals and Del Rosario as an accomplice
in the crime of murder, while Caedo was acquitted. Likewise both Peralta and Garcia
were found guilty as principals and appellants Caedo and Del Rosario as accessories
in the crime of theft. The dispositive portion of the decision reads:

All the premises considered, judgment is rendered finding the accused Jesus
Garcia and Abner Peralta guilty beyond reasonable doubt as principals and
Edwin del Rosario as accomplish (sic) of the crime of Murder as defined and
penalized under Art. 248 in relation to Arts. 16 and 18 of the Revised Penal
Code, and applying the indeterminate sentence law with no qualifying
circumstance present, the Court sentences Jesus Garcia and Abner Peralta
the penalty of prision mayor maximum to reclusion temporal medium or, Ten
(10) years and One (1) day, to seventeen (17) years and Four (4) months
and Edwin del Rosario, prision correccional maximum to prision mayor
medium or Four (4) (sic), Two (2) Months, One (1) day to Ten (10) Years,
with all the accessory penalties provided by law and further, they, Jesus
Garcia and Abner Peralta are likewise found guilty beyond reasonable doubt
as principals and Edwin del Rosario and Arthur Caedo as accessory after
the fact of the crime of theft with no qualifying circumstance present,
sentences Jesus Garcia and Abner Peralta the penalty of prision mayor,
minimum and medium or Six (6) years One (1) day to Ten (10) Years, and
Edwin del Rosario and Arthur Caedo, arresto mayor, medium of Four (4)
months, with all the accessory penalties provided by law, ordering them to
indemnify the heirs of Bennet Begaso P30,000.00 for his death, and the
Government P12,800.00 the value of the stolen firearms, and pay their
proportionate shares in the proceedings.

For insufficiency if (sic) the evidence Arthur Caedo is acquitted of the charge
of Murder. [4]

Accused Caedo applied for and was granted probation. Appellants Peralta, Garcia
and Del Rosario appealed to the Court of Appeals.
On May 27, 1992, the Court of Appeals rendered a decision[5] affirming the
conviction of appellants Peralta and Garcia as principals and Del Rosario as an
accomplice in the crime of murder, but increased their respective penalties. In the theft
case, the CA acquitted Peralta and Garcia but convicted Del Rosario as an
accessory. The CA decision reads:

WHEREFORE, the appealed judgment is:

1. AFFIRMED insofar as the conviction of accused-appellants Jesus Garcia

and Abner Peralta, as principals in the commission of the crime of murder in
Criminal Case No. 87-12132, of accused Edwin del Rosario as accomplice
in the crime of murder in (Criminal Case No. 87-12132) and as accessory
after the fact in the crime of theft, in Criminal Case No. 87-12133, are
concerned;

2. REVERSED insofar as accused-appellants Jesus Garcia and Abner

Peralta are concerned. They are hereby ACQUITTED in Criminal Case No.
[87]-12133 of the crime of Theft for lack of evidence to sustain a conviction;

3. MODIFIED insofar as the penalties are concerned, to wit:

a) Accused-appellants Jesus Garcia and Abner Peralta are penalized to

suffer imprisonment of reclusion perpetua in Criminal Case No. 87-12132,
as principals in the commission of the crime of Murder under Article 248 of
the Revised Penal Code;

b) Accused-appellant Edwin del Rosario, as accomplice in the crime of

Murder in Criminal Case No. 87-12132, is penalized to suffer imprisonment,
after applying the Indeterminate Sentence Law, without any aggravating or
mitigating circumstance, for a period of six (6) years and one (1) day of
prision mayor as the MINIMUM to twelve (12) years and one (1) day of
reclusion temporal as the MAXIMUM; and, in Criminal Case No. 87-[1]2133,
as accessory after the fact of the commission of the crime of Theft under
Article 309 of the Revised Penal Code, to suffer imprisonment for a period of
two (2) months and one (1) day of arresto mayor;

c) As to the civil aspect in Criminal Case No. 87-[1]2132 ordering accused-

appellants to indemnify the heirs of the deceased Bennet Bagaso the amount
of P50,000.00.

However, instead of entering judgment in CR-08477 (Crim. Case No. 87-

12132) and pursuant to Section 13, Rule 124 of the Rules on Criminal
Procedure, as amended, let the entire records of the said case be certified
and elevated to the Honorable Supreme Court for review. [6]

Since the penalty of reclusion perpetua was imposed on two of the accused, we
accepted the elevation to us of the CA decision. Pending our review, however, it was
discovered that the personal bail bonds (SICI Nos. 00-445 and 151-88) posted by
appellants Peralta and Garcia allegedly issued by the Stronghold Insurance Company
Inc. (SICI) were forged documents. Hence, on August 30, 1993, this Court resolved to
issue warrants of arrest against appellants Peralta and Garcia.[7] Said appellants were
arrested and are presently detained at the Bureau of Corrections in Muntinlupa City. [8]
Subsequently, upon the initiative of the brother of the victim, it was also discovered
that the Personal Bail Bond No. JCR (2) - 20153 - (P150,000.00) issued by Mantruste
Insurance Corporation in favor of appellant Del Rosario was likewise a forged
document. The National Bureau of Investigation confirmed that the bail bond issued
to Del Rosario "was not genuine."
Hence, in the Resolution[9] dated March 24, 1999, the Court resolved to issue a
warrant of arrest against appellant Del Rosario for having filed a forged bail bond. The
Philippine National Police, through the Office of the Legal Service of the PNP, Camp
Crame, Quezon City, caused the immediate implementation by the Criminal
Investigation and Detection Group the said warrant. On June 14, 1999, Atty. Romeo
L. Lesondra (MNSA), Director of the Office of Legal Service of the PNP, caused the
return of the warrant stating that appellant Del Rosario could not be located as his
whereabouts are unknown and that the PNP undertakes to continue investigating and
monitoring the appellant's whereabouts.[10]
The Court, before acting further on the review of the appellants convictions, must
rule on the effects of the discovery of the forged or "fake" bail bonds on these cases.
The power of review of the Supreme Court over criminal cases is delineated in
Section 5 of Article VIII of the 1987 Constitution, which provides:

Sec. 5. The Supreme Court shall have the following powers:

(2) Review, revise, reverse, modify or affirm on appeal, or certiorari, as

the law or the Rules of Courtmay provide, final judgments and orders of
lower courts in:
 (d) All criminal cases in which the penalty imposed is reclusion
perpetua or higher. (underlining supplied)

The manner of review is provided in the Rules of Court duly promulgated by the
Supreme Court pursuant to its rule-making power under Section 5, No. 5 of Article VIII
of the Constitution. With respect to appeals, the Rules of Court provides for the
procedural requirements pertaining to the filing of appellant's brief, appellee's briefs,
the periods for filing, and the grounds for dismissal thereof and the like. In this
connection, Section 8, of Rule 124 of the Rules on Criminal Procedure [11] provides for
the grounds for dismissal of appeals -

Sec. 8. Dismissal of appeal for abandonment or failure to prosecute. - The

appellate court may, upon motion of the appellee or on its own motion and
notice to the appellant, dismiss the appeal if the appellant fails to file his brief
within the time prescribed by this Rule, except in case the appellant is
represented by a counsel de oficio.

The court may also, upon motion of the appellee or on its own motion,
dismiss the appeal if the appellant escapes from prison or confinement or
jumps bail or flees to a foreign country during the pendency of the appeal.

Under the second paragraph thereof, the escape from prison or confinement, the
act of jumping bail, or fleeing to a foreign country of the appellant results in the outright
dismissal of his appeal. The reason for this rule is that by his acts, appellant loses his
standing in court; and unless he surrenders or submits to the jurisdiction of the court
he is deemed to have waived any right to seek relief from the court. [12] The use of the
word "may" however, implies that certain exceptions exist. Thus, in cases involving
capital punishment, the escape of the appellant does not preclude the exercise of the
review jurisdiction of the Court. Automatic review being mandatory, it is not only the
power of the Court but a duty to review all death penalty cases.[13] Where the appellant
jumped bail and the dismissal of the case will benefit the accused, the Court will
likewise continue to exercise jurisdiction over the case to avoid a mockery of justice.[14]
In People v. Ramos,[15] we held that an accused who files a "fake" bail bond is
considered not merely to have jumped bail but, for all intents and purposes, to
have escaped from detention. Thus, we explained:

Being the parties directly benefited by the issuance of the bail bonds and the
orders of release, the accused were then co-conspirators in the irregular and
illegal procurement of the bail bonds and the issuance of the orders of
release. The conclusion is inevitable that the accused submitted fake bail
bonds to gain freedom from detention. Thus, the accused did not merely
"jump" bail; for all legal intents and purposes, they escaped from detention.

In this case, by filing fake bail bonds, appellants are deemed to have escaped
from confinement even while their respective appeals were pending before the CA. In
the normal course of things, their appeals should have been dismissed by the
CA. However, this was not possible because the fake bail bonds of appellants were
discovered only after the CA had already affirmed, reversed or modified their
sentences. Hence, to revert to the sentences imposed by the trial court would result in
the absurdity that by filing fake bonds, appellants would enjoy the lower sentences
imposed by the trial court. To avoid this blatant mockery of justice, we deem it proper
for the Court of Appeals to have continued to exercise jurisdiction over their
appeals. Appellants having mocked and trumped the judicial process by filing fake bail
bonds, they must be considered to have waived or forfeited their right to further review
of the decisions of the trial court and the Court of Appeals, respectively. In our view,
the appellate courts decision should now stand undisturbed, though appellants Garcia
and Peralta would benefit by their acquittal in Criminal Case No. 87-12133 of the crime
of theft but the penalties imposed on concerned appellants in Criminal Case No. 87-
12132 for murder have been duly modified by the appellate court.
ACCORDINGLY, the decision of the Court of Appeals dated May 27, 1992, is
AFFIRMED.Appellants Jesus Garcia and Abner Peralta are declared guilty of murder
as principals and penalized to suffer the penalty of reclusion perpetua in Crim. Case
No. 87-12132. But they are acquitted of the charge of theft in Crim. Case No. 87-
12133. Appellant Edwin del Rosario is also declared (a) guilty as an accomplice in the
crime of murder in Crim. Case No. 87-12132 and penalized to suffer imprisonment for
a period of six (6) years and one (1) day of prision mayor as MINIMUM to twelve (12)
years and one (1) day of reclusion temporal as MAXIMUM; and (b) guilty in Crim. Case
No. 87-12133 as accessory after the fact in the crime of theft, for which he is sentenced
to two (2) months and one (1) day of arresto mayor. Finally, as ordered by appellate
court, the appellants must pay jointly and solidarily the heirs of the murder victim,
Bennet Begaso, the amount of P50,000.00 as civil indemnity.
The National Bureau of Investigation is hereby DIRECTED to conduct a thorough
investigation on the submission of fake bail bonds allegedly issued by Stronghold
Insurance Company Inc. (SICI) and Mantruste Insurance Corporation, and submit its
recommendations thereon within three (3) months from receipt of copy of this decision,
and to initiate criminal proceedings against the persons responsible therefor, if
proper. They are also urged to use all means possible for the immediate arrest of
convict Edwin del Rosario.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-30057 January 31, 1984

BRUNO O. APARRI, petitioner,

vs.
THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution for REMEDIOS
O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL B. HILAO, VALERIANO
PLANTILLA and SEVERO YAP, as members of the Board of Directors of the defunct
National Resettlement and Rehabilitation Administration (NARRA), respondents.

Enrique D. Tayag for petitioner.

Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.

MAKASIAR, J.:

This petition for certiorari seeks to review the decision of the then Court of Appeals (now
Intermediate Appellate Court under BP 129) dated September 24, 1968, affirming the decision of
the then Court of First Instance (now Regional Trial Court), the dispositive portion of which is as
follows:

WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal
of the present petition for mandamus is hereby affirmed, without pronouncement
as to costs (p. 50, rec.).

The facts of the case are as follows:

On January 15, 1960, private respondents (as members of the Board of Directors of the defunct
National Resettlement and Rehabilitation Administration created under Republic Act No. 1160,
approved June 18, 1954 — NARRA) approved the following resolution:

RESOLUTION NO. 13 (Series of 1960)

RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General

Manager of the National Resettlement and Rehabilitation Administration (NARRA)
with all the rights, prerogatives and compensation appurtenant thereto to take
effect on January 16, 1960);

RESOLVED FURTHER, as it is hereby resolved, to inform the President of the

Philippines of the above appointment of Mr. Aparri (p. 2, rec.).

Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the
NARRA Board, appointed petitioner Bruno O. Aparri as reflected in the following letter:

Ma
nila,
Jan
uar
 y
22,
196
0

Mr. Bruno O. Aparri c/o NARRA, Manila

SIR:

You are hereby appointed as GENERAL MANAGER in the National Resettlement

and Rehabilitation Administration (NARRA) with compensation at the rate of
TWELVE THOUSAND (P12,000.00) PESOS per annum the appointment to take
effect January 16,1960 . . . . REINSTATEMENT ... (p. 2, rec.).

The power of the Board of Directors of the NARRA to appoint the general manager is provided for
in paragraph (2),Section 8, Republic Act No. 1160 (approved June 18, 1954), to wit:

Sec. 8. Powers and Duties of the Board of Directors. — The Board of Directors
shall have the following powers and duties: ...

2) To appoint and fix the term of office of General Manager ..., subject to the
recommendation of the Office of Economic Coordination and the approval of the
President of the Philippines, .... The Board, by a majority vote of all members, may,
for cause, upon recommendation of the Office of Economic Coordination and with
the approval of the President of the Philippines, suspend and/or remove the
General Manager and/or the Assistant General Manager (p. 46, rec., emphasis
supplied).

On March 15, 1962, the same Board of Directors approved the following resolution:

RESOLUTION NO. 24 (Series of 1962)

WHEREAS, the Chairman of the Board has transmitted to the Board of Directors
the desire of the Office of the President Malacanang, Manila, to fix the term of
office of the incumbent General Manager up to the close of office hours on March
31, 1962, in accordance with the provision of Section 8, sub-section 2 of R.A. No.
1160;

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board

of Directors hereby fix, as it is hereby fixed, the term of office of the incumbent
General Manager of the National Resettlement and Rehabilitation Administration
(NARRA) to March 31, 1962 (pp. 6-7, rec., emphasis supplied).

Petitioner filed a petition for mandamus with preliminary injunction with the then Court of First
Instance of Manila on March 29, 1962. The petition prayed to annul the resolution of the NARRA
Board dated March 15, 1962, to command the Board to allow petitioner to continue in office as
General Manager until he vacates said office in accordance with law and to sentence the private
respondents jointly and severally to pay the petitioner actual damages in the sum of P95,000.00,
plus costs.

On August 8, 1963, when the case was still pending decision in the lower court, Republic Act No.
3844, otherwise known as the Agricultural Land Reform Code, took effect. The said law abolished
the NARRA (Sec. 73, R.A. 3844) and transferred its functions and powers to the Land Authority.
On October 21, 1963, the then Court of First Instance of Manila rendered judgment, finding "that
this case has become academic by reason of the approval of the Agricultural Land Reform Code
(Republic Act No. 3844) and thereby dismissing the instant petition without pronouncement as to
costs" (p. 5, rec.).

On appeal to the then Court of Appeals, the appellate tribunal speaking through then Mr. Justice
Antonio C. Lucero, affirmed the decision of the lower court. in dismissing the petition for
mandamus. Pertinent provisions of the decision are as follows:

xxx xxx xxx

In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the
position of General Manager without fixed term and his appointment is, in essence,
terminable at the pleasure of the appointing power which, in this case, is the Board
of Directors. Where, as in the case at bar, the appointing officer, that is, the Board
of Directors, had fixed the term of office of the incumbent Manager to end on March
31, 1962, the replacement of Bruno O. Aparri is not removal but by reason of the
term of his office which is one of the recognized modes of terminating official
relations. Considering that the term of office of the General Manager of the NARRA
is not fixed by law nor has it been fixed by the Board of Directors at the time of his
appointment although it had the power to do so, it is obvious that the term of office
of herein petitioner Bruno O. Aparri expired on March 31, 1962 and his right to hold
the said office was thereby extinguished. In other words, Bruno O. Aparri cessation
from office invokes no removal but merely the expiration of the term of office which
was within the power of the Board of Directors to fix. Hence, Bruno O. Aparri
continues only for so long as the term of his office has not ended (Alba vs. Hon.
Jose N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals, pp. 48-49,
rec., emphasis supplied].

The motion for reconsideration by petitioner in the then Court of Appeals was denied on January
10, 1969.

On January 20, 1969, the petitioner filed a petition for certiorari to review the decision of the then
Court of Appeals dated September 24, 1968 (pp. 1-41, rec.). The same was initially denied for lack
of merit in a resolution dated January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed
on February 11, 1969, the petition was given due course (p. 66, rec.).

The only legal issue sought to be reviewed is whether or not Board Resolution No. 24 (series of
1962) was a removal or dismissal of petitioner without cause.

WE affirm. WE hold that the term of office of the petitioner expired on March 31, 1962.

A public office is the right, authority, and duty created and conferred by law, by which for a given
period, either fixed by law or enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of the government, to be exercise by him for
the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public
office under our political system is therefore not a natural right. It exists, when it exists at all only
because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid.,
Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute
right to hold office. Excepting constitutional offices which provide for special immunity as regards
salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am.
Jur. 881).

The National Resettlement and Rehabilitation Administration (NARRA) was created under
Republic Act No. 1160 (approved June 18,1954), which provides that:

Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION

— ... there is hereby created a corporation to be known as National Resettlement
 and Rehabilitation Administration hereafter referred to as "NARRA" to perform
under the supervision and control of the President of the Philippines, through the
Office of Economic Coordinator all the duties and functions of the Bureau of Lands
as provided for in Commonwealth Act numbered Six Hundred and Ninety-one, as
amended, and such other duties as are hereinafter specified in this Act. It shall be
headed by a General Manager and an Assistant Manager who shall be appointed
as hereinafter provided (emphasis supplied).

Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors of the
NARRA the power "to appoint and fix the term of office of the general manager ... subject to the
recommendation of Economic Coordination and the approval of the President of the Philippines"
(emphasis supplied).

By "appointment" is meant the act of designation by the executive officer, board or body, to whom
that power has been delegated, of the individual who is to exercise the functions of a given office
(Mechem op. cit., Sec. 102). When the power of appointment is absolute, and the appointee has
been determined upon, no further consent or approval is necessary, and the formal evidence of
the appointment, the commission, may issue at once. Where, however, the assent or
confirmationof some other officer or body is required, the Commission can issue or the
appointment is complete only when such assent or condition is obtained (People vs. Bissell, 49
Cal. 407). To constitute an "appointment" to office, there must be some open, unequivocal act of
appointment on the part of the appointing authority empowered to make it, and it may be said
that an appointment to office is made and is complete when the last act required of the appointing
authority has been performed (Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In
either case, the appointment becomes complete when the last act required of the appointing power
is performed (State vs. Barbour, 53 Conn. 76, 55 Am. Rep. 65).

The petitioner was appointed as general manager pursuant to Resolution No. 13 (series of 1960
— approved on January 15, 1960) of the Board of Directors. A careful perusal of the resolution
points out the fact that the appointment is by itself incomplete because of the lack of approval of
the President of the Philippines to such appointment. Thus, We note that Resolution No. 13 states:

xxx xxx xxx

... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the

Philippines of the above appointment of Mr. Aparri (p. 2, rec.).

Presumably, the Board of Directors of the NARRA expected that such appointment be given
approval by the then President. Lacking such approval by the President as required by the law
(par. 2, Sec. 8 of R.A. 1160), the appointment of petitioner was not complete. The petitioner can,
at best, be classified as a de facto officer because he assumed office "under color of a known
appointment or election, void because the officer was not eligible or because there was a want of
power in the electing body, or by reasons of some defect or irregularity in its exercise, such
ineligibility, want of power, or defect being unknown to the public" (State vs. Carroll, 38 Conn. 449,
9Am. Rep. 409).

However, such appointment was made complete upon approval of Resolution No. 24 (series of
1962-approved March 15, 1962) wherein the President submitted to the Board his "desire" to fix
the term of office of the petitioner up to the close of office hours on March 31, 1962. The questioned
resolution corrected whatever requisite lacking in the earlier Resolution No. 13 of the respondent
Board. Resolution No. 24, approved by the respondent Board and pursuant to "the desire of the
President" legally fixed the term of office of petitioner as mandated by paragraph 2, Section 8 of
Republic Act 1160.

The word "term" in a legal sense means a fixed and definite period of time which the law describes
that an officer may hold an office (Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting
67 CJS OFFICERS, secs. 42, 54[1]). According to Mochem, the term of office is the period during
which an office may be held. Upon the expiration of the officer's term, unless he is authorized by
law to hold over, his rights, duties and authority as a pubic officer must ipso facto cease (Mechem,
op. cit., Secs. 396-397). In the law on Public Officers, the most natural and frequent method by
which a public officer ceases to be such is by the expiration of the term for which he was elected
or appointed. The question of when this event has occurred depends upon a number of
considerations, the most prominent of which, perhaps, are whether he was originally elected or
appointed for a definite term or for a termdependent upon some act or event ... (Mechem op. cit.,
Sec. 384).

It is necessary in each case to interpret the word "term" with the purview of statutes so as to
effectuate the statutory scheme pertaining to the office under examination (Barber vs. Blue, 417
P.2D 401, 51 Cal. Rptr. 865, 65 C.2d N5). In the case at bar, the term of office is not fixed by law.
However, the power to fix the term is vested in the Board of Directors subject to the
recommendation of the Office of Economic Coordination and the approval of the President of the
Philippines. Resolution No. 24 (series of 1962) speaks of no removal but an expiration of the term
of office of the petitioner. The statute is undeniably clear. It is the rule in statutory construction that
if the words and phrase of a statute are not obscure or ambiguous, its meaning and the intention
of the legislature must be determined from the language employed, and, where there is no
ambiguity in the words, there is no room for construction (Black on Interpretation of Laws, Sec.
51). The courts may not speculate as to the probable intent of the legislature apart from the words
(Hondoras vs. Soto, 8 Am. St., Rep. 744). The reason for the rule is that the legislature must be
presumed to know the meaning of words, to have used words advisedly and to have expressed its
intent by the use of such words as are found in the statute (50 Am. Jur. p. 212).

Removal entails the ouster of an incumbent before the expiration of his term (Manalang vs.
Quitoriano, 50 O.G. 2515). The petitioner in this case was not removed before the expiration of his
term. Rather, his right to hold the office ceased by the expiration on March 31, 1962 of his term to
hold such office.

WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS.

SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos, De Castro and Escolin, JJ., concur.

Aquino, J., concur in the result.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-25316 February 28, 1979

KAPISANAN NG MGA MANGGAGAWA SA MANILA RAILROAD COMPANY CREDIT UNION,

INC., petitioner-appellant,
vs.
MANILA RAILROAD COMPANY, respondent appellee.

Gregorio E. Fajardo for appellant.

Gregorio Baroque for appellee.

FERNANDO, J.:

In this mandamus petition dismissed by the lower court, petitioner-appellant would seek a reversal
of such decision relying on what it considered to be a right granted by Section 62 of the Republic
Act No. 2023, more specifically the first two paragraphs thereof: "... (1) A member of a cooperative
may, notwithstanding the provisions of existing laws, execute an agreement in favor of the co-
operative authorizing his employer to deduct from the salary or wages payable to him by the
employer such amount as may be specified in the agreement and to pay the amount so deducted
to the co-operative in satisfaction of any debt or other demand owing from the member to the co-
operative. (2) Upon the exemption of such agreement the employer shall if so required by the co-
operative by a request in writing and so long as such debt or other demand or any part of it remains
unpaid, make the claimant and remit forth with the amount so deducted to the co-operative."1

To show that such is futile, the appealed decision, as quoted in the brief for petitioner-appellant,
stated the following: "Then petitioner contends that under the above provisions of Rep. Act 2023,
the loans granted by credit union to its members enjoy first priority in the payroll collection from the
respondent's employees' wages and salaries. As can be clearly seen, there is nothing in the
provision of Rep. Act 2023 hereinabove quoted which provides that obligation of laborers and
employees payable to credit unions shall enjoy first priority in the deduction from the employees'
wages and salaries. The only effect of Rep. Act 2023 is to compel the employer to deduct from the
salaries or wages payable to members of the employees' cooperative credit unions the employees'
debts to the union and to pay the same to the credit union. In other words, if Rep. Act 2023 had
been enacted, the employer could not be compelled to act as the collecting agent of the employees'
credit union for the employees' debt to his credit union but to contend that the debt of a member
of the employees cooperative credit union as having first priority in the matter of deduction, is to
write something into the law which does not appear. In other words, the mandatory character of
Rep. Act 2023 is only to compel the employer to make the deduction of the employees' debt from
the latter's salary and turn this over to the employees' credit union but this mandatory character
does not convert the credit union's credit into a first priority credit. If the legislative intent in enacting
pars. 1 and 2 of Sec. 62 of Rep. Act 2023 were to give first priority in the matter of payments to the
obligations of employees in favor of their credit unions, then, the law would have so expressly
declared. Thus, the express provisions of the New Civil Code, Arts. 2241, 2242 and 2244 show
the legislative intent on preference of credits. 2

Such an interpretation, as could be expected, found favor with the respondent-appellee, which, in
its brief, succinctly pointed out "that there is nothing in said provision from which it could be implied
that it gives top priority to obligations of the nature of that payable to petitioner, and that, therefore,
respondent company, in issuing the documents known as Exhibit "3" and Exhibit "P", which
establish the order of priority of payment out of the salaries of the employees of respondent-
appellee, did not violate the above-quoted Section 62 of Republic Act 2023. In promulgating Exhibit
"3", [and] Exhibit "P" respondent, in effect, implemented the said provision of law. 3

This petition being one for mandamus and the provision of law relied upon being clear on its face,
it would appear that no favorable action can be taken on this appeal. We affirm.

1. The applicable provision of Republic Act No. 2023 quoted earlier, speaks for itself. There is no
ambiguity. As thus worded, it was so applied. Petitioner-appellant cannot therefore raise any valid
objection. For the lower court to view it otherwise would have been to alter the law. That cannot
be done by the judiciary. That is a function that properly appertains to the legislative branch. As
was pointed out in Gonzaga v. Court of Appeals: 4 "It has been repeated time and time again that
where the statutory norm speaks unequivocally, there is nothing for the courts to do except to apply
it. The law, leaving no doubt as to the scope of its operation, must be obeyed. Our decisions have
consistently born to that effect. 5.

2. Clearly, then, mandamus does not lie. Petitioner-appellant was unable to show a clear legal
right. The very law on which he would base his action fails to supply any basis for this petition. A
more rigorous analysis would have prevented him from instituting a a suit of this character.
In J.R.S. Business Corporation v. Montesa, 6 this Court held. "Man-damus is the proper remedy if
it could be shown that there was neglect on the part of a tribunal in the performance of an act,
which specifically the law enjoins as a duty or an unlawful exclusion of a party from the use and
enjoyment of a right to which he is entitled. 7 The opinion continued in this wise:"According to
former Chief Justice Moran," only specific legal rights may be enforced by mandamus if they are
clear and certain. If the legal rights are of the petitioner are not well defined, clear, and certain, the
petition must be dismissed. In support of the above view, Viuda e Hijos de Crispulo Zamora v.
Wright was cited. As was there categorically stated: "This court has held that it is fundamental that
the duties to be enforced by mandamus must be those which are clear and enjoined by law or by
reason of official station, and that petitioner must have a clear, legal right to the thing and that it
must be the legal duty of the defendant to perform the required act.' As expressed by the then
Justice Recto in a subsequent opinion: "It is well establish that only specific legal rights are
enforceable by mandamus, that the right sought to be enforced must be certain and clear, and that
the writ not issue in cases where the right is doubtful." To the same effect is the formulation of such
doctrine by former Justice Barrera: "Stated otherwise, the writ never issues in doubtful cases. It
neither confers powers nor imposes duties. It is simply a command to exercise a power already
possessed and to perform a duty already imposed." 8 So it has been since then. 9 The latest
reported case, Province. of Pangasinan v. Reparations Commission, 10 this court speaking through
Justice Concepcion Jr., reiterated such a well-settled doctrine: "It has also been held that it is
essential to the issuance of the writ of mandamus that the plaintiff should have a clear legal right
to the thing demanded, and it must be the imperative duty of the defendant to perform the act
required. It never issues in doubtful cases. 11

WHEREFORE, the appealed decision is affirmed. No pronouncement as to costs.

Barredo, Antonio, Concepcion, Jr., Santos and Abad Santos, JJ., concur.

Aquino, J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-44759 December 17, 1976

LAUREANO FERNANDEZ, petitioner,

vs.
THE HONORABLE JUDGE JAIME M. LANTIN and THE CITY FISCAL OF QUEZON
CITY, respondents.

E. B. Garcia & Associates for petitioner.

Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Nathanael O. de
Pano, Jr. and Trial Attorney Magdangal M. de Leon for respondents.

ANTONIO, J.:

Petitioner, who is charged with Libel in Criminal Case No. Q-4141, entitled "People of the
Philippines vs. Atty. Laureano B. Fernandez", questions in this petition for certiorari the validity of
the Order of respondent Judge denying his "motion to Quash." At issue is whether the criminal
action for defamation subject to the case consists in the imputation of a crime which cannot be
prosecuted de oficio. The following are the relevant facts:

On August 12, 1974, an Information for Libel in Criminal Case No. Q-4141 was filed against
petitioner Laureano Fernandez by Assistant City Fiscal Rogelio U. Concepcion. The
information, 1 accused petitioner of the crime of Libel, consisting in his having written and caused
the publication of a letter wherein he directly, publicly and maliciously imputed to one Iluminada
Tandiama "the commission of a crime, vice, defect, or any act or omission, with intent to ridicule,
put to hate, shame and embarrass said Iluminada Tandiama." More explicitly, it was stated in said
letter that:

a) One Iluminada Tandiama, an employee in the Bureau and married to Celedonio

Tandiama, also employee and nephew of Mrs. Caridad T. Raval was allegedly
discovered having an illicit relationship with another man who was also employed
as a Prison Guard. The said prison guard and alleged paramour of Iluminada
Tandiama is Hector Valdeleon. Action taken by the Acting Director who got sore
when he learned of it — Prison Guard Valdeleon was in no time separated from
the service while the woman involved who is equally guilty, if not more, but who
happened to be the niece of Acting Director and Mrs. Vicente R. Raval by affinity
was spared the axe; and, on top of this, at the expense of the government treasury,
Mrs. Tandiama together with her husband Celedonio Tandiama and children
despite being involved in another administrative case was prematurely transferred
to the San Ramon Prison and Penal Farm of Zamboanga City by the Acting
Director; perhaps, so the prison officials and employees in the NBP who knew of
the case would forget it if she is not around. 2

Petitioner filed a "Motion to Quash" 3 the above Information, predicating the same upon the
provisions of Article 360 of the Revised Penal Code, which states, in part, that "no criminal action
for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio
shall be brought except at the instance of and upon complaint filed by the offended party", and
calling the attention of the court to the fact that the Information was signed, not by the alleged
offended party, but by the Assistant City Fiscal.

On June 8, 1976, Assistant City Fiscal Margarito S. Viola filed an "Opposition" to the Motion to
Quash, 4 stating, in effect, that "illicit relation" does not necessarily mean "unlawful cohabitation or
intercourse", much less does it connote adultery, concubinage, rape, seduction, abduction and
acts of lasciviousness, the imputation of any of which crimes would necessitate the
commencement by the offended party of the action for defamation. An "Addendum to the
Opposition to Motion to Quash " 5 was filed by Assistant City Fiscal Viola, further elaborating upon
his thesis that the libelous letter did not impute the commission of adultery, but some other form of
unlawful relationship, and that at any rate the alleged defamatory statements also advert to the
fact that Valdeleon was victim of compartmentalized justice.

Petitioner filed a "Reply to the Opposition to Motion to Quash", 6 bringing out the point "that the
alleged libelous imputation is an issue in an administrative case against the Acting Director Vicente
R. Raval of the Bureau of Prisons, now presently under investigation by the Department of Justice.
Clearly, ergo, the same is covered by Art. 354, Par. 1 RPC, which is a qualified privileged
communication."

On July 28, 1976, respondent Judge issued an Order, 7 holding that "the slanderous imputation of
the alleged illicit relationship between complainant and a prison guard could be a vice or defect, in
which case Article 360 of the Revised Penal Code does not apply. What the law only exacts is that
a criminal action for defamation be filed upon the complaint of the offended party where the crime
imputed cannot be prosecuted de oficio, such as adultery, concubinage, rape, seduction,
abduction, or acts of lasciviousness", and denying the Motion to Quash.

Within the period allowed by law, petitioner filed a "Motion for

Reconsideration" 8 of the foregoing Order, but said motion was denied "for lack of merit" on August
11, 1976.

This Court, on October 18, 1976, resolved to require the respondents to file their Comment to the
instant petition.

On November 15, 1976, the Acting Solicitor General, in behalf of the respondents, commented
that:

* * * petitioner's malicious imputations refer not only to the offended party's having
an "illicit relation" with, and her being a "paramour" of, one named Hector
Valdeleon, but likewise to the "premature transfer" of offended party and her family
to the San Ramon Penal Farm in Zamboanga City so that the prison officials and
employees who knew of the case would forget if she is not around. It is thus
apparent that aside from the derogation of offended party's integrity, honor and
reputation in the first portion * * *, petitioner goes on with his defamatory story,
alleging that in order to spare the offended party from further disgrace and obloquy
arising from the discovery of her "illicit relation" with another man, the Acting
Director of Prisons, being her relative by affinity, caused her "premature transfer"
to San Ramon Penal Farm in Zamboanga City "at the expense of the government
treasury". 9

It is further averred that the words "illicit relation" and "paramour" do not exclusively connote the
commission of adultery, and that the "mere fact that a married woman is alleged as having 'illicit
relation' with a man who is her 'paramour' would not necessarily make her adulterous within legal
contemplation."

Thereafter, the Comment of the Acting Solicitor General was considered as the answer of the
respondents and this case was considered submitted for decision on the basis of the pleadings.
It is undeniable that the thrust of the letter-complaint in question is that while Iluminada Tandiama,
wife of Celedonio Tandiama, nephew of the wife of the Acting Director of Prisons and an employee
of the Bureau of Prisons, was discovered having illicit relations with Prison Guard Hector
Valdeleon, the latter being the paramour of Iluminada, was separated from the service by the
Acting Director of Prisons because of such illicit relationship, while Iluminada, who is "equally guilty,
if not more" was spared the axe. Although the foregoing appears to imply that the Acting Director
of Prisons exercised partiality and undue favoritism in favor of a relative, there is no question that
this is predicated on the alleged discovery by said official of the existence of an illicit relationship
between Iluminada and Hector, the former being the paramour of the latter. When the term "illicit
relationship" is used to describe the relationship between a married woman and a man other than
her husband and at the same time the former is labelled as the paramour of the latter, there can
be no other purpose than to imply that the two are having carnal intercourse with each other. Thus,
the phrase "illicit relationship" when used in a complaint for abduction had been construed to mean
clearly the existence of an unlawful sexual intercourse. 10 Similarly, the word "paramour", according
to Webster, is "one who loves or is loved illicitly; one taking the place without the legal rights of a
husband or wife; mistress — called also lover." 11 The term "mistress" means "a woman with whom
a man habitually fornicates". 12 To state that Iluminada Tandiama is having carnal intercourse with
Hector Valdeleon is to accuse her, therefore, of committing adultery. For adultery means the carnal
relation between a married woman and a man who is not her husband, the latter knowing her to
be married. 13 Adultery is not a continuous crime, and the culprits commit adultery on every sexual
intercourse. As the Supreme Court of Spain has held: 14 "It is a crime of result and not of tendency.
It is an instantaneous crime which is consummated and exhausted or completed at the moment of
the carnal union. Each sexual intercourse constitutes a crime of adultery." 15

The provision of paragraph 4 of Article 360 of the Revised Penal Code requires that if the
defamation consists in the imputation of a crime against chastity, such as adultery, concubinage,
rape, seduction and acts of lasciviousness, a complaint by the offended party is required. 16 When
the libel imputes the commission of a crime which can be prosecuted de oficio, or attributes a vice
or defect not constituting a crime, the Information upon the court to try the defendant charged with
the crime. 17

Thus, in a case where the Fiscal filed an Information charging the accused with "telling some
people in the neighborhood that said Fausta Bravo (a married woman) was a paramour of one
Sangalang, a man not her husband", and Fausta Bravo did not subscribe to the complaint, this
Court held that the trial court had no jurisdiction over the case. It ruled that since the accused
imputed to Fausta Bravo the commission of adultery, a crime which cannot be prosecuted de
oficio, the Information filed by the Fiscal cannot confer jurisdiction upon the court of origin. 18

It must be noted, however, that this error could be corrected without sustaining the motion to quash
and dismissing the case. Pursuant to section 1 of paragraph (a) of Presidential Decree No. 77,
under which the Assistant City Fiscal conducted the preliminary investigation, the statement of the
complainant was sworn to before the aforesaid Investigating Fiscal. Assuming that the recitals in
said sworn statement contain all those required of a complaint under the rules, 19 a copy of said
verified statement of the complainant should be filed with respondent Court in order to comply with
the requirements of Article 360 of the Revised Penal Code; otherwise, the respondent Fiscal
should file with said court a verified complaint of the offended party.

WHEREFORE, in view of the foregoing, the prayer asking that the questioned Order overruling
petitioner's motion to quash be set aside is denied, but the respondent City Fiscal of Quezon City
is hereby directed to file with respondent court, within ten (10) days from notice, either the
aforestated sworn statement of the offended party, or her verified complaint. No special
pronouncement as to costs.

Fernando (Chairman), Barredo, Aquino and Concepcion, Jr., JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 93028 July 29, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARTIN SIMON y SUNGA, respondent.

The Solicitor General for plaintiff-appellee.

Ricardo M.Sampang for accused-appellant.

REGALADO, J.:

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a
violation of Section 4, Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment
alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold
four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of
the sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive
for marijuana.1

Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following
his escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained,2 he
pleaded not guilty. He voluntarily waived his right to a pre-trial conference,3 after which trial on the
merits ensued and was duly concluded.

The evidence on record shows that a confidential informant, later identified as a NARCOM
operative, informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug
activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco
Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then formed a
buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from
Bustamante, the team, together with their informant, proceeded to Sto. Cristo after they had
coordinated with the police authorities and barangay officers thereof. When they reached the
place, the confidential informer pointed out appellant to Lopez who consequently approached
appellant and asked him if he had marijuana. Appellant answered in the affirmative and Lopez
offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to
Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as
payment. Lopez then scratched his head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and
the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested
appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp
Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the
investigator.4
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between
Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and
took the marked money from appellant.5

Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was
stationed farthest from the rest of the other members, that is, around two hundred meters away
from his companions. He did not actually see the sale that transpired between Lopez and appellant
but he saw his teammates accosting appellant after the latter's arrest. He was likewise the one
who conducted the custodial investigation of appellant wherein the latter was apprised of his rights
to remain silent, to information and to counsel. Appellant, however, orally waived his right to
counsel.6

Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated"
which appellant signed, admitting therein the confiscation of four tea bags of marijuana dried
leaves in his possession. Pejoro likewise informed the court below that, originally, what he placed
on the receipt was that only one marijuana leaf was confiscated in exchange for P20.00. However,
Lopez and Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead
of "20". He agreed to the correction since they were the ones who were personally and directly
involved in the purchase of the marijuana and the arrest of appellant.7

Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day
after the latter's apprehension, and the results were practically normal except for his relatively high
blood pressure. The doctor also did not find any trace of physical injury on the person of appellant.
The next day, he again examined appellant due to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a
history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit
blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-
intestinal pain, his physical condition remained normal.8

As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the
day in question, at around 4:30 p.m., he was watching television with the members of his family in
their house when three persons, whom he had never met before suddenly arrived. Relying on the
assurance that they would just inquire about something from him at their detachment, appellant
boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed
that they were taking a different route. While on board, he was told that he was a pusher so he
attempted to alight from the jeep but he was handcuffed instead. When they finally reached the
camp, he was ordered to sign some papers and, when he refused, he was boxed in the stomach
eight or nine times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on
the documents presented to him. He denied knowledge of the P20.00 or the dried marijuana
leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason
why he vomited blood was because of the blows he suffered at the hands of Pejoro. He admitted
having escaped from the NARCOM office but claimed that he did so since he could no longer
endure the maltreatment to which he was being subjected. After escaping, he proceeded to the
house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30
or 7:30 p.m. There, he consulted a quack doctor and, later, he was accompanied by his sister to
the Romana Pangan District Hospital at Floridablanca, Pampanga where he was confined for three
days.9

Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at
Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise
confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest.10 Also,
Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that
she treated appellant for three days due to abdominal pain, but her examination revealed that the
cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious
external injury, abrasion or contusion on his body.11
On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment
convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended,
and sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand
pesos and to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered
confiscated in favor of the Government.12

Appellant now prays the Court to reverse the aforementioned judgment of the lower court,
contending in his assignment of errors that the latter erred in (1) not upholding his defense of
"frame-up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in
evidence, and (3) convicting him of a violation of the Dangerous Drugs Act.13

At the outset, it should be noted that while the People's real theory and evidence is to the effect
the appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea
bags were merely confiscated subsequently from his possession,14 the latter not being in any way
connected with the sale, the information alleges that he sold and delivered four tea bags of
marijuana dried leaves.15 In view thereof, the issue presented for resolution in this appeal is merely
the act of selling the two tea bags allegedly committed by appellant, and does not include the
disparate and distinct issue of illegal possession of the other two tea bags which separate offense
is not charged herein.16

To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
established.17 To sell means to give, whether for money or any other material consideration.18 It
must, therefore, be established beyond doubt that appellant actually sold and delivered two tea
bags of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two
twenty-peso bills.

After an assiduous review and calibration of the evidence adduced by both parties, we are morally
certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited
drugs. The prosecution was able to prove beyond a scintilla of doubt that appellant, on October
22, 1988, did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably
testified as to how the sale took place and his testimony was amply corroborated by his teammates.
As between the straightforward, positive and corroborated testimony of Lopez and the bare denials
and negative testimony of appellant, the former undeniably deserves greater weight and is more
entitled to credence.

We are aware that the practice of entrapping drug traffickers through the utilization of poseur-
buyers is susceptible to mistake, harassment, extortion and abuse.19 Nonetheless, such causes for
judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest
were not effected in a haphazard way, for a surveillance was conducted by the team before the
buy-bust operation was effected.20 No ill motive was or could be attributed to them, aside from the
fact that they are presumed to have regularly performed their official duty.21 Such lack of dubious
motive coupled with the presumption of regularity in the performance of official duty, as well as the
findings of the trial court on the credibility of witnesses, should prevail over the self-serving and
uncorroborated claim of appellant of having been framed,22 erected as it is upon the mere shifting
sands of an alibi. To top it all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to
controvert the charge, he does not appear to have plausibly done so.

When the drug seized was submitted to the Crime Laboratory Service of the then Philippine
Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn
Salangad, a forensic chemist therein,23confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and had a total weight of
3.8 grams of marijuana.24 Thus, the corpus delicti of the crime had been fully proved with certainty
and conclusiveness.25
Appellant would want to make capital of the alleged inconsistencies and improbabilities in the
testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really
confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had
nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property
Seized/Confiscated," he signed it as the one who seized the same.26

Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really
matter since such is not an element of the offense with which appellant is charged. What is
unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even,
assuming arguendo that the prosecution committed an error on who actually seized the marijuana
from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither
impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses'
honesty.27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant
that he did not take part in the physical taking of the drug from the person of appellant, but he
participated in the legalseizure or confiscation thereof as the investigator of their unit.

Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him
were not powdered for finger-printing purposes contrary to the normal procedure in buy-bust
operations.28 This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his
testimony, as follows:

Q: Is it the standard operating procedure of your unit that in

conducting such operation you do not anymore provide a powder
(sic) on the object so as to determine the thumbmark or identity of
the persons taking hold of the object?

A: We were not able to put powder on these denominations

because we are lacking that kind of material in our office since that
item can be purchased only in Manila and only few are producing
that, sir.

xxx xxx xxx

Q: Is it not a fact that your office is within (the) P.C. Crime

Laboratory, CIS, as well as the office of NICA?

A: Our office is only adjacent to those offices but we cannot make

a request for that powder because they, themselves, are using that
in their own work, sir.29

The foregoing explanation aside, we agree that the failure to mark the money bills used for
entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution
because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions."30 The dusting of said bills with
phosphorescent powder is only an evidentiary technique for identification purposes, which
identification can be supplied by other species of evidence.

Again, appellant contends that there was neither a relative of his nor any barangay official or
civilian to witness the seizure. He decries the lack of pictures taken before, during and after his
arrest. Moreover, he was not reported to or booked in the custody of any barangay official or police
authorities.31 These are absurd disputations. No law or jurisprudence requires that an arrest or
seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be
accompanied by the taking of pictures. On the contrary, the police enforcers having caught
appellant in flagrante delicto, they were not only authorized but were also under the obligation to
effect a warrantless arrest and seizure.
Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in
connection with his apprehension. Said Booking Sheet and Arrest Report32 states, inter alia, that
"suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the
confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks
was affixed appellant's signature. In the same manner, the receipt for the seized property,
hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of
the marked bills from him.33

However, we find and hereby declare the aforementioned exhibits inadmissible in evidence.
Appellant's conformance to these documents are declarations against interest and tacit admissions
of the crime charged. They were obtained in violation of his right as a person under custodial
investigation for the commission of an offense, there being nothing in the records to show that he
was assisted by counsel.34 Although appellant manifested during the custodial investigation that he
waived his right to counsel, the waiver was not made in writing and in the presence of
counsel,35 hence whatever incriminatory admission or confession may be extracted from him, either
verbally or in writing, is not allowable in evidence.36 Besides, the arrest report is self-serving and
hearsay and can easily be concocted to implicate a suspect.

Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be

extricated from his predicament since his criminal participation in the illegal sale of marijuana has
been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires
merely the consummation of the selling transaction37 which happens the moment the buyer
receives the drug from the seller.38 In the present case, and in light of the preceding discussion,
this sale has been ascertained beyond any peradventure of doubt.

Appellant then asseverates that it is improbable that he would sell marijuana to a total
stranger.39 We take this opportunity to once again reiterate the doctrinal rule that drug-pushing,
when done on a small scale as in this case, belongs to that class of crimes that may be committed
at any time and in any place.40 It is not contrary to human experience for a drug pusher to sell to a
total stranger,41 for what matters is not an existing familiarity between the buyer and seller but their
agreement and the acts constituting the sale and delivery of the marijuana leaves.42 While there
may be instances where such sale could be improbable, taking into consideration the diverse
circumstances of person, time and place, as well as the incredibility of how the accused supposedly
acted on that occasion, we can safely say that those exceptional particulars are not present in this
case.

Finally, appellant contends that he was subjected to physical and mental torture by the arresting
officers which caused him to escape from Camp Olivas the night he was placed under
custody.43 This he asserts to support his explanation as to how his signatures on the documents
earlier discussed were supposedly obtained by force and coercion.

The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it
must not only proceed from the mouth of a credible witness but must be credible in itself such as
the common experience and observation of mankind can approve as probable under the
circumstances.44 The evidence on record is bereft of any support for appellant's allegation of
maltreatment. Two doctors, one for the prosecution45 and the other for the defense,46 testified on
the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person
of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from
which he had been suffering even before his arrest.47 His own brother even corroborated that fact,
saying that appellant has had a history of bleeding peptic ulcer.48

Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason
whatsoever for not divulging the same to his brother who went to see him at the camp after his
arrest and during his detention there.49Significantly, he also did not even report the matter to the
authorities nor file appropriate charges against the alleged malefactors despite the opportunity to
do so50 and with the legal services of counsel being available to him. Such omissions funnel down
to the conclusion that appellant's story is a pure fabrication.

These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless
and premeditated for the NARCOM agents were determined to arrest him at all
costs.51 Premeditated or not, appellant's arrest was only the culmination, the final act needed for
his isolation from society and it was providential that it came about after he was caught in the very
act of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of
affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was
further amended by Republic Act No. 7659 effective December 31, 1993,52 which supervenience
necessarily affects the original disposition of this case and entails additional questions of law which
we shall now resolve.

II

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar,
are to this effect:

Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, are hereby amended to read as
follows:

xxx xxx xxx

Sec. 4. Sale, Administration, Delivery, Distribution and

Transportation of Prohibited Drugs. — The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give away
to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions.

xxx xxx xxx

Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as
the Dangerous Drugs Act of 1972, is hereby amended to read as follows:

Sec. 20. Application of Penalties, Confiscation and Forfeiture of the

Proceeds or Instrument of the Crime. — The penalties for offenses
under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A,
15 and 16 of Article III of this Act shall be applied if the dangerous
drugs involved is in any of the following quantities:

xxx xxx xxx

5. 750 grams or more of indian hemp or marijuana

xxx xxx xxx

Otherwise, if the quantity involved is less than the foregoing

quantities, the penalty shall range from prision
correccional to reclusion perpetua depending upon the quantity.

1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana
with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of
those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic
Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder,
pursuant to Article 22 of the Revised Penal Code.

Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in
substitution of the previous Articles 190 to 194 of the Revised Penal Code,53 it has long been settled
that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to
and shall be given retrospective effect to crimes punished by special laws.54 The execution in said
article would not apply to those convicted of drug offenses since habitual delinquency refers to
convictions for the third time or more of the crimes of serious or less serious physical injuries, robo,
hurto, estafa or falsification.55

Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been
involved nor invoked in the present case, a corollary question would be whether this court, at the
present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant.
That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:

. . . . The plain precept contained in article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to persons accused of a
felony, would be useless and nugatory if the courts of justice were not under
obligation to fulfill such duty, irrespective of whether or not the accused has applied
for it, just as would also all provisions relating to the prescription of the crime and
the penalty.

If the judgment which could be affected and modified by the reduced penalties provided in Republic
Act No. 7659 has already become final and executory or the accused is serving sentence
thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate
the matter being brought to the judicial authorities for relief under a writ of habeas corpus.56

2. Probably through oversight, an error on the matter of imposable penalties appears to have been
committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial
reconciliation and craftsmanship.

As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended,
imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to
P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away,
distribute, dispatch in transit or transport any prohibited drug. That penalty, according to the
amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of
indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range
from prision correccional to reclusion perpetua depending upon the quantity.

In other words, there is here an overlapping error in the provisions on the penalty of reclusion
perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the
marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana
involved is 750 grams or more. The same error has been committed with respect to the other
prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting
provisions in order to give effect to the whole law,57 we hereby hold that the penalty to be imposed
where the quantity of the drugs involved is less than the quantities stated in the first paragraph
shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also
concordant with the fundamental rule in criminal law that all doubts should be construed in a
manner favorable to the accused.

3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by
the imposable range of penalties under the second paragraph of Section 20, as now modified, the
law provides that the penalty shall be taken from said range "depending upon the quantity" of the
drug involved in the case. The penalty in said second paragraph constitutes a complex one
composed of three distinct penalties, that is, prision correccional,prision mayor, and reclusion
temporal. In such a situation, the Code provides that each one shall form a period, with the lightest
of them being the minimum, the next as the medium, and the most severe as the maximum period.58

Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances
determine which period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however,
is its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of
the drug subject of the criminal transaction.59 Accordingly, by way of exception to Article 77 of the
Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid
component penalties shall be considered as a principal imposable penalty depending on the
quantity of the drug involved. Thereby, the modifying circumstances will not altogether be
disregarded. Since each component penalty of the total complex penalty will have to be imposed
separately as determined by the quantity of the drug involved, then the modifying circumstances
can be used to fix the proper period of that component penalty, as shall hereafter be explained.

It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid
disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the
drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and
double or treble the same, to be respectively the bases for allocating the penalty proportionately
among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved
is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499
grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the
penalty is reclusion perpetua to death.60

Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty
of prision correccional is consequently indicated but, again, another preliminary and cognate issue
has first to be resolved.

4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty,
it consists of three periods as provided in the text of and illustrated in the table provided by Article
76 of the Code. The question is whether or not in determining the penalty to be imposed, which is
here to be taken from the penalty of prision correccional, the presence or absence of mitigating,
aggravating or other circumstances modifying criminal liability should be taken into account.

We are not unaware of cases in the past wherein it was held that, in imposing the penalty for
offenses under special laws, the rules on mitigating or aggravating circumstances under the
Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in
said cases, however, reveals that the reason therefor was because the special laws involved
provided their own specific penalties for the offenses punished thereunder, and which penalties
were not taken from or with reference to those in the Revised Penal Code. Since the penalties then
provided by the special laws concerned did not provide for the minimum, medium or maximum
periods, it would consequently be impossible to consider the aforestated modifying circumstances
whose main function is to determine the period of the penalty in accordance with the rules in Article
64 of the Code.

This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws,
since the penalties in the latter were not components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special
laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical
impossibility of, or a prohibition in the special law against, such supplementary application.
The situation, however, is different where although the offense is defined in and ostensibly
punished under a special law, the penalty therefor is actually taken from the Revised Penal Code
in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under
the system of penalties native to said Code. When, as in this case, the law involved speaks
of prision correccional, in its technical sense under the Code, it would consequently be both
illogical and absurd to posit otherwise. More on this later.

For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425,
as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period
thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or
aggravating circumstance.

5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed
for offenses under special laws would be necessary.

Originally, those special laws, just as was the conventional practice in the United States but
differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided
for one specific penalty or a range of penalties with definitive durations, such as imprisonment for
one year or for one to five years but without division into periods or any technical statutory
cognomen. This is the special law contemplated in and referred to at the time laws like the
Indeterminate Sentence Law61 were passed during the American regime.

Subsequently, a different pattern emerged whereby a special law would direct that an offense
thereunder shall be punished under the Revised Penal Code and in the same manner provided
therein. Inceptively, for instance, Commonwealth Act No. 30362 penalizing non-payment of salaries
and wages with the periodicity prescribed therein, provided:

Sec. 4. Failure of the employer to pay his employee or laborer as required by

section one of this Act, shall prima facie be considered a fraud committed by such
employer against his employee or laborer by means of false pretenses similar to
those mentioned in article three hundred and fifteen, paragraph four, sub-
paragraph two (a) of the Revised Penal Code and shall be punished in the same
manner as therein provided.63

Thereafter, special laws were enacted where the offenses defined therein were specifically
punished by the penalties as technically named and understood in the Revised Penal Code. These
are exemplified by Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged
from arresto mayor to
death; Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto
64

mayor to prision mayor; and Presidential Decree

No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor
may involve prision mayor, reclusion temporal, reclusion perpetua or death.

Another variant worth mentioning is Republic Act No. 6539

(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8
months and not more than 17 years and 4 months, when committed without violence or intimidation
of persons or force upon things; not less than 17 years and 4 months and not more than 30 years,
when committed with violence against or intimidation of any person, or force upon things; and life
imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed.

With respect to the first example, where the penalties under the special law are different from and
are without reference or relation to those under the Revised Penal Code, there can be no
suppletory effect of the rules for the application of penalties under said Code or by other relevant
statutory provisions based on or applicable only to said rules for felonies under the Code. In this
type of special law, the legislative intendment is clear.
The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While
it is true that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period
of reclusion temporal,such technical term under the Revised Penal Code is not given to that
penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying
circumstances stated in the law do not correspond to those in the Code. The rules on penalties in
the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the
same formulation.

On the other hand, the rules for the application of penalties and the correlative effects thereof under
the Revised Penal Code, as well as other statutory enactments founded upon and applicable to
such provisions of the Code, have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these
are special laws, the fact that the penalties for offenses thereunder are those provided for in the
Revised Penal code lucidly reveals the statutory intent to give the related provisions on penalties
for felonies under the Code the corresponding application to said special laws, in the absence of
any express or implicit proscription in these special laws. To hold otherwise would be to sanction
an indefensible judicial truncation of an integrated system of penalties under the Code and its allied
legislation, which could never have been the intendment of Congress.

In People vs. Macatanda,65 a prosecution under a special law (Presidential Decree No. 533,
otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution
that Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We
said therein that —

We do not agree with the Solicitor General that P.D. 533 is a special law entirely
distinct from and unrelated to the Revised Penal Code. From the nature of the
penalty imposed which is in terms of the classification and duration of penalties as
prescribed in the Revised Penal Code, which is not for penalties as are ordinarily
imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as
an amendment of the Revised Penal Code, with respect to the offense of theft of
large cattle (Art. 310) or otherwise to be subject to applicable provisions thereof
such as Article 104 of the Revised Penal Code . . . . Article 64 of the same Code
should, likewise, be applicable, . . . . (Emphasis supplied.)

More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal
Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more
recent pronouncement:

. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal
Code shall be "supplementary" to special laws, this Court held that where the
special law expressly grants to the court discretion in applying the penalty
prescribed for the offense, there is no room for the application of the provisions of
the Code . . . .

The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no
explicit grant of discretion to the Court in the application of the penalty prescribed
by the law. In such case, the court must be guided by the rules prescribed by the
Revised Penal Code concerning the application of penalties which distill the "deep
legal thought and centuries of experience in the administration of criminal laws."
(Emphasis ours.)66

Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended
by Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties
defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much
more reason should the provisions of said Code on the appreciation and effects of all attendant
modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications
of penalties and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if
they would result in absurdities as will now be explained.

While not squarely in issue in this case, but because this aspect is involved in the discussion on
the role of modifying circumstances, we have perforce to lay down the caveat that mitigating
circumstances should be considered and applied only if they affect the periods and the degrees of
the penalties within rational limits.

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree
of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of
penalties in Article 71, are the stage of execution of the crime and the nature of the participation of
the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary
mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by
one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67
and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles
64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the
aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results
which could not have been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner
not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by
analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two
penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist
of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied,
and since the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would
be arresto menor, destierro and arresto mayor. There could, however, be no further reduction by
still one or two degrees, which must each likewise consist of three penalties, since only the
penalties of fine and public censure remain in the scale.

The Court rules, therefore, that while modifying circumstances may be appreciated to determine
the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case
should such graduation of penalties reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component penalties in the second paragraph of
Section 20 shall each be considered as an independent principal penalty, and that the lowest
penalty should in any event be prision correccional in order not to depreciate the seriousness of
drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to
be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution
cannot be forged from an imperfect law, which impasse should now be the concern of and is
accordingly addressed to Congress.

6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now
before us. Apparently it does, since drug offenses are not included in nor has appellant committed
any act which would put him within the exceptions to said law and the penalty to be imposed does
not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved
will exceed one year of imprisonment.68 The more important aspect, however, is how the
indeterminate sentence shall be ascertained.

It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under
the Revised Penal Code, states that "if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same." We hold that this quoted portion of the section indubitably refers to an
offense under a special law wherein the penalty imposed was not taken from and is without
reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may
be said that the "offense is punished" under that law.

There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses
under special laws was necessary because of the nature of the former type of penalties under said
laws which were not included or contemplated in the scale of penalties in Article 71 of the Code,
hence there could be no minimum "within the range of the penalty next lower to that prescribed by
the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties
in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and
last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding
is but an application and is justified under the rule of contemporanea expositio.69

We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of determining the maximum of said
sentence, we
have applied the provisions of the amended Section 20 of said law to arrive at prision
correccional and Article 64 of the Code to impose the same in the medium period. Such offense,
although provided for in a special law, is now in effect punished by and under the Revised Penal
Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section
1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposedunder the rules of said Code, and the minimum which shall be within the range
of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.)

A divergent pedantic application would not only be out of context but also an admission of the
hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone
only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions.
Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted
of offenses punished with death penalty or life imprisonment," we have held that what is
considered is the penalty actually imposed and not the penalty imposable under the law,70and
that reclusion perpetua is likewise embraced therein although what the law states is "life
imprisonment".

What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence
of the principles of literal interpretation, which have been rationalized by comparative decisions of
this Court; of historical interpretation, as explicated by the antecedents of the law and related
contemporaneous legislation; and of structural interpretation, considering the interrelation of the
penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it
follows that the minimum of the indeterminate sentence in this case shall be the penalty next
lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity
in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode
of interpretation.71

The indeterminate Sentence Law is a legal and social measure of compassion, and should be
liberally interpreted in favor of the accused.72 The "minimum" sentence is merely a period at which,
and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve
the balance of his sentence outside of his confinement.73 It does not constitute the totality of the
penalty since thereafter he still has to continue serving the rest of his sentence under set
conditions. That minimum is only the period when the convict's eligibility for parole may be
considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or
his reincarceration may be ordered on legal grounds, even if he has served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the
benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision
correccional which is the maximum range we have fixed through the application of Articles 61 and
71 of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence
at 6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The
difference, which could thereby even involve only one day, is hardly worth the creation of an
overrated tempest in the judicial teapot.

ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the
court a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the
MODIFICATION that he should be, as he hereby is, sentenced to serve an indeterminate penalty
of six (6) months of arresto mayor, as the minimum, to six (6) years of prision correccional, as the
maximum thereof.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza,
JJ., concur.

Bellosillo, J., is on leave.

Separate Opinions

DAVIDE, JR., J., concurring and dissenting:

I am still unable to agree with the view that (a) in appropriate cases where the penalty to be
imposed would beprision correccional pursuant to the second paragraph of Section 20 of R.A. No.
6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the
Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within
the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more
mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating
circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed,
taking into account the quantity of the dangerous drugs involved, would be prision correccional.

The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence also their technical
signification and effects, then what should govern is the first part of Section 1 of the Indeterminate
Sentence Law which directs that:

in imposing a prison sentence for an offense punished by the Revised Penal Code,
or its amendments, the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said Code, and
 the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense.

Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the
offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter
offenses would now be considered as punished under the Revised Penal Code for purposes of the
Indeterminate Sentence Law.

Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and
R.A. No. 4203) also provides that:

if the offense is punished by any other law, the court shall sentence the accused
to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
prescribed by the same (Emphasis supplied).

There are, therefore, two categories of offenses which should be taken into account in the
application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code,
and (2) offenses punished by other laws (or special laws).

The offenses punished by the Revised Penal Code are those defined and penalized in Book II
thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime
is deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime
and is punished by a penalty which is included in the classification of Penalties in Chapter II, Title
III of Book I thereof.

On the other hand, an offense is considered punished under any other law (or special law) if it is
not defined and penalized by the Revised Penal Code but by such other law.

It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the
penalty therefor are found in the said Code, and it is deemed punished by a special law if its
definition and the penalty therefor are found in the special law. That the latter imports or borrows
from the Revised Penal Code its nomenclature of penalties does not make an offense in the special
law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still
the special law that defines the offense and imposes a penalty therefor, although it adopts the
Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the
Revised Penal Code can by no means make an offense thereunder an offense "punished or
punishable" by the Revised Penal Code.

Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed
by the Revised Penal Code in drug cases, offenses related to drugs should now be considered
as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably,
to declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code
regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory
penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories
(Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among
others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely
hard to justify.

I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the
Revised Penal Code does not make an offense under the Dangerous Drugs Act an
offense punished by the Revised Penal Code. Consequently, where the proper penalty to be
imposed under Section 20 of the Dangerous Drugs Act is prisioncorreccional, then, applying the
Indeterminate Sentence Law, the indeterminate sentence to be meted on the accused should be
that whose minimum should not be less than the minimum prescribed by the special law (the
Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional.
II

The majority opinion holds the view that while the penalty provided for in Section 20 of the
Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision
correccional, prision mayor, and reclusion temporal,and that pursuant to Article 77 of the Revised
Penal Code, each should form a period, with the lightest of them being the minimum, the next as
the medium, and the most severe as the maximum, yet, considering that under the said second
paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal
transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the
purpose of Section 20, as amended, each of the aforesaid component penalties shall be
considered as a principal penalty depending on the quantity of the drug involved. Thereafter,
applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper
period of the component penalty shall then be fixed.

To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper
principal penalty should be prision correccional, but there is one mitigating and no aggravating
circumstance, then the penalty to be imposed should be prision correccional in its minimum period.
Yet, the majority opinion puts a limit to such a rule. It declares:

The Court rules, therefore, that while modifying circumstances may be appreciated
to determine the periods of the corresponding penalties, or even reduce the penalty
by degrees, in no case should such graduation of penalties reduce the imposable
penalty beyond or lower than
prision correccional. It is for this reason that the three component penalties in the
second paragraph of Section 20 shall each be considered as an independent
principal penalty, and that the lowest penalty should in any event be prision
correccional in order to depreciate the seriousness of drug offenses.

Simply put, this rule would allow the reduction from reclusion
temporal — if it is the penalty to be imposed on the basis of the quantity of the drugs involved —
by two degrees, or to prision correccional, if there are two or more mitigating circumstances and
no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there
is a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under
circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be
imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should
only be reduced by one degree because the rule does not allow a reduction beyond prision
correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all
would be allowed.

I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same
second paragraph involving the same range of penalty, we both allow and disallow the application
of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the
disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing
because Section 20 of the Dangerous Drugs Act, as amended by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis
for the determination of the proper penalty and limiting fine only to cases punishable by reclusion
perpetua to death. It is unfair because an accused who is found guilty of possessing MORE
dangerous
drugs — say 500 to 749 grams of marijuana, in which case the penalty to be imposed would
be reclusion temporal— may only be sentenced to six (6) months and one (1) day of prision
correccional minimum because of privileged mitigating circumstances. Yet, an accused who is
found guilty of possession of only one (1) gram of marijuana — in which case the penalty to be
imposed is prision correccional — would not be entitled to a reduction thereof even if he has the
same number of privileged mitigating circumstances as the former has.
Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he
is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised
Penal Code, which reads:

Art. 68. Penalty to be imposed upon a person under eighteen years of age. —
When the offender is a minor under eighteen years and his case is one coming
under the provisions of the paragraph next to the last of Article 80 of this Code, the
following rules shall be observed:

1. Upon a person under fifteen but over nine years of age, who is
not exempted from liability by reason of the court having declared
that he acted with discernment, a discretionary penalty shall be
imposed, but always lower by two degrees at least than that
prescribed by law for the crime which he committed.

2. Upon a person over fifteen and under eighteen years of age the
penalty next lover than that prescribed by law shall be imposed, but
always in the proper period.

I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as
amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in
one aspect and not to apply it in another.

Feliciano and Quiason, JJ., concur.

# Separate Opinions

DAVIDE, JR., J., concurring and dissenting:

I am still unable to agree with the view that (a) in appropriate cases where the penalty to be
imposed would beprision correccional pursuant to the second paragraph of Section 20 of R.A. No.
6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the
Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within
the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more
mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating
circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed,
taking into account the quantity of the dangerous drugs involved, would be prision correccional.

The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence also their technical
signification and effects, then what should govern is the first part of Section 1 of the Indeterminate
Sentence Law which directs that:

in imposing a prison sentence for an offense punished by the Revised Penal Code,
or its amendments, the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said Code, and
the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense.
Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the
offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter
offenses would now be considered as punished under the Revised Penal Code for purposes of the
Indeterminate Sentence Law.

Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and
R.A. No. 4203) also provides that:

if the offense is punished by any other law, the court shall sentence the accused
to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
prescribed by the same (Emphasis supplied).

There are, therefore, two categories of offenses which should be taken into account in the
application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code,
and (2) offenses punished by other laws (or special laws).

The offenses punished by the Revised Penal Code are those defined and penalized in Book II
thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime
is deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime
and is punished by a penalty which is included in the classification of Penalties in Chapter II, Title
III of Book I thereof.

On the other hand, an offense is considered punished under any other law (or special law) if it is
not defined and penalized by the Revised Penal Code but by such other law.

It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the
penalty therefor are found in the said Code, and it is deemed punished by a special law if its
definition and the penalty therefor are found in the special law. That the latter imports or borrows
from the Revised Penal Code its nomenclature of penalties does not make an offense in the special
law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still
the special law that defines the offense and imposes a penalty therefor, although it adopts the
Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the
Revised Penal Code can by no means make an offense thereunder an offense "punished or
punishable" by the Revised Penal Code.

Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed
by the Revised Penal Code in drug cases, offenses related to drugs should now be considered
as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably,
to declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code
regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory
penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories
(Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among
others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely
hard to justify.

I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the
Revised Penal Code does not make an offense under the Dangerous Drugs Act an
offense punished by the Revised Penal Code. Consequently, where the proper penalty to be
imposed under Section 20 of the Dangerous Drugs Act is prisioncorreccional, then, applying the
Indeterminate Sentence Law, the indeterminate sentence to be meted on the accused should be
that whose minimum should not be less than the minimum prescribed by the special law (the
Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional.

II
The majority opinion holds the view that while the penalty provided for in Section 20 of the
Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision
correccional, prision mayor, and reclusion temporal,and that pursuant to Article 77 of the Revised
Penal Code, each should form a period, with the lightest of them being the minimum, the next as
the medium, and the most severe as the maximum, yet, considering that under the said second
paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal
transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the
purpose of Section 20, as amended, each of the aforesaid component penalties shall be
considered as a principal penalty depending on the quantity of the drug involved. Thereafter,
applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper
period of the component penalty shall then be fixed.

To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper
principal penalty should be prision correccional, but there is one mitigating and no aggravating
circumstance, then the penalty to be imposed should be prision correccional in its minimum period.
Yet, the majority opinion puts a limit to such a rule. It declares:

The Court rules, therefore, that while modifying circumstances may be appreciated
to determine the periods of the corresponding penalties, or even reduce the penalty
by degrees, in no case should such graduation of penalties reduce the imposable
penalty beyond or lower than
prision correccional. It is for this reason that the three component penalties in the
second paragraph of Section 20 shall each be considered as an independent
principal penalty, and that the lowest penalty should in any event be prision
correccional in order to depreciate the seriousness of drug offenses.

Simply put, this rule would allow the reduction from reclusion
temporal — if it is the penalty to be imposed on the basis of the quantity of the drugs involved —
by two degrees, or to prision correccional, if there are two or more mitigating circumstances and
no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there
is a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under
circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be
imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should
only be reduced by one degree because the rule does not allow a reduction beyond prision
correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all
would be allowed.

I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same
second paragraph involving the same range of penalty, we both allow and disallow the application
of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the
disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing
because Section 20 of the Dangerous Drugs Act, as amended by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis
for the determination of the proper penalty and limiting fine only to cases punishable by reclusion
perpetua to death. It is unfair because an accused who is found guilty of possessing MORE
dangerous
drugs — say 500 to 749 grams of marijuana, in which case the penalty to be imposed would
be reclusion temporal— may only be sentenced to six (6) months and one (1) day of prision
correccional minimum because of privileged mitigating circumstances. Yet, an accused who is
found guilty of possession of only one (1) gram of marijuana — in which case the penalty to be
imposed is prision correccional — would not be entitled to a reduction thereof even if he has the
same number of privileged mitigating circumstances as the former has.

Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he
is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised
Penal Code, which reads:
 Art. 68. Penalty to be imposed upon a person under eighteen years of age. —
When the offender is a minor under eighteen years and his case is one coming
under the provisions of the paragraph next to the last of Article 80 of this Code, the
following rules shall be observed:

1. Upon a person under fifteen but over nine years of age, who is
not exempted from liability by reason of the court having declared
that he acted with discernment, a discretionary penalty shall be
imposed, but always lower by two degrees at least than that
prescribed by law for the crime which he committed.

2. Upon a person over fifteen and under eighteen years of age the
penalty next lover than that prescribed by law shall be imposed, but
always in the proper period.

I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as
amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in
one aspect and not to apply it in another.

Feliciano and Quiason, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 108763 February 13, 1997

REPUBLIC OF THE PHILIPPINES,

vs.
COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, respondents.

PANGANIBAN, J.:

The Family Code of the Philippines provides an entirely new ground (in addition to those
enumerated in the Civil Code) to assail the validity of a marriage, namely, "psychological
incapacity." Since the Code's effectivity, our courts have been swamped with various
petitions to declare marriages void based on this ground. Although this Court had
interpreted the meaning of psychological incapacity in the recent case of Santos vs. Court
of Appeals, still many judges and lawyers find difficulty in applying said novel provision in
specific cases. In the present case and in the context of the herein assailed Decision of the
Court of Appeals, the Solicitor General has labelled — exaggerated to be sure but
nonetheless expressive of his frustration — Article 36 as the "most liberal divorce
procedure in the world." Hence, this Court in addition to resolving the present case, finds
the need to lay down specific guidelines in the interpretation and application of Article 36
of the Family Code.

Before us is a petition for review on certiorari under Rule 45 challenging the January 25,
1993 Decision1 of the Court of Appeals2 in CA-G.R. CV No. 34858 affirming in toto the May
14, 1991 decision of the Regional Trial Court of La Trinidad,3 Benguet, which declared the
marriage of respondent Roridel Olaviano Molina to Reynaldo Molina void ab initio, on the ground
of "psychological incapacity" under Article 36 of the Family Code.

The Facts

This case was commenced on August 16, 1990 with the filing by respondent Roridel O. Molina of
a verified petition for declaration of nullity of her marriage to Reynaldo Molina. Essentially, the
petition alleged that Roridel and Reynaldo were married on April 14, 1985 at the San Agustin
Church4 in Manila; that a son, Andre O. Molina was born; that after a year of marriage, Reynaldo
showed signs of "immaturity and irresponsibility" as a husband and a father since he preferred to
spend more time with his peers and friends on whom he squandered his money; that he depended
on his parents for aid and assistance, and was never honest with his wife in regard to their finances,
resulting in frequent quarrels between them; that sometime in February 1986, Reynaldo was
relieved of his job in Manila, and since then Roridel had been the sole breadwinner of the family;
that in October 1986 the couple had a very intense quarrel, as a result of which their relationship
was estranged; that in March 1987, Roridel resigned from her job in Manila and went to live with
her parents in Baguio City; that a few weeks later, Reynaldo left Roridel and their child, and had
since then abandoned them; that Reynaldo had thus shown that he was psychologically incapable
of complying with essential marital obligations and was a highly immature and habitually quarrel
some individual who thought of himself as a king to be served; and that it would be to the couple's
best interest to have their marriage declared null and void in order to free them from what appeared
to be an incompatible marriage from the start.
In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel could no longer live
together as husband and wife, but contended that their misunderstandings and frequent quarrels
were due to (1) Roridel's strange behavior of insisting on maintaining her group of friends even
after their marriage; (2) Roridel's refusal to perform some of her marital duties such as cooking
meals; and (3) Roridel's failure to run the household and handle their finances.

During the pre-trial on October 17, 1990, the following were stipulated:

1. That the parties herein were legally married on April 14, 1985 at the Church of
St. Augustine, Manila;

2. That out of their marriage, a child named Albert Andre Olaviano Molina was born
on July 29, 1986;

3. That the parties are separated-in-fact for more than three years;

4. That petitioner is not asking support for her and her child;

5. That the respondent is not asking for damages;

6. That the common child of the parties is in the custody of the petitioner wife.

Evidence for herein respondent wife consisted of her own testimony and that of her friends
Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker, and of
Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General Hospital and Medical Center. She
also submitted documents marked as Exhibits "A" to "E-1." Reynaldo did not present any evidence
as he appeared only during the pre-trial conference.

On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of
petitioner was denied by the Court of Appeals which affirmed in toto the RTC's decision. Hence,
the present recourse.

The Issue

In his petition, the Solicitor General insists that "the Court of Appeals made an erroneous and
incorrect interpretation of the phrase 'psychological incapacity' (as provided under Art. 36 of the
Family Code) and made an incorrect application thereof to the facts of the case," adding that the
appealed Decision tended "to establish in effect the most liberal divorce procedure in the world
which is anathema to our culture."

In denying the Solicitor General's appeal, the respondent Court relied5 heavily on the trial court's
findings "that the marriage between the parties broke up because of their opposing and conflicting
personalities." Then, it added it sown opinion that "the Civil Code Revision Committee (hereinafter
referred to as Committee) intended to liberalize the application of our civil laws on personal and
family rights. . . ." It concluded that:

As ground for annulment of marriage, We view psychologically incapacity as a

broad range of mental and behavioral conduct on the part of one spouse indicative
of how he or she regards the marital union, his or her personal relationship with the
other spouse, as well as his or her conduct in the long haul for the attainment of
the principal objectives of marriage. If said conduct, observed and considered as a
whole, tends to cause the union to self-destruct because it defeats the very
objectives of marriage, then there is enough reason to leave the spouses to their
individual fates.
 In the case at bar, We find that the trial judge committed no indiscretion in analyzing
and deciding the instant case, as it did, hence, We find no cogent reason to disturb
the findings and conclusions thus made.

Respondent, in her Memorandum, adopts these discussions of the Court of Appeals.

The petitioner, on the other hand, argues that "opposing and conflicting personalities" is not
equivalent to psychological incapacity, explaining that such ground "is not simply the neglect by
the parties to the marriage of their responsibilities and duties, but a defect in their psychological
nature which renders them incapable of performing such marital responsibilities and duties."

The Court's Ruling

The petition is meritorious.

In Leouel Santos vs. Court of Appeals6 this Court, speaking thru Mr. Justice Jose C. Vitug, ruled
that "psychological incapacity should refer to no less than a mental (nor physical) incapacity . . .
and that (t)here is hardly any doubt that the intendment of the law has been to confine the meaning
of 'psychological incapacity' to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.
This psychologic condition must exist at the time the marriage is celebrated." Citing Dr. Gerardo
Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese
of Manila,7Justice Vitug wrote that "the psychological incapacity must be characterized by (a)
gravity, (b) juridical antecedence, and (c) incurability."

On the other hand, in the present case, there is no clear showing to us that the psychological
defect spoken of is an incapacity. It appears to us to be more of a "difficulty," if not outright "refusal"
or "neglect" in the performance of some marital obligations. Mere showing of "irreconciliable
differences" and "conflicting personalities" in no wise constitutes psychological incapacity. It is not
enough to prove that the parties failed to meet their responsibilities and duties as married persons;
it is essential that they must be shown to be incapable of doing so, due to some psychological (nor
physical) illness.

The evidence adduced by respondent merely showed that she and her husband could nor get
along with each other. There had been no showing of the gravity of the problem; neither its juridical
antecedence nor its incurability. The expert testimony of Dr. Sison showed no incurable psychiatric
disorder but only incompatibility, not psychological incapacity. Dr. Sison testified:8

COURT

Q It is therefore the recommendation of the psychiatrist based on

your findings that it is better for the Court to annul (sic) the
marriage?

A Yes, Your Honor.

Q There is no hope for the marriage?

A There is no hope, the man is also living with another woman.

Q Is it also the stand of the psychiatrist that the parties are

psychologically unfit for each other but they are psychologically fit
with other parties?

A Yes, Your Honor.

 Q Neither are they psychologically unfit for their professions?

A Yes, Your Honor.

The Court has no more questions.

In the case of Reynaldo, there is no showing that his alleged personality traits were constitutive of
psychological incapacity existing at the time of marriage celebration. While some effort was made
to prove that there was a failure to fulfill pre-nuptial impressions of "thoughtfulness and gentleness"
on Reynaldo's part of being "conservative, homely and intelligent" on the part of Roridel, such
failure of expectation is nor indicative of antecedent psychological incapacity. If at all, it merely
shows love's temporary blindness to the faults and blemishes of the beloved.

During its deliberations, the Court decided to go beyond merely ruling on the facts of this case vis-
a-vis existing law and jurisprudence. In view of the novelty of Art. 36 of the Family Code and the
difficulty experienced by many trial courts interpreting and applying it, the Court decided to invite
two amici curiae, namely, the Most Reverend Oscar V. Cruz,9 Vicar Judicial (Presiding Judge) of
the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, and Justice
Ricardo C. Puno, 10 a member of the Family Code Revision Committee. The Court takes this
occasion to thank these friends of the Court for their informative and interesting discussions during
the oral argument on December 3, 1996, which they followed up with written memoranda.

From their submissions and the Court's own deliberations, the following guidelines in the
interpretation and application of Art. 36 of the Family Code are hereby handed down for the
guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should
be resolved in favor of the existence and continuation of the marriage and against its dissolution
and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of
marriage and unity of the family. Thus, our Constitution devotes an entire Article on the
Family, 11 recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable,"
thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are
to be "protected" by the state.

The Family Code 12 echoes this constitutional edict on marriage and the family and emphasizes
the permanence, inviolability and solidarity

(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b)
alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision.
Article 36 of the Family Code requires that the incapacity must be psychological — not physical.
although its manifestations and/or symptoms may be physical. The evidence must convince the
court that the parties, or one of them, was mentally or physically ill to such an extent that the person
could not have known the obligations he was assuming, or knowing them, could not have given
valid assumption thereof. Although no example of such incapacity need be given here so as not to
limit the application of the provision under the principle of ejusdem generis, 13 nevertheless such
root cause must be identified as a psychological illness and its incapacitating nature explained.
Expert evidence may be given qualified psychiatrist and clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage.
The evidence must show that the illness was existing when the parties exchanged their "I do's."
The manifestation of the illness need not be perceivable at such time, but the illness itself must
have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to
the assumption of marriage obligations, not necessarily to those not related to marriage, like the
exercise of a profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own children as an essential
obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes,
occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown
as downright incapacity or inability, nor a refusal, neglect or difficulty, much less ill will. In other
words, there is a natal or supervening disabling factor in the person, an adverse integral element
in the personality structure that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family
Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in
regard to parents and their children. Such non-complied marital obligation(s) must also be stated
in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in
the Philippines, while not controlling or decisive, should be given great respect by our courts. It is
clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the
New Code of Canon Law, which became effective in 1983 and which provides:

The following are incapable of contracting marriage: Those who are unable to
assume the essential obligations of marriage due to causes of psychological
nature. 14

Since the purpose of including such provision in our Family Code is to harmonize our civil laws
with the religious faith of our people, it stands to reason that to achieve such harmonization, great
persuasive weight should be given to decision of such appellate tribunal. Ideally — subject to our
law on evidence — what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code provision,
contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the
Church — while remaining independent, separate and apart from each other — shall walk together
in synodal cadence towards the same goal of protecting and cherishing marriage and the family
as the inviolable base of the nation.

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear
as counsel for the state. No decision shall he handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly staring therein his reasons for his
agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the
date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge
the equivalent function of the defensor vinculi contemplated under Canon 1095.

In the instant case and applying Leouel Santos, we have already ruled to grant the petition. Such
ruling becomes even more cogent with the use of the foregoing guidelines.

WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and SET ASIDE.
The marriage of Roridel Olaviano to Reynaldo Molina subsists and remains valid.

SO ORDERED.
Narvasa, C.J., Davide, Jr., Bellosillo, Melo, Puno Francisco, Hermosisima, Jr., and Torres, Jr., JJ.,
concur.

Regalado, Kapunan and Mendoza, JJ., concurs in the result.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the
peculiar facts of the case. As to whether or not the psychological incapacity exists in a given case
calling for annulment of a marriage, depends crucially, more than in any field of the law, on the
facts of the case. In Leouel Santos v. Court of Appealsand Julia Rosario-Bedia Santos, G.R. No.
112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was
psychological incapacity on the part of the wife to discharge the duties of a wife in a valid marriage.
The facts of the present case, after an indepth study, do not support a similar conclusion.
Obviously, each case must be judged, not on the basis of a priori assumptions, predilections or
generalizations but according to its own facts. In the field of psychological incapacity as a ground
for annulment of marriage, it is trite to say that no case is on "all fours" with another case. The trial
judge must take pains in examining the actual millieu and the appellate court must, as much as
possible, avoid substituting its own judgment for that of the trial court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial
Court ruling. upheld petitioner Solicitor General's position that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, for the latter "is not simply
the neglect by the parties to the marriage of their responsibilities and duties, but a defect in their
Psychological nature which renders them incapable of performing such marital responsibilities and
duties.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so
much "psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "It is not enough to prove that the parties failed to meet
their responsibilities and duties as married persons; it is essential that they must be shown to
be incapable of doing so, due to some psychological (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For if it were due to
insanity or defects in the mental faculties short of insanity, there is a resultant defect of vice of
consent, thus rendering the marriage annulable under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to
exclude mental inability to understand the essential nature of marriage and focus strictly on
psychological incapacity is demonstrated in the way the provision in question underwent revisions.

At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages contracted by any party who, at the time of the celebration,
was wanting in the sufficient use of reason or judgment to understand the essential
nature of marriage or was psychologically or mentally incapacitated to discharge
 the essential marital obligations, even if such lack of incapacity is made manifest
after the celebration.

The twists and turns which the ensuing discussion took finally produced the following revised
provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital obligations, even if
such lack or incapacity becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to "wanting
in the sufficient use of reason or judgment to understand the essential nature or marriage" and to
"mentally incapacitated." It was explained that these phrases refer to "defects in the mental
faculties vitiating consent, which is not the idea . . . but lack of appreciation of one's marital
obligation." There being a defect in consent, "it is clear that it should be a ground for voidable
marriage because there is the appearance of consent and it is capable of convalidation for the
simple reason that there are lucid intervals and there are sanity is curable. . . . Psychological
incapacity does not refer to mental faculties and has nothing to do with consent; it refers to
obligations attendant to
marriage."1

My own position as a member of the Committee then was that psychological incapacity is, in a
sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence,"
Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an invention
of some churchmen who are moralists but not canonists, that is why it is considered a weak
phrase." He said that the Code of Canon Law would rather express it as "psychological or mental
incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of
Art. 36 is: "Such incapacity must also be shown to be medically or clinically permanent or incurable.
Such incurability may be absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is
incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of
how they will determine curability and Justice Caguioa agreed that it would be more problematic.
Yet the possibility that one may be cured after the psychological incapacity becomes manifest after
the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa
suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as

contract;

2. reasons of public policy;

3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special
situations," hence its special treatment in Art. 36 in the Family Code as finally enacted.
Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling
marriages that even comes close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage
which stands valid until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are
void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters,
now open to fresh winds of change in keeping with the more permissive mores and practices of
the time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting
marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume the
essential obligations of marriage" provided the model for what is now Art. 36 of the Family Code:
"A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with
respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it actually
declares the marriage null and void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment
process which entails a full tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties
as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law, the former being more strict,
quite a number of married couples have found themselves in limbo — freed from the marriage
bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under
state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into
live-in relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law
Revision Committee decided to engraft the Canon Law concept of psychological incapacity into
the Family Code — and classified the same as a ground for declaring marriages void ab initio or
totally in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly
for psychological incapacity, in effect recognized the same indirectly from a combination of three
old canons: "Canon #1081 required persons to 'be capable according to law' in order to give valid
consent; Canon #1082 required that persons 'be at least not ignorant' of the major elements
required in marriage; and Canon #1087 (the force and fear category) required that internal and
external freedom be present in order for consent to be valid. This line of interpretation produced
two distinct but related grounds for annulment, called 'lack of due discretion' and 'lack of due
competence.' Lack of due discretion means that the person did not have the ability to give valid
consent at the time of the weddingand therefore the union is invalid. Lack of due competence
means that the person was incapable of carrying out the obligations of the promise he or she made
during the wedding ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual
disorders such as homosexuality and nymphomania laid the foundation for a broader approach to
the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for
the first time in several cases that the capacity to give valid consent at the time of marriage was
probably not present in persons who had displayed such problems shortly after the marriage. The
nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated a
cautious willingness to use this kind of hindsight, the way was paved for what came after
1970. Diocesan Tribunals began to accept proof of serious psychological problems that manifested
themselves shortly after the ceremony as proof of an inability to give valid consent at the time of
the ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became
increasingly important in such cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to give professional opinions
about a party's mental at the time of the wedding. These opinions were rarely challenged and
tended to be accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this area did not amount to the addition
of new grounds for annulment, but rather was an accommodation by the Church to the advances
made in psychology during the past decades. There was now the expertise to provide the all-
important connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to
that of a covenant. The result of this was that it could no longer be assumed in annulment
cases that a person who could intellectually understand the concept of marriage could necessarily
give valid consent to marry. The ability to both grasp and assume the real obligations of a mature,
lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent.2

Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to
sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both
spouses from assuming or carrying out the essential obligations of marriage. For marriage . . . is
not merely cohabitation or the right of the spouses to each others' body for heterosexual acts, but
is, in its totality, the right to the community of the whole of life, i.e., the right to a developing. lifelong
relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic
capacity for marriage as presupposing the development of an adult personality; as meaning the
capacity of the spouses to give themselves to each other and to accept the other as a distinct
person; that the spouses must be 'other oriented' since the obligations of marriage are rooted in a
self-giving love; and that the spouses must have the capacity for interpersonal
relationship because marriage is more than just a physical reality but involves a true intertwining
of personalities. The fulfillment of the obligations of marriage depends. according to Church
decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal
sharing and support is held to impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is not considered in isolation but
in reference to the fundamental relationship to the other spouse.3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital
relationship:

The courts consider the following elements crucial to the marital commitment: (1)
a permanent and faithful commitment to the marriage partner; (2) openness to
children and partner; (3) stability; (4) emotional maturity; (5) financial responsibility;
(6) an ability to cope with the ordinary stresses and strains of marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion even

with the best intentions of the parties. Among the psychic factors possibly giving
rise to his or her inability to fulfill marital obligations are the following: (1) antisocial
 personality with its fundamental lack of loyalty to persons or sense of moral values;
(2) hyperesthesia, where the individual has no real freedom of sexual choice; (3)
the inadequate personality where personal responses consistently fallshort of
reasonable expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether
he or she has a case for an annulment on any other terms. A situation that does
not fit into any of the more traditional categories often fits very easily into the
psychological category.

As new as the psychological grounds are, experts are already detecting a shift in
their use. Whereas originally the emphasis was on the parties' inability to exercise
proper judgment at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' to assume or carry out their
responsibilities an obligations as promised (lack of due competence). An
advantage to using the ground of lack of due competence is that the at the time the
marriage was entered into civil divorce and breakup of the family almost is of
someone's failure out marital responsibilities as promisedat the time the marriage
was entered into.4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered
equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia,
the Court held that the failure of the wife to return home from the U.S. or to communicate with her
husband for more then five years is not proof of her psychological incapacity as to render the
marriage a nullity.5 Therefore, Art. 36 is inapplicable and the marriages remain valid and subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals,6 this Court upheld both the
Regional Trial Court and the Court of Appeals in declaring the presence of psychological incapacity
on the part of the husband. Said petitioner husband, after ten (10) months' sleeping with his wife
never had coitus with her, a fact he did not deny but he alleged that it was due to the physical
disorder of his wife which, however, he failed to prove. Goaded by the indifference and stubborn
refusal of her husband to fulfill a basic marital obligation described as "to procreate children based
on the universal principle that procreation of children through sexual cooperation is the basic end
of marriage," the wife brought the action in the lower court to declare the marriage null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded:

If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to psychological incapacity.
Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity.

We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves
trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but
sustain the studied judgment of respondent appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent
psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the
spouses.
VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and
I find to be most helpful the guidelines that he prepared for the bench and the bar in the proper
appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the Philippines"). The
term "psychological incapacity" was neither defined nor exemplified by the Family Code. Thus —

Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only
after its solemnization.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which
drafted the Code explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case
basis, guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals which, although not
binding on the civil courts, may be given persuasive effect since the provision was
taken from Canon Law.1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon
Law —

Canon 1095. (The following persons) are incapable of contracting marriage;

(those) —

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential

matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential
obligations of marriage —

that should give that much value to Canon Law jurisprudence as an aid to the interpretation
and construction of the statutory enactment.2

The principles in the proper application of the law teach us that the several provisions of a Code
must be read like a congruent whole. Thus, in determining the import of "psychological incapacity"
under Article 36, one must also read it along with, albeit to be taken as distinct from, the other
grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that could justify a petition for legal
separation. Care must be observed so that these various circumstances are not applied so
indiscriminately as if the law were indifferent on the matter.

I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals;3 viz:

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code has
not been meant to comprehend all such possible cases of psychoses as, likewise
mentioned by some ecclesiastical authorities, extremely low intelligence,
immaturity, and like circumstances. . . Article 36 of the Family Code cannot be
taken and construed independently of, but must stand in conjunction with, existing
 precepts in our law on marriage. Thus correlated, "psychological incapacity" should
refer to no less than a mental (not physical) incapacity that causes a party to be
truly incognitive of the basic marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage which, as so expressed by
Article 68 of the Family Code, include their mutual obligations to live together,
observe love, respect and fidelity and render help and support. There is hardly any
doubt that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability of the spouse to have
sexual relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial declaration of
nullity of the void marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state
of a party being of unsound mind or concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism, merely renders the marriage contract
voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur only during the marriage, they become
mere grounds for legal separation under Article 55 of the Family Code. These
provisions of the Code, however, do not necessarily preclude the possibility of
these various circumstances being themselves, depending on the degree and
severity of the disorder, indicia of psychological
incapacity.4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under Article
36 of the Family Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand,
assume end discharge the basic marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;

Third, the psychologic condition must exist at the time the marriage is contracted although its overt
manifestations and the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few
observers would suspect, as another form of absolute divorce or, as still others would also put it,
to be a alternative to divorce; however, the fact still remains that the language of the law has failed
to carry out, even if true, any such intendment. It might have indeed turned out for the better, if it
were otherwise, there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal command on how
the State should regard marriage and the family, thus —

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution . . . .
 Section 1, Article XV:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the
specific issue there resolved but for the tone it has set. The Court there has held that constitutional
provisions are to be considered mandatory unless by necessary implication, a different intention is
manifest such that to have them enforced strictly would cause more harm than by disregarding
them. It is quite clear to me that the constitutional mandate on marriage and the family has not
been meant to be simply directory in character, nor for mere expediency or convenience, but one
that demands a meaningful, not half-hearted, respect.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the
peculiar facts of the case. As to whether or not the psychological incapacity exists in a given case
calling for annulment of a marriage, depends crucially, more than in any field of the law, on the
facts of the case. In Leouel Santos v. Court of Appealsand Julia Rosario-Bedia Santos, G.R. No.
112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was
psychological incapacity on the part of the wife to discharge the duties of a wife in a valid marriage.
The facts of the present case, after an indepth study, do not support a similar conclusion.
Obviously, each case must be judged, not on the basis of a priori assumptions, predilections or
generalizations but according to its own facts. In the field of psychological incapacity as a ground
for annulment of marriage, it is trite to say that no case is on "all fours" with another case. The trial
judge must take pains in examining the actual millieu and the appellate court must, as much as
possible, avoid substituting its own judgment for that of the trial court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial
Court ruling. upheld petitioner Solicitor General's position that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, for the latter "is not simply
the neglect by the parties to the marriage of their responsibilities and duties, but a defect in their
Psychological nature which renders them incapable of performing such marital responsibilities and
duties.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so
much "psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "It is not enough to prove that the parties failed to meet
their responsibilities and duties as married persons; it is essential that they must be shown to
be incapable of doing so, due to some psychological (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For if it were due to
insanity or defects in the mental faculties short of insanity, there is a resultant defect of vice of
consent, thus rendering the marriage annulable under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to
exclude mental inability to understand the essential nature of marriage and focus strictly on
psychological incapacity is demonstrated in the way the provision in question underwent revisions.
At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages contracted by any party who, at the time of the celebration,
was wanting in the sufficient use of reason or judgment to understand the essential
nature of marriage or was psychologically or mentally incapacitated to discharge
the essential marital obligations, even if such lack of incapacity is made manifest
after the celebration.

The twists and turns which the ensuing discussion took finally produced the following revised
provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital obligations, even if
such lack or incapacity becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to "wanting
in the sufficient use of reason or judgment to understand the essential nature or marriage" and to
"mentally incapacitated." It was explained that these phrases refer to "defects in the mental
faculties vitiating consent, which is not the idea . . . but lack of appreciation of one's marital
obligation." There being a defect in consent, "it is clear that it should be a ground for voidable
marriage because there is the appearance of consent and it is capable of convalidation for the
simple reason that there are lucid intervals and there are sanity is curable. . . . Psychological
incapacity does not refer to mental faculties and has nothing to do with consent; it refers to
obligations attendant to
marriage."1

My own position as a member of the Committee then was that psychological incapacity is, in a
sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence,"
Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an invention
of some churchmen who are moralists but not canonists, that is why it is considered a weak
phrase." He said that the Code of Canon Law would rather express it as "psychological or mental
incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of
Art. 36 is: "Such incapacity must also be shown to be medically or clinically permanent or incurable.
Such incurability may be absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is
incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of
how they will determine curability and Justice Caguioa agreed that it would be more problematic.
Yet the possibility that one may be cured after the psychological incapacity becomes manifest after
the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa
suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as

contract;

2. reasons of public policy;

 3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special
situations," hence its special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling
marriages that even comes close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage
which stands valid until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are
void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters,
now open to fresh winds of change in keeping with the more permissive mores and practices of
the time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting
marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume the
essential obligations of marriage" provided the model for what is now Art. 36 of the Family Code:
"A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with
respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it actually
declares the marriage null and void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment
process which entails a full tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties
as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law, the former being more strict,
quite a number of married couples have found themselves in limbo — freed from the marriage
bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under
state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into
live-in relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law
Revision Committee decided to engraft the Canon Law concept of psychological incapacity into
the Family Code — and classified the same as a ground for declaring marriages void ab initio or
totally in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly
for psychological incapacity, in effect recognized the same indirectly from a combination of three
old canons: "Canon #1081 required persons to 'be capable according to law' in order to give valid
consent; Canon #1082 required that persons 'be at least not ignorant' of the major elements
required in marriage; and Canon #1087 (the force and fear category) required that internal and
external freedom be present in order for consent to be valid. This line of interpretation produced
two distinct but related grounds for annulment, called 'lack of due discretion' and 'lack of due
competence.' Lack of due discretion means that the person did not have the ability to give valid
consent at the time of the weddingand therefore the union is invalid. Lack of due competence
means that the person was incapable of carrying out the obligations of the promise he or she made
during the wedding ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual
disorders such as homosexuality and nymphomania laid the foundation for a broader approach to
the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for
the first time in several cases that the capacity to give valid consent at the time of marriage was
probably not present in persons who had displayed such problems shortly after the marriage. The
nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated a
cautious willingness to use this kind of hindsight, the way was paved for what came after
1970. Diocesan Tribunals began to accept proof of serious psychological problems that manifested
themselves shortly after the ceremony as proof of an inability to give valid consent at the time of
the ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became
increasingly important in such cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to give professional opinions
about a party's mental at the time of the wedding. These opinions were rarely challenged and
tended to be accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this area did not amount to the addition
of new grounds for annulment, but rather was an accommodation by the Church to the advances
made in psychology during the past decades. There was now the expertise to provide the all-
important connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to
that of a covenant. The result of this was that it could no longer be assumed in annulment
cases that a person who could intellectually understand the concept of marriage could necessarily
give valid consent to marry. The ability to both grasp and assume the real obligations of a mature,
lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent.2

Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to
sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both
spouses from assuming or carrying out the essential obligations of marriage. For marriage . . . is
not merely cohabitation or the right of the spouses to each others' body for heterosexual acts, but
is, in its totality, the right to the community of the whole of life, i.e., the right to a developing. lifelong
relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic
capacity for marriage as presupposing the development of an adult personality; as meaning the
capacity of the spouses to give themselves to each other and to accept the other as a distinct
person; that the spouses must be 'other oriented' since the obligations of marriage are rooted in a
self-giving love; and that the spouses must have the capacity for interpersonal
relationship because marriage is more than just a physical reality but involves a true intertwining
of personalities. The fulfillment of the obligations of marriage depends. according to Church
decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal
sharing and support is held to impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is not considered in isolation but
in reference to the fundamental relationship to the other spouse.3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital
relationship:

The courts consider the following elements crucial to the marital commitment: (1)
a permanent and faithful commitment to the marriage partner; (2) openness to
children and partner; (3) stability; (4) emotional maturity; (5) financial responsibility;
(6) an ability to cope with the ordinary stresses and strains of marriage, etc.
 Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion even

with the best intentions of the parties. Among the psychic factors possibly giving
rise to his or her inability to fulfill marital obligations are the following: (1) antisocial
personality with its fundamental lack of loyalty to persons or sense of moral values;
(2) hyperesthesia, where the individual has no real freedom of sexual choice; (3)
the inadequate personality where personal responses consistently fallshort of
reasonable expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether
he or she has a case for an annulment on any other terms. A situation that does
not fit into any of the more traditional categories often fits very easily into the
psychological category.

As new as the psychological grounds are, experts are already detecting a shift in
their use. Whereas originally the emphasis was on the parties' inability to exercise
proper judgment at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' to assume or carry out their
responsibilities an obligations as promised (lack of due competence). An
advantage to using the ground of lack of due competence is that the at the time the
marriage was entered into civil divorce and breakup of the family almost is of
someone's failure out marital responsibilities as promisedat the time the marriage
was entered into.4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered
equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia,
the Court held that the failure of the wife to return home from the U.S. or to communicate with her
husband for more then five years is not proof of her psychological incapacity as to render the
marriage a nullity.5 Therefore, Art. 36 is inapplicable and the marriages remain valid and subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals,6 this Court upheld both the
Regional Trial Court and the Court of Appeals in declaring the presence of psychological incapacity
on the part of the husband. Said petitioner husband, after ten (10) months' sleeping with his wife
never had coitus with her, a fact he did not deny but he alleged that it was due to the physical
disorder of his wife which, however, he failed to prove. Goaded by the indifference and stubborn
refusal of her husband to fulfill a basic marital obligation described as "to procreate children based
on the universal principle that procreation of children through sexual cooperation is the basic end
of marriage," the wife brought the action in the lower court to declare the marriage null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded:

If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to psychological incapacity.
Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity.

We declared:
This Court, finding the gravity of the failed relationship in which the parties found themselves
trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but
sustain the studied judgment of respondent appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent
psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the
spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and
I find to be most helpful the guidelines that he prepared for the bench and the bar in the proper
appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the Philippines"). The
term "psychological incapacity" was neither defined nor exemplified by the Family Code. Thus —

Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only
after its solemnization.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which
drafted the Code explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case
basis, guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals which, although not
binding on the civil courts, may be given persuasive effect since the provision was
taken from Canon Law.1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon
Law —

Canon 1095. (The following persons) are incapable of contracting marriage;

(those) —

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential

matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential
obligations of marriage —

that should give that much value to Canon Law jurisprudence as an aid to the interpretation
and construction of the statutory enactment.2

The principles in the proper application of the law teach us that the several provisions of a Code
must be read like a congruent whole. Thus, in determining the import of "psychological incapacity"
under Article 36, one must also read it along with, albeit to be taken as distinct from, the other
grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that could justify a petition for legal
separation. Care must be observed so that these various circumstances are not applied so
indiscriminately as if the law were indifferent on the matter.
I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals;3 viz:

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code has
not been meant to comprehend all such possible cases of psychoses as, likewise
mentioned by some ecclesiastical authorities, extremely low intelligence,
immaturity, and like circumstances. . . Article 36 of the Family Code cannot be
taken and construed independently of, but must stand in conjunction with, existing
precepts in our law on marriage. Thus correlated, "psychological incapacity" should
refer to no less than a mental (not physical) incapacity that causes a party to be
truly incognitive of the basic marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage which, as so expressed by
Article 68 of the Family Code, include their mutual obligations to live together,
observe love, respect and fidelity and render help and support. There is hardly any
doubt that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability of the spouse to have
sexual relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial declaration of
nullity of the void marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state
of a party being of unsound mind or concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism, merely renders the marriage contract
voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur only during the marriage, they become
mere grounds for legal separation under Article 55 of the Family Code. These
provisions of the Code, however, do not necessarily preclude the possibility of
these various circumstances being themselves, depending on the degree and
severity of the disorder, indicia of psychological
incapacity.4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under Article
36 of the Family Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand,
assume end discharge the basic marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;

Third, the psychologic condition must exist at the time the marriage is contracted although its overt
manifestations and the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few
observers would suspect, as another form of absolute divorce or, as still others would also put it,
to be a alternative to divorce; however, the fact still remains that the language of the law has failed
to carry out, even if true, any such intendment. It might have indeed turned out for the better, if it
were otherwise, there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal command on how
the State should regard marriage and the family, thus —

Section 2, Article XV:

 Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family
and shall be protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution . . . .

Section 1, Article XV:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the
specific issue there resolved but for the tone it has set. The Court there has held that constitutional
provisions are to be considered mandatory unless by necessary implication, a different intention is
manifest such that to have them enforced strictly would cause more harm than by disregarding
them. It is quite clear to me that the constitutional mandate on marriage and the family has not
been meant to be simply directory in character, nor for mere expediency or convenience, but one
that demands a meaningful, not half-hearted, respect.
 EN BANC

[G.R. No. 122485. February 1, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY

MAHINAY Y AMPARADO, accused-appellant.

DECISION
PER CURIAM:

A violation of the dignity, purity and privacy of a child who is still innocent and unexposed
to the ways of worldly pleasures is a harrowing experience that destroys not only her future but
of the youth population as well, who in the teachings of our national hero, are considered the
hope of the fatherland. Once again, the Court is confronted by another tragic desecration of
human dignity, committed no less upon a child, who at the salad age of a few days past 12
years, has yet to knock on the portals of womanhood, and met her untimely death as a result of
the "intrinsically evil act" of non-consensual sex called rape. Burdened with the supreme
penalty of death, rape is an ignominious crime for which necessity is neither an excuse nor
does there exist any other rational justification other than lust. But those who lust ought not to
lust.
The Court quotes with approval from the People's Brief, the facts narrating the horrible
experience and the tragic demise of a young and innocent child in the bloody hands of
appellant, as such facts are ably supported by evidence on record:[1] *

"Appellant Larry Mahinay started working as houseboy with Maria Isip on

November 20, 1993. His task was to take care of Isip's house which was under
construction adjacent to her old residence situated inside a compound at No. 4165
Dian Street, Gen. T. de Leon, Valenzuela , Metro Manila. But he stayed and slept in
an apartment also owned by Isip, located 10 meters away from the unfinished house
(TSN, September 6, 1995, pp. 5-10).

"The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian Street. She
used to pass by Isip's house on her way to school and play inside the compound yard,
catching maya birds together with other children. While they were playing, appellant
was always around washing his clothes. Inside the compound yard was a septic tank
(TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp. 17; 20-22).

"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking
spree. Around 10 o'clock in the morning, appellant, who was already drunk, left
Gregorio Rivera and asked permission from Isip to go out with his friends (TSN,
September 6, 1995, pp. 9-11).
"Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store fronting the
compound, saw Ma. Victoria on that same day three to four times catching birds
inside Isip's unfinished house around 4 o'clock in the afternoon. The unfinished
house was about 8 meters away from Rivera's store (TSN, September 18, 1995, pp.9-
11).

"On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his in-
law's house between 6 to 7 o'clock p.m. to call his office regarding changes on the
trip of President Fidel V. Ramos. The house of his in-laws was near the house of
Isip. On his way to his in-law's house, Sgt. Suni met appellant along Dian Street.
That same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria standing in
front of the gate of the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17).

"Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's store to

buy lugaw. Norgina Rivera informed appellant that there was none left of it. She
notice that appellant appeared to be uneasy and in deep thought. His hair was
disarrayed; he was drunk and was walking in a dazed manner. She asked why he
looked so worried but he did not answer. Then he left and walked back to the
compound (TSN, September 18, 1995, pp. 4-8; 12-14).

"Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She
last saw her daughter wearing a pair of white shorts, brown belt, a yellow hair ribbon,
printed blue blouse, dirty white panty, white lady sando and blue rubber slippers
(TSN, August 23, 1995, pp. 22, 33).

"Isip testified that appellant failed to show up for supper that night. On the following
day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a passenger
jeepney driven by Fernando Trinidad at the talipapa.Appellant alighted at the top of
the bridge of the North Expressway and had thereafter disappeared (TSN, September
20, 1995, pp. 4-9; September 27, 1995; pp. 14-17).

"That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria
inside the septic tank. Boy immediately reported what he saw to the victim's parents,
Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13).

"With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was
retrieved from the septic tank. She was wearing a printed blouse without underwear.
Her face bore bruises. Results of the autopsy revealed the following findings:

Cyanosis, lips and nailbeds,

Contusions, supra pubic area, 6.0 x 3.0 cm., thigh right,

Anterior aspect, middle third, 4.5 x 3.0 cm.

Contused-abrasions on the forehead, 5.0 x 5.0 cm, angle of the left eye, lateral aspect,
2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0 x 1.0 cm.
and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior
aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular area, left, 1.5 x
1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left, posterior aspect, middle third, 11.00
x 4.0 cm. elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior
aspect, lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right
antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect, lower 3 rd 5.0
x 2.0 cm. and left antero-lower 3rd , 5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 x 1.0
cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm.

Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.

Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, subpleural

petechial hemorrhages.

Hemorrhage, subdural, left fronto-parietal area.

Tracheo-bronchial tree, congested.

Other visceral organs, congested.

Stomach, contain 1/4 rice and other food particles.

CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic Head Injury,

Contributory.

REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 o'clock
position corresponding to the face of a watch edges congested with blood clots.
(TSN, August 18, 1995; p. 4; Record, p. 126)

"Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro were
informed by Isip that her houseboy, appellant Larry Mahinay, was missing.
According to her, it was unlikely for appellant to just disappear from the apartment
since whenever he would go out, he would normally return on the same day or early
morning of the following day (TSN, September 6, 1995, pp. 6-11-27).

"SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of appellant
was working in a pancit factory at Barangay Reparo, Caloocan City. They proceeded
to said place. The owner of the factory confirmed to them that appellant used to work
at the factory but she did not know his present whereabouts. Appellant's townmate,
on the other hand, informed them that appellant could possibly be found on 8 Street,th

Grace Park, Caloocan City (TSN, August 14, 1995, pp. 8-9).

"The policemen returned to the scene of the crime. At the second floor of the house
under construction, they retrieved from one of the rooms a pair of dirty white short
pants, a brown belt and a yellow hair ribbon which was identified by Elvira Chan to
belong to her daughter, Ma. Victoria. They also found inside another room a pair of
blue slippers which Isip identified as that of Appellant. Also found in the yard, three
armslength away from the septic tank were an underwear, a leather wallet, a pair of
dirty long pants and a pliers positively identified by Isip as appellant's
belongings. These items were brought to the police station (TSN, August 14, 1995,
pp. 10-13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).

"A police report was subsequently prepared including a referral slip addressed to the
office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano retrieved
the victim's underwear from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).

"After a series of follow-up operations, appellant was finally arrested in Barangay

Obario Matala, Ibaan, Batangas. He was brought to Valenzuela Police Station. On
July 7, 1995, with the assistance of Atty. Restituto Viernes, appellant executed an
extra-judicial confession wherein he narrated in detail how he raped and killed the
victim. Also, when appellant came face to face with the victim's mother and aunt, he
confided to them that he was not alone in raping and killing the victim. He pointed
to Zaldy and Boyet as his co-conspirators (TSN, August 14, 1995, pp. 13-21)."

Thus, on July 10, 1995, appellant was charged with rape with homicide in an Information
which reads:[2]

"That on or about the 26 day of June 1995 in Valenzuela, Metro Manila and within
th

the jurisdiction of this Honorable Court the above-named accused, by means of force
and intimidation employed upon the person of MARIA VICTORIA CHAN y
CABALLERO, age 12 years old, did then and there wilfully, unlawfully and
feloniously lie with and have sexual intercourse with said MARIA VICTORIA
CHAN y CABALLERO against her will and without her consent; that on the
occasion of said sexual assault, the above-named accused, choke and strangle said
MARIA VICTORIA CHAN y CABALLERO as a result of which, said victim died.

"Contrary to law."[3]

to which he pleaded not guilty. After trial, the lower court rendered a decision convicting
appellant of the crime charged, sentenced him to suffer the penalty of death and to pay a total
of P73,000.00 to the victim's heirs. The dispositive portion of the trial court's decision states:

"WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond

reasonable doubt of the crime charged, he is hereby sentenced to death by
electricution (sic). He is likewise condemned to indemnify the heirs of the victim,
Ma. Victoria Chan the amount of P50,000.00 and to pay the further sum
of P23,000.00 for the funeral, burial and wake of the victim.
"Let the complete records of the case be immediately forwarded to the Honorable
Supreme Court for the automatic review in accordance to Article 47 of the Revised
Penal Code as amended by Section 22 of Republic Act No. 7659.

"SO ORDERED."[4]

Upon automatic review by the court en banc pursuant to Article 47 of the Revised Penal
Code (RPC), as amended,[5] appellant insists that the circumstantial evidence presented by the
prosecution against him is insufficient to prove his guilt beyond reasonable doubt. In his
testimony summarized by the trial court, appellant offered his version of what transpired as
follows:

(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon,
Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a
drinking spree. Gregorio Rivera is the brother of Maria Isip, appellants employer.
After consuming three cases of red horse beer, he was summoned by Isip to clean
the jeepney. He finished cleaning the jeepney at 12 oclock noon. Then he had lunch
and took a bath. Later, he asked permission from Isip to go out with his friends to
see a movie. He also asked for a cash advance of P300.00 (TSN, October 16, 1995,
pp. 4-5).

At 2 oclock in the afternoon, appellant, instead of going out with his friend, opted to
rejoin Gregorio Rivera and Totoy for another drinking session. They consumed one
case of red horse beer. Around 6 oclock p.m., Zaldy, a co-worker, fetched him at
Gregorio Riveras house. They went to Zaldys house and bought a bottle of gin. They
finished drinking gin around 8 oclock p.m. After consuming the bottle of gin, they
went out and bought another bottle of gin from a nearby store. It was already 9 oclock
in the evening. While they were at the store, appellant and Zaldy met Boyet. After
giving the bottle of gin to Zaldy and Boyet, appellant left (TSN, October 16, 1995,
pp. 6-7).

On his way home, appellant passed by Norgina Riveras store to buy lugaw. Norgina
Rivera informed him that there was none left of it. He left the store and proceeded
to Isips apartment. But because it was already closed, he decided to sleep at the
second floor of Isips unfinished house. Around 10 oclock p.m., Zaldy and Boyet
arrived carrying a cadaver. The two placed the body inside the room where appellant
was sleeping. As appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet
directed him to rape the dead body of the child or they would kill him. He, However,
refused to follow. Then, he was asked by Zaldy and Boyet to assist them in bringing
the dead body downstairs. He obliged and helped dump the body into the septic tank.
Thereupon, Zaldy and Boyet warned him that should they ever see him again, they
would kill him. At 4 oclock the following morning, he left the compound and
proceeded first to Navotas and later to Batangas (TSN, October 16, 1995, pp. 4-13).

Subsequently, appellant was apprehended by the police officers in Ibaan, Batangas.

The police officers allegedly brought him to a big house somewhere in Manila.
There, appellant heard the police officers plan to salvage him if he would not admit
that he was the one who raped and killed the victim. Scared, he executed an extra-
judicial confession. He claimed that he was assisted by Atty. Restituto Viernes only
when he was forced to sign the extra-judicial confession (TSN, October 16, 1995,
pp. 9-11).[6]

This being a death penalty case, the Court exercises the greatest circumspection in the
review thereof since there can be no stake higher and no penalty more severe x x x than the
termination of a human life.[7] For life, once taken is like virginity, which once defiled can never
be restored. In order therefore, that appellants guilty mind be satisfied, the Court states the
reasons why, as the records are not shy, for him to verify.
The proven circumstances of this case when juxtaposed with appellants proffered excuse
are sufficient to sustain his conviction beyond reasonable doubt, notwithstanding the absence
of any direct evidence relative to the commission of the crime for which he was prosecuted.
Absence of direct proof does not necessarily absolve him from any liability because under the
Rules on evidence[8] and pursuant to settled jurisprudence,[9] conviction may be had on
circumstantial evidence provided that the following requisites concur:
1. there is more than one circumstance;
2. the facts from which the inferences are derived are proven; and
3. the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.
Simply put, for circumstantial evidence to be sufficient to support a conviction, all
circumstances must be consistent with each other, consistent with the hypothesis that the
accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and
with every other rational hypothesis except that of guilt.[10]Facts and circumstances consistent
with guilt and inconsistent with innocence, constitute evidence which, in weight and probative
force, may surpass even direct evidence in its effect upon the court.[11]
In the case at bench, the trial court gave credence to several circumstantial evidence, which
upon thorough review of the Court is more than enough to prove appellants guilt beyond the
shadow of reasonable doubt. These circumstantial evidence are as follows:

FIRST Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner of the
unfinished big house where the crime happened and the septic tank where the body
of Maria Victoria Chan was found in the morning of June 26, 1995 is located,
categorically testified that at about 9:00 in the evening on June 25, 1995, accused
Larry Mahinay was in her store located in front portion of the compound of her
sister-in-law Maria Isip where the unfinished big house is situated buying rice noodle
(lugaw). That she noticed the accuseds hair was disarranged, drunk and walking in
sigsaging manner. That the accused appeared uneasy and seems to be thinking
deeply. That the accused did not reply to her queries why he looked worried but went
inside the compound.

SECOND Prosecution witness Sgt. Roberto G. Suni, categorically, testified that on

June 25, 1995 between 6:00 and 7:00 in the evening, on his way to his in-laws house,
he met accused Larry Mahinay walking on the road leading to his in-laws residence
which is about 50 to 75 meters away to the unfinished big house of Maria Isip. That
he also saw victim Maria Victoria Chan standing at the gate of the unfinished big
house of Maria Isip between 8:00 and 9:00 in the same evening.

THIRD Prosecution witness Maria Isip, owner of the unfinished big house where
victims body was found inside the septic tank, testified that accused Larry Mahinay
is her houseboy since November 20, 1993. That in the morning of June 25, 1995, a
Sunday, Larry Mahinay asked permission from her to leave. That after finishing
some work she asked him to do accused Larry Mahinay left. That it is customary on
the part of Larry Mahinay to return in the afternoon of the same day or sometimes
in the next morning. That accused Larry Mahinay did not return until he was arrested
in Batangas on July 7, 1995.

FOURTH Prosecution witness Fernando Trinidad, a passenger jeepney driver plying

the route Karuhatan-Ugong and vice versa which include Diam St., Gen. T. de Leon,
Valenzuela, Metro Manila, pinpointed the accused Larry Mahinay as one of the
passengers who boarded his passenger jeepney on June 26, 1995 at 2:00 early
morning and alighted on top of the overpass of the North Expressway.

FIFTH Personal belongings of the victim was found in the unfinished big house of
Maria Isip where accused Larry Mahinay slept on the night of the incident. This is a
clear indication that the victim was raped and killed in the said premises.

There is no showing that the testimonies of the prosecution witnesses (sic) fabricated
or there was any reason for them to testify falsely against the accused. The absence
of any evidence as to the existence of improper motive sustain the conclusion that
no such improper motive exists and that the testimonies of the witnesses, therefore,
should be given full faith and credit. (People vs. Retubado, 58585 January 20, 1988
162 SCRA 276, 284; People vs. Ali L-18512 October 30, 1969, 29 SCRA 756).

SIXTH Accused Larry Mahinay during the custodial investigation and after having
been informed of his constitutional rights with the assistance of Atty. Restituto
Viernes of the Public Attorneys Office voluntarily gave his statement admitting the
commission of the crime. Said confession of accused Larry Mahinay given with the
assistance of Atty. Restituto Viernes is believed to have been freely and voluntarily
given. That accused did not complain to the proper authorities of any maltreatment
on his person (People vs. delos Santos L-3398 May 29, 1984; 150 SCRA 311). He
did not even informed the Inquest Prosecutor when he sworn to the truth of his
statement on July 8, 1995 that he was forced, coersed or was promised of reward or
leniency. That his confession abound with details know only to him. The Court noted
that a lawyer from the Public Attorneys Office Atty. Restituto Viernes and as
testified by said Atty. Viernes he informed and explained to the accused his
constitutional rights and was present all throughout the giving of the testimony. That
he signed the statement given by the accused. Lawyer from the Public Attorneys
Office is expected to be watchful and vigilant to notice any irregularity in the manner
of the investigation and the physical conditions of the accused. The post mortem
findings shows that the cause of death Asphyxia by manual strangulation; Traumatic
Head injury Contributory substantiate. Consistent with the testimony of the accused
that he pushed the victim and the latters head hit the table and the victim lost
consciousness.

Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko siya, tapos
tumama iyong ulo niya sa mesa. Ayon na, nakatulog na siya tapos ni-rape ko na
siya.

There is no clear proof of maltreatment and/or tortured in giving the statement. There
were no medical certificate submitted by the accused to sustain his claim that he was
mauled by the police officers.

There being no evidence presented to show that said confession were obtained as a
result of violence, torture,maltreatment, intimidation, threat or promise of reward or
leniency nor that the investigating officer could have been motivated to concoct the
facts narrated in said affidavit; the confession of the accused is held to be true,
correct and freely or voluntarily given. (People v. Tuazon 6 SCRA 249; People v.
Tiongson 6 SCRA 431, People v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA
73.)

SEVENTH Accused Larry Mahinay testified in open Court that he was not able to
enter the apartment where he is sleeping because it was already closed and he
proceeded to the second floor of the unfinished house and slept. He said while
sleeping Zaldy and Boyet arrived carrying the cadaver of the victim and dumped it
inside his room. That at the point of a knife, the two ordered him to have sex with
the dead body but he refused. That the two asked him to assist them in dumping the
dead body of the victim in the septic tank downstairs. (Tsn pp8-9 October 16, 1995).
This is unbelievable and unnatural. Accused Larry Mahinay is staying in the
apartment and not in the unfinished house. That he slept in the said unfinished house
only that night of June 25, 1995 because the apartment where he was staying was
already closed. The Court is at a loss how would Zaldy and Boyet knew he (Larry
Mahinay) was in the second floor of the unfinished house.

Furthermore, if the child is already dead when brought by Zaldy and Boyet in the
room at the second floor of the unfinished house where accused Larry Mahinay was
sleeping, why will Boyet and Zaldy still brought the cadaver upstairs only to be
disposed/dumped later in the septic tank located in the ground floor. Boyet and Zaldy
can easily disposed and dumped the body in the septic tank by themselves.

It is likewise strange that the dead body of the child was taken to the room where
accused Larry Mahinay was sleeping only to force the latter to have sex with the
dead body of the child.
We have no test to the truth of human testimony except its conformity to aver
knowledge observation and experience. Whatever is repugnant to these belongs to
the miraculous. (People vs. Santos L-385 Nov. 16, 1979)

EIGHT If the accused did not commit the crime and was only forced to
disposed/dumpted the body of the victim in the septic tank, he could have apprise
Col. Maganto, a high ranking police officer or the lady reporter who interviewed
him. His failure and omission to reveal the same is unnatural. An innocent person
will at once naturally and emphatically repel an accusation of crime as a matter of
preservation and self-defense and as a precaution against prejudicing himself. A
persons silence therefore, particularly when it is persistent will justify an inference
that he is not innocent. (People vs. Pilones, L-32754-5 July 21, 1978).

NINTH The circumstance of flight of the accused strongly indicate his

consciousness of guilt. He left the crime scene on the early morning after the incident
and did not return until he was arrested in Batangas on July 7, 1995.[12]

Guided by the three principles in the review of rape cases, to wit:[13]

1). An accusation for rape can be made with facility; it is difficult to prove but more difficult
for the person accused, though innocent, to disprove;
2). In view of the intrinsic nature of the crime of rape, where only two persons are usually
involved, the testimony of the complainant is scrutinized with extreme caution; and
3). The evidence of the prosecution stands or falls on its own merits and cannot be allowed to
draw strength from the weakness of the defense.
the foregoing circumstantial evidence clearly establishes the felony of rape with homicide
defined and penalized under Section 335 of the Revised Penal Code, as amended by Section
11, R.A. 7659, which provides:

When and how rape is committed Rape is committed by having carnal knowledge of
a woman under any of the following circumstances.

1.) By using force or intimidation;

2.) When the woman is deprived of reason or otherwise unconscious; and
3.) When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

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

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

When the rape is attempted or frustrated and a homicide is committed by reason or

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

The death penalty shall also be imposed if the crime of rape is committed with any
of the following attendant circumstances:

1.) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or
the common-law spouse of the parent of the victim.
2.) When the victim is under the custody of the police or military authorities.
3.) When the rape is committed in full view of the husband, parent, any of the children or
other relatives within the third degree of consanguinity.
4.) When the victim is a religious or a child below seven (7) years old.
5.) When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS) disease.
6.) When committed by any member of the Armed Forces of the Philippines or Philippine
National Police or any law enforcement agency.
7.) When by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation.[14]
At the time of the commission of this heinous act, rape was still considered a crime against
chastity,[15] although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape has since been
re-classified as a crime against persons under Articles 266-A and 266-B, and thus, may be
prosecuted even without a complaint filed by the offended party.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a woman
by force and without consent.[16] (Under the new law, rape may be committed even by a woman
and the victim may even be a man.)[17] If the woman is under 12 years of age, proof of force
and consent becomes immaterial[18] not only because force is not an element of statutory
rape,[19] but the absence of a free consent is presumed when the woman is below such age.
Conviction will therefore lie, provided sexual intercourse is be proven. But if the woman is 12
years of age or over at the time she was violated, as in this case, not only the first element of
sexual intercourse must be proven but also the other element that the perpetrators evil acts with
the offended party was done through force, violence, intimidation or threat needs to be
established. Both elements are present in this case.
Based on the evidence on record, sexual intercourse with the victim was adequately
proven. This is shown from the testimony of the medical doctor who conducted post mortem
examination on the childs body:
Q: And after that what other parts of the victim did you examine?
A: Then I examined the genitalia of the victim.
Q: And what did you find out after you examined the genitalia of the victim?
A: The hymen was tall-thick with complete laceration at 4:00 oclock and 8:00 oclock position and
that the edges were congested.
Q: Now, what might have caused the laceration?
A: Under normal circumstances this might have (sic) caused by a penetration of an organ.
 Q: So, the laceration was caused by the penetration of a male organ?
A: Adult male organ, sir.
Q: You are very sure of that, Mr. Witness?
A: I am very sure of that.[20]
Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted
that he had sexual congress with the unconscious child.
15. T: Ano ang nangyari ng mga sandali o oras na iyon?
S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking bahay na ginagawa, tapos
dumating yung batang babae. Pag-pasok niya sa kuwarto hinawakan ko siya sa kamay tapos
tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya tapos ni
rape ko na siya.
16. T: Ano ang suot nung batang babae na sinasabi mo?
S: Itong short na ito, (pointing to a dirty white short placed atop this investigators table. Subject
evidence were part of evidences recovered at the crime scene).
17. T: Bakit mo naman ni rape yung batang babae?
S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.
18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?
S: Red Horse po at saka GIN.
19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung batang babae?
S: Sa kuwarto ko po sa itaas.
20. T: Kailan ito at anong oras nangyari?
S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na matandaan kung anong petsa, basta
araw ng Linggo.
21. T: Saan lugar ito nangyari?
S: Sa Diam, Gen. T. de Leon, Valenzuela, M.M.
22. T: Alam mo na ba ang pangalan ng batang babae na ni rape mo?
S: Hindi ko po alam.
23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang babae na iyong ni rape at pinatay
ay si MA. VICTORIA CHAN? Matatandaan mo ba ito?
S: Oho.
24. T: Nung ma-rape mo, nakaraos ka ba?
S: Naka-isa po.
25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng NAKARAOS, maaari bang
ipaliwanag mo ito?
S: Nilabasan po ako ng tamod.
26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung iyong ari?
S: Nakapasok po doon sa ari nung babae.
27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang sumunod mong ginawa?
 S: Natulak ko siya sa terrace.
28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa terrace?
S: Inilagay ko po sa poso-negra.
29. T: Saan makikita yung poso-negra na sinasabi mo?
S: Doon din sa malaking bahay ni ATE MARIA.
30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-negra?
S: Doon ko lang po inilagay.
31. T: Bakit nga doon mo inilagay siya?
S: Natatakot po ako.
32. T: Kanino ka natatakot?
S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga pulis.
33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-negra?
S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa poso-negra.
34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?
S: Nag-iisa lang po ako.
35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA CHAN, buhay pa ba siya o
patay na?
S: Buhay pa po.
36. T: Papaano mo siya pinatay?
S: Tinulak ko nga po siya sa terrace.[21]
In proving sexual intercourse, it is not full or deep penetration of the victims vagina; rather
the slightest penetration of the male organ into the female sex organ is enough to consummate
the sexual intercourse.[22] The mere touching by the males organ or instrument of sex of the
labia of the pudendum of the womans private parts is sufficient to consummate rape.
From the wounds, contusions and abrasions suffered by the victim, force was indeed
employed upon her to satisfy carnal lust. Moreover, from appellants own account, he pushed
the victim causing the latter to hit her head on the table and fell unconscious. It was at that
instance that he ravished her and satisfied his salacious and prurient desires. Considering that
the victim, at the time of her penile invasion, was unconscious, it could safely be concluded
that she had not given free and voluntary consent to her defilement, whether before or during
the sexual act.
Another thing that militates against appellant is his extrajudicial confession, which he,
however, claims was executed in violation of his constitutional right to counsel. But his
contention is belied by the records as well as the testimony of the lawyer who assisted, warned
and explained to him his constitutionally guaranteed pre-interrogatory and custodial rights. As
testified to by the assisting lawyer:
Q Will you please inform the Court what was that call about?
A We went to the station, police investigation together with Atty. Froilan Zapanta and we were told
by Police Officer Alabastro that one Larry Mahinay would like to confess of the crime of, I
think, rape with homicide.
Q And upon reaching the investigation room of Valenzuela PNP who were the other person present?
A Police Officer Alabastro, sir, Police Officer Nacis and other investigator inside the investigation
room and the parents of the child who was allegedly raped.
Q- And when you reached the investigation room do you notice whether the accused already there?
A The accused was already there.
Q Was he alone?
A he was alone, sir.
Q So, when you were already infront of SPO1 Arnold Alabastro and the other PNP Officers, what
did they tell you, if any?
A They told us together with Atty. Zapanta that this Larry Mahinay would like to confess of the
crime charged, sir.
Q By the way, who was that Atty. Zapanta?
A Our immediate Superior of the Public Attorneys Office.
Q Was he also present at the start of the question and answer period to the accused?
A No more, sir, he already went to our office. I was left alone.
Q But he saw the accused, Larry Mahinay?
A Yes, sir.
Q Now, when Atty. Zapanta left at what time did the question and answer period start?
A If I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir.
Q And when this question and answer period started, what was the first thing that you did as assisting
lawyer to the accused?
A First, I tried to explain to him his right, sir, under the constitution.
Q What are those right?
A That he has the right to remain silent. That he has the right of a counsel of his own choice and that
if he has no counsel a lawyer will be appointed to him and that he has the right to refuse to
answer any question that would incriminate him.
Q Now, after enumerating these constitutional rights of accused Larry Mahinay, do you recall
whether this constitutional right enumerated by you were reduced in writing?
A Yes, sir, and it was also explained to him one by one by Police Officer Alabastro.
Q I show to you this constitutional right which you said were reduced into writing, will you be able
to recognize the same?
A Yes, sir.
Q Will you please go over this and tell the Court whether that is the same document you mentioned?
A Yes, sir, these were the said rights reduced into writing.
ATTY. PRINCIPE:
May we request, Your Honor, that this document be marked as our Exhibit A proper.
Q Do you recall after reducing into writing this constitutional right of the accused whether you asked
him to sign to acknowledge or to conform?
A I was the one who asked him, sir. It was Police Officer Alabastro.
Q But you were present?
A I was then present when he signed.
Q There is a signature in this constitutional right after the enumeration, before and after there are
two (2) signatures, will you please recognize the two (2) signatures?
A These were the same signatures signed in my presence, sir.
Q The signature of whom?
A The signature of Larry Mahinay, sir.
ATTY. PRINCIPE:
May we request, Your Honor, that the two (2) signatures identified by my compaero be encircled
and marked as Exhibit A-1 and A-2.
Q After you said that you apprised the accused of his constitutional right explaining to him in
Filipino, in local dialect, what was the respond of the accused?
A- Larry Mahinay said that we will proceed with his statement.
Q What was the reply?
A He said Opo.
Q Did you ask him of his educational attainment?
A It was the Police Officer who asked him.
Q In your presence?
A In my presence, sir.
Q And when he said or when he replied Opo so the question started?
A Yes, sir.
Q I noticed in this Exhibit A that there is also a waiver of rights, were you present also when he
signed this waiver?
A Yes, sir, I was also present.
Q Did you explain to him the meaning of this waiver?
A I had also explained to him, sir.
Q In Filipino?
A In Tagalog, sir.
Q And there is also a signature after the waiver in Filipino over the typewritten name Larry Mahinay,
Nagsasalaysay, whose signature is that?
A This is also signed in my presence.
Q Why are you sure that this is his signature?
A He signed in my presence, sir.
Q And below immediately are the two (2) signatures. The first one is when Larry Mahinay
subscribed and sworn to, there is a signature here, do you recognize this signature?
A This is my signature, sir.
 Q And immediately after your first signature is a Certification that you have personally examined
the accused Larry Mahinay and testified that he voluntary executed the Extra Judicial
Confession, do you recognize the signature?
A This is also my signature, sir.[23] (emphasis supplied).
Appellants defense that two other persons brought to him the dead body of the victim and
forced him to rape the cadaver is too unbelievable. In the words of Vice-Chancellor Van Fleet
of New Jersey,[24]

Evidence to be believed must not only proceed from the mouth of a credible witness,
but must be credible in itself- such as the common experience and observation of
mankind can approve as probable under the circumstances. We have no test of the
truth of human testimony, except its conformity to our knowledge, observation and
experience.Whatever is repugnant to these belongs to the miraculous, and is outside
of judicial cognizance.

Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Settled is
the rule that the findings of facts and assessment of credibility of witnesses is a matter best left
to the trial court because of its unique position of having observed that elusive and
incommunicable evidence of the witnesses department on the stand while testifying, which
opportunity is denied to the appellate courts.[25] In this case, the trial courts findings,
conclusions and evaluation of the testimony of witnesses is received on appeal with the highest
respect,[26] the same being supported by substantial evidence on record. There was no showing
that the court a quo had overlooked or disregarded relevant facts and circumstances which
when considered would have affected the outcome of this case[27] or justify a departure from
the assessments and findings of the court below. The absence of any improper or ill-motive on
the part of the principal witnesses for the prosecution all the more strengthens the conclusion
that no such motive exists.[28] Neither was any wrong motive attributed to the police officers
who testified against appellant.
Coming now to the penalty, the sentence imposed by the trial court is correct. Under
Article 335 of the Revised Penal Code (RPC), as amended by R.A. 7659 when by reason or on
occasion of the rape, a homicide is committed, the penalty shall be death. This special complex
crime is treated by law in the same degree as qualified rape -- that is, when any of the 7 (now
10) attendant circumstances enumerated in the law is alleged and proven, in which instances,
the penalty is death. In cases where any of those circumstances is proven though not alleged,
the penalty cannot be death except if the circumstance proven can be properly appreciated as
an aggravating circumstance under Articles 14 and 15 of the RPC which will affect the
imposition of the proper penalty in accordance with Article 63 of the RPC. However, if any of
those circumstances proven but not alleged cannot be considered as an aggravating
circumstance under Articles 14 and 15, the same cannot affect the imposition of the penalty
because Articles 63 of the RPC in mentioning aggravating circumstances refers to those defined
in Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances is alleged in the
information/complaint, it may be treated as a qualifying circumstance. But if it is not so alleged,
it may be considered as an aggravating circumstance, in which case the only penalty is death
subject to the usual proof of such circumstance in either case.
Death being a single indivisible penalty and the only penalty prescribed by law for the
crime of rape with homicide, the court has no option but to apply the same regardless of any
mitigating or aggravating circumstance that may have attended the commission of the
crime[29] in accordance with Article 63 of the RPC, as amended.[30]This case of rape with
homicide carries with it penalty of death which is mandatorily imposed by law within the
import of Article 47 of the RPC, as amended, which provides:

The death penalty shall be imposed in all cases in which it must be imposed under
existing laws, except when the guilty person is below eighteen (18) years of age at
the time of the commission of the crime or is more than seventy years of age or when
upon appeal or automatic review of the case by the Supreme Court, the required
majority vote is not obtained for the imposition of the death penalty, in which cases
the penalty shall be reclusion perpetua. (emphasis supplied).

In an apparent but futile attempt to escape the imposition of the death penalty, appellant
tried to alter his date of birth to show that he was only 17 years and a few months old at the
time he committed the rape and thus, covered by the proscription on the imposition of death if
the guilty person is below eighteen (18) years at the time of the commission of the
crime.[31] Again, the record rebuffs appellant on this point considering that he was proven to be
already more than 20 years of age when he did the heinous act.
Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of fifty
thousand pesos (P50,000.00) but if the crime of rape is committed or effectively qualified by
any of the circumstances under which the death penalty is authorized by present amended law,
the civil indemnity for the victim shall be not less than seventy-five thousand pesos
(P75,000.00).[32] In addition to such indemnity, she can also recover moral damages pursuant
to Article 2219 of the Civil Code[33] in such amount as the court deems just, without the
necessity for pleading or proof of the basis thereof.[34] Civil Indemnity is different from the
award of moral and exemplary damages.[35] The requirement of proof of mental and physical
suffering provided in Article 2217 of the Civil Code is dispensed with because it is recognized
that the victims injury is inherently concomitant with and necessarily resulting from the odious
crime of rape to warrant per se the award of moral damages.[36] Thus, it was held that a
conviction for rape carries with it the award of moral damages to the victim without need for
pleading or proof of the basis thereof.[37]
Exemplary damages can also be awarded if the commission of the crime was attended by
one or more aggravating circumstances pursuant to Article 2230 of the Civil Code[38] after proof
that the offended party is entitled to moral, temperate and compensatory damages.[39] Under the
circumstances of this case, appellant is liable to the victims heirs for the amount of P75,000.00
as civil indemnity and P50,000.00 as moral damages.
Lastly, considering the heavy penalty of death and in order to ensure that the evidence
against and accused were obtained through lawful means, the Court, as guardian of the rights
of the people lays down the procedure, guidelines and duties which the arresting, detaining,
inviting, or investigating officer or his companions must do and observe at the time of making
an arrest and again at and during the time of the custodial interrogation[40] in accordance with
the Constitution, jurisprudence and Republic Act No. 7438:[41] It is high-time to educate our
law-enforcement agencies who neglect either by ignorance or indifference the so-called
Miranda rights which had become insufficient and which the Court must update in the light of
new legal developments:
1. The person arrested, detained, invited or under custodial investigation must be informed in
a language known to and understood by him of the reason for the arrest and he must be
shown the warrant of arrest, if any; Every other warnings, information or communication
must be in a language known to and understood by said person;
 2. He must be warned that he has a right to remain silent and that any statement he makes may
be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the presence
of an independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one
will be provided for him; and that a lawyer may also be engaged by any person in his
behalf, or may be appointed by the court upon petition of the person arrested or one acting
in his behalf;
5. That whether or not the person arrested has a lawyer, he must be informed that no custodial
investigation in any form shall be conducted except in the presence of his counsel or after
a valid waiver has been made;
6. The person arrested must be informed that, at any time, he has the right to communicate or
confer by the most expedient means telephone, radio, letter or messenger with his lawyer
(either retained or appointed), any member of his immediate family, or any medical doctor,
priest or minister chosen by him or by any one from his immediate family or by his
counsel, or be visited by/confer with duly accredited national or international non-
government organization. It shall be the responsibility of the officer to ensure that this is
accomplished;
7. He must be informed that he has the right to waive any of said rights provided it is made
voluntarily, knowingly and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it
must be done in writing AND in the presence of counsel, otherwise, he must be warned
that the waiver is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any time
or stage of the process that he does not wish to be questioned with warning that once he
makes such indication, the police may not interrogate him if the same had not yet
commenced, or the interrogation must ceased if it has already begun;
10. The person arrested must be informed that his initial waiver of his right to remain silent,
the right to counsel or any of his rights does not bar him from invoking it at any time
during the process, regardless of whether he may have answered some questions or
volunteered some statements;
11. He must also be informed that any statement or evidence, as the case may be, obtained in
violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part,
shall be inadmissible in evidence.
Four members of the Court although maintaining their adherence to the separate opinions
expressed in People v. Echegaray[42] that R.A. No. 7659, insofar as it prescribes the death
penalty, is unconstitutional nevertheless submit to the ruling of the Court, by a majority vote,
that the law is constitutional and that the death penalty should accordingly be imposed.
WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award
of civil indemnity for the heinous rape which is INCREASED to P75,000.00,
PLUS P50,000.00 moral damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the
Revised Penal Code, upon finality of this decision, let the records of this case be forthwith
forwarded to the Office of the President for possible exercise of the pardoning power.
SO ORDERED.
 Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Martinez, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1278 January 21, 1949

LORETO BARRIOQUINTO and NORBERTO JIMENEZ, petitioners,

vs.
ENRIQUE A. FERNANDEZ, ANTONIO BELMONTE and FELICISIMO OCAMPO, as
Commissioners of the Fourteenth Guerrilla Amnesty Commission, respondents.

Roseller T. Lim for petitioners.

Antonio Belmonte for respondents.

FERIA, J.:

This is a special action of mandamus instituted by the petitioners against the respondents who
composed the 14th Guerrilla Amnesty Commission, to compel the latter to act and decide whether
or not the petitioners are entitled to the benefits of amnesty.

Petitioners Norberto Jimenez and Loreto Barrioquinto were charged with the crime of murder. As
the latter had not yet been arrested the case proceeded against the former, and after trial Court of
First Instance of Zamboanga sentenced Jimenez to life imprisonment. Before the period for
perfecting an appeal had expired, the defendant Jimenez became aware of the Proclamation No.
8, dated September 7, 1946, which grants amnesty in favor of all persons who may be charged
with an act penalized under the Revised Penal Code in furtherance of the resistance to the enemy
or against persons aiding in the war efforts of the enemy, and committed during the period from
December 8, 1941, to the date when particular area of the Philippines where the offense was
actually committed was liberated from enemy control and occupation, and said Jimenez decided
to submit his case to the Guerrilla Amnesty Commission presided by the respondents herein, and
the other petitioner Loreto Barrioquinto, who had then been already apprehended, did the same.

After a preliminary hearing had started, the Amnesty Commission, prescribed by the respondents,
issued on January 9, 1947, an order returning the cases of the petitioners to the Court of First
Instance of Zamboanga, without deciding whether or not they are entitled to the benefits of he said
Amnesty Proclamation, on the ground that inasmuch as neither Barrioquinto nor Jimenez have
admitted having committed the offense, because Barrioquinto alleged that it was Hipolito Tolentino
who shot and killed the victim, they cannot invoke the benefits of amnesty.

The Amnesty Proclamation of September 7, 1946, issued by the President with the concurrence
of Congress of the Philippines, reads in part as follows:

WHEREAS, since the inception of the war until the liberation of the different areas
comprising the territory of the Philippines, volunteer armed forces of Filipinos and for of
other nationalities operated as guerrillas and other patriotic individuals and groups pursued
activities in opposition to the forces and agents of the Japanese Empire in the invasion and
occupation of the Philippines;

WHEREAS, members of such forces, in their determined efforts to resist the enemy, and
to bring about his ultimate defeat, committed acts penalized under the Revised Penal
Code;
 WHEREAS, charges have been presented in the courts against many members of these
resistance forces, for such acts;

WHEREAS, the fact that such acts were committed in furtherance of the resistance to the
enemy is not a valid defense under the laws of the Philippines;

WHEREAS, the persons so accused should not be regarded as criminals but rather as
patriots and heroes who have rendered invaluable service to the nation; and

WHEREAS, it is desirable that without the least possible delay, these persons be freed
form the indignity and the jeopardy to which they are now being subjected;

NOW, THEREFORE, I Manuel Roxas, President of the Philippines in accordance with the
provisions of Article VII, section 10, paragraph 6 of the Constitution, do hereby declare and
proclaim an amnesty inn favor of al persons who committed any act penalized under the
Revised Penal Code in furtherance of the resistance to the enemy or against persons
aiding in the war effort of the enemy, and committed during the period from December 8,
1941 to the date when each particular area of the Philippines was actually liberated from
the enemy control and occupation. This amnesty shall not apply to crimes against chastity
or to acts committed from purely personal motives.

It is further proclaimed and declared that in order to determine who among those against
whom charges have been filed before the courts of the Philippines or against whom
charges may be filed in the future, come within the terms of this amnesty, Guerrilla Amnesty
Commissions, simultaneously to be established , shall examine the facts and circumstance
surrounding each case and, if necessary, conduct summary hearings of witnesses both for
the complainant and the accused. These Commissions shall decided each case and, upon
finding that it falls within the terms of this proclamation, the Commissions shall so declare
and this amnesty shall immediately be effective as to the accused, who shall forthwith be
released or discharged.

The theory of the respondents, supported by the dissenting opinion, is predicated on a wrong
conception of the nature or character of an amnesty. Amnesty must be distinguished from pardon.

Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded
and proved by the person pardoned, because the courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of
which the courts should take judicial notice. Pardon is granted to one after conviction; while
amnesty is granted to classes of persons or communities who may be guilty of political offenses,
generally before or after the institution of the criminal prosecution and sometimes after conviction.
Pardon looks forward and relieves the offender from the consequences of an offense of which he
has been convicted, that is, it abolished or forgives the punishment, and for that reason it does
""nor work the restoration of the rights to hold public office, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon," and it "in no case exempts the culprit from
the payment of the civil indemnity imposed upon him by the sentence" article 36, Revised Penal
Code). while amnesty looks backward and abolishes and puts into oblivion the offense itself, it so
overlooks and obliterates the offense with which he is charged that the person released by amnesty
stands before the law precisely as though he had committed no offense. (section 10[6], Article VII,
Philippine Constitution; State vs. Blalock, 62 N.C., 242, 247; In re Briggs, 135 N.C., 118; 47 S.E.
402., 403; Ex parte Law, 35 GA., 285, 296; State ex rel Anheuser—Busch Brewing Ass'n. vs. Eby,
170 Mo., 497; 71 S.W 52, 61; Burdick vs United States, N.Y., 35 S. Ct., 267; 271; 236 U.S., 79; 59
Law. ed., 476.)

In view of the foregoing, we are of the opinion and so hold that, in order to entitle a person to the
benefits of the Amnesty Proclamation of September 7, 1946, it is not necessary that he should, as
a condition precedent or sine qua non, admit having committed the criminal act or offense with
which he is charged and allege the amnesty as a defense; it is sufficient that the evidence either
of the complainant or the accused, shows that the offense committed comes within the terms of
said Amnesty Proclamation. Hence, it is not correct to say that "invocation of the benefits of
amnesty is in the nature of a plea of confession and avoidance." Although the accused does not
confess the imputation against him, he may be declared by the courts or the Amnesty Commissions
entitled to the benefits. For, whether or not he admits or confesses having committed the offense
with which he is charged, the Commissions should, if necessary or requested by the interested
party, conduct summary hearing of the witnesses both for the complainants and the accused, on
whether he has committed the offense in furtherance of the resistance to the enemy, or against
persons aiding in the war efforts of the enemy, and decide whether he is entitled to the benefits of
amnesty and to be "regarded as a patriot or hero who have rendered invaluable services to the
nation,," or not, in accordance with the terms of the Amnesty Proclamation. since the Amnesty
Proclamation is a public act, the courts as well as the Amnesty Commissions created thereby
should take notice of the terms of said Proclamation and apply the benefits granted therein to
cases coming within their province or jurisdiction, whether pleaded or claimed by the person
charged with such offenses or not, if the evidence presented show that the accused is entitled to
said benefits.

The right to the benefits of amnesty, once established by the evidence presented either by the
complainant or prosecution, or by the defense, can not be waived, because it is of public interest
that a person who is regarded by the Amnesty Proclamation which has the force of a law, not only
as innocent, for he stands in the eyes of the law as if he had never committed any punishable
offense because of the amnesty, but as a patriot or hero, can not be punishment as a criminal.
Just as the courts of justice can not convict a person who, according to the evidence, has
committed an act not punishable by law, although he confesses being guilty thereof, so also and a
fortiori they can not convict a person considered by law not a criminal, but as a patriot and hero,
for having rendered invaluable services to the nation inn committing such an act.

While it is true that the evidence must show that the offense charged was against chastity and was
committed in furtherance of the resistance against the enemy, for otherwise, it is to be naturally
presumed that is has been committed for purely personal motive, it is nonetheless true that though
the motive as a mental impulse is state of mind or subjective, it need not be testified to be the
defendant himself at his arraignment or hearing of the case. Generally the motive for the
commission of an offense is established by the testimony of witnesses on the acts or statements
of the accused before or immediately after the commission of the offense, deeds or words hat may
express it or from which his motive or reason for committing it may be inferred. The statement of
testimony of a defendant at the time of arraignment or the hearing of the case about said motive,
can not generally be considered and relied on, specially if there is evidence to the contrary, as the
true expression of the reason o motive he had at the time of committing the offense. Because such
statements or testimony may be an afterthought or colored by the interest he may have to suit his
defense or the purpose for which he intends to achieve with such declaration. Hence it does not
stand to reason and logic to say, as the dissenting opinion avers, that unless the defendant admits
at the investigation or hearing having committed the offense with which he is charged, and states
that he did it in furtherance of the resistance to the enemy, and not for purely personal motive, it is
impossible for the court of Commission to verify the motive for the commission of the offense,
because only the accused could explain of the offense, because only the accused could explain
his belief and intention or the motive of committing the offense.

There is no necessity for an accused to admit his responsibility for the commission of a criminal
act before a court of Amnesty Commission may investigate and extend or not to him the benefits
of amnesty. The fact that he pleads not guilty or that he has not committed the act with which he
is charged, does not necessarily prove that he is not guilty thereof. Notwithstanding his denial, the
evidence for the prosecution or complainant may show the contrary, as it is generally the case in
criminal proceedings, and what should in such a case be determined is whether or not the offense
committed is of political character. The plea of not having committed the offense made by an
accused simply means that he can not be convicted of the offense charged because he is not guilty
thereof, and, even if the evidence would show that he is, because he has committed it in
furtherance of the resistance to the enemy or against persons a ding in the war efforts of the
enemy, and not for purely political motives.

According to Administrative Order No. 11 of October 2, 1946, creating the Amnesty Commissions,
issued by the President of the Philippines, cases pending in the Courts of First Instance of the
province in which the accused claims the benefits of Amnesty Proclamation, and cases already
decided by said courts but not yet elevated on appeal to the appellate courts, shall be passed upon
and decided by the respective Amnesty Commission, and cases pending appeal shall be passed
upon by the Seventh Amnesty Commission. Under the theory of the respondents and the writer oft
he dissenting opinion, the Commissions should refuse to comply with the directive of said
Administrative Order, because is almost all cases pending in the Court of First Instance, and all
those pending appeal form the sentence of said courts, the defendants must not have pleaded
guilty or admitted having committed the offense charged for otherwise, they would not or could not
have appealed from the judgment of the Courts of First Instance. To hold that a Amnesty
Commission should not proceed to the investigation and act and decide whether the offense with
which an accused was charged comes within the Amnesty Proclamation if he does not admit or
confess having committed it would be to defeat the purpose for which the Amnesty Proclamation
was issued and the Amnesty Commission were established. If the courts have to proceed to the
trail or hearing of a case and decide whether the offense committed by the defendant comes within
the terms of the Amnesty Proclamation although the defendant has plead not guilty, there is no
reason why the Amnesty Commissions can not do so. Where a defendant to admit or confess
having committed the offense or being responsible therefor before he can invoke the benefit of
amnesty, as there is no law which makes such admission or confession not admissible as evidence
against him in the courts of justices in case the Amnesty Commission finds that the offense does
not come within the terms of the Amnesty Proclamation, nobody or few would take the risk of
submitting their case to said Commission.

Besides, in the present case, the allegation of Loreto Barrioquinto that the offended party or victim
was shot and killed by Agapito Hipolito , does not necessarily bar the respondents from finding,
after the summary hearing of the witnesses for the complaints and the accused, directed in the
said Amnesty Proclamation and Administrative Order No. 11, that the petitioners are responsible
for the killing of the victim, either as principals by cooperation, inducement or conspiration, or as
accessories before as well as after the fact, but that they are entitled to the benefits of amnesty,
because they were members of the same group of guerrilleros who killed the victim in furtherance
of the resistance to the enemy or against persons aiding in the war efforts of the enemy.

Wherefore, the respondents are hereby ordered to immediately proceed to hear and decide the
application for amnesty of petitioners Barrioquinto and Jimenez, unless amnesty of petitioners
Barrioquinto and Jimenez, unless the courts have in the meantime already decided, expressly and
finally, the question whether or not they are entitled to the benefits of the Amnesty Proclamation
No. 8 of September 7, 1946. So ordered.

Moran, C. J., Paras, Bengzon, and Briones, JJ., concur.

Separate Opinions

PERFECTO, J., concurring:

An information for the crime of murder was filed against petitioners with the Court of First Instance
of Zamboanga. Because Barrioquinto was then at large, the information was dismissed and a
separate criminal case was instituted against him. Jimenez was tried with other accused and
sentenced to life imprisonment. Within the time for appeal, Jimenez became aware of Proclamation
No. 8, date September 7, 1946, granting amnesty to all persons who have committed offenses in
furtherance of the resistance against the Japanese, and decided to submit his case to the 14th
Guerrilla Amnesty Commission. Barrioquinto, having been apprehended, did the same.

After the preliminary hearing had started, the Commission issued on January 9, 1947, an order for
the return of the cases of petitioners to the Court of First Instance of Zamboanga, without deciding
whether or not they are entitled to amnesty, because Barrioquinto sated in his testimony that it was
Hipolito Tolentino who fired at and killed the offended party. The Commission issued the order
upon the thesis that, for any person to invoke the benefits of the Amnesty Proclamation, it is
required that he should first admit having committed the offensive act for which he is prosecuted.

The next of the Amnesty Proclamation fails to support the thesis. To entitle a person to have his
case heard and decided by a Guerrilla Amnesty Commission only the following elements are
essential: First, that he is charged or may be charged with ab offense penalized under the Revised
Penal Code, except those against chastity or for purely personal motives; second, that he
committed the offense in furtherance of the resistance to the enemy; and third, that it was
committed during the period from December 8, 1941, to the date when the area where the offense
was committed was actually liberated from enemy control and occupation.

If these three elements are present in a case brought before a Guerrillas Amnesty Commission,
the latter cannot refuse to hear and decide it under the proclamation. There is nothing in the
proclamation to even hint that the applicant for amnesty must first admit having executed the acts
constituting the offense with which he is charged or be charged.

Upon the facts in this case, petitioners are entitled to have their applications for amnesty heard
and decided by respondent 14th Guerrilla Amnesty Commission.

With the revocation of its order of January 9, 1947, respondent 14th Guerrilla Amnesty Commission
is ordered to immediately proceed to hear and decide the applications for amnesty of petitioners
Barrioquinto and Jimenez.

TUASON, J., dissenting:

I am unable to agree with the decision of the Court and shall briefly state my reasons.

The decision proceeds on the assumption that the Guerrilla Amnesty Commission refused to hear
and decide the application for amnesty of the present petitioners. I think this is a mistake. There
are examinations of records, hearing and decisions.

The pleadings and annexes show that hearing was held on the 9th of January, 19947 in which the
two petitioners and their counsel were present, and one of them, Barrioquinto, testified and that it
was after that hearing, on the same date, that the Commission denied their petition in a written
order and directed the clerk to return the "expedientes" to the Court of First Instance of Zamboanga
for its final action.

It is apparent from this order that the Commission acted in the manner contemplated by
Proclamation No. 8 of the President. The return of the papers to the court merely follow the
procedure provided in the proclamation, which stipulates "that any case now pending on which
may be filed in the future a Guerrilla Amnesty Commission decides as not within the terms of the
amnesty shall proceed in accordance with the usual legal procedure in the courts without regard
to this proclamation."
The proclamation does not prescribe any specific mode of hearing. That the Commission shall
examine the facts and circumstance surrounding each case is all that is provided for. In its
discretion, the Commission may, if it deems necessary, hear the witnesses both for the
complainant and the accused. The hearing does not have to be formal; it may be summary,
according tot he proclamation. This privilege, discretionary with the Commission, was afforded the
accused as far as the nature of their defense permitted.

I get the inference from an examination of the orders of the Commission that the latter went over
the record of each defendant's criminal case. These records are, without doubt, the "expedientes"
which the Commission, ordered sent back to the court. The Commission, we are to presume, read
the exhaustive and well-reasoned decision of the court against Jimenez and the evidence for and
against him on which that decision is based. The fact that Jimenez and his witness had already
given his evidence at length, may well account for the failure or refusal of the Commission to hear
him and his witnesses further. Only Barrioquinto, whose case had not yet been tried in the Court
of First Instance because he had escaped, was heard by the Commission. The record of heat
hearing consists of 33 written pages.

As to the determination of the pretended right of the defendants to the benefits of amnesty, the two
orders of the Commission are decisions on the merits, definite and final as far as the Commission
is concerned. The fact that the defendants denied having committed the crime imputed to them
was cited by the Commission as ground for its decision to turn down their application. That
circumstance was not given as ground for refusal to act. Moreover, in the second order, a lengthy
order dictated on the motion for reconsideration by Jimenez, additional reasons are stated.

The Commission has thus amply performed the duties required of it by the Amnesty Proclamation
in both the matters of investigating and deciding. The commission heard one accused and
examined the evidence introduced and the decision rendered against the other. With the reasoning
by which the Commission reached its decision, or with the result of its decision, it is not within the
province of the court to concern itself.

The Amnesty Commissions are executive instrumentalities acting for and in behalf of the President.
They are not courts; they are not performing judicial function, and this Court has no appellate
jurisdiction over their actuations, orders or decisions.

Mandamus is ordinarily a remedy for official inaction. (Guanio vs. Fernandez, 55 Phil., 814.) The
Court can order the Commission to act but it can not tell the Commission how to act. How or for
whom a case should be decided is a matter of judgment which courts have no jurisdiction to control
or review. And so ifs the sufficiency or insufficiency of evidence. The write of mandamus will not
issue to control or review the exercise of discretion of a public officer where the law imposes upon
a public officer the right and the duty to exercise judgment. In reference to any matter in which he
is required to act, it is his judgment that is to be exercised and not that of the court. (Blanco vs.
Board of Medical Examiners, 46 Phil., 190.)

In the view I take of the case, it is unnecessary to discuss the court's premise that "there is nothing
in the proclamation to even hint that the applicant for amnesty must first admit having executed
the ac t s constituting the offense with which he is charged or may be charged." Nevertheless, I
don't think the Commission was wrong in its theory.

Amnesty presupposes the commission of a crime. When an accused says that he has not
committed a crime he cannot have any use for amnesty. It is also self-evening that where the
Amnesty Proclamation imposes certain conditions, as in this case, it is incumbent upon the
accused to prove the existence of those conditions. A petition for amnesty is inn the nature of plea
of confession and avoidance. The pleader has to confess the allegations against him before he is
allowed to set out such facts as, if true, would defeat the action. It is a rank inconsistency for one
to justify an act, seek forgiveness for an act of which, according to him, he is not responsible. It is
impossible for a court or commission to verify the presence of the essential conditions which should
entitle the applicants to exemption from punishment, when the accused and his witnesses say that
he did not commit a crime. In the nature of things, only the accused and his witnesses could prove
that the victim collaborated with the enemy; that the killing was perpetrated in furtherance of the
resistance movements; that no personal motive intervened in the commission of the murder, etc.,
etc. These, or some of these, are matters of belief and intention which only the accused and his
witnesses could explain.

As a matter of procedure, certiorari or mandamus, whatever the present proceeding may be, does
not lie because there is another plain, speedy and adequate remedy at law. The decision of the
Commission has not closed the avenue for the petitioners to invoke the provisions of the Amnesty
Proclamation before the courts. I invite attention to the provision of the proclamation which I have
quoted. In the case of Jimenez, he could ask for a new trial, as he in effect would have the
Commission grant him; and in the case of Barrioquinto he could set up the proclamation in his plea
when his trial comes up.

PABLO, M., concurring:

Concurro con esta disidencia.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45459 March 13, 1937

GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.

Vicente Sotto for petitioner.

Office of the Solicitor-General Tuason for respondent.

LAUREL, J.:

The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church,
seeks the issuance from this court of a writ of prohibition to prevent the respondent Director of
Posts from issuing and selling postage stamps commemorative of the Thirty-third International
Eucharistic Congress.

In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the
issues of postage stamps commemorating the celebration in the City of Manila of the Thirty-third
international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in
the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of
the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest
of the petitioner's attorney, the respondent publicly announced having sent to the United States
the designs of the postage stamps for printing as follows:

"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are
blue, green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are
for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually issued and sold though the
greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to be
prevented by the petitioner herein.

The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the
instant case, although he admits that the writ may properly restrain ministerial functions. While,
generally, prohibition as an extraordinary legal writ will not issue to restrain or control the
performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and
enforcement are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals,
corporations, boards, or persons, whether excercising functions judicial or ministerial, which are
without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs.
516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference
to "functions" in the statute are undoubtedly comprehensive and include the challenged act of the
respondent Director of Posts in the present case, which act because alleged to be violative of the
Constitution is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule, therefore, in
the jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep
them within the limits of their own jurisdiction and to prevent them from encroaching upon the
jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose
acts are without or in excess of his authority. Not infrequently, "the writ is granted, where it is
necessary for the orderly administration of justice, or to prevent the use of the strong arm of the
law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs.
Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the Constitution by the
respondent in issuing and selling postage stamps commemorative of the Thirty-third International
Eucharistic Congress. It is alleged that this action of the respondent is violative of the provisions
of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as
follows:

No public money or property shall ever be appropriated, applied, or used, directly or

indirectly, for the use, benefit, or support of any sect, church, denomination, secretarian,
institution, or system of religion, or for the use, benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage,
or leprosarium.

The prohibition herein expressed is a direct corollary of the principle of separation of church and
state. Without the necessity of adverting to the historical background of this principle in our country,
it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for ocassions might arise when the estate will use
the church, and the church the state, as a weapon in the furtherance of their recognized this
principle of separation of church and state in the early stages of our constitutional development; it
was inserted in the Treaty of Paris between the United States and Spain of December 10, 1898,
reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the
Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the
constitution of the Philippines as the supreme expression of the Filipino people. It is almost trite to
say now that in this country we enjoy both religious and civil freedom. All the officers of the
Government, from the highest to the lowest, in taking their oath to support and defend the
constitution, bind themselves to recognize and respect the constitutional guarantee of religious
freedom, with its inherent limitations and recognized implications. It should be stated that what is
guaranteed by our Constitution is religious liberty, not mere religious toleration.

Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence

for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is recognized. And, in so far as it instills
into the minds the purest principles of morality, its influence is deeply felt and highly appreciated.
When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine
Providence, in order to establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and secure to themselves and
their posterity the blessings of independence under a regime of justice, liberty and democracy,"
they thereby manifested reliance upon Him who guides the destinies of men and nations. The
elevating influence of religion in human society is recognized here as elsewhere. In fact, certain
general concessions are indiscriminately accorded to religious sects and denominations. Our
Constitution and laws exempt from taxation properties devoted exclusively to religious purposes
(sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance
appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited
when a priest, preacher, minister or other religious teacher or dignitary as such is assigned to the
armed forces or to any penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI,
Constitution of the Philippines). Optional religious instruction in the public schools is by
constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec.
928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular idea that their
observance is conclusive to beneficial moral results. The law allows divorce but punishes polygamy
and bigamy; and certain crimes against religious worship are considered crimes against the
fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).

In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in
question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows:
 No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND
MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY
NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF
POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES.

Be it enacted by the Senate and House of Representatives of the Philippines in Legislature

assembled and by the authority of the same:

SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately
available out of any funds in the Insular Treasury not otherwise appropriated, for the costs of plates
and printing of postage stamps with new designs, and other expenses incident thereto.

SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and
Communications, is hereby authorized to dispose of the whole or any portion of the amount herein
appropriated in the manner indicated and as often as may be deemed advantageous to the
Government.

SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.

SEC. 4. This act shall take effect on its approval.

Approved, February 21, 1933.

It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and
printing of postage stamps with new designs and other expenses incident thereto, and authorizes
the Director of Posts, with the approval of the Secretary of Public Works and Communications, to
dispose of the amount appropriated in the manner indicated and "as often as may be deemed
advantageous to the Government". The printing and issuance of the postage stamps in question
appears to have been approved by authority of the President of the Philippines in a letter dated
September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent
alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted.
He estimates the revenue to be derived from the sale of the postage stamps in question at
P1,618,17.10 and states that there still remain to be sold stamps worth P1,402,279.02.

Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the
discretionary power to determine when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase "advantageous to the Government"
does not authorize the violation of the Constitution. It does not authorize the appropriation, use or
application of public money or property for the use, benefit or support of a particular sect or church.
In the present case, however, the issuance of the postage stamps in question by the Director of
Posts and the Secretary of Public Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church.
Nor were money derived from the sale of the stamps given to that church. On the contrary, it
appears from the latter of the Director of Posts of June 5, 1936, incorporated on page 2 of the
petitioner's complaint, that the only purpose in issuing and selling the stamps was "to advertise the
Philippines and attract more tourist to this country." The officials concerned merely, took advantage
of an event considered of international importance "to give publicity to the Philippines and its
people" (Letter of the Undersecretary of Public Works and Communications to the President of the
Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps as
actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally
planned, contains a map of the Philippines and the location of the City of Manila, and an inscription
as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is emphasized
is not the Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that
congress. It is obvious that while the issuance and sale of the stamps in question may be said to
be inseparably linked with an event of a religious character, the resulting propaganda, if any,
received by the Roman Catholic Church, was not the aim and purpose of the Government. We are
of the opinion that the Government should not be embarassed in its activities simply because of
incidental results, more or less religious in character, if the purpose had in view is one which could
legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated
by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.
S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)

We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate
the complete separation of church and state and curb any attempt to infringe by indirection a
constitutional inhibition. Indeed, in the Philippines, once the scene of religious intolerance and
prescription, care should be taken that at this stage of our political development nothing is done
by the Government or its officials that may lead to the belief that the Government is taking sides
or favoring a particular religious sect or institution. But, upon very serious reflection, examination
of Act No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that
there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of
Posts, with the approval of the Secretary of Public Works and Communications, discretion to
misuse postage stamps with new designs "as often as may be deemed advantageous to the
Government." Even if we were to assume that these officials made use of a poor judgment in
issuing and selling the postage stamps in question still, the case of the petitioner would fail to take
in weight. Between the exercise of a poor judgment and the unconstitutionality of the step taken,
a gap exists which is yet to be filled to justify the court in setting aside the official act assailed as
coming within a constitutional inhibition.

The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So
ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
 THIRD DIVISION
[G.R. No. 109404. January 22, 1996]
FLORENCIO EUGENIO, doing business under the name E & S Delta
Village, petitioner, vs. EXECUTIVE SECRETARY FRANKLIN M.
DRILON, HOUSING AND LAND USE. REGULATORY BOARD
(HLURB) AND PROSPERO PALMIANO, respondents.

RESOLUTION
PANGANIBAN, J.:

Did the failure to develop a subdivision constitute legal justification for the
non-payment of amortizations by a buyer on installment under land purchase
agreements entered into prior to the enactment of P.D. 957, The Subdivision
and Condominium Buyers Protective Decree? This is the major question
raised in the instant Petition seeking to set aside the Decision of the
respondent Executive Secretary dated March 10, 1992 in O.P. Case No.
3761, which affirmed the order of the respondent HLURB dated September
1, 1987.
On May 10, 1972, private respondent purchased on installment basis
from petitioner and his co-owner/ developer Fermin Salazar, two lots in the E
& S Delta Village in Quezon City.
Acting on complaints for non-development docketed as NHA Cases Nos.
2619 and 2620 filed by the Delta Village Homeowners Association, Inc., the
National Housing Authority rendered a resolution on January 17, 1979 inter
alia ordering petitioner to cease and desist from making further sales of lots
in said village or in any project owned by him.
While NHA Cases Nos. 2619 and 2620 were still pending, private
respondent filed with the Office of Appeals, Adjudication and Legal Affairs
(OAALA) of the Human Settlements Regulatory Commission (HSRC), a
complaint (Case No. 80-589) against petitioner and spouses Rodolfo and
Adelina Relevo alleging that, in view of the above NHA resolution, he
suspended payment of his amortizations, but that petitioner resold one of the
two lots to the said spouses Relevo, in whose favor title to the said property
was registered. Private respondent further alleged that he suspended his
payments because of petitioners failure to develop the village. Private
respondent prayed for the annulment of the sale to the Relevo spouses and
for reconveyance of the lot to him.
On October 11, 1983, the OAALA rendered a decision upholding the right
of petitioner to cancel the contract with private respondent and dismissed
private respondents complaint.
 On appeal, the Commission Proper of the HSRC reversed the OAALA
and, applying P.D. 957, ordered petitioner to complete the subdivision
development and to reinstate private respondents purchase contract over
one lot, and as to the other, it appearing that Transfer Certificate of Title No.
269546 has been issued to x x x spouses Rodolfo and Ad(e)lina Relevo x x
x, the management of E & S Delta Village is hereby ordered to immediately
refund to the complainant-appellant (herein private respondent) all payments
made thereon, plus interests computed at legal rates from date of receipt
hereof until fully paid.
The respondent Executive Secretary, on appeal, affirmed the decision of
the HSRC and denied the subsequent Motion for Reconsideration for lack of
merit and for having been filed out of time. Petitioner has now filed this
Petition for review before the Supreme Court.
Under Revised Administrative Circular No. 1-95, appeals from judgments
or final orders of the x x x Office of the President x x x may be taken to the
Court of Appeals x x x. However, in order to hasten the resolution of this
case, which was deemed submitted for decision one and a half years ago,
the Court resolved to make an exception to the said Circular in the interest
of speedy justice.
In his Petition before this Court, petitioner avers that the Executive
Secretary erred in applying P.D. 957 and in concluding that the non-
development of the E & S Delta Village justified private respondents non-
payment of his amortizations. Petitioner avers that inasmuch as the land
purchase agreements were entered into in 1972, prior to the effectivity of
P.D. 957 in 1976, said law cannot govern the transaction.
We hold otherwise, and herewith rule that respondent Executive
Secretary did not abuse his discretion, and that P.D. 957 is to be given
retroactive effect so as to cover even those contracts executed prior to its
enactment in 1976.
P.D. 957 did not expressly provide for retroactivity in its entirety, but such
can be plainly inferred from the unmistakable intent of the law.
The intent of the law, as culled from its preamble and from the situation,
circumstances and conditions it sought to remedy, must be enforced. On this
point, a leading authority on statutory construction stressed:

The intent of a statute is the law x x x. The intent is the vital part, the essence of the
law, and the primary rule of construction is to ascertain and give effect to the
intent. The intention of the legislature in enacting a law is the law itself and must be
enforced when ascertained, although it may not be consistent with the strict letter of
the statute. Courts will not follow the letter of a statute when it leads away from the
true intent and purpose of the legislature and to conclusions inconsistent with the
general purpose of the act x x x. In construing statutes the proper course is to start
out and follow the true intent of the legislature and to adopt that sense which
harmonizes best with the context and promotes in the fullest manner the apparent
policy and objects of the legislature.1 (italics supplied.)

It goes without saying that, as an instrument of social justice, the law

must favor the weak and the disadvantaged, including, in this instance, small
lot buyers and aspiring homeowners. P.D. 957 was enacted with no other
end in view than to provide a protective mantle over helpless citizens who
may fall prey to the manipulations and machinations of unscrupulous
subdivision and condominium sellers, and such intent is nowhere expressed
more clearly than in its preamble, pertinent portions of which read as follows:

WHEREAS, it is the policy of the State to afford its inhabitants the requirements of
decent human settlement and to provide them with ample opportunities for
improving their quality of life;

WHEREAS, numerous reports reveal that many real estate subdivision owners,
developers, operators, and/or sellers have reneged on their representations and
obligations to provide and maintain properly subdivision roads, drainage, sewerage,
water systems, lighting systems, and other similar basic requirements, thus
endangering the health and safety of home and lot buyers;

WHEREAS, reports of alarming magnitude also show cases of swindling and

fraudulent manipulations perpetrated by unscrupulous subdivision and
condominium sellers and operators, such as failure to deliver titles to the buyers or
titles free from liens and encumbrances, and to pay real estate taxes, and fraudulent
sales of the same subdivision lots to different innocent purchasers for value;2 (italics
supplied.)

From a dedicated reading of the preamble, it is manifest and unarguable

that the legislative intent must have been to remedy the alarming situation
by having P.D. 957 operate retrospectively even upon contracts already in
existence at the time of its enactment. Indeed, a strictly prospective
application of the statute will effectively emasculate it, for then the State will
not be able to exercise its regulatory functions and curb fraudulent schemes
and practices perpetrated under or in connection with those contracts and
transactions which happen to have been entered into prior to P.D. 957,
despite obvious prejudice to the very subdivision lot buyers sought to be
protected by said law. It is hardly conceivable that the legislative authority
intended to permit such a loophole to remain and continue to be a source of
misery for subdivision lot buyers well into the future.
Adding force to the arguments for the retroactivity of P.D. 957 as a whole
are certain of its provisions, viz., Sections 20, 21 and 23 thereof, which by
their very terms have retroactive effect and will impact upon even those
contracts and transactions entered into prior to P.D. 957s enactment:

Sec. 20. Time of Completion. - Every owner or developer shall construct and provide
the facilities, improvements, infrastructures and other forms of development,
including water supply and lighting facilities, which are offered and indicated in the
approved subdivision or condominium plans, brochures, prospectus, printed matters,
letters or in any form of advertisement, within one year from the date of the issuance
of the license for the subdivision or condominium project or such other period of
time as may be fixed by the Authority.

Sec. 21. Sales Prior to Decree. - In cases of subdivision lots or condominium units
sold or disposed of prior to the effectivity of this Decree, it shall be incumbent upon
the owner or developer of the subdivision or condominium project to complete
compliance with his or its obligations as provided in the preceding section within
two years from the date of this Decree unless otherwise extended by the Authority
or unless an adequate performance bond is filed in accordance with Section 6 hereof.

Failure of the owner or developer to comply with the obligations under this and the
preceding provisions shall constitute a violation punishable under Sections 38 and
39 of this Decree.

Sec. 23. Non-Forfeiture of Payments. - No installment payment made by a buyer in

a subdivision or condominium project for the lot or unit he contracted to buy shall
be forfeited in favor of the owner or developer when the buyer, after due notice to
the owner or developer, desists from further payment due to the failure of the owner
or developer to develop the subdivision or condominium project according to the
approved plans and within the time limit for complying with the same. Such buyer
may, at his option, be reimbursed the total amount paid including amortization
interests but excluding delinquency interests, with interest thereon at the legal rate.
(italics supplied)

On the other hand, as argued by the respondent Executive Secretary,

the application of P.D. 957 to the contracts in question will be consistent with
paragraph 4 of the contracts themselves, which expressly provides:

(4) The party of the First Part hereby binds himself to subdivide, develop and
improve the entire area covered by Transfer Certificate of Title No. 168119 of which
the parcels of lands subject of this contract is a part in accordance with the provisions
of Quezon City Ordinance No. 6561, S-66 and the Party of the First Part further
binds himself to comply with and abide by all laws, rules and regulations respecting
the subdivision and development of lots for residential purposes as may be presently
in force or may hereafter be required by laws passed by the Congress of the
Philippines or required by regulations of the Bureau of Lands, the General
Registration Office and other government agencies. (italics supplied)
 Moreover, as P.D. 957 is undeniably applicable to the contracts in
question, it follows that Section 23 thereof had been properly invoked by
private respondent when he desisted from making further payment to
petitioner due to petitioners failure to develop the subdivision project
according to the approved plans and within the time limit for complying with
the same. (Such incomplete development of the subdivision and non-
performance of specific contractual and statutory obligations on the part of
the subdivision-owner had been established in the findings of the HLURB
which in turn were confirmed by the respondent Executive Secretary in his
assailed Decision.) Furthermore, respondent Executive Secretary also gave
due weight to the following matters: although private respondent started to
default on amortization payments beginning May 1975, so that by the end of
July 1975 he had already incurred three consecutive arrearages in
payments, nevertheless, the petitioner, who had the cancellation option
available to him under the contract, did not exercise or utilize the same in
timely fashion but delayed until May 1979 when he finally made up his mind
to cancel the contracts. But by that time the land purchase agreements had
already been overtaken by the provisions of P.D. 957, promulgated on July
12, 1976. (In any event, as pointed out by respondent HLURB and seconded
by the Solicitor General, the defaults in amortization payments incurred by
private respondent had been effectively condoned by the petitioner, by
reason of the latters tolerance of the defaults for a long period of time.)
Likewise, there is no merit in petitioners contention that respondent
Secretary exceeded his jurisdiction in ordering the refund of private
respondents payments on Lot 12 although (according to petitioner) only Lot
13 was the subject of the complaint. Respondent Secretary duly noted that
the supporting documents submitted substantiating the claim of non-
development justified such order inasmuch as such claim was also the basis
for non-payment of amortizations on said Lot 12.
Finally, since petitioners motion for reconsideration of the (Executive
Secretarys) Decision dated March 10, 1992 was filed only on the 21st day
from receipt thereof, said decision had become final and executory, pursuant
to Section 7 of Administrative Order No. 18 dated February 12, 1987, which
provides that (d)ecisions/ resolutions! orders of the Office of the President
shall, except as otherwise provided for by special laws, become final after
the lapse of fifteen (15) days from receipt of a copy thereof x x x , unless a
motion for reconsideration thereof is filed within such period.
WHEREFORE, there being no showing of grave abuse of discretion, the
petition is DENIED due course and is hereby DISMISSED. No costs.
SO ORDERED.
Narvasa, C.J. (Chairman), Davide Jr., Melo, and Francisco, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 123169 November 4, 1996

DANILO E. PARAS, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

FRANCISCO, J.:

Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan

City who won during the last regular barangay election in 1994. A petition for his recall
as Punong Barangay was filed by the registered voters of the barangay. Acting on the
petition for recall, public respondent Commission on Elections (COMELEC) resolved
to approve the petition, scheduled the petition signing on October 14, 1995, and set
the recall election on November 13,
1995.1 At least 29.30% of the registered voters signed the petition, well above the 25%
requirement provided by law. The COMELEC, however, deferred the recall election in
view of petitioner's opposition. On December 6, 1995, the COMELEC set anew the
recall election, this time on December 16, 1995. To prevent the holding of the recall
election, petitioner filed before the Regional Trial Court of Cabanatuan City a petition
for injunction, docketed as SP Civil Action No. 2254-AF, with the trial court issuing a
temporary restraining order. After conducting a summary hearing, the trial court lifted
the restraining order, dismissed the petition and required petitioner and his counsel to
explain why they should not be cited for contempt for misrepresenting that the
barangay recall election was without COMELEC approval.2

In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled
the recall election an January 13, 1996; hence, the instant petition for certiorari with
urgent prayer for injunction. On January 12, 1996, the Court issued a temporary
restraining order and required the Office of the Solicitor General, in behalf of public
respondent, to comment on the petition. In view of the Office of the Solicitor General's
manifestation maintaining an opinion adverse to that of the COMELEC, the latter
through its law department filed the required comment. Petitioner thereafter filed a
reply.3

Petitioner's argument is simple and to the point. Citing Section 74 (b) of Republic Act
No. 7160, otherwise known as the Local Government Code, which states that "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", petitioner insists
that the scheduled January 13, 1996 recall election is now barred as the Sangguniang
Kabataan (SK) election was set by Republic Act No. 7808 on the first Monday of May
1996, and every three years thereafter. In support thereof, petitioner cites Associated
Labor Union v. Letrondo-Montejo, 237 SCRA 621, where the Court considered the SK
election as a regular local election. Petitioner maintains that as the SK election is a
regular local election, hence no recall election can be had for barely four months
separate the SK election from the recall election. We do not agree.

The subject provision of the Local Government Code provides:

Sec. 74. 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.

[Emphasis added]

It is a rule in statutory construction that every part of the statute must be interpreted
with reference to the context, i.e., that every part of the statute must be considered
together with the other parts, and kept subservient to the general intent of the whole
enactment.4 The evident intent of Section 74 is to subject an elective local official to
recall election once during his term of office. Paragraph (b) construed together with
paragraph (a) merely designates the period when such elective local official may be
subject of a recall election, that is, during the second year of his term of office. Thus,
subscribing to petitioner's interpretation of the phrase regular local election to include
the SK election will unduly circumscribe the novel provision of the Local Government
Code on recall, a mode of removal of public officers by initiation of the people before
the end of his term. And if the SK election which is set by R.A No. 7808 to be held
every three years from May 1996 were to be deemed within the purview of the phrase
"regular local election", as erroneously insisted by petitioner, then no recall election
can be conducted rendering inutile the recall provision of the Local Government Code.

In the interpretation of a statute, the Court should start with the assumption that the
legislature intended to enact an effective law, and the legislature is not presumed to
have done a vain thing in the enactment of a statute. 5 An interpretation should, if
possible, be avoided under which a statute or provision being construed is defeated,
or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained
away, or rendered insignificant, meaningless, inoperative or nugatory. 6

It is likewise a basic precept in statutory construction that a statute should be

interpreted in harmony with the Constitution.7 Thus, the interpretation of Section 74 of
the Local Government Code, specifically paragraph (b) thereof, should not be in
conflict with the Constitutional mandate of Section 3 of Article X of the Constitution to
"enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization
with effective mechanism of recall, initiative, and referendum . . . ."
Moreover, petitioner's too literal interpretation of the law leads to absurdity which we
cannot countenance. Thus, in a case, the Court made the following admonition:

We admonish against a too-literal reading of the law as this is apt to

constrict rather than fulfill its purpose and defeat the intention of its
authors. That intention is usually found not in "the letter that killeth but in
the spirit that vivifieth". . .8

The spirit, rather than the letter of a law determines its construction; hence, a
statute, as in this case, must be read according to its spirit and intent.

Finally, recall election is potentially disruptive of the normal working of the local
government unit necessitating additional expenses, hence the prohibition against the
conduct of recall election one year immediately preceding the regular local election.
The proscription is due to the proximity of the next regular election for the office of the
local elective official concerned. The electorate could choose the official's replacement
in the said election who certainly has a longer tenure in office than a successor elected
through a recall election. It would, therefore, be more in keeping with the intent of the
recall provision of the Code to construe regular local election as one referring to an
election where the office held by the local elective official sought to be recalled will be
contested and be filled by the electorate.

Nevertheless, recall at this time is no longer possible because of the limitation stated
under Section 74 (b) of the Code considering that the next regular election involving
the barangay office concerned is barely seven (7) months away, the same having been
scheduled on May 1997. 9

ACCORDINGLY, the petition is hereby dismissed for having become moot and
academic. The temporary restraining order issued by the Court on January 12, 1996,
enjoining the recall election should be as it is hereby made permanent.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

Separate Opinions

DAVIDE, JR., J., concurring:

I concur with Mr. Justice Ricardo J. Francisco in his ponencia.

However, I wish to add another reason as to why the SK election cannot be considered
a "regular local election" for purposes of recall under Section 74 of the Local
Government Code of 1991.

The term "regular local election" must be confined to the regular election of elective
local officials, as distinguished from the regular election of national officials. The
elective national officials are the President, Vice-President, Senators and
Congressmen. The elective local officials are Provincial Governors, Vice-Governors
of provinces, Mayors and Vice-Mayors of cities and municipalities, Members of
the Sanggunians of provinces, cities and municipalities, punong barangays and
members of the sangguniang barangays, and the elective regional officials of the
Autonomous Region of Muslim Mindanao. These are the only local elective officials
deemed recognized by Section 2(2) of Article IX-C of the Constitution, which provides:

Sec. 2. The Commission on Elections shall exercise the following powers

and functions:

xxx xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial,
and city officials, and appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general jurisdiction,
or involving elective barangay officials decided by trial courts of limited
jurisdiction.

A regular election, whether national or local, can only refer to an election participated
in by those who possess the right of suffrage, are not otherwise disqualified by law,
and who are registered voters. One of the requirements for the exercise of suffrage
under Section 1, Article V of the Constitution is that the person must be at least 18
years of age, and one requisite before he can vote is that he be a registered voter
pursuant to the rules on registration prescribed in the Omnibus Election Code (Section
113-118).

Under the law, the SK includes the youth with ages ranging from 15 to 21 (Sec. 424,
Local Government Code of 1991). Accordingly, they include many who are not
qualified to vote in a regular election, viz., those from ages 15 to less than 18. In no
manner then may SK elections be considered a regular election (whether national or
local).

Indeed the Sangguniang Kabataan is nothing more than a youth organization, and
although fully recognized in the Local Government Code and vested with certain
powers and functions, its elective officials have not attained the status of local elective
officials. So, in Mercado vs. Board of Election Supervisors (243 SCRA 422 [1995]),
this Court ruled that although the SK Chairman is an ex-officio member of
the sangguniang barangay — an elective body — that fact does not make him "an
elective barangay official," since the law specifically provides who comprise
the elective officials of the sangguniang barangay, viz., the punong barangay and the
seven (7) regular sangguniang barangay members elected at large by those qualified
to exercise the right of suffrage under Article V of the Constitution, who are likewise
registered voters of the barangay. This shows further that the SK election is not a
regular local election for purposes of recall under Section 74 of the Local Government
Code.

Separate Opinions

DAVIDE, JR., J., concurring:

I concur with Mr. Justice Ricardo J. Francisco in his ponencia.

However, I wish to add another reason as to why the SK election cannot be considered
a "regular local election" for purposes of recall under Section 74 of the Local
Government Code of 1991.

The term "regular local election" must be confined to the regular election of elective
local officials, as distinguished from the regular election of national officials. The
elective national officials are the President, Vice-President, Senators and
Congressmen. The elective local officials are Provincial Governors, Vice-Governors
of provinces, Mayors and Vice-Mayors of cities and municipalities, Members of
the Sanggunians of provinces, cities and municipalities, punong barangays and
members of the sangguniang barangays, and the elective regional officials of the
Autonomous Region of Muslim Mindanao. These are the only local elective officials
deemed recognized by Section 2(2) of Article IX-C of the Constitution, which provides:

Sec. 2. The Commission on Elections shall exercise the following powers

and functions:

xxx xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial,
and city officials, and appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general jurisdiction,
or involving elective barangay officials decided by trial courts of limited
jurisdiction.

A regular election, whether national or local, can only refer to an election participated
in by those who possess the right of suffrage, are not otherwise disqualified by law,
and who are registered voters. One of the requirements for the exercise of suffrage
under Section 1, Article V of the Constitution is that the person must be at least 18
years of age, and one requisite before he can vote is that he be a registered voter
pursuant to the rules on registration prescribed in the Omnibus Election Code (Section
113-118).

Under the law, the SK includes the youth with ages ranging from 15 to 21 (Sec. 424,
Local Government Code of 1991). Accordingly, they include many who are not
qualified to vote in a regular election, viz., those from ages 15 to less than 18. In no
manner then may SK elections be considered a regular election (whether national or
local).

Indeed the Sangguniang Kabataan is nothing more than a youth organization, and
although fully recognized in the Local Government Code and vested with certain
powers and functions, its elective officials have not attained the status of local elective
officials. So, in Mercado vs. Board of Election Supervisors (243 SCRA 422 [1995]),
this Court ruled that although the SK Chairman is an ex-officio member of
the sangguniang barangay — an elective body — that fact does not make him "an
elective barangay official," since the law specifically provides who comprise
the elective officials of the sangguniang barangay, viz., the punong barangay and the
seven (7) regular sangguniang barangay members elected at large by those qualified
to exercise the right of suffrage under Article V of the Constitution, who are likewise
registered voters of the barangay. This shows further that the SK election is not a
regular local election for purposes of recall under Section 74 of the Local Government
Code.

Narvasa, C.J., Padilla, Regalado, Bellosillo, Vitug and Mendoza, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 122156 February 3, 1997

MANILA PRINCE HOTEL petitioner,

vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.

BELLOSILLO, J.:

The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges,
and concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos,1 is in oked by petitioner in its bid to acquire 51% of the shares of the Manila
Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain
that the provision is not self-executing but requires an implementing legislation for its enforcement.
Corollarily, they ask whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant
to the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila Hotel.2 In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a
Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid
for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state —

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC —

1. The Highest Bidder must comply with the conditions set forth below by October
23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to
the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the

GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila
Hotel. . . .
 b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER —

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not later

than October 23, 1995 (reset to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee

on Privatization)/OGCC (Office of the Government Corporate
Counsel) are obtained.3

Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the
execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September
1995 matched the bid price of P44.00 per share tendered by Renong Berhad.4 In a subsequent
letter dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-
three Million Pesos (P33.000.000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad . . .5 which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of
the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus.
On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.

On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred
to it by the First Division. The case was then set for oral arguments with former Chief Justice
Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony.6 Petitioner also argues that
since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which
is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business
of respondent GSIS being a part of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered
by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it
has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any
reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the
other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share.8

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision
and requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done."9
Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in
the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents,
while petitioner speaks of the guests who have slept in the hotel and the events that have
transpired therein which make the hotel historic, these alone do not make the hotel fall under
the patrimony of the nation. What is more, the mandate of the Constitution is addressed to the
State, not to respondent GSIS which possesses a personality of its own separate and distinct from
the Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional
provision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares
of the corporation, not the hotel building nor the land upon which the building stands. Certainly,
51% of the equity of the MHC cannot be considered part of the national patrimony. Moreover, if
the disposition of the shares of the MHC is really contrary to the Constitution, petitioner should
have questioned it right from the beginning and not after it had lost in the bidding.

Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders
are willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate
that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a matching
bid had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since
respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it
did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition
for mandamus should fail as petitioner has no clear legal right to what it demands and respondents
do not have an imperative duty to perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as the fundamental and paramount law of
the nation. 10 It prescribes the permanent framework of a system of government, assigns to the
different departments their respective powers and duties, and establishes certain fixed principles
on which government is founded. The fundamental conception in other words is that it is a supreme
law to which all other laws must conform and in accordance with which all private rights must be
determined and all public authority administered. 11 Under the doctrine of constitutional supremacy,
if a law or contract violates any norm of the constitution that law or contract whether promulgated
by the legislative or by the executive branch or entered into by private persons for private purposes
is null and void and without any force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision which
lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not
self-executing. But a provision which is complete in itself and becomes operative without the aid
of supplementary or enabling legislation, or that which supplies sufficient rule by means of which
the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is
self-executing if the nature and extent of the right conferred and the liability imposed are fixed by
the constitution itself, so that they can be determined by an examination and construction of its
terms, and there is no language indicating that the subject is referred to the legislature for action. 13

As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative body. Hence, unless
it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental law.14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that —

. . . in case of doubt, the Constitution should be considered self-executing rather

than non-self-executing . . . . Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing, as a contrary rule would
give the legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. 15

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing, as they quote from discussions on the floor of the 1986 Constitutional Commission —

MR. RODRIGO. Madam President, I am asking this question as the

Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner Rodrigo?

Is it to remove the word "QUALIFIED?".

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED

FILIPINOS" as against whom? As against aliens or over aliens?

MR. NOLLEDO. Madam President, I think that is understood. We

use the word "QUALIFIED" because the existing laws or
prospective laws will always lay down conditions under which
business may be done. For example, qualifications on the setting
up of other financial structures, et cetera (emphasis supplied by
respondents)

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes, 16

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not
precluded from enacting other further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.

In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection
of the rights secured or the determination thereof, or place reasonable safeguards around the
exercise of the right. The mere fact that legislation may supplement and add to or prescribe a
penalty for the violation of a self-executing constitutional provision does not render such a provision
ineffective in the absence of such legislation. The omission from a constitution of any express
provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not
intended to be self-executing. The rule is that a self-executing provision of the constitution does
not necessarily exhaust legislative power on the subject, but any legislation must be in harmony
with the constitution, further the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not necessarily mean that the subject
constitutional provision is not, by itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are
not self-executing. 18 The argument is flawed. If the first and third paragraphs are not self-executing
because Congress is still to enact measures to encourage the formation and operation of
enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation
to regulate and exercise authority over foreign investments within its national jurisdiction, as in the
third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing
as it does not by its language require any legislation in order to give preference to qualified Filipinos
in the grant of rights, privileges and concessions covering the national economy and patrimony. A
constitutional provision may be self-executing in one part and non-self-executing in another. 19

Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights — are simply not
in point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional
provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-
building 23 the promotion of social justice, 24 and the values of education. 25 Tolentino v. Secretary of
Finance 26 refers to the constitutional provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of general
welfare, 30 the sanctity of family life, 31 the vital role of the youth in nation-building 32 and the
promotion of total human liberation and development. 33A reading of these provisions indeed clearly
shows that they are not judicially enforceable constitutional rights but merely guidelines for
legislation. The very terms of the provisions manifest that they are only principles upon which the
legislations must be based. Res ipsa loquitur.

On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the provision does not require
any legislation to put it in operation. It is per se judicially enforceable When our Constitution
mandates that [i]n the grant of rights, privileges, and concessions covering national economy and
patrimony, the State shall give preference to qualified Filipinos, it means just that — qualified
Filipinos shall be preferred. And when our Constitution declares that a right exists in certain
specified circumstances an action may be maintained to enforce such right notwithstanding the
absence of any legislation on the subject; consequently, if there is no statute especially enacted to
enforce such constitutional right, such right enforces itself by its own inherent potency and
puissance, and from which all legislations must take their bearings. Where there is a right there is
a remedy. Ubi jus ibi remedium.

As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains
—

The patrimony of the Nation that should be conserved and developed refers not
only to out rich natural resources but also to the cultural heritage of out race. It also
refers to our intelligence in arts, sciences and letters. Therefore, we should develop
 not only our lands, forests, mines and other natural resources but also the mental
ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural resources, but also to
the cultural heritage of the Filipinos.

Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino, Formerly a concourse for the elite, it has since then become the venue of various
significant events which have shaped Philippine history. It was called the Cultural Center of the
1930's. It was the site of the festivities during the inauguration of the Philippine Commonwealth.
Dubbed as the Official Guest House of the Philippine Government. it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality. 36

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory
of a City. 37During World War II the hotel was converted by the Japanese Military Administration
into a military headquarters. When the American forces returned to recapture Manila the hotel was
selected by the Japanese together with Intramuros as the two (2) places fro their final stand.
Thereafter, in the 1950's and 1960's, the hotel became the center of political activities, playing host
to almost every political convention. In 1970 the hotel reopened after a renovation and reaped
numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In
1986 the hotel was the site of a failed coup d' etat where an aspirant for vice-president was
"proclaimed" President of the Philippine Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty, independence and nationhood. Verily,
Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity
of the MHC comes within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents'
claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon which the
building stands. 38

The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I would like to introduce an amendment to the

Nolledo amendment. And the amendment would consist in
substituting the words "QUALIFIED FILIPINOS" with the following:
"CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK
IS WHOLLY OWNED BY SUCH CITIZENS.

xxx xxx xxx

MR. MONSOD. Madam President, apparently the proponent is

agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it preference?
 MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino
citizens?

MR. MONSOD. At least 60 percent, Madam President.

MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we would be limiting it if we

say that the preference should only be 100-percent Filipino.

MR: DAVIDE. I want to get that meaning clear because

"QUALIFIED FILIPINOS" may refer only to individuals and not to
juridical personalities or entities.

MR. MONSOD. We agree, Madam President. 39

xxx xxx xxx

MR. RODRIGO. Before we vote, may I request that the amendment

be read again.

MR. NOLLEDO. The amendment will read: "IN THE GRANT OF

RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled entities or entities
fully-controlled by Filipinos. 40

The phrase preference to qualified Filipinos was explained thus —

MR. FOZ. Madam President, I would like to request Commissioner

Nolledo to please restate his amendment so that I can ask a
question.

MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND

CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."

MR FOZ. In connection with that amendment, if a foreign enterprise

is qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than

the Filipino enterprise, will the Filipino still be preferred?

MR. NOLLEDO. The answer is "yes."

MR. FOZ. Thank you, 41

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues —
 MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL —
THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called "Filipino First" policy. That means that Filipinos should be
given preference in the grant of concessions, privileges and rights covering the
national patrimony. 42

The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo 43 —

Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all

economic concerns. It is better known as the FILIPINO FIRST Policy . . . This
provision was never found in previous Constitutions . . . .

The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are incompetent
or inefficient, since such an indiscriminate preference would be counter productive
and inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has
to be made between a "qualified foreigner" end a "qualified Filipino," the latter shall
be chosen over the former."

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in
accordance with its own guidelines so that the sole inference here is that petitioner has been found
to be possessed of proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and marketing proficiency
to successfully operate the Manila Hotel. 44

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The
attempt to violate a clear constitutional provision — by the government itself — is only too
distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the
Constitution. For, even some of the provisions of the Constitution which evidently need
implementing legislation have juridical life of their own and can be the source of a judicial remedy.
We cannot simply afford the government a defense that arises out of the failure to enact further
enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J.,
on constitutional government is apt —

The executive department has a constitutional duty to implement laws, including

the Constitution, even before Congress acts — provided that there are
discoverable legal standards for executive action. When the executive acts, it must
be guided by its own understanding of the constitutional command and of
applicable laws. The responsibility for reading and understanding the Constitution
and the laws is not the sole prerogative of Congress. If it were, the executive would
have to ask Congress, or perhaps the Court, for an interpretation every time the
executive is confronted by a constitutional command. That is not how constitutional
government operates. 45

Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument
again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried
out with the prior approval of the State acting through respondent Committee on Privatization. As
correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets
of respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the Constitution (1) when
the activity it engages in is a "public function;" (2) when the government is so significantly involved
with the private actor as to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in
fact a transaction of the State and therefore subject to the constitutional command. 46

When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions of
power — legislative, executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three(3) branches of government. It is undeniable that in
this case the subject constitutional injunction is addressed among others to the Executive
Department and respondent GSIS, a government instrumentality deriving its authority from the
State.

It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the
winning bidder after it has negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the "Filipino First Policy provision of the Constitution bestows preference
on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder
will be declared the winning bidder. Resultantly, respondents are not bound to make the award
yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the
awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions
of which are presumed to be known to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules
be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all
laws and contracts must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.

Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot
be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms
of price per
share. Certainly, the constitutional mandate itself is reason enough not to award the block of
47

shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the
highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction
itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should
go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision
of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be
to sanction a perilous skirting of the basic law.

This Court does not discount the apprehension that this policy may discourage foreign investors.
But the Constitution and laws of the Philippines are understood to be always open to public
scrutiny. These are given factors which investors must consider when venturing into business in a
foreign jurisdiction. Any person therefore desiring to do business in the Philippines or with any of
its agencies or instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum.

The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid
of the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did
the latter have a cause of action.

Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable.
Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let
the government develop the habit of forgetting that the Constitution lays down the basic conditions
and parameters for its actions.

Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.

The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987
Constitution not merely to be used as a guideline for future legislation but primarily to be enforced;
so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun,
under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it
is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and
diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages
and welcomes more business opportunities but avowedly sanctions the preference for Filipinos
whenever such preference is ordained by the Constitution. The position of the Court on this matter
could have not been more appropriately articulated by Chief Justice Narvasa —

As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism
for decisions perceived as obstacles to economic progress and development . . .
in connection with a temporary injunction issued by the Court's First Division
against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain
statements were published in a major daily to the effect that injunction "again
demonstrates that the Philippine legal system can be a major obstacle to doing
business here.

Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
 abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk
that duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48

Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over non-
material values. A commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and nobler non-
material values. Indeed, the Court will always defer to the Constitution in the proper governance
of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself
beyond judicial review when the Constitution is involved. 49

Nationalism is inherent, in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-
state can have no higher purpose. Any interpretation of any constitutional provision must adhere
to such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism. 50

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic relic that has hosted many of the
most important events in the short history of the Philippines as a nation. We are talking about a
hotel where heads of states would prefer to be housed as a strong manifestation of their desire to
cloak the dignity of the highest state function to their official visits to the Philippines. Thus the
Manila Hotel has played and continues to play a significant role as an authentic repository of
twentieth century Philippine history and culture. In this sense, it has become truly a reflection of
the Filipino soul — a place with a history of grandeur; a most historical setting that has played a
part in the shaping of a country. 51

This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark — this Grand Old Dame of hotels in Asia — to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn
from a qualified Filipino, can be gained by the Filipinos Manila Hotel — and all that it stands for —
is sold to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is
entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized
if the national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino?
This is the plain and simple meaning of the Filipino First Policy provision of the Philippine
Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of
being the elderly watchman of the nation, will continue to respect and protect the sanctity of the
Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL

CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of
the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the
Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances
and to do such other acts and deeds as may be necessary for purpose.

SO ORDERED.

Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.
 Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which
qualified Filipinos have the preference, in ownership and operation. The Constitutional provision
on point states:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall Give preference to qualified Filipinos.1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air.2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing
not only their natural resources of the country but practically everything that belongs to the Filipino
people, the tangible and the material as well as the intangible and the spiritual assets and
possessions of the people. It is to be noted that the framers did not stop with conservation. They
knew that conservation alone does not spell progress; and that this may be achieved only through
development as a correlative factor to assure to the people not only the exclusive ownership, but
also the exclusive benefits of their national patrimony).3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich
natural resources but also to the cultural heritage of our
race.4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its
operation. This institution has played an important role in our nation's history, having been the
venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest
House for visiting foreign heads of state, dignitaries, celebrities, and others.5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should
do so with. an eye to the welfare of the future generations. In other words, the leaders of today are
the trustees of the patrimony of our race. To preserve our national patrimony and reserve it for
Filipinos was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in
debating the need for nationalization of our lands and natural resources, one expounded that we
should "put more teeth into our laws, and; not make the nationalization of our lands and natural
resources a subject of ordinary legislation but of constitutional enactment"6 To quote further: "Let
not our children be mere tenants and trespassers in their own country. Let us preserve and
bequeath to them what is rightfully theirs, free from all foreign liens and encumbrances".7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to
the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or
equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the
qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be
made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an
opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the
qualified Filipino bidder is to be significant at all.

It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in
the hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve
our national patrimony, including our historical and cultural heritage in the hands of Filipinos.

VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges,
and concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"1 is self-executory. The provision verily does not need, although it can obviously
be amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to
its cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr.,
Manila Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult
to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case
before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino
to match the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions
of dollars to be at par (to the last cent) with another. The magnitude of the magnitude of the bids
is such that it becomes hardly possible for the competing bids to stand exactly "equal" which alone,
under the dissenting view, could trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a
letdown that it did not deserve, by a simple and timely advise of the proper rules of bidding along
with the peculiar constitutional implications of the proposed transaction. It is also regrettable that
the Court at time is seen, to instead, be the refuge for bureaucratic inadequate which create the
perception that it even takes on non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the
national patrimony the State shall give preference to qualified Filipinos"1 is to allow petitioner
Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of
the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified
Filipino of Philippine corporation can be given preference in the enjoyment of a right, privilege or
concession given by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner
and the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine
corporation. Consequently, it is only in cases like the present one, where an alien corporation is
the highest bidder, that preferential treatment of the Philippine corporation is mandated not by
declaring it winner but by allowing it "to match the highest bid in terms of price per share" before it
is awarded the shares of stocks.3 That, to me, is what "preference to qualified Filipinos" means in
the context of this case — by favoring Filipinos whenever they are at a disadvantage vis-a-
vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute giving "preference to
Filipino citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing
leases covering market stalls occupied by persons who were not Filipinos and the award thereafter
of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente,6 this Court sustained the validity of a municipal ordinance
passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls
and granting preference to Filipino citizens in the issuance of new licenses for the occupancy of
the stalls. In Chua Lao v. Raymundo,7 the preference granted under the statute was held to apply
to cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public
markets even if there were available other stalls as good as those occupied by aliens. "The law,
apparently, is applicable whenever there is a conflict of interest between Filipino applicants and
aliens for lease of stalls in public markets, in which situation the right to preference immediately
arises."8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the
1970s in America to realize the promise of equality, through affirmative action and reverse
discrimination programs designed to remedy past discrimination against colored people in such
areas as employment, contracting and licensing.9 Indeed, in vital areas of our national economy,
there are situations in which the only way to place Filipinos in control of the national economy as
contemplated in the Constitution 10 is to give them preferential treatment where they can at least
stand on equal footing with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions
covering the national economy" and therefore no one should begrudge us if we give preferential
treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel
is a business owned by the Government. It is being privatized. Privatization should result in the
relinquishment of the business in favor of private individuals and groups who are Filipino citizens,
not in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding
that is sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per
share for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On
the other hand, if the Filipino entity, after passing the prequalification process, does not submit a
bid, he will not be allowed to match the highest bid of the foreign firm because this is a privilege
allowed only to those who have "validly submitted bids." 14 The suggestion is, to say the least,
fanciful and has no basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."

I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of
the nation".

Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:

xxx xxx xxx

MR. NOLLEDO. The Amendment will read: "IN

THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS". And the word "Filipinos" here, as
intended by the proponents, will include not only
individual Filipinos but also Filipino-Controlled
entities fully controlled by Filipinos (Vol. III, Records
of the Constitutional Commission, p. 608).

MR. MONSOD. We also wanted to add, as

Commissioner Villegas said, this committee and
 this body already approved what is known as the
Filipino First policy which was suggested by
Commissioner de Castro. So that it is now in our
Constitution (Vol. IV, Records of the Constitutional
Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

MR. NOLLEDO. In the grant of rights, privileges

and concessions covering the national economy
and patrimony, the State shall give preference to
qualified Filipinos.

MR. FOZ. In connection with that amendment, if a

foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino
enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some

aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p.

616, Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged
on this nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. .

. . It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is
witness to historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the
legal largese which have given rise to this controversy. As I believe that has been exhaustively
discussed in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should
not be placed in the auction block of a purely business transaction, where profits subverts the
cherished historical values of our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that
push the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us
not jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.

I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel
was included in the privatization program of the government. In 1995, GSIS proposed to sell to
interested buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the
Manila Hotel Corporation. After the absence of bids at the first public bidding, the block of shares
offered for sale was increased from a maximum of 30% to 51%. Also, the winning bidder, or the
eventual "strategic partner" of the GSIS was required to "provide management expertise and/or an
international marketing/reservation system, and financial support to strengthen the profitability and
performance of the Manila Hotel"1 The proposal was approved by respondent Committee on
Privatization.

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification
and Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of
Shares;

Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide

management expertise and/or an international marketing
reservation system, and financial support to strengthen the
profitability and performance of The Manila Hotel. In this context,
the GSIS is inviting to the prequalification process any local and/or
foreign corporation, consortium/joint venture or juridical entity with
at least one of the following qualifications:

a. Proven management .expertise in the hotel

industry; or

b. Significant equity ownership (i.e. board

representation) in another hotel company; or

c. Overall management and marketing expertise to

successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide

access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration

Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of
the following:

a. Guidelines and Procedures: Second

Prequalification and Public Bidding of the MHC
Privatization

b. Confidential Information Memorandum: The

Manila Hotel Corporation

c. Letter of Invitation. to the Prequalification and

Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

 A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to
seek clarifications and further information regarding the guidelines
and procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The applicant should submit 5 sets of the prequalification

documents (1 original set plus 4 copies) at the Registration Office
between 9:00 AM to 4:00 PM during working days within the period
specified in Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with

the assistance of the TEC based on the Information
Package and other information available to the
PBAC.

2. If the Applicant is a Consortium/Joint Venture,

the evaluation will consider the overall
qualifications of the group, taking into account the
contribution of each member to the venture.

3. The decision of the PBAC with respect to the

results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the

criteria set forth below:

a. Business management
expertise, track record, and
experience

b. Financial capability.

c. Feasibility and acceptability of

the proposed strategic plan for the
Manila Hotel

5. The PBAC will shortlist such number of Applicants as it may

deem appropriate.

6. The parties that prequalified in the first MHC public bidding —

ITT Sheraton, Marriot International Inc., Renaissance Hotels
International Inc., consortium of RCBC Capital/Ritz Carlton — may
participate in the Public Bidding without having to undergo the
prequalification process again.

G. SHORTLIST OF QUALIFIED BIDDERS

 1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the
date specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by

member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the
Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to

participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three

Hundred Thousand (15,300,000) shares of stock representing
Thirty Percent to Fifty-One Percent (30%-51%) of the issued and
outstanding shares of MHC, will be offered in the Public Bidding by
the GSIS. The Qualified Bidders will have the Option of determining
the number of shares within the range to bid for. The range is
intended to attract bidders with different preferences and objectives
for the operation and management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum

bid required on a price per share basis for the Block of Shares is
Thirty-Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the

minimum required will not considered.

D. TRANSFER COSTS

xxx xxx xxx

E. OFFICIAL BID FORM

1. Bids must be contained in the prescribed Official Bid Form, a

copy of which is attached as Annex IV. The Official Bid Form must
be properly accomplished in all details; improper accomplishment
may be a sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in
a sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS
 During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the

Qualified Bidder should submit a Board resolution which
adequately authorizes such representative to bid for and in behalf
of the corporation with full authority to perform such acts necessary
or requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member

of the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative
to make the bid on behalf of the group with full authority to perform
such acts necessary or requisite to bind the Qualified Bidder.

2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos

(P33,000,00), in Philippine currency as Bid Security in the form of:

i. Manager's check or unconditional demand draft

payable to the "Government Service Insurance
System" and issued by a reputable banking
institution duly licensed to do business in the
Philippines and acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable

banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less

than the required amount.

c. If the Bid Security is in the form of a manager's check or

unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic

Partner, the Bid Security will be applied as the downpayment on
the Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned

immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the

Highest Bidder is unable to negotiate and execute with GSIS/MHC
the Management Contract, International Marketing/Reservation
System Contract or other types of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel.

g. The Bid Security of the Highest Bidder will be forfeited in favor

of GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation
System Contract specified by the Highest Bidder or other types of
contract in its strategic plan for The Manila Hotel, fails or refuses
to:

i. Execute the Stock Purchase and Sale Agreement

with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price

not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for

any other reason.

G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the

following location:

New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public

Bidding to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in
a sealed envelope marked "OFFICIAL BID."

4. The Qualified Bidder should submit the following documents

in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"

a. Written Authority Bid

b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and

"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission
of the two sealed envelopes. The actual time of submission will also
be indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes
will be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public

Bidding, the PBAC will open all sealed envelopes marked
"SUPPORTING BID DOCUMENTS" for screening, evaluation and
acceptance. Those who submitted incomplete/insufficient
documents or document/s which is/are not substantially in the form
required by PBAC will be disqualified. The envelope containing
their Official Bid Form will be immediately returned to the
disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened

at 3:00 PM. The name of the bidder and the amount of its bid price
will be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will

formally announce the highest bid and the Highest Bidder.

4. The highest bid will be, determined on a price per share basis.
In the event of a tie wherein two or more bids have the same
equivalent price per share, priority will be given to the bidder
seeking the larger ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed

period; or

b. There is only one (1) bid that is submitted and

acceptable to the PBAC.

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth
below by October 23, 1995 or the Highest Bidder will lose the right
to purchase the Block of Shares and GSIS will instead offer the
Block of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute

with GSIS/MHC the Management Contract,
International Marketing Reservation System
Contract or other type of contract specified by the
Highest Bidder in its strategic plan for The Manila
Hotel. If the Highest Bidder is intending to provide
only financial support to The Manila Hotel, a
separate institution may enter into the
aforementioned contract/s with GSIS/MHC.

b. The Highest Bidder must execute the Stock

Purchase and Sale Agreement with GSIS, a copy
 of which will be distributed to each of the Qualified
Bidder after the prequalification process is
completed.

2. In the event that the Highest Bidder chooses a Management

Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept
in the Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of

gross revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross

operating profit(1) after deducting undistributed
overhead expenses and the basic management
fee.

c. Fixed component of the international

marketing/reservation system fee: Maximum of
2.0% of gross room revenues.(1) The Applicant
should indicate in its Information Package if it is
wishes to charge this fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters

for the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public
Bidding.

A Qualified Bidder envisioning a Management Contract for The

Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their
prequalification documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. If for any reason, the Highest Bidder cannot be awarded the

Block of Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified are
willing to match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will

be in accordance wit the equivalent price per share of their
respective bids in their public Bidding, i.e., first and second priority
will be given to the Qualified Bidders that submitted the second and
third highest bids on the price per share basis, respectively, and so
on.

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic

Partner after the following conditions are met:
 a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and

COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the

Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of
Shares after deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check

or unconditional Demand Draft, payable to the "Government
Service Insurance System," issued by a reputable banking
institution licensed to do business in the Philippines and acceptable
to GSIS.

M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all

applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any
additional information from the Applicant as the PBAC may deem
necessary.

2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding
under amended rules, and without any liability whatsoever to any
or all the Qualified Bidders, except the obligation to return the Bid
Security.

3. The GSIS reserves the right to reset the date of the

prequalification/bidding conference, the deadline for the
submission of the prequalification documents, the date of the
Public Bidding or other pertinent activities at least three (3)
calendar days prior to the respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it

has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders,

except the Bid Security, may be returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public

Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.

7. The GSIS will be held free and harmless form any liability, suit
or allegation arising out of the Public Bidding by the Qualified
Bidders who have participated in the Public Bidding.3
The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share
for 15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares.
The GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid
security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October
18, 1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution4 on
the "National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.

xxx xxx xxx

The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into
effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the

controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;

(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a
foreign corporation, in the sale of the controlling shares of the Manila Hotel
Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to
Renong Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can be enforced without
further legislative action.6 Some of its provisions, however, can be implemented only through
appropriate laws enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.
The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.7 The inquiry demands a micro-analysis of the text and the context of the provision in
question.8

Courts as a rule consider the provisions of the Constitution as self-executing,9 rather than as
requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they
are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the
unyielding rule that legislative actions may give breath to constitutional rights but congressional in
action should not suffocate them. 12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches
and seizures, 13 the rights of a person under custodial investigation, 14 the rights of an
accused, 15 and the privilege against self-incrimination, 16 It is recognize a that legislation is
unnecessary to enable courts to effectuate constitutional provisions guaranteeing the fundamental
rights of life, liberty and the protection of property. 17 The same treatment is accorded to
constitutional provisions forbidding the taking or damaging of property for public use without just
compensation.18

Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where
it merely announces a policy and its language empowers the Legislature to prescribe the means
by which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in
Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally
be construed as mere statements of principles of the State. 20 We have also ruled that some
provisions of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education
Science and Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable
rights. Their enforcement is addressed to the discretion of Congress though they provide the
framework for legislation 23 to effectuate their policy content. 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of
the 1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines
or to corporations or associations at least sixty per centum of whose capital is
owned by such citizens, or such higher percentage as Congress may prescribe,
certain areas of investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises whose capital is wholly
owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.

The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact
laws that will encourage the formation and operation of one hundred percent Filipino-
owned enterprises. In checkered contrast, the second paragraph orders the entire State to
give preference to qualified Filipinos in the grant of rights and privileges covering the
 national economy and patrimony. The third paragraph also directs the State to regulate
foreign investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of
wholly-owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision
in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28where we upheld the discretionary authority of Congress to Filipinize
certain areas of investments. 29 By reenacting the 1973 provision, the first paragraph of
section 10 affirmed the power of Congress to nationalize certain areas of investments in
favor of Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and
not to Congress alone which is but one of the three great branches of our government. Their
coverage is also broader for they cover "the national economy and patrimony" and "foreign
investments within [the] national jurisdiction" and not merely "certain areas of investments."
Beyond debate, they cannot be read as granting Congress the exclusive power to implement by
law the policy of giving preference to qualified Filipinos in the conferral of rights and privileges
covering our national economy and patrimony. Their language does not suggest that any of the
State agency or instrumentality has the privilege to hedge or to refuse its implementation for any
reason whatsoever. Their duty to implement is unconditional and it is now. The second and the
third paragraphs of Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles

and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important
Filipino First policy in our fundamental law and by the use of the mandatory word "shall," directs
its enforcement by the whole State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage
of the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights
involving our national patrimony. The unique value of the Manila Hotel to our history and culture
cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As
chronicled by Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class hotel built
by the American Insular Government for Americans living in, or passing through, Manila while
traveling to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its
construction, For sometime, it was exclusively used by American and Caucasian travelers and
served as the "official guesthouse" of the American Insular Government for visiting foreign
dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth period. When
the Japanese occupied Manila, it served as military headquarters and lodging for the highest-
ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their
last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and
Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international
film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous
recognitions and awards from international hotel and travel award-giving bodies, a fitting
acknowledgment of Filipino talent and ingenuity. These are judicially cognizable facts which cannot
be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic
Act No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its
reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987
Constitution. To be sure, the law does not equate cultural treasure and cultural property as
synonymous to the phrase "patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS.
A look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits
of the employees and the administrative and operational expenses of the GSIS, 35Excess funds,
however, are allowed to be invested in business and other ventures for the benefit of the
employees.36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a
simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a
public corporation created by Congress and granted an original charter to serve a public purpose.
It is subject to the jurisdictions of the Civil Service Commission 37 and the Commission on
Audit. 38 As state-owned and controlled corporation, it is skin-bound to adhere to the policies
spelled out in the general welfare of the people. One of these policies is the Filipino First policy
which the people elevated as a constitutional command.

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be
for a Constitution only lays down flexible policies and principles which can bent to meet today's
manifest needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity
can grow as a living constitution.

Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define
the phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx

THE PRESIDENT. What is the suggestion of

Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO

QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?

MR. NOLLEDO. Madam President, I think that is

understood. We use the word "QUALIFIED"
because the existing laws or the prospective laws
will always lay down conditions under which
business map be done, for example, qualifications
on capital, qualifications on the setting up of other
financial structures, et cetera.

MR. RODRIGO. It is just a matter of style.

 MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO

QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the

intention of the proponents. The committee has
accepted the amendment.

xxx xxx xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives
it a second chance to match the highest bid of Renong Berhad.

With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal
of the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task
of our State policy-makers is to maintain a creative tension between two desiderata — first, the
need to develop our economy and patrimony with the help of foreigners if necessary, and, second,
the need to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution
did not define the degree of the right of preference to be given to qualified Filipinos. They knew
that for the right to serve the general welfare, it must have a malleable content that can be adjusted
by our policy-makers to meet the changing needs of our people. In fine, the right of preference of
qualified Filipinos is to be determined by degree as time dictates and circumstances warrant. The
lesser the need for alien assistance, the greater the degree of the right of preference can be given
to Filipinos and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the
national economy and judicial duty. On the other hand, our duty is to strike down acts of the state
that violate the policy.

To date, Congress has not enacted a law defining the degree of the preferential right.
Consequently, we must turn to the rules and regulations of on respondents Committee Privatization
and GSIS to determine the degree of preference that petitioner is entitled to as a qualified Filipino
in the subject sale. A tearless look at the rules and regulations will show that they are silent on the
degree of preferential right to be accorded qualified Filipino bidder. Despite their silence, however,
they cannot be read to mean that they do not grant any degree of preference to petitioner for
paragraph 2, section 10, Article XII of the Constitution is deemed part of said rules and regulations.
Pursuant to legal hermeneutics which demand that we interpret rules to save them from
unconstitutionality, I submit that the right of preference of petitioner arises only if it tied the bid of
Benong Berhad. In that instance, all things stand equal, and bidder, as a qualified Pilipino bidder,
should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid
of Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine
the rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the
right to match the highest bid arises only "if for any reason, the highest bidder cannot be awarded
block of shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified
as bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as
the highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a
matter of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to
match the higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our
symphaties may be with petitioner but the court has no power to extend the latitude and longtitude
of the right of preference as defined by the rules. The parameters of the right of preference depend
on galaxy of facts and factors whose determination belongs to the province of the policy-making
branches and agencies of the State. We are duty-bound to respect that determination even if we
differ with the wisdom of their judgment. The right they grant may be little but we must uphold the
grant for as long as the right of preference is not denied. It is only when a State action amounts to
a denial of the right that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during
the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It
cannot be allowed to obey the rules when it wins and disregard them when it loses. If sustained,
petitioners' stance will wreak havoc on he essence of bidding. Our laws, rules and regulations
require highest bidding to raise as much funds as possible for the government to maximize its
capacity to deliver essential services to our people. This is a duty that must be discharged by
Filipinos and foreigners participating in a bidding contest and the rules are carefully written to attain
this objective. Among others, bidders are prequalified to insure their financial capability. The
bidding is secret and the bids are sealed to prevent collusion among the parties. This objective will
be undermined if we grant petitioner that privilege to know the winning bid and a chance to match
it. For plainly, a second chance to bid will encourage a bidder not to strive to give the highest bid
in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.

Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S.
Puno, may I just add

1. The majority contends the Constitution should be interpreted to mean that, after a bidding
process is concluded, the losing Filipino bidder should be given the right to equal the highest
foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in
the grant of rights . . . covering the national economy and patrimony, the State shall give preference
to qualified Filipinos." The majority concedes that there is no law defining the extent or degree of
such preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and
equal that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.

2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of
Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to
remain unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as
pariahs in the global marketplace with absolute no chance of winning any bidding outside our
country. Even authoritarian regimes and hermit kingdoms have long ago found out unfairness,
greed and isolation are self-defeating and in the long-term, self-destructing.

The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where
all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and
without being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which
qualified Filipinos have the preference, in ownership and operation. The Constitutional provision
on point states:

xxx xxx xxx

 In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall Give preference to qualified Filipinos.1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air.2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing
not only their natural resources of the country but practically everything that belongs to the Filipino
people, the tangible and the material as well as the intangible and the spiritual assets and
possessions of the people. It is to be noted that the framers did not stop with conservation. They
knew that conservation alone does not spell progress; and that this may be achieved only through
development as a correlative factor to assure to the people not only the exclusive ownership, but
also the exclusive benefits of their national patrimony).3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich
natural resources but also to the cultural heritage of our
race.4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its
operation. This institution has played an important role in our nation's history, having been the
venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest
House for visiting foreign heads of state, dignitaries, celebrities, and others.5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should
do so with. an eye to the welfare of the future generations. In other words, the leaders of today are
the trustees of the patrimony of our race. To preserve our national patrimony and reserve it for
Filipinos was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in
debating the need for nationalization of our lands and natural resources, one expounded that we
should "put more teeth into our laws, and; not make the nationalization of our lands and natural
resources a subject of ordinary legislation but of constitutional enactment"6 To quote further: "Let
not our children be mere tenants and trespassers in their own country. Let us preserve and
bequeath to them what is rightfully theirs, free from all foreign liens and encumbrances".7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to
the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or
equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the
qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be
made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an
opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the
qualified Filipino bidder is to be significant at all.

It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in
the hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve
our national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges,
and concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos"1 is self-executory. The provision verily does not need, although it can obviously
be amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to
its cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr.,
Manila Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult
to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case
before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino
to match the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions
of dollars to be at par (to the last cent) with another. The magnitude of the magnitude of the bids
is such that it becomes hardly possible for the competing bids to stand exactly "equal" which alone,
under the dissenting view, could trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a
letdown that it did not deserve, by a simple and timely advise of the proper rules of bidding along
with the peculiar constitutional implications of the proposed transaction. It is also regrettable that
the Court at time is seen, to instead, be the refuge for bureaucratic inadequate which create the
perception that it even takes on non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the
national patrimony the State shall give preference to qualified Filipinos"1 is to allow petitioner
Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of
the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified
Filipino of Philippine corporation can be given preference in the enjoyment of a right, privilege or
concession given by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner
and the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine
corporation. Consequently, it is only in cases like the present one, where an alien corporation is
the highest bidder, that preferential treatment of the Philippine corporation is mandated not by
declaring it winner but by allowing it "to match the highest bid in terms of price per share" before it
is awarded the shares of stocks.3 That, to me, is what "preference to qualified Filipinos" means in
the context of this case — by favoring Filipinos whenever they are at a disadvantage vis-a-
vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute giving "preference to
Filipino citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing
leases covering market stalls occupied by persons who were not Filipinos and the award thereafter
of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente,6 this Court sustained the validity of a municipal ordinance
passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls
and granting preference to Filipino citizens in the issuance of new licenses for the occupancy of
the stalls. In Chua Lao v. Raymundo,7 the preference granted under the statute was held to apply
to cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public
markets even if there were available other stalls as good as those occupied by aliens. "The law,
apparently, is applicable whenever there is a conflict of interest between Filipino applicants and
aliens for lease of stalls in public markets, in which situation the right to preference immediately
arises."8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the
1970s in America to realize the promise of equality, through affirmative action and reverse
discrimination programs designed to remedy past discrimination against colored people in such
areas as employment, contracting and licensing.9 Indeed, in vital areas of our national economy,
there are situations in which the only way to place Filipinos in control of the national economy as
contemplated in the Constitution 10 is to give them preferential treatment where they can at least
stand on equal footing with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions
covering the national economy" and therefore no one should begrudge us if we give preferential
treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel
is a business owned by the Government. It is being privatized. Privatization should result in the
relinquishment of the business in favor of private individuals and groups who are Filipino citizens,
not in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding
that is sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per
share for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On
the other hand, if the Filipino entity, after passing the prequalification process, does not submit a
bid, he will not be allowed to match the highest bid of the foreign firm because this is a privilege
allowed only to those who have "validly submitted bids." 14 The suggestion is, to say the least,
fanciful and has no basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of
the nation".

Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:

xxx xxx xxx

MR. NOLLEDO. The Amendment will read: "IN

THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS". And the word "Filipinos" here, as
intended by the proponents, will include not only
individual Filipinos but also Filipino-Controlled
entities fully controlled by Filipinos (Vol. III, Records
of the Constitutional Commission, p. 608).

MR. MONSOD. We also wanted to add, as

Commissioner Villegas said, this committee and
this body already approved what is known as the
Filipino First policy which was suggested by
Commissioner de Castro. So that it is now in our
Constitution (Vol. IV, Records of the Constitutional
Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

MR. NOLLEDO. In the grant of rights, privileges

and concessions covering the national economy
and patrimony, the State shall give preference to
qualified Filipinos.

MR. FOZ. In connection with that amendment, if a

foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino
enterprise still be given a preference?
 MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some

aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p.

616, Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged
on this nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. .

. . It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is
witness to historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the
legal largese which have given rise to this controversy. As I believe that has been exhaustively
discussed in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should
not be placed in the auction block of a purely business transaction, where profits subverts the
cherished historical values of our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that
push the river or people towards the future, and if you look the other way, you progress."

Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us
not jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.

I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel
was included in the privatization program of the government. In 1995, GSIS proposed to sell to
interested buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the
Manila Hotel Corporation. After the absence of bids at the first public bidding, the block of shares
offered for sale was increased from a maximum of 30% to 51%. Also, the winning bidder, or the
eventual "strategic partner" of the GSIS was required to "provide management expertise and/or an
international marketing/reservation system, and financial support to strengthen the profitability and
performance of the Manila Hotel"1 The proposal was approved by respondent Committee on
Privatization.

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification
and Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of
Shares;

Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide

management expertise and/or an international marketing
reservation system, and financial support to strengthen the
profitability and performance of The Manila Hotel. In this context,
the GSIS is inviting to the prequalification process any local and/or
foreign corporation, consortium/joint venture or juridical entity with
at least one of the following qualifications:

a. Proven management .expertise in the hotel

industry; or

b. Significant equity ownership (i.e. board

representation) in another hotel company; or
 c. Overall management and marketing expertise to
successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide

access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration

Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of
the following:

a. Guidelines and Procedures: Second

Prequalification and Public Bidding of the MHC
Privatization

b. Confidential Information Memorandum: The

Manila Hotel Corporation

c. Letter of Invitation. to the Prequalification and

Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila

Hotel on the date specified in Section III to allow the Applicant to
seek clarifications and further information regarding the guidelines
and procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The applicant should submit 5 sets of the prequalification

documents (1 original set plus 4 copies) at the Registration Office
between 9:00 AM to 4:00 PM during working days within the period
specified in Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with

the assistance of the TEC based on the Information
 Package and other information available to the
PBAC.

2. If the Applicant is a Consortium/Joint Venture,

the evaluation will consider the overall
qualifications of the group, taking into account the
contribution of each member to the venture.

3. The decision of the PBAC with respect to the

results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the

criteria set forth below:

a. Business management
expertise, track record, and
experience

b. Financial capability.

c. Feasibility and acceptability of

the proposed strategic plan for the
Manila Hotel

5. The PBAC will shortlist such number of Applicants as it may

deem appropriate.

6. The parties that prequalified in the first MHC public bidding —

ITT Sheraton, Marriot International Inc., Renaissance Hotels
International Inc., consortium of RCBC Capital/Ritz Carlton — may
participate in the Public Bidding without having to undergo the
prequalification process again.

G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of

Qualified Bidders will be posted at the Registration Office at the
date specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by

member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the
Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to

participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three

Hundred Thousand (15,300,000) shares of stock representing
 Thirty Percent to Fifty-One Percent (30%-51%) of the issued and
outstanding shares of MHC, will be offered in the Public Bidding by
the GSIS. The Qualified Bidders will have the Option of determining
the number of shares within the range to bid for. The range is
intended to attract bidders with different preferences and objectives
for the operation and management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum

bid required on a price per share basis for the Block of Shares is
Thirty-Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the

minimum required will not considered.

D. TRANSFER COSTS

xxx xxx xxx

E. OFFICIAL BID FORM

1. Bids must be contained in the prescribed Official Bid Form, a

copy of which is attached as Annex IV. The Official Bid Form must
be properly accomplished in all details; improper accomplishment
may be a sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in
a sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be

submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the

Qualified Bidder should submit a Board resolution which
adequately authorizes such representative to bid for and in behalf
of the corporation with full authority to perform such acts necessary
or requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member

of the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative
to make the bid on behalf of the group with full authority to perform
such acts necessary or requisite to bind the Qualified Bidder.

2. BID SECURITY
 a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:

i. Manager's check or unconditional demand draft

payable to the "Government Service Insurance
System" and issued by a reputable banking
institution duly licensed to do business in the
Philippines and acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable

banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less

than the required amount.

c. If the Bid Security is in the form of a manager's check or

unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic

Partner, the Bid Security will be applied as the downpayment on
the Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned

immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the

Highest Bidder is unable to negotiate and execute with GSIS/MHC
the Management Contract, International Marketing/Reservation
System Contract or other types of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel.

g. The Bid Security of the Highest Bidder will be forfeited in favor

of GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation
System Contract specified by the Highest Bidder or other types of
contract in its strategic plan for The Manila Hotel, fails or refuses
to:

i. Execute the Stock Purchase and Sale Agreement

with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price

not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for

any other reason.

G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:

New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public

Bidding to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in
a sealed envelope marked "OFFICIAL BID."

4. The Qualified Bidder should submit the following documents

in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"

a. Written Authority Bid

b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and

"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission
of the two sealed envelopes. The actual time of submission will also
be indicated by the Secretariat on the face of the two envelopes.

7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes
will be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public

Bidding, the PBAC will open all sealed envelopes marked
"SUPPORTING BID DOCUMENTS" for screening, evaluation and
acceptance. Those who submitted incomplete/insufficient
documents or document/s which is/are not substantially in the form
required by PBAC will be disqualified. The envelope containing
their Official Bid Form will be immediately returned to the
disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened

at 3:00 PM. The name of the bidder and the amount of its bid price
will be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.

4. The highest bid will be, determined on a price per share basis.
In the event of a tie wherein two or more bids have the same
equivalent price per share, priority will be given to the bidder
seeking the larger ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed

period; or

b. There is only one (1) bid that is submitted and

acceptable to the PBAC.

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth
below by October 23, 1995 or the Highest Bidder will lose the right
to purchase the Block of Shares and GSIS will instead offer the
Block of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute

with GSIS/MHC the Management Contract,
International Marketing Reservation System
Contract or other type of contract specified by the
Highest Bidder in its strategic plan for The Manila
Hotel. If the Highest Bidder is intending to provide
only financial support to The Manila Hotel, a
separate institution may enter into the
aforementioned contract/s with GSIS/MHC.

b. The Highest Bidder must execute the Stock

Purchase and Sale Agreement with GSIS, a copy
of which will be distributed to each of the Qualified
Bidder after the prequalification process is
completed.

2. In the event that the Highest Bidder chooses a Management

Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept
in the Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of

gross revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross

operating profit(1) after deducting undistributed
overhead expenses and the basic management
fee.

c. Fixed component of the international

marketing/reservation system fee: Maximum of
 2.0% of gross room revenues.(1) The Applicant
should indicate in its Information Package if it is
wishes to charge this fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters

for the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public
Bidding.

A Qualified Bidder envisioning a Management Contract for The

Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their
prequalification documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. If for any reason, the Highest Bidder cannot be awarded the

Block of Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified are
willing to match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will

be in accordance wit the equivalent price per share of their
respective bids in their public Bidding, i.e., first and second priority
will be given to the Qualified Bidders that submitted the second and
third highest bids on the price per share basis, respectively, and so
on.

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic

Partner after the following conditions are met:

a. Execution of the necessary contract with

GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and

COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the

Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of
Shares after deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check

or unconditional Demand Draft, payable to the "Government
Service Insurance System," issued by a reputable banking
institution licensed to do business in the Philippines and acceptable
to GSIS.
 M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all

applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any
additional information from the Applicant as the PBAC may deem
necessary.

2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding
under amended rules, and without any liability whatsoever to any
or all the Qualified Bidders, except the obligation to return the Bid
Security.

3. The GSIS reserves the right to reset the date of the

prequalification/bidding conference, the deadline for the
submission of the prequalification documents, the date of the
Public Bidding or other pertinent activities at least three (3)
calendar days prior to the respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it

has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders,

except the Bid Security, may be returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public

Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.

7. The GSIS will be held free and harmless form any liability, suit
or allegation arising out of the Public Bidding by the Qualified
Bidders who have participated in the Public Bidding.3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share
for 15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares.
The GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid
security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October
18, 1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution4 on
the "National Economy and Patrimony" which provides:
 xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.

xxx xxx xxx

The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into
effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the

controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;

(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a
foreign corporation, in the sale of the controlling shares of the Manila Hotel
Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to
Renong Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can be enforced without
further legislative action.6 Some of its provisions, however, can be implemented only through
appropriate laws enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.

The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement.7 The inquiry demands a micro-analysis of the text and the context of the provision in
question.8

Courts as a rule consider the provisions of the Constitution as self-executing,9 rather than as
requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they
are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the
unyielding rule that legislative actions may give breath to constitutional rights but congressional in
action should not suffocate them. 12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches
and seizures, 13 the rights of a person under custodial investigation, 14 the rights of an
accused, 15 and the privilege against self-incrimination, 16 It is recognize a that legislation is
unnecessary to enable courts to effectuate constitutional provisions guaranteeing the fundamental
rights of life, liberty and the protection of property. 17 The same treatment is accorded to
constitutional provisions forbidding the taking or damaging of property for public use without just
compensation.18
Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where
it merely announces a policy and its language empowers the Legislature to prescribe the means
by which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in
Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally
be construed as mere statements of principles of the State. 20 We have also ruled that some
provisions of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education
Science and Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable
rights. Their enforcement is addressed to the discretion of Congress though they provide the
framework for legislation 23 to effectuate their policy content. 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of
the 1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines
or to corporations or associations at least sixty per centum of whose capital is
owned by such citizens, or such higher percentage as Congress may prescribe,
certain areas of investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises whose capital is wholly
owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.

The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact
laws that will encourage the formation and operation of one hundred percent Filipino-
owned enterprises. In checkered contrast, the second paragraph orders the entire State to
give preference to qualified Filipinos in the grant of rights and privileges covering the
national economy and patrimony. The third paragraph also directs the State to regulate
foreign investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of
wholly-owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision
in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28where we upheld the discretionary authority of Congress to Filipinize
certain areas of investments. 29 By reenacting the 1973 provision, the first paragraph of
section 10 affirmed the power of Congress to nationalize certain areas of investments in
favor of Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and
not to Congress alone which is but one of the three great branches of our government. Their
coverage is also broader for they cover "the national economy and patrimony" and "foreign
investments within [the] national jurisdiction" and not merely "certain areas of investments."
Beyond debate, they cannot be read as granting Congress the exclusive power to implement by
law the policy of giving preference to qualified Filipinos in the conferral of rights and privileges
covering our national economy and patrimony. Their language does not suggest that any of the
State agency or instrumentality has the privilege to hedge or to refuse its implementation for any
reason whatsoever. Their duty to implement is unconditional and it is now. The second and the
third paragraphs of Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles

and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important
Filipino First policy in our fundamental law and by the use of the mandatory word "shall," directs
its enforcement by the whole State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage
of the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights
involving our national patrimony. The unique value of the Manila Hotel to our history and culture
cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As
chronicled by Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class hotel built
by the American Insular Government for Americans living in, or passing through, Manila while
traveling to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its
construction, For sometime, it was exclusively used by American and Caucasian travelers and
served as the "official guesthouse" of the American Insular Government for visiting foreign
dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth period. When
the Japanese occupied Manila, it served as military headquarters and lodging for the highest-
ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their
last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and
Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international
film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous
recognitions and awards from international hotel and travel award-giving bodies, a fitting
acknowledgment of Filipino talent and ingenuity. These are judicially cognizable facts which cannot
be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic
Act No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its
reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987
Constitution. To be sure, the law does not equate cultural treasure and cultural property as
synonymous to the phrase "patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS.
A look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits
of the employees and the administrative and operational expenses of the GSIS, 35Excess funds,
however, are allowed to be invested in business and other ventures for the benefit of the
employees.36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a
simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a
public corporation created by Congress and granted an original charter to serve a public purpose.
It is subject to the jurisdictions of the Civil Service Commission 37 and the Commission on
Audit. 38 As state-owned and controlled corporation, it is skin-bound to adhere to the policies
spelled out in the general welfare of the people. One of these policies is the Filipino First policy
which the people elevated as a constitutional command.

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be
for a Constitution only lays down flexible policies and principles which can bent to meet today's
manifest needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity
can grow as a living constitution.

Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define
the phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx

THE PRESIDENT. What is the suggestion of

Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO

QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?

MR. NOLLEDO. Madam President, I think that is

understood. We use the word "QUALIFIED"
because the existing laws or the prospective laws
will always lay down conditions under which
business map be done, for example, qualifications
on capital, qualifications on the setting up of other
financial structures, et cetera.

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO

QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the

intention of the proponents. The committee has
accepted the amendment.

xxx xxx xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives
it a second chance to match the highest bid of Renong Berhad.

With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal
of the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task
of our State policy-makers is to maintain a creative tension between two desiderata — first, the
need to develop our economy and patrimony with the help of foreigners if necessary, and, second,
the need to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution
did not define the degree of the right of preference to be given to qualified Filipinos. They knew
that for the right to serve the general welfare, it must have a malleable content that can be adjusted
by our policy-makers to meet the changing needs of our people. In fine, the right of preference of
qualified Filipinos is to be determined by degree as time dictates and circumstances warrant. The
lesser the need for alien assistance, the greater the degree of the right of preference can be given
to Filipinos and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the
national economy and judicial duty. On the other hand, our duty is to strike down acts of the state
that violate the policy.

To date, Congress has not enacted a law defining the degree of the preferential right.
Consequently, we must turn to the rules and regulations of on respondents Committee Privatization
and GSIS to determine the degree of preference that petitioner is entitled to as a qualified Filipino
in the subject sale. A tearless look at the rules and regulations will show that they are silent on the
degree of preferential right to be accorded qualified Filipino bidder. Despite their silence, however,
they cannot be read to mean that they do not grant any degree of preference to petitioner for
paragraph 2, section 10, Article XII of the Constitution is deemed part of said rules and regulations.
Pursuant to legal hermeneutics which demand that we interpret rules to save them from
unconstitutionality, I submit that the right of preference of petitioner arises only if it tied the bid of
Benong Berhad. In that instance, all things stand equal, and bidder, as a qualified Pilipino bidder,
should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid
of Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine
the rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the
right to match the highest bid arises only "if for any reason, the highest bidder cannot be awarded
block of shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified
as bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as
the highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a
matter of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to
match the higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our
symphaties may be with petitioner but the court has no power to extend the latitude and longtitude
of the right of preference as defined by the rules. The parameters of the right of preference depend
on galaxy of facts and factors whose determination belongs to the province of the policy-making
branches and agencies of the State. We are duty-bound to respect that determination even if we
differ with the wisdom of their judgment. The right they grant may be little but we must uphold the
grant for as long as the right of preference is not denied. It is only when a State action amounts to
a denial of the right that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during
the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It
cannot be allowed to obey the rules when it wins and disregard them when it loses. If sustained,
petitioners' stance will wreak havoc on he essence of bidding. Our laws, rules and regulations
require highest bidding to raise as much funds as possible for the government to maximize its
capacity to deliver essential services to our people. This is a duty that must be discharged by
Filipinos and foreigners participating in a bidding contest and the rules are carefully written to attain
this objective. Among others, bidders are prequalified to insure their financial capability. The
bidding is secret and the bids are sealed to prevent collusion among the parties. This objective will
be undermined if we grant petitioner that privilege to know the winning bid and a chance to match
it. For plainly, a second chance to bid will encourage a bidder not to strive to give the highest bid
in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.

Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S.
Puno, may I just add

1. The majority contends the Constitution should be interpreted to mean that, after a bidding
process is concluded, the losing Filipino bidder should be given the right to equal the highest
foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in
the grant of rights . . . covering the national economy and patrimony, the State shall give preference
to qualified Filipinos." The majority concedes that there is no law defining the extent or degree of
such preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and
equal that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.

2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of
Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to
remain unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as
pariahs in the global marketplace with absolute no chance of winning any bidding outside our
country. Even authoritarian regimes and hermit kingdoms have long ago found out unfairness,
greed and isolation are self-defeating and in the long-term, self-destructing.

The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where
all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and
without being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

JUAN AUGUSTO B. PRIMICIAS, plaintiff-appellee,

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

Ambrosio Padilla Law Offices for appellee.

Primicias, Castillo & Macaraeg for appellants.

DE CASTRO, J.:

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

WHEREFORE, this Court renders decision declaring Ordinance No, 3, Series of

1964, to be null and void; making the writ of preliminary injunction heretofore issued
against the defendant, Felix D. Soriano definite and permanent; and further
restraining the defendants, Amadeo R. Perez, Jr., Lorenzo G. Suyat and Estanislao
Andrada, from enforcing the said ordinance all throughout Urdaneta; and ordering
the said defendants to return to the plaintiff his drivers (sic) license CIN 017644, a
copy of which is Exhibit D-1, and to pay the costs of suit. 1

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

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

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

After trial, the Court of First Instance rendered the questioned decision holding that the ordinance
was null and void and had been repealed by Republic Act No. 4136, otherwise known as the Land
Transportation and Traffic Code. Now, defendants, appellants herein, allege that the lower court
erred in: 3
 1. declaring that Municipal Ordinance No. 3 (Series of 1964) of Urdaneta is null
and void;

2. requiring the municipal council of Urdaneta in the enactment of said ordinance

to give maximum allowable speed and to make classification of highways;

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

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

Commissioner;

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

6. issuing ex-parte a writ of injunction to restrain the proceedings in criminal case

no. 3140.

The ordinance in question provides: 4

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

a. Thru crowded streets approaching intersections at 'blind corners,

passing school zones or thickly populated areas, duly marked with
sign posts, the maximum speed limit allowable shall be 20 kph.

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

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

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

By this express repeal, and the general rule that a later law prevails over an earlier law, 6 appellants
are in error in contending that "a later enactment of the law relating to the same subject matter as
that of an earlier statute is not sufficient to cause an implied repeal of the original law." Pursuant
to Section 63, Republic Act No. 4136, the ordinance at bar is thus placed within the ambit of
Republic Act No. 4136, and not Act No. 3992. The validity of Ordinance No. 3, Series of 1964,
must therefore be determined vis-a-vis Republic Act No. 4136, the "mother statute" so to speak,
which was in force at the time the criminal case was brought against Primicias for the violation of
the said ordinance.
An essential requisite for a valid ordinance is, among others, that is "must not contravene . . . the
statute," 7 for it is a "fundamental principle that municipal ordinances are inferior in status and
subordinate to the laws of the state." 8Following this general rule, whenever there is a conflict
between an ordinance and a statute, the ordinance "must give way. 9

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

MAXIMUM ALLOWABLE SPEEDS

Passenger cars and Motor trucks

motorcycle and buses

1. On open country roads, with

"blind corners" not closely bordered

by habitation. 80 km. 50 km.

2. On through streets or per hour per hour

boulevards, clear of traffic, with "no

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

3. On city and municipal per hour per hour

streets, with light traffic, when not

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

4. Through crowded streets ap per hour per hour

proaching intersection at "blind cor

ners," passing school zones, passing

other vehicles which are stationary, or

for similar circumstances. 20 km. 20 km.

per hour per hour

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

vehicular traffic along the national highway and The provincial roads within the
territorial limits of Urdaneta to 20 kilometers per hour without regard to whether the
road is an open country roads (six), or through streets or boulevards, or city or
municipal streets with light traffic. 11
As also found correctly by the lower court, the Municipal Council of Urdaneta did not make any
classification of its thoroughfares, contrary to the explicit requirement laid down by Section 38,
Republic Act No. 4136, which provides:

Classification of highways. - Public highways shall be properly classified for traffic

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

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

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

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

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

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

1. for the orderly administration of justice;

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

3. to avoid multiplicity of actions;

 4. to afford adequate protection to constitutional rights;

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

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

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

SO ORDERED.

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

Aquino, J., took no part.

Antonio, J., is on leave.

Separate Opinions

ABAD SANTOS, J., concurring:

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

# Separate Opinions

ABAD SANTOS, J., concurring:

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