G.R. No. 120721. February 23, 2005 MANUEL G. ABELLO, JOSE C. CONCEPCION, TEODORO D. REGALA, AVELINO V.

CRUZ, petitioners, vs. COMMISSIONER OF INTERNAL REVENUE and COURT OF APPEALS, respondents. This is a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure, assailing the decision of the Court of Appeals in CA G.R. SP No. 27134, entitled Comissioner of Internal Revenue v. Manuel G. Abello, Jose C. Concepcion, Teodoro D. Regala, Avelino V. Cruz and Court of Tax Appeals, which reversed and set aside the decision of the Court of Tax Appeals (CTA), ordering the Commissioner of Internal Revenue (Commissioner) to withdraw his letters dated April 21, 1988 and August 4, 1988 assessing donors taxes and to desist from collecting donors taxes from petitioners. During the 1987 national elections, petitioners, who are partners in the Angara, Abello, Concepcion, Regala and Cruz (ACCRA) law firm, contributed P882,661.31 each to the campaign funds of Senator Edgardo Angara, then running for the Senate. In letters dated April 21, 1988, the Bureau of Internal Revenue (BIR) assessed each of the petitioners P263,032.66 for their contributions. On August 2, 1988, petitioners questioned the assessment through a letter to the BIR. They claimed that political or electoral contributions are not considered gifts under the National Internal Revenue Code (NIRC), and that, therefore, they are not liable for donors tax. The claim for exemption was denied by the Commissioner.[1] On September 12, 1988, petitioners filed a petition for review with the CTA, which was decided on October 7, 1991 in favor of the petitioners. As aforestated, the CTA ordered the Commissioner to desist from collecting donors taxes from the petitioners.[2] On appeal, the Court of Appeals reversed and set aside the CTA decision on April 20, 1994.[3] The

appellate Court ordered the petitioners to pay donors tax amounting to P263,032.66 each, reasoning as follows: The National Internal Revenue Code, as amended, provides: Sec. 91. Imposition of Tax. (a) There shall be levied, assessed, collected, and paid upon the transfer by any person, resident, or non-resident, of the property by gift, a tax, computed as provided in Section 92. (b) The tax shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible. Pursuant to the above-quoted provisions of law, the transfer of property by gift, whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible, is subject to donors or gift tax. A gift is generally defined as a voluntary transfer of property by one to another without any consideration or compensation therefor (28 C.J. 620; Santos vs. Robledo, 28 Phil. 250). In the instant case, the contributions are voluntary transfers of property in the form of money from private respondents to Sen. Angara, without considerations therefor. Hence, they squarely fall under the definition of donation or gift. As correctly pointed out by the Solicitor General: The fact that the contributions were given to be used as campaign funds of Sen. Angara does not affect the character of the fund transfers as donation or gift. There was thereby no retention of control over the disposition of the contributions. There was simply an indication of the purpose for which they were to be used. For as long as the contributions were used for the purpose for which they were intended, Sen. Angara had complete and absolute power to dispose of the contributions. He was fully

entitled to the economic benefits of the contributions. Section 91 of the Tax Code is very clear. A donors or gift tax is imposed on the transfer of property by gift. The Bureau of Internal Revenue issued Ruling No. 344 on July 20, 1988, which reads: Political Contributions. For internal revenue purposes, political contributions in the Philippines are considered taxable gift rather than taxable income. This is so, because a political contribution is indubitably not intended by the giver or contributor as a return of value or made because of any intent to repay another what is his due, but bestowed only because of motives of philanthropy or charity. His purpose is to give and to bolster the morals, the winning chance of the candidate and/or his party, and not to employ or buy. On the other hand, the recipient-donee does not regard himself as exchanging his services or his product for the money contributed. But more importantly he receives financial advantages gratuitously. When the U.S. gift tax law was adopted in the Philippines (before May 7, 1974), the taxability of political contributions was, admittedly, an unsettled issue; hence, it cannot be presumed that the Philippine Congress then had intended to consider or treat political contributions as non-taxable gifts when it adopted the said gift tax law. Moreover, well-settled is the rule that the Philippines need not necessarily adopt the present rule or construction in the United States on the matter. Generally, statutes of different states relating to the same class of persons or things or having the same purposes are not considered to be in pari materia because it cannot be justifiably presumed that the legislature had them in mind when enacting the provision being construed. (5206, Sutherland, Statutory Construction, p. 546.) Accordingly, in the absence of an express exempting provision of law, political contributions in the Philippines are subject to the donors gift tax. (cited in National Internal Revenue Code Annotated by Hector S. de Leon, 1991 ed., p. 290).

In the light of the above BIR Ruling, it is clear that the political contributions of the private respondents to Sen. Edgardo Angara are taxable gifts. The vagueness of the law as to what comprise the gift subject to tax was made concrete by the above-quoted BIR ruling. Hence, there is no doubt that political contributions are taxable gifts.[4] Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its resolution of June 16, 1995.[5] Petitioners thereupon filed the instant petition on July 26, 1995. Raised are the following issues: 1. DID THE HONORABLE COURT OF APPEALS ERR WHEN IT FAILED TO CONSIDER IN ITS DECISION THE PURPOSE BEHIND THE ENACTMENT OF OUR GIFT TAX LAW? 2. DID THE HONORABLE COURT OF APPEALS ERR IN NOT CONSIDERING THE INTENTION OF THE GIVERS IN DETERMINING WHETHER OR NOT THE PETITIONERS POLITICAL CONTRIBUTIONS WERE GIFTS SUBJECT TO DONORS TAX? 3. DID THE HONORABLE COURT OF APPEALS ERR WHEN IT FAILED TO CONSIDER THE DEFINITION OF AN ELECTORAL CONTRIBUTION UNDER THE OMNIBUS ELECTION CODE IN DETERMINING WHETHER OR NOT POLITICAL CONTRIBUTIONS ARE TAXABLE? 4. DID THE HONORABLE COURT OF APPEALS ERR IN NOT CONSIDERING THE ADMINISTRATIVE PRACTICE OF CLOSE TO HALF A CENTURY OF NOT SUBJECTING POLITICAL CONTRIBUTIONS TO DONORS TAX? 5. DID THE HONORABLE COURT OF APPEALS ERR IN NOT CONSIDERING THE AMERICAN JURISPRUDENCE RELIED UPON BY THE COURT OF TAX APPEALS

AND BY THE PETITIONERS TO THE EFFECT THAT POLITICAL CONTRIBUTIONS ARE NOT TAXABLE GIFTS? 6. DID THE HONORABLE COURT OF APPEALS ERR IN NOT APPLYING AMERICAN JURISPRUDENCE ON THE GROUND THAT THIS WAS NOT KNOWN AT THE TIME THE PHILIPPINES GIFT TAX LAW WAS ADOPTED IN 1939? 7. DID THE HONORABLE COURT OF APPEALS ERR IN RESOLVING THE CASE MAINLY ON THE BASIS OF A RULING ISSUED BY THE RESPONDENT ONLY AFTER THE ASSESSMENTS HAD ALREADY BEEN MADE? 8. DID THE HONORABLE COURT OF APPEALS ERR WHEN IT DID NOT CONSTRUE THE GIFT TAX LAW LIBERALLY IN FAVOR OF THE TAXPAYER AND STRICLTY AGAINST THE GOVERNMENT IN ACCORDANCE WITH APPLICABLE PRINCIPLES OF STATUTORY CONSTRUCTION?[6] First, Fifth and Sixth Issues Section 91 of the National Internal Revenue Code (NIRC) reads: (A) There shall be levied, assessed, collected and paid upon the transfer by any person, resident or nonresident, of the property by gift, a tax, computed as provided in Section 92 (B) The tax shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible. The NIRC does not define transfer of property by gift. However, Article 18 of the Civil Code, states: In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code.

Thus, reference may be made to the definition of a donation in the Civil Code. Article 725 of said Code defines donation as: . . . an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it. Donation has the following elements: (a) the reduction of the patrimony of the donor; (b) the increase in the patrimony of the donee; and, (c) the intent to do an act of liberality or animus donandi.[7] The present case falls squarely within the definition of a donation. Petitioners, the late Manuel G. Abello[8], Jose C. Concepcion, Teodoro D. Regala and Avelino V. Cruz, each gaveP882,661.31 to the campaign funds of Senator Edgardo Angara, without any material consideration. All three elements of a donation are present. The patrimony of the four petitioners were reduced by P882,661.31 each. Senator Edgardo Angaras patrimony correspondingly increased by P3,530,645.24[9]. There was intent to do an act of liberality or animus donandi was present since each of the petitioners gave their contributions without any consideration. Taken together with the Civil Code definition of donation, Section 91 of the NIRC is clear and unambiguous, thereby leaving no room for construction. In Rizal Commercial Banking Corporation v. Intermediate Appellate Court[10] the Court enunciated: It bears stressing that the first and fundamental duty of the Court is to apply the law. When the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. As has been our consistent ruling, where the law speaks in clear and categorical language, there is no occasion for interpretation; there is only room for application (Cebu Portland Cement Co. v. Municipality of Naga, 24 SCRA 708 [1968]) Where the law is clear and unambiguous, it must be taken to mean exactly what it says and the

court has no choice but to see to it that its mandate is obeyed (Chartered Bank Employees Association v. Ople, 138 SCRA 273 [1985]; Luzon Surety Co., Inc. v. De Garcia, 30 SCRA 111 [1969]; Quijano v. Development Bank of the Philippines, 35 SCRA 270 [1970]). Only when the law is ambiguous or of doubtful meaning may the court interpret or construe its true intent. Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time. A statute is ambiguous if it is admissible of two or more possible meanings, in which case, the Court is called upon to exercise one of its judicial functions, which is to interpret the law according to its true intent. Second Issue Since animus donandi or the intention to do an act of liberality is an essential element of a donation, petitioners argue that it is important to look into the intention of the giver to determine if a political contribution is a gift. Petitioners argument is not tenable. First of all, donative intent is a creature of the mind. It cannot be perceived except by the material and tangible acts which manifest its presence. This being the case, donative intent is presumed present when one gives a part of ones patrimony to another without consideration. Second, donative intent is not negated when the person donating has other intentions, motives or purposes which do not contradict donative intent. This Court is not convinced that since the purpose of the contribution was to help elect a candidate, there was no donative intent. Petitioners contribution of money without any material consideration evinces animus donandi. The fact that their purpose for donating was to aid in the election of the donee does not negate the presence of donative intent. Third Issue Petitioners maintain that the definition of an electoral contribution under the Omnibus Election Code is essential to appreciate how a

political contribution differs from a taxable gift.[11]Section 94(a) of the said Code defines electoral contribution as follows: The term "contribution" includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. Since the purpose of an electoral contribution is to influence the results of the election, petitioners again claim that donative intent is not present. Petitioners attempt to place the barrier of mutual exclusivity between donative intent and the purpose of political contributions. This Court reiterates that donative intent is not negated by the presence of other intentions, motives or purposes which do not contradict donative intent. Petitioners would distinguish a gift from a political donation by saying that the consideration for a gift is the liberality of the donor, while the consideration for a political contribution is the desire of the giver to influence the result of an election by supporting candidates who, in the perception of the giver, would influence the shaping of government policies that would promote the general welfare and economic well-being of the electorate, including the giver himself. Petitioners attempt is strained. The fact that petitioners will somehow in the future benefit from the election of the candidate to whom they contribute, in no way amounts to a valuable material consideration so as to remove political contributions from the purview of a donation. Senator Angara was under no obligation to benefit the petitioners. The proper performance

of his duties as a legislator is his obligation as an elected public servant of the Filipino people and not a consideration for the political contributions he received. In fact, as a public servant, he may even be called to enact laws that are contrary to the interests of his benefactors, for the benefit of the greater good. In fine, the purpose for which the sums of money were given, which was to fund the campaign of Senator Angara in his bid for a senatorial seat, cannot be considered as a material consideration so as to negate a donation. Fourth Issue Petitioners raise the fact that since 1939 when the first Tax Code was enacted, up to 1988 the BIR never attempted to subject political contributions to donors tax. They argue that: . . . It is a familiar principle of law that prolonged practice by the government agency charged with the execution of a statute, acquiesced in and relied upon by all concerned over an appreciable period of time, is an authoritative interpretation thereof, entitled to great weight and the highest respect. . . .[12] This Court holds that the BIR is not precluded from making a new interpretation of the law, especially when the old interpretation was flawed. It is a well-entrenched rule that . . . erroneous application and enforcement of the law by public officers do not block subsequent correct application of the statute (PLDT v. Collector of Internal Revenue, 90 Phil. 676), and that the Government is never estopped by mistake or error on the part of its agents (Pineda v. Court of First Instance of Tayabas, 52 Phil. 803, 807; Benguet Consolidated Mining Co. v. Pineda, 98 Phil. 711, 724).[13] Seventh Issue Petitioners question the fact that the Court of Appeals decision is based on a BIR ruling, namely BIR Ruling No. 88-344, which was

issued after the petitioners were assessed for donors tax. This Court does not need to delve into this issue. It is immaterial whether or not the Court of Appeals based its decision on the BIR ruling because it is not pivotal in deciding this case. As discussed above, Section 91 (now Section 98) of the NIRC as supplemented by the definition of a donation found in Article 725 of the Civil Code, is clear and unambiguous, and needs no further elucidation. Eighth Issue Petitioners next contend that tax laws are construed liberally in favor of the taxpayer and strictly against the government. This rule of construction, however, does not benefit petitioners because, as stated, there is here no room for construction since the law is clear and unambiguous. Finally, this Court takes note of the fact that subsequent to the donations involved in this case, Congress approved Republic Act No. 7166 on November 25, 1991, providing in Section 13 thereof that political/electoral contributions, duly reported to the Commission on Elections, are not subject to the payment of any gift tax. This all the more shows that the political contributions herein made are subject to the payment of gift taxes, since the same were made prior to the exempting legislation, and Republic Act No. 7166 provides no retroactive effect on this point. WHEREFORE, the petition is DENIED and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. No costs. SO ORDERED.

G.R. No. 174689

October 22, 2007

certificate of live birth (birth certificate). His sex was registered as "male." He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a mans body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure. From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female." An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila. On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made. During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as witnesses. On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex.

ROMMEL JACINTO DANTES SILVERIO, petitioner, vs. REPUBLIC OF THE PHILIPPINES, respondent. DECISION CORONA, J.: When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2) Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda) When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a persons sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery? On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent. Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his

The sole issue here is whether or not petitioner is entitled to the relief asked for. The court rules in the affirmative. Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioners misfortune to be trapped in a mans body is not his own doing and should not be in any way taken against him. Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fianc] and the realization of their dreams. Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any opposition. WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of petitioner, specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender from "Male" to FEMALE. 5 On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial courts decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through

surgery. Thus, the Court of Appeals granted the Republics petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition. Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10 The petition lacks merit. A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied) Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We disagree. The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides: ART. 376. No person can change his name or surname without judicial authority. This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides: SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall

be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. RA 9048 likewise provides the grounds for which change of first name may be allowed: SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change will avoid confusion. Petitioners basis in praying for the change of his first name was his sex reassignment. He

intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter ones legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create grave complications in the civil registry and the public interest. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not within that courts primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the change of his first name was concerned. No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23 Section 2(c) of RA 9048 defines what a "clerical or typographical error" is: SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean: (3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied) Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court. The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24 ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly. "Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities

and incapacities) of a person in view of his age, nationality and his family membership.27 The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied) A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity and civil status. In this connection, Article 413 of the Civil Code provides: ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioners cause. Moreover, Section 5 of Act 3753 (the Civil Register Law) provides: SEC. 5. Registration and certification of births. The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child. In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother

alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued. xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a persons sex made at the time of his or her birth, if not attended by error,30 is immutable.31 When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-tofemale transsexual to be included in the category "female." For these reasons, while petitioner may have succeeded in altering his body and appearance

through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioners first step towards his eventual marriage to his male fianc. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioners petition were to be granted. It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based. To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege. It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress. Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED.

G.R. No. 150886

February 16, 2007

RURAL BANK OF SAN MIGUEL, INC. and HILARIO P. SORIANO, in his capacity as majority stockholder in the Rural Bankof San Miguel, Inc., Petitioners, vs. MONETARY BOARD, BANGKO SENTRAL NG PILIPINAS and PHILIPPINE DEPOSIT INSURANCE CORPORATION, Respondents. DECISION CORONA, J.: This is a petition for review on certiorari1 of a decision2 and resolution3 of the Court of Appeals (CA) dated March 28, 2000 and November 13, 2001, respectively, in CA-G.R. SP No. 57112. Petitioner Rural Bank of San Miguel, Inc. (RBSM) was a domestic corporation engaged in banking. It started operations in 1962 and by year 2000 had 15 branches in Bulacan.4 Petitioner Hilario P. Soriano claims to be the majority stockholder of its outstanding shares of stock.5 On January 21, 2000, respondent Monetary Board (MB), the governing board of respondent Bangko Sentral ng Pilipinas (BSP), issued Resolution No. 105 prohibiting RBSM from doing business in the Philippines, placing it under receivership and designating respondent Philippine Deposit Insurance Corporation (PDIC) as receiver: On the basis of the comptrollership/monitoring report as of October 31, 1999 as reported by Mr. Wilfredo B. Domo-ong, Director, Department of Rural Banks, in his memorandum dated January 20, 2000, which report showed that [RBSM] (a) is unable to pay its liabilities as they become due in the ordinary course of business; (b) cannot continue in business without involving probable losses to its depositors and creditors; that the management of the bank had been accordingly informed of the need to infuse additional capital to place the bank in a solvent financial condition

and was given adequate time within which to make the required infusion and that no infusion of adequate fresh capital was made, the Board decided as follows: 1. To prohibit the bank from doing business in the Philippines and to place its assets and affairs under receivership in accordance with Section 30 of [RA 7653]; 2. To designate the [PDIC] as receiver of the bank; On January 31, 2000, petitioners filed a petition for certiorari and prohibition in the Regional Trial Court (RTC) of Malolos, Branch 22 to nullify and set aside Resolution No. 105.7 However, on February 7, 2000, petitioners filed a notice of withdrawal in the RTC and, on the same day, filed a special civil action for certiorari and prohibition in the CA. On February 8, 2000, the RTC dismissed the case pursuant to Section 1, Rule 17 of the Rules of Court.8 The CAs findings of facts were as follows. To assist its impaired liquidity and operations, the RBSM was granted emergency loans on different occasions in the aggregate amount of P375 [million]. As early as November 18, 1998, Land Bank of the Philippines (LBP) advised RBSM that it will terminate the clearing of RBSMs checks in view of the latters frequent clearing losses and continuing failure to replenish its Special Clearing Demand Deposit with LBP. The BSP interceded with LBP not to terminate the clearing arrangement of RBSM to protect the interests of RBSMs depositors and creditors. After a year, or on November 29, 1999, the LBP informed the BSP of the termination of the clearing facility of RBSM to take effect on December 29, 1999, in view of the clearing problems of RBSM. On December 28, 1999, the MB approved the release of P26.189 [million] which is the last

tranche of the P375 million emergency loan for the sole purpose of servicing and meeting the withdrawals of its depositors. Of theP26.180 million, xxx P12.6 million xxx was not used to service withdrawals [and] remains unaccounted for as admitted by [RBSMs Treasury Officer and Officer-in-Charge of Treasury]. Instead of servicing withdrawals of depositors, RBSM paid Forcecollect Professional Solution, Inc. and Surecollect Professional, Inc., entities which are owned and controlled by Hilario P. Soriano and other RBSM officers. On January 4, 2000, RBSM declared a bank holiday. RBSM and all of its 15 branches were closed from doing business. Alarmed and disturbed by the unilateral declaration of bank holiday, [BSP] wanted to examine the books and records of RBSM but encountered problems. Meanwhile, on November 10, 1999, RBSMs designated comptroller, Ms. Zenaida Cabais of the BSP, submitted to the Department of Rural Banks, BSP, a Comptrollership Report on her findings on the financial condition and operations of the bank as of October 31, 1999. Another set of findings was submitted by said comptroller [and] this second report reflected the financial status of RBSM as of December 31, 1999. The findings of the comptroller on the financial state of RBSM as of October 31, 1999 in comparison with the financial condition as of December 31, 1999 is summed up pertinently as follows: FINANCIAL CONDITION OF RBSM As of Oct. 31, As of Dec. 1999 31, 1999 Total P1,076,863,0 obligatio 00.00 ns/ Liabiliti es 1,009,898,00 0.00

Realizab 898,588,000.0 796,930,000. le Assets 0 00 Deficit Cash on Hand 178,275,000.0 212,968,000. 0 00 101,441.547.0 8,266,450.00 0

Required Capital Infusion P252,120,000.00 Capital Infusion P5,000,000.00 (On Dec. 20, 1999) Actual Breakdown of Total Obligations: 1) Deposits of 20,000 depositors P578,201,000.00 2) Borrowings from BSP P320,907,000.00 3) Unremitted withholding and gross receipt taxes P57,403,000.00.9 Based on these comptrollership reports, the director of the Department of Rural Banks Supervision and Examination Sector, Wilfredo B. Domo-ong, made a report to the MB dated January 20, 2000.10 The MB, after evaluating and deliberating on the findings and recommendation of the Department of Rural Banks Supervision and Examination Sector, issued Resolution No. 105 on January 21, 2000.11 Thereafter, PDIC implemented the closure order and took over the management of RBSMs assets and affairs. In their petition12 before the CA, petitioners claimed that respondents MB and BSP committed grave abuse of discretion in issuing Resolution No. 105. The petition was dismissed by the CA on March 28, 2000. It held, among others, that the decision of the MB to issue Resolution No. 105 was based on the findings and recommendations of the Department of Rural Banks Supervision and Examination Sector, the comptroller reports as of October 31, 1999 and December 31, 1999 and the declaration of a bank holiday. Such could be considered as substantial evidence.13

Pertinently, on June 9, 2000, on the basis of reports prepared by PDIC stating that RBSM could not resume business with sufficient assurance of protecting the interest of its depositors, creditors and the general public, the MB passed Resolution No. 966 directing PDIC to proceed with the liquidation of RBSM under Section 30 of RA 7653.14 Hence this petition. It is well-settled that the closure of a bank may be considered as an exercise of police power.15 The action of the MB on this matter is final and executory.16 Such exercise may nonetheless be subject to judicial inquiry and can be set aside if found to be in excess of jurisdiction or with such grave abuse of discretion as to amount to lack or excess of jurisdiction.17 Petitioners argue that Resolution No. 105 was bereft of any basis considering that no complete examination had been conducted before it was issued. This case essentially boils down to one core issue: whether Section 30 of RA 7653 (also known as the New Central Bank Act) and applicable jurisprudence require a current and completeexamination of the bank before it can be closed and placed under receivership. Section 30 of RA 7653 provides:

(c) cannot continue in business without involving probable losses to its depositors or creditors; or (d) has willfully violated a cease and desist order under Section 37 that has become final, involving acts or transactions which amount to fraud or a dissipation of the assets of the institution; in which cases, the Monetary Board may summarily and without need for prior hearing forbid the institution from doing business in the Philippines and designate the Philippine Deposit Insurance Corporation as receiver of the banking institution. xxx xxx xxx The actions of the Monetary Board taken under this section or under Section 29 of this Act shall be final and executory, and may not be restrained or set aside by the court except on petition for certiorari on the ground that the action taken was in excess of jurisdiction or with such grave abuse of discretion as to amount to lack or excess of jurisdiction. The petition for certiorari may only be filed by the stockholders of record representing the majority of the capital stock within ten (10) days from receipt by the board of directors of the institution of the order directing receivership, liquidation or conservatorship. (Emphasis supplied) xxx xxx xxx

SECTION 30. Proceedings in Receivership and Liquidation. Whenever, upon report of the head of the supervising or examining department, the Monetary Board finds that a bank or quasi-bank: (a) is unable to pay its liabilities as they become due in the ordinary course of business: Provided, That this shall not include inability to pay caused by extraordinary demands induced by financial panic in the banking community; (b) has insufficient realizable assets, as determined by the [BSP] to meet its liabilities; or

Petitioners contend that there must be a current, thorough and complete examination before a bank can be closed under Section 30 of RA 7653. They argue that this section should be harmonized with Sections 25 and 28 of the same law: SECTION 25. Supervision and Examination. The [BSP] shall have supervision over, and conduct periodic or special examinations of, banking institutions and quasi-banks, including their subsidiaries and affiliates engaged in allied activities. xxx xxx xxx

SECTION 28. Examination and Fees. The supervising and examining department head, personally or by deputy, shall examine the books of every banking institution once in every twelve (12) months, and at such other time as the Monetary Board by an affirmative vote of five (5) members may deem expedient and to make a report on the same to the Monetary Board: Provided that there shall be an interval of at least twelve (12) months between annual examinations. (Emphasis supplied) xxx xxx xxx According to the petitioners, it is clear from these provisions that the "report of the supervising or examining department" required under Section 30 refers to the report on the examination of the bank which, under Section 28, must be made to the MB after the supervising or examining head conducts an examination mandated by Sections 25 and 28.18 They cite Banco Filipino Savings & Mortgage Bank v. Monetary Board, Central Bank of the Philippines19 wherein the Court ruled: There is no question that under Section 29 of the Central Bank Act, the following are the mandatory requirements to be complied with before a bank found to be insolvent is ordered closed and forbidden to do business in the Philippines: Firstly, an examination shall be conducted by the head of the appropriate supervising or examining department or his examiners or agents into the condition of the bank; secondly, it shall be disclosed in the examination that the condition of the bank is one of insolvency, or that its continuance in business would involve probable loss to its depositors or creditors; thirdly, the department head concerned shall inform the Monetary Board in writing, of the facts; and lastly, the Monetary Board shall find the statements of the department head to be true.20 (Emphasis supplied) Petitioners assert that an examination is necessary and not a mere report, otherwise the decision to close a bank would be arbitrary.

Respondents counter that RA 7653 merely requires a report of the head of the supervising or examining department. They maintain that the term "report" under Section 30 and the word "examination" used in Section 29 of the old law are not synonymous. "Examination" connotes in-depth analysis, evaluation, inquiry or investigation while "report" connotes a simple disclosure or narration of facts for informative purposes.21 Petitioners contention has no merit. Banco Filipino and other cases petitioners cited22 were decided using Section 29 of the old law (RA 265): SECTION 29. Proceedings upon insolvency. Whenever, upon examination by the head of the appropriate supervising or examining department or his examiners or agents into the condition of any bank or non-bank financial intermediary performing quasi-banking functions, it shall be disclosed that the condition of the same is one of insolvency, or that its continuance in business would involve probable loss to its depositors or creditors, it shall be the duty of the department head concerned forthwith, in writing, to inform the Monetary Board of the facts. The Board may, upon finding the statements of the department head to be true, forbid the institution to do business in the Philippines and designate an official of the Central Bank or a person of recognized competence in banking or finance, as receiver to immediately take charge of its assets and liabilities, as expeditiously as possible collect and gather all the assets and administer the same for the benefits of its creditors, and represent the bank personally or through counsel as he may retain in all actions or proceedings for or against the institution, exercising all the powers necessary for these purposes including, but not limited to, bringing and foreclosing mortgages in the name of the bank or non-bank financial intermediary performing quasi-banking functions. (Emphasis supplied) xxx xxx xxx

Thus in Banco Filipino, we ruled that an "examination [conducted] by the head of the appropriate supervising or examining department or his examiners or agents into the condition of the bank"23 is necessary before the MB can order its closure. However, RA 265, including Section 29 thereof, was expressly repealed by RA 7653 which took effect in 1993. Resolution No. 105 was issued on January 21, 2000. Hence, petitioners reliance on Banco Filipino which was decided under RA 265 was misplaced. In RA 7653, only a "report of the head of the supervising or examining department" is necessary. It is an established rule in statutory construction that where the words of a statute are clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation:24 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 intention or will and preclude the court from construing it differently. The legislature is presumed to know the meaning of the words, to have used words advisedly, and to have expressed its intent by 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.25 The word "report" has a definite and unambiguous meaning which is clearly different from "examination." A report, as a noun, may be defined as "something that gives information" or "a usually detailed account or statement."26On the other hand, an examination is "a search, investigation or scrutiny."27 This Court cannot look for or impose another meaning on the term "report" or to construe it as synonymous with "examination." From the words used in Section 30, it is clear that RA 7653 no longer requires that an examination be made before the MB can issue a closure order.

We cannot make it a requirement in the absence of legal basis. Indeed, the court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers.28 However, these problems are not present here. Using the literal meaning of "report" does not lead to absurdity, contradiction or injustice. Neither does it defeat the intent of the legislators. The purpose of the law is to make the closure of a bank summary and expeditious in order to protect public interest. This is also why prior notice and hearing are no longer required before a bank can be closed.29 Laying down the requisites for the closure of a bank under the law is the prerogative of the legislature and what its wisdom dictates. The lawmakers could have easily retained the word "examination" (and in the process also preserved the jurisprudence attached to it) but they did not and instead opted to use the word "report." The insistence on an examination is not sanctioned by RA 7653 and we would be guilty of judicial legislation were we to make it a requirement when such is not supported by the language of the law. What is being raised here as grave abuse of discretion on the part of the respondents was the lack of an examination and not the supposed arbitrariness with which the conclusions of the director of the Department of Rural Banks Supervision and Examination Sector had been reached in the report which became the basis of Resolution No. 105.1awphi1.net The absence of an examination before the closure of RBSM did not mean that there was no basis for the closure order. Needless to say, the decision of the MB and BSP, like any other administrative body, must have something to support itself and its findings of fact must be supported by substantial evidence. But it is clear under RA 7653 that the basis need not arise from an examination as required in the old law.

We thus rule that the MB had sufficient basis to arrive at a sound conclusion that there were grounds that would justify RBSMs closure. It relied on the report of Mr. Domo-ong, the head of the supervising or examining department, with the findings that: (1) RBSM was unable to pay its liabilities as they became due in the ordinary course of business and (2) that it could not continue in business without incurring probable losses to its depositors and creditors.30 The report was a 50-page memorandum detailing the facts supporting those grounds, an extensive chronology of events revealing the multitude of problems which faced RBSM and the recommendations based on those findings. In short, MB and BSP complied with all the requirements of RA 7653. By relying on a report before placing a bank under receivership, the MB and BSP did not only follow the letter of the law, they were also faithful to its spirit, which was to act expeditiously. Accordingly, the issuance of Resolution No. 105 was untainted with arbitrariness. Having dispensed with the issue decisive of this case, it becomes unnecessary to resolve the other minor issues raised.31 WHEREFORE, the petition is hereby DENIED. The March 28, 2000 decision and November 13, 2001 resolution of the Court of Appeals in CA-G.R. SP No. 57112 are AFFIRMED. Costs against petitioners. SO ORDERED.

[G.R. No. 134241. August 11, 2003] DAVID REYES (Substituted by Victoria R. Fabella), petitioner, vs. JOSE LIM, CHUY CHENG KENG and HARRISON LUMBER, INC., respondents. DECISION CARPIO, J.: The Case This is a petition for review on certiorari of the Decision[1] dated 12 May 1998 of the Court of Appeals in CA-G.R. SP No. 46224. The Court of Appeals dismissed the petition for certiorari assailing the Orders dated 6 March 1997, 3 July 1997 and 3 October 1997 of the Regional Trial Court of Paranaque, Branch 260[2] (trial court) in Civil Case No. 95-032. The Facts On 23 March 1995, petitioner David Reyes (Reyes) filed before the trial court a complaint for annulment of contract and damages against respondents Jose Lim (Lim), Chuy Cheng Keng (Keng) and Harrison Lumber, Inc. (Harrison Lumber). The complaint[3] alleged that on 7 November 1994, Reyes as seller and Lim as buyer entered into a contract to sell (Contract to Sell) a parcel of land (Property) located along F.B. Harrison Street, Pasay City. Harrison Lumber occupied the Property as lessee with a monthly rental of P35,000. The Contract to Sell provided for the following terms and conditions: 1. The total consideration for the purchase of the aforedescribed parcel of land together with the perimeter walls found therein is TWENTY EIGHT MILLION (P28,000,000.00) PESOS payable as follows: (a) TEN MILLION (P10,000,000.00) PESOS upon signing of this Contract to Sell;

(b) The balance of EIGHTEEN MILLION (P18,000,000.00) PESOS shall be paid on or before March 8, 1995 at 9:30 A.M. at a bank to be designated by the Buyer but upon the complete vacation of all the tenants or occupants of the property and execution of the Deed of Absolute Sale. However, if the tenants or occupants have vacated the premises earlier than March 8, 1995, the VENDOR shall give the VENDEE at least one week advance notice for the payment of the balance and execution of the Deed of Absolute Sale. 2. That in the event, the tenants or occupants of the premises subject of this sale shall not vacate the premises on March 8, 1995 as stated above, the VENDEE shall withhold the payment of the balance of P18,000,000.00 and the VENDOR agrees to pay a penalty of Four percent (4%) per month to the herein VENDEE based on the amount of the downpayment of TEN MILLION (P10,000,000.00) PESOS until the complete vacation of the premises by the tenants therein.[4] The complaint claimed that Reyes had informed Harrison Lumber to vacate the Property before the end of January 1995. Reyes also informed Keng[5] and Harrison Lumber that if they failed to vacate by 8 March 1995, he would hold them liable for the penalty of P400,000 a month as provided in the Contract to Sell. The complaint further alleged that Lim connived with Harrison Lumber not to vacate the Property until the P400,000 monthly penalty would have accumulated and equaled the unpaid purchase price of P18,000,000. On 3 May 1995, Keng and Harrison Lumber filed their Answer[6] denying they connived with Lim to defraud Reyes. Keng and Harrison Lumber alleged that Reyes approved their request for an extension of time to vacate the Property due to their difficulty in finding a new location for their business. Harrison Lumber claimed that as of March 1995, it had already started transferring some of its merchandise to its new business location in Malabon.[7]

On 31 May 1995, Lim filed his Answer[8] stating that he was ready and willing to pay the balance of the purchase price on or before 8 March 1995. Lim requested a meeting with Reyes through the latters daughter on the signing of the Deed of Absolute Sale and the payment of the balance but Reyes kept postponing their meeting. On 9 March 1995, Reyes offered to return the P10 million down payment to Lim because Reyes was having problems in removing the lessee from the Property. Lim rejected Reyes offer and proceeded to verify the status of Reyes title to the Property. Lim learned that Reyes had already sold the Property to Line One Foods Corporation (Line One) on 1 March 1995 for P16,782,840. After the registration of the Deed of Absolute Sale, the Register of Deeds issued to Line One TCT No. 134767 covering the Property. Lim denied conniving with Keng and Harrison Lumber to defraud Reyes. On 2 November 1995, Reyes filed a Motion for Leave to File Amended Complaint due to supervening facts. These included the filing by Lim of a complaint for estafa against Reyes as well as an action for specific performance and nullification of sale and title plus damages before another trial court.[9] The trial court granted the motion in an Order dated 23 November 1995. In his Amended Answer dated 18 January 1996,[10] Lim prayed for the cancellation of the Contract to Sell and for the issuance of a writ of preliminary attachment against Reyes. The trial court denied the prayer for a writ of preliminary attachment in an Order dated 7 October 1996. On 6 March 1997, Lim requested in open court that Reyes be ordered to deposit the P10 million down payment with the cashier of the Regional Trial Court of Paraaque. The trial court granted this motion. On 25 March 1997, Reyes filed a Motion to Set Aside the Order dated 6 March 1997 on the ground the Order practically granted the reliefs Lim prayed for in his Amended Answer.[11] The trial court denied Reyes motion in an Order[12] dated 3 July 1997. Citing Article 1385

of the Civil Code, the trial court ruled that an action for rescission could prosper only if the party demanding rescission can return whatever he may be obliged to restore should the court grant the rescission. The trial court denied Reyes Motion for Reconsideration in its Order[13] dated 3 October 1997. In the same order, the trial court directed Reyes to deposit the P10 million down payment with the Clerk of Court on or before 30 October 1997. On 8 December 1997, Reyes[14] filed a Petition for Certiorari[15] with the Court of Appeals. Reyes prayed that the Orders of the trial court dated 6 March 1997, 3 July 1997 and 3 October 1997 be set aside for having been issued with grave abuse of discretion amounting to lack of jurisdiction. On 12 May 1998, the Court of Appeals dismissed the petition for lack of merit. Hence, this petition for review. The Ruling of the Court of Appeals The Court of Appeals ruled the trial court could validly issue the assailed orders in the exercise of its equity jurisdiction. The court may grant equitable reliefs to breathe life and force to substantive law such as Article 1385[16] of the Civil Code since the provisional remedies under the Rules of Court do not apply to this case. The Court of Appeals held the assailed orders merely directed Reyes to deposit the P10 million to the custody of the trial court to protect the interest of Lim who paid the amount to Reyes as down payment. This did not mean the money would be returned automatically to Lim. The Issues Reyes raises the following issues: 1. Whether the Court of Appeals erred in holding the trial court could issue the questioned Orders dated March 6, 1997, July 3, 1997 and October 3, 1997, requiring petitioner David Reyes to deposit the amount of Ten Million

Pesos (P10,000,000.00) during the pendency of the action, when deposit is not among the provisional remedies enumerated in Rule 57 to 61 of the 1997 Rules on Civil Procedure. 2. Whether the Court of Appeals erred in finding the trial court could issue the questioned Orders on grounds of equity when there is an applicable law on the matter, that is, Rules 57 to 61 of the 1997 Rules on Civil Procedure.[17] The Courts Ruling Reyes contentions are without merit. Reyes points out that deposit is not among the provisional remedies enumerated in the 1997 Rules of Civil Procedure. Reyes stresses the enumeration in the Rules is exclusive. Not one of the provisional remedies in Rules 57 to 61[18] applies to this case. Reyes argues that a court cannot apply equity and require deposit if the law already prescribes the specific provisional remedies which do not include deposit. Reyes invokes the principle that equity is applied only in the absence of, and never against, statutory law or x x x judicial rules of procedure.[19] Reyes adds the fact that the provisional remedies do not include deposit is a matter of dura lex sed lex.[20] The instant case, however, is precisely one where there is a hiatus in the law and in the Rules of Court. If left alone, the hiatus will result in unjust enrichment to Reyes at the expense of Lim. The hiatus may also imperil restitution, which is a precondition to the rescission of the Contract to Sell that Reyes himself seeks. This is not a case of equity overruling a positive provision of law or judicial rule for there is none that governs this particular case. This is a case of silence or insufficiency of the law and the Rules of Court. In this case, Article 9 of the Civil Code expressly mandates the courts to make a ruling despite the silence, obscurity or insufficiency of the laws.[21] This calls for the application of equity,[22] which fills the open spaces in the law.[23]

Thus, the trial court in the exercise of its equity jurisdiction may validly order the deposit of the P10 million down payment in court. The purpose of the exercise of equity jurisdiction in this case is to prevent unjust enrichment and to ensure restitution. Equity jurisdiction aims to do complete justice in cases where a court of law is unable to adapt its judgments to the special circumstances of a case because of the inflexibility of its statutory or legal jurisdiction.[24] Equity is the principle by which substantial justice may be attained in cases where the prescribed or customary forms of ordinary law are inadequate.[25] Reyes is seeking rescission of the Contract to Sell. In his amended answer, Lim is also seeking cancellation of the Contract to Sell. The trial court then ordered Reyes to deposit in court the P10 million down payment that Lim made under the Contract to Sell. Reyes admits receipt of the P10 million down payment but opposes the order to deposit the amount in court. Reyes contends that prior to a judgment annulling the Contract to Sell, he has the right to use, possess and enjoy[26] the P10 million as its owner[27] unless the court orders its preliminary attachment.[28] To subscribe to Reyes contention will unjustly enrich Reyes at the expense of Lim. Reyes sold to Line One the Property even before the balance of P18 million under the Contract to Sell with Lim became due on 8 March 1995. On 1 March 1995, Reyes signed a Deed of Absolute Sale[29] in favor of Line One. On 3 March 1995, the Register of Deeds issued TCT No. 134767[30] in the name of Line One.[31] Reyes cannot claim ownership of the P10 million down payment because Reyes had already sold to another buyer the Property for which Lim made the down payment. In fact, in his Comment[32] dated 20 March 1996, Reyes reiterated his offer to return to Lim the P10 million down payment. On balance, it is unreasonable and unjust for Reyes to object to the deposit of the P10 million down payment. The application of equity always involves a balancing of the equities in a

particular case, a matter addressed to the sound discretion of the court. Here, we find the equities weigh heavily in favor of Lim, who paid the P10 million down payment in good faith only to discover later that Reyes had subsequently sold the Property to another buyer. In Eternal Gardens Memorial Parks Corp. v. IAC,[33] this Court held the plaintiff could not continue to benefit from the property or funds in litigation during the pendency of the suit at the expense of whomever the court might ultimately adjudge as the lawful owner. The Court declared: In the case at bar, a careful analysis of the records will show that petitioner admitted among others in its complaint in Interpleader that it is still obligated to pay certain amounts to private respondent; that it claims no interest in such amounts due and is willing to pay whoever is declared entitled to said amounts. x x x Under the circumstances, there appears to be no plausible reason for petitioners objections to the deposit of the amounts in litigation after having asked for the assistance of the lower court by filing a complaint for interpleader where the deposit of aforesaid amounts is not only required by the nature of the action but is a contractual obligation of the petitioner under the Land Development Program (Rollo, p. 252). There is also no plausible or justifiable reason for Reyes to object to the deposit of the P10 million down payment in court. The Contract to Sell can no longer be enforced because Reyes himself subsequently sold the Property to Line One. Both Reyes and Lim are now seeking rescission of the Contract to Sell. Under Article 1385 of the Civil Code, rescission creates the obligation to return the things that are the object of the contract. Rescission is possible only when the person demanding rescission can return whatever he may be obliged to restore. A court of equity will not rescind a contract unless there is restitution, that is, the parties are restored to the status quo ante.[34]

Thus, since Reyes is demanding to rescind the Contract to Sell, he cannot refuse to deposit the P10 million down payment in court.[35] Such deposit will ensure restitution of the P10 million to its rightful owner. Lim, on the other hand, has nothing to refund, as he has not received anything under the Contract to Sell.[36] In Government of the Philippine Islands v. Wagner and Cleland Wagner,[37] the Court ruled the refund of amounts received under a contract is a precondition to the rescission of the contract. The Court declared: The Government, having asked for rescission, must restore to the defendants whatever it has received under the contract. It will only be just if, as a condition to rescission, the Government be required to refund to the defendants an amount equal to the purchase price, plus the sums expended by them in improving the land. (Civil Code, art. 1295.) The principle that no person may unjustly enrich himself at the expense of another is embodied in Article 22[38] of the Civil Code. This principle applies not only to substantive rights but also to procedural remedies. One condition for invoking this principle is that the aggrieved party has no other action based on contract, quasi-contract, crime, quasi-delict or any other provision of law.[39]Courts can extend this condition to the hiatus in the Rules of Court where the aggrieved party, during the pendency of the case, has no other recourse based on the provisional remedies of the Rules of Court. Thus, a court may not permit a seller to retain, pendente lite, money paid by a buyer if the seller himself seeks rescission of the sale because he has subsequently sold the same property to another buyer.[40] By seeking rescission, a seller necessarily offers to return what he has received from the buyer. Such a seller may not take back his offer if the court deems it equitable, to prevent unjust enrichment and ensure restitution, to put the money in judicial deposit.

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

G.R. No. L-30642 April 30, 1985 PERFECTO S. FLORESCA, in his own behalf and on behalf of the minors ROMULO and NESTOR S. FLORESCA; and ERLINDA FLORESCA-GABUYO, PEDRO S. FLORESCA, JR., CELSO S. FLORESCA, MELBA S. FLORESCA, JUDITH S. FLORESCA and CARMEN S. FLORESCA; LYDIA CARAMAT VDA. DE MARTINEZ in her own behalf and on behalf of her minor children LINDA, ROMEO, ANTONIO JEAN and ELY, all surnamed Martinez; and DANIEL MARTINEZ and TOMAS MARTINEZ; SALUSTIANA ASPIRAS VDA. DE OBRA, in her own behalf and on behalf of her minor children JOSE, ESTELA, JULITA SALUD and DANILO, all surnamed OBRA; LYDIA CULBENGAN VDA. DE VILLAR, in her own behalf and on behalf of her minor children EDNA, GEORGE and LARRY III, all surnamed VILLAR; DOLORES LOLITA ADER VDA. DE LANUZA, in her own behalf and on behalf of her minor children EDITHA, ELIZABETH, DIVINA, RAYMUNDO, NESTOR and AURELIO, JR. all surnamed LANUZA; EMERENCIANA JOSE VDA. DE ISLA, in her own behalf and on behalf of her minor children JOSE, LORENZO, JR., MARIA, VENUS and FELIX, all surnamed ISLA, petitioners, vs. PHILEX MINING CORPORATION and HON. JESUS P. MORFE, Presiding Judge of Branch XIII, Court of First Instance of Manila, respondents. Rodolfo C. Pacampara for petitioners. Tito M. Villaluna for respondents.

MAKASIAR, J.: This is a petition to review the order of the former Court of First Instance of Manila, Branch XIII, dated December 16, 1968 dismissing petitioners' complaint for damages on the ground of lack of jurisdiction. Petitioners are the heirs of the deceased employees of Philex Mining Corporation (hereinafter referred to as Philex), who, while working at its copper mines underground operations at Tuba, Benguet on June 28, 1967, died as a result of the cave-in that buried them in the tunnels of the mine. Specifically, the complaint alleges that Philex, in violation of government rules and regulations, negligently and deliberately failed to take the required precautions for the protection of the lives of its men working underground. Portion of the complaint reads: xxx xxx xxx 9. That for sometime prior and up to June 28,1967, the defendant PHILEX, with gross and reckless negligence and imprudence and deliberate failure to take the required precautions for the due protection of the lives of its men working underground at the time, and in utter violation of the laws and the rules and regulations duly promulgated by the Government pursuant thereto, allowed great amount of water and mud to accumulate in an open pit area at the mine above Block 43-S-1 which seeped through and saturated the 600 ft. column of broken ore and rock below it, thereby exerting tremendous pressure on the working spaces at its 4300 level, with the result that, on the said date, at about 4 o'clock in the afternoon, with the collapse of all underground supports due to such enormous pressure, approximately 500,000 cubic feet of broken ores rocks, mud and water, accompanied by surface boulders, blasted through the tunnels and flowed out and filled in, in a matter of approximately five (5) minutes, the underground workings, ripped timber supports and carried off materials, machines and equipment which blocked all avenues of exit, thereby trapping within its

tunnels of all its men above referred to, including those named in the next preceding paragraph, represented by the plaintiffs herein; 10. That out of the 48 mine workers who were then working at defendant PHILEX's mine on the said date, five (5) were able to escape from the terrifying holocaust; 22 were rescued within the next 7 days; and the rest, 21 in number, including those referred to in paragraph 7 hereinabove, were left mercilessly to their fate, notwithstanding the fact that up to then, a great many of them were still alive, entombed in the tunnels of the mine, but were not rescued due to defendant PHILEX's decision to abandon rescue operations, in utter disregard of its bounden legal and moral duties in the premises; xxx xxx xxx 13. That defendant PHILEX not only violated the law and the rules and regulations duly promulgated by the duly constituted authorities as set out by the Special Committee above referred to, in their Report of investigation, pages 7-13, Annex 'B' hereof, but also failed completely to provide its men working underground the necessary security for the protection of their lives notwithstanding the fact that it had vast financial resources, it having made, during the year 1966 alone, a total operating income of P 38,220,254.00, or net earnings, after taxes of P19,117,394.00, as per its llth Annual Report for the year ended December 31, 1966, and with aggregate assets totalling P 45,794,103.00 as of December 31, 1966; xxx xxx xxx (pp. 42-44, rec.) A motion to dismiss dated May 14, 1968 was filed by Philex alleging that the causes of action of petitioners based on an industrial accident are covered by the provisions of the Workmen's Compensation Act (Act 3428, as amended by RA 772) and that the former Court of First Instance has no jurisdiction over the case. Petitioners filed an opposition dated May 27,

1968 to the said motion to dismiss claiming that the causes of action are not based on the provisions of the Workmen's Compensation Act but on the provisions of the Civil Code allowing the award of actual, moral and exemplary damages, particularly: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Art. 2178. The provisions of articles 1172 to 1174 are also applicable to a quasi-delict. (b) Art. 1173The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2 shall apply. Art. 2201. x x x x x x x x x In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation. Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. After a reply and a rejoinder thereto were filed, respondent Judge issued an order dated June 27, 1968 dismissing the case on the ground that it falls within the exclusive jurisdiction of the Workmen's Compensation Commission. On petitioners' motion for reconsideration of the said order, respondent Judge, on September 23, 1968, reconsidered and set aside his order of June 27, 1968 and allowed Philex to file an answer to the complaint. Philex moved to reconsider the aforesaid order which was opposed by petitioners.

On December 16, 1968, respondent Judge dismissed the case for lack of jurisdiction and ruled that in accordance with the established jurisprudence, the Workmen's Compensation Commission has exclusive original jurisdiction over damage or compensation claims for workconnected deaths or injuries of workmen or employees, irrespective of whether or not the employer was negligent, adding that if the employer's negligence results in work-connected deaths or injuries, the employer shall, pursuant to Section 4-A of the Workmen's Compensation Act, pay additional compensation equal to 50% of the compensation fixed in the Act. Petitioners thus filed the present petition. In their brief, petitioners raised the following assignment of errors: I THE LOWER COURT ERRED IN DISMISSING THE PLAINTIFFSPETITIONERS' COMPLAINT FOR LACK OF JURISDICTION. II THE LOWER COURT ERRED IN FAILING TO CONSIDER THE CLEAR DISTINCTION BETWEEN CLAIMS FOR DAMAGES UNDER THE CIVIL CODE AND CLAIMS FOR COMPENSATION UNDER THE WORKMEN'S COMPENSATION ACT. A In the first assignment of error, petitioners argue that the lower court has jurisdiction over the cause of action since the complaint is based on the provisions of the Civil Code on damages, particularly Articles 2176, 2178, 1173, 2201 and 2231, and not on the provisions of the Workmen's Compensation Act. They point out that the complaint alleges gross and brazen negligence on the part of Philex in failing to take the necessary security for the protection of the lives of its employees working underground. They also assert that since Philex opted to file a

motion to dismiss in the court a quo, the allegations in their complaint including those contained in the annexes are deemed admitted. In the second assignment of error, petitioners asseverate that respondent Judge failed to see the distinction between the claims for compensation under the Workmen's Compensation Act and the claims for damages based on gross negligence of Philex under the Civil Code. They point out that workmen's compensation refers to liability for compensation for loss resulting from injury, disability or death of the working man through industrial accident or disease, without regard to the fault or negligence of the employer, while the claim for damages under the Civil Code which petitioners pursued in the regular court, refers to the employer's liability for reckless and wanton negligence resulting in the death of the employees and for which the regular court has jurisdiction to adjudicate the same. On the other hand, Philex asserts that workconnected injuries are compensable exclusively under the provisions of Sections 5 and 46 of the Workmen's Compensation Act, which read: SEC. 5. Exclusive right to compensation.The rights and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws because of said injury ... SEC. 46. Jurisdiction. The Workmen's Compensation Commissioner shall have exclusive jurisdiction to hear and decide claims for compensation under the Workmen's Compensation Act, subject to appeal to the Supreme Court, ... Philex cites the case of Manalo vs. Foster Wheeler (98 Phil. 855 [1956]) where it was held that "all claims of workmen against their employer for damages due to accident suffered in the course of employment shall be investigated and adjudicated by the Workmen's

Compensation Commission," subject to appeal to the Supreme Court. Philex maintains that the fact that an employer was negligent, does not remove the case from the exclusive character of recoveries under the Workmen's Compensation Act; because Section 4-A of the Act provides an additional compensation in case the employer fails to comply with the requirements of safety as imposed by law to prevent accidents. In fact, it points out that Philex voluntarily paid the compensation due the petitioners and all the payments have been accepted in behalf of the deceased miners, except the heirs of Nazarito Floresca who insisted that they are entitled to a greater amount of damages under the Civil Code. In the hearing of this case, then Undersecretary of Labor Israel Bocobo, then Atty. Edgardo Angara, now President of the University of the Philippines, Justice Manuel Lazaro, as corporate counsel and Assistant General Manager of the GSIS Legal Affairs Department, and Commissioner on Elections, formerly UP Law Center Director Froilan Bacungan, appeared as amici curiae and thereafter, submitted their respective memoranda. The issue to be resolved as WE stated in the resolution of November 26, 1976, is: Whether the action of an injured employee or worker or that of his heirs in case of his death under the Workmen's Compensation Act is exclusive, selective or cumulative, that is to say, whether his or his heirs' action is exclusively restricted to seeking the limited compensation provided under the Workmen's Compensation Act or whether they have a right of selection or choice of action between availing of the worker's right under the Workmen's Compensation Act and suing in the regular courts under the Civil Code for higher damages (actual, moral and/or exemplary) from the employer by virtue of negligence (or fault) of the employer or of his other employees or whether they may avail cumulatively of both actions, i.e., collect the limited compensation

under the Workmen's Compensation Act and sue in addition for damages in the regular courts. There are divergent opinions in this case. Justice Lazaro is of the opinion that an injured employee or worker, or the heirs in case of his death, may initiate a complaint to recover damages (not compensation under the Workmen's Compensation Act) with the regular court on the basis of negligence of an employer pursuant to the Civil Code provisions. Atty. Angara believes otherwise. He submits that the remedy of an injured employee for workconnected injury or accident is exclusive in accordance with Section 5 of the Workmen's Compensation Act, while Atty. Bacungan's position is that the action is selective. He opines that the heirs of the employee in case of his death have a right of choice to avail themselves of the benefits provided under the Workmen's Compensation Act or to sue in the regular court under the Civil Code for higher damages from the employer by virtue of negligence of the latter. Atty. Bocobo's stand is the same as that of Atty. Bacungan and adds that once the heirs elect the remedy provided for under the Act, they are no longer entitled to avail themselves of the remedy provided for under the Civil Code by filing an action for higher damages in the regular court, and vice versa. On August 3, 1978, petitioners-heirs of deceased employee Nazarito Floresca filed a motion to dismiss on the ground that they have amicably settled their claim with respondent Philex. In the resolution of September 7, 1978, WE dismissed the petition only insofar as the aforesaid petitioners are connected, it appearing that there are other petitioners in this case. WE hold that the former Court of First Instance has jurisdiction to try the case, It should be underscored that petitioners' complaint is not for compensation based on the Workmen's Compensation Act but a complaint for damages (actual, exemplary and moral) in the total amount of eight hundred twenty-five thousand (P825,000.00) pesos. Petitioners did not invoke the provisions of the Workmen's

Compensation Act to entitle them to compensation thereunder. In fact, no allegation appeared in the complaint that the employees died from accident arising out of and in the course of their employments. The complaint instead alleges gross and reckless negligence and deliberate failure on the part of Philex to protect the lives of its workers as a consequence of which a cave-in occurred resulting in the death of the employees working underground. Settled is the rule that in ascertaining whether or not the cause of action is in the nature of workmen's compensation claim or a claim for damages pursuant to the provisions of the Civil Code, the test is the averments or allegations in the complaint (Belandres vs. Lopez Sugar Mill, Co., Inc., 97 Phil. 100). In the present case, there exists between Philex and the deceased employees a contractual relationship. The alleged gross and reckless negligence and deliberate failure that amount to bad faith on the part of Philex, constitute a breach of contract for which it may be held liable for damages. The provisions of the Civil Code on cases of breach of contract when there is fraud or bad faith, read: Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is able shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In cases of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation. Furthermore, Articles 2216 et seq., Civil Code, allow the payment of all kinds of damages, as assessed by the court.

The rationale in awarding compensation under the Workmen's Compensation Act differs from that in giving damages under the Civil Code. The compensation acts are based on a theory of compensation distinct from the existing theories of damages, payments under the acts being made as compensation and not as damages (99 C.J.S. 53). Compensation is given to mitigate the harshness and insecurity of industrial life for the workman and his family. Hence, an employer is liable whether negligence exists or not since liability is created by law. Recovery under the Act is not based on any theory of actionable wrong on the part of the employer (99 C.J.S. 36). In other words, under the compensation acts, the employer is liable to pay compensation benefits for loss of income, as long as the death, sickness or injury is work-connected or work-aggravated, even if the death or injury is not due to the fault of the employer (Murillo vs. Mendoza, 66 Phil. 689). On the other hand, damages are awarded to one as a vindication of the wrongful invasion of his rights. It is the indemnity recoverable by a person who has sustained injury either in his person, property or relative rights, through the act or default of another (25 C.J.S. 452). The claimant for damages under the Civil Code has the burden of proving the causal relation between the defendant's negligence and the resulting injury as well as the damages suffered. While under the Workmen's Compensation Act, there is a presumption in favor of the deceased or injured employee that the death or injury is work-connected or work-aggravated; and the employer has the burden to prove otherwise (De los Angeles vs. GSIS, 94 SCRA 308; Carino vs. WCC, 93 SCRA 551; Maria Cristina Fertilizer Corp. vs. WCC, 60 SCRA 228). The claim of petitioners that the case is not cognizable by the Workmen's Compensation Commission then, now Employees Compensation Commission, is strengthened by the fact that unlike in the Civil Code, the Workmen's Compensation Act did not contain any provision for an award of actual, moral and exemplary damages. What the Act provided was

merely the right of the heirs to claim limited compensation for the death in the amount of six thousand (P6,000.00) pesos plus burial expenses of two hundred (P200.00) pesos, and medical expenses when incurred (Sections 8, 12 and 13, Workmen's Compensation Act), and an additional compensation of only 50% if the complaint alleges failure on the part of the employer to "install and maintain safety appliances or to take other precautions for the prevention of accident or occupational disease" (Section 4-A, Ibid.). In the case at bar, the amount sought to be recovered is over and above that which was provided under the Workmen's Compensation Act and which cannot be granted by the Commission. Moreover, under the Workmen's Compensation Act, compensation benefits should be paid to an employee who suffered an accident not due to the facilities or lack of facilities in the industry of his employer but caused by factors outside the industrial plant of his employer. Under the Civil Code, the liability of the employer, depends on breach of contract or tort. The Workmen's Compensation Act was specifically enacted to afford protection to the employees or workmen. It is a social legislation designed to give relief to the workman who has been the victim of an accident causing his death or ailment or injury in the pursuit of his employment (Abong vs. WCC, 54 SCRA 379). WE now come to the query as to whether or not the injured employee or his heirs in case of death have a right of selection or choice of action between availing themselves of the worker's right under the Workmen's Compensation Act and suing in the regular courts under the Civil Code for higher damages (actual, moral and exemplary) from the employers by virtue of that negligence or fault of the employers or whether they may avail themselves cumulatively of both actions, i.e., collect the limited compensation under the Workmen's Compensation Act and sue in addition for damages in the regular courts. In disposing of a similar issue, this Court in Pacana vs. Cebu Autobus Company, 32 SCRA 442, ruled that an injured worker has a choice of

either to recover from the employer the fixed amounts set by the Workmen's Compensation Act or to prosecute an ordinary civil action against the tortfeasor for higher damages but he cannot pursue both courses of action simultaneously. In Pacaa WE said: In the analogous case of Esguerra vs. Munoz Palma, involving the application of Section 6 of the Workmen's Compensation Act on the injured workers' right to sue third- party tortfeasors in the regular courts, Mr. Justice J.B.L. Reyes, again speaking for the Court, pointed out that the injured worker has the choice of remedies but cannot pursue both courses of action simultaneously and thus balanced the relative advantage of recourse under the Workmen's Compensation Act as against an ordinary action. As applied to this case, petitioner Esguerra cannot maintain his action for damages against the respondents (defendants below), because he has elected to seek compensation under the Workmen's Compensation Law, and his claim (case No. 44549 of the Compensation Commission) was being processed at the time he filed this action in the Court of First Instance. It is argued for petitioner that as the damages recoverable under the Civil Code are much more extensive than the amounts that may be awarded under the Workmen's Compensation Act, they should not be deemed incompatible. As already indicated, the injured laborer was initially free to choose either to recover from the employer the fixed amounts set by the Compensation Law or else, to prosecute an ordinary civil action against the tortfeasor for higher damages. While perhaps not as profitable, the smaller indemnity obtainable by the first course is balanced by the claimant's being relieved of the burden of proving the causal connection between the defendant's negligence and the resulting injury, and of having to establish the extent of the damage suffered; issues that are apt to be troublesome to establish satisfactorily. Having staked his fortunes on a particular remedy, petitioner is precluded from pursuing the alternate course, at least until the prior claim is

rejected by the Compensation Commission. Anyway, under the proviso of Section 6 aforequoted, if the employer Franklin Baker Company recovers, by derivative action against the alleged tortfeasors, a sum greater than the compensation he may have paid the herein petitioner, the excess accrues to the latter. Although the doctrine in the case of Esguerra vs. Munoz Palma (104 Phil. 582), applies to thirdparty tortfeasor, said rule should likewise apply to the employer-tortfeasor. Insofar as the heirs of Nazarito Floresca are concerned, as already stated, the petition has been dismissed in the resolution of September 7, 1978 in view of the amicable settlement reached by Philex and the said heirs. With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino Martinez submitted notices and claims for compensation to the Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in installments (pp. 106-107, rec.). Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated May 27, 1968 (pp. 121-122, rec.) in the lower court, but they set up the defense that the claims were filed under the Workmen's Compensation Act before they learned of the official report of the committee created to investigate the accident which established the criminal negligence and violation of law by Philex, and which report was forwarded by the Director of Mines to the then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only (p. 76, rec.). WE hold that although the other petitioners had received the benefits under the Workmen's Compensation Act, such may not preclude them from bringing an action before the regular court because they became cognizant of the fact that Philex has been remiss in its contractual

obligations with the deceased miners only after receiving compensation under the Act. Had petitioners been aware of said violation of government rules and regulations by Philex, and of its negligence, they would not have sought redress under the Workmen's Compensation Commission which awarded a lesser amount for compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent choice. The case should therefore be remanded to the lower court for further proceedings. However, should the petitioners be successful in their bid before the lower court, the payments made under the Workmen's Compensation Act should be deducted from the damages that may be decreed in their favor. B Contrary to the perception of the dissenting opinion, the Court does not legislate in the instant case. The Court merely applies and gives effect to the constitutional guarantees of social justice then secured by Section 5 of Article 11 and Section 6 of Article XIV of the 1935 Constitution, and now by Sections 6, 7, and 9 of Article 11 of the DECLARATION OF PRINCIPLES AND STATE POLICIES of the 1973 Constitution, as amended, and as implemented by Articles 2176, 2177, 2178, 1173, 2201, 2216, 2231 and 2232 of the New Civil Code of 1950. To emphasize, the 1935 Constitution declares that: Sec. 5. The promotion of social justice to insure the well-being and economic security of all the people should be the concern of the State (Art. II). Sec. 6. The State shall afford protection to labor, especially to working women, and minors, and shall regulate the relations between landowner and tenant, and between labor and capital in industry and in agriculture. The State may provide for compulsory arbitration (Art. XIV).

The 1973 Constitution likewise commands the State to "promote social justice to insure the dignity, welfare, and security of all the people "... regulate the use ... and disposition of private property and equitably diffuse property ownership and profits "establish, maintain and ensure adequate social services in, the field of education, health, housing, employment, welfare and social security to guarantee the enjoyment by the people of a decent standard of living" (Sections 6 and 7, Art. II, 1973 Constitution); "... afford protection to labor, ... and regulate the relations between workers and employers ..., and assure the rights of workers to ... just and humane conditions of work"(Sec. 9, Art. II, 1973 Constitution, emphasis supplied). The foregoing constitutional guarantees in favor of labor institutionalized in Section 9 of Article 11 of the 1973 Constitution and re-stated as a declaration of basic policy in Article 3 of the New Labor Code, thus: Art. 3. Declaration of basic policy.The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. (emphasis supplied). The aforestated constitutional principles as implemented by the aforementioned articles of the New Civil Code cannot be impliedly repealed by the restrictive provisions of Article 173 of the New Labor Code. Section 5 of the Workmen's Compensation Act (before it was amended by R.A. No. 772 on June 20, 1952), predecessor of Article 173 of the New Labor Code, has been superseded by the aforestated provisions of the New Civil Code, a subsequent law, which took effect on August 30, 1950, which obey the constitutional mandates of social justice enhancing as they do the rights of the workers as against their employers. Article 173 of the New Labor Code seems to diminish the rights of the workers and therefore collides

with the social justice guarantee of the Constitution and the liberal provisions of the New Civil Code. The guarantees of social justice embodied in Sections 6, 7 and 9 of Article II of the 1973 Constitution are statements of legal principles to be applied and enforced by the courts. Mr. Justice Robert Jackson in the case of West Virginia State Board of Education vs. Barnette, with characteristic eloquence, enunciated: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections (319 U.S. 625, 638, 87 L.ed. 1638, emphasis supplied). In case of any doubt which may be engendered by Article 173 of the New Labor Code, both the New Labor Code and the Civil Code direct that the doubts should be resolved in favor of the workers and employees. Thus, Article 4 of the New Labor Code, otherwise known as Presidential Decree No. 442, as amended, promulgated on May 1, 1974, but which took effect six months thereafter, provides that "all doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor" (Art. 2, Labor Code). Article 10 of the New Civil Code states: "In case of doubt in the interpretation or application of laws, it is presumed that the law-making body intended right and justice to prevail. " More specifically, Article 1702 of the New Civil Code likewise directs that. "In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living of the laborer."

Before it was amended by Commonwealth Act No. 772 on June 20, 1952, Section 5 of the Workmen's Compensation Act provided: Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws, because of said injury (emphasis supplied). Employers contracting laborecsrs in the Philippine Islands for work outside the same may stipulate with such laborers that the remedies prescribed by this Act shall apply exclusively to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment; and all service contracts made in the manner prescribed in this section shall be presumed to include such agreement. Only the second paragraph of Section 5 of the Workmen's Compensation Act No. 3428, was amended by Commonwealth Act No. 772 on June 20, 1952, thus: Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws, because of said injury. Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply to injuries received outside the Island through accidents happening in and during the performance of the duties of the employment. Such stipulation shall not prejudice the right of the laborers to the benefits of the Workmen's Compensation Law of the place where the accident occurs, should such

law be more favorable to them (As amended by section 5 of Republic Act No. 772). Article 173 of the New Labor Code does not repeal expressly nor impliedly the applicable provisions of the New Civil Code, because said Article 173 provides: Art. 173. Exclusiveness of liability.- Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven hundred sixtyone, as amended, Commonwealth Act Numbered One hundred eighty- six, as amended, Commonwealth Act Numbered Six hundred ten, as amended, Republic Act Numbered Fortyeight hundred Sixty-four, as amended, and other laws whose benefits are administered by the System during the period of such payment for the same disability or death, and conversely (emphasis supplied). As above-quoted, Article 173 of the New Labor Code expressly repealed only Section 699 of the Revised Administrative Code, R.A. No. 1161, as amended, C.A. No. 186, as amended, R.A. No. 610, as amended, R.A. No. 4864, as amended, and all other laws whose benefits are administered by the System (referring to the GSIS or SSS). Unlike Section 5 of the Workmen's Compensation Act as aforequoted, Article 173 of the New Labor Code does not even remotely, much less expressly, repeal the New Civil Code provisions heretofore quoted. It is patent, therefore, that recovery under the New Civil Code for damages arising from negligence, is not barred by Article 173 of the New Labor Code. And the damages recoverable under the New Civil Code are not administered by the System provided for by the New Labor

Code, which defines the "System" as referring to the Government Service Insurance System or the Social Security System (Art. 167 [c], [d] and [e] of the New Labor Code). Furthermore, under Article 8 of the New Civil Code, decisions of the Supreme Court form part of the law of the land. Article 8 of the New Civil Code provides: Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. The Court, through the late Chief Justice Fred Ruiz Castro, in People vs. Licera ruled: Article 8 of the Civil Code of the Philippines decrees that judicial decisions applying or interpreting the laws or the Constitution form part of this jurisdiction's legal system. These decisions, although in themselves not laws, constitute evidence of what the laws mean. The application or interpretation placed by the Court upon a law is part of the law as of the date of the enactment of the said law since the Court's application or interpretation merely establishes the contemporaneous legislative intent that the construed law purports to carry into effect" (65 SCRA 270, 272-273 [1975]). WE ruled that judicial decisions of the Supreme Court assume the same authority as the statute itself (Caltex vs. Palomer, 18 SCRA 247; 124 Phil. 763). The aforequoted provisions of Section 5 of the Workmen's Compensation Act, before and after it was amended by Commonwealth Act No. 772 on June 20, 1952, limited the right of recovery in favor of the deceased, ailing or injured employee to the compensation provided for therein. Said Section 5 was not accorded controlling application by the Supreme Court in the 1970 case of Pacana vs. Cebu Autobus Company (32 SCRA 442) when WE ruled that an injured worker has a choice of either to recover from the employer the fixed amount set by the

Workmen's Compensation Act or to prosecute an ordinary civil action against the tortfeasor for greater damages; but he cannot pursue both courses of action simultaneously. Said Pacana case penned by Mr. Justice Teehankee, applied Article 1711 of the Civil Code as against the Workmen's Compensation Act, reiterating the 1969 ruling in the case of Valencia vs. Manila Yacht Club (28 SCRA 724, June 30,1969) and the 1958 case of Esguerra vs. Munoz Palma (104 Phil. 582), both penned by Justice J.B.L. Reyes. Said Pacana case was concurred in by Justices J.B.L. Reyes, Dizon, Makalintal, Zaldivar, Castro, Fernando and Villamor. Since the first sentence of Article 173 of the New Labor Code is merely a re-statement of the first paragraph of Section 5 of the Workmen's Compensation Act, as amended, and does not even refer, neither expressly nor impliedly, to the Civil Code as Section 5 of the Workmen's Compensation Act did, with greater reason said Article 173 must be subject to the same interpretation adopted in the cases of Pacana, Valencia and Esguerra aforementioned as the doctrine in the aforesaid three (3) cases is faithful to and advances the social justice guarantees enshrined in both the 1935 and 1973 Constitutions. It should be stressed likewise that there is no similar provision on social justice in the American Federal Constitution, nor in the various state constitutions of the American Union. Consequently, the restrictive nature of the American decisions on the Workmen's Compensation Act cannot limit the range and compass of OUR interpretation of our own laws, especially Article 1711 of the New Civil Code, vis-a-vis Article 173 of the New Labor Code, in relation to Section 5 of Article II and Section 6 of Article XIV of the 1935 Constitution then, and now Sections 6, 7 and 9 of the Declaration of Principles and State Policies of Article II of the 1973 Constitution. The dissent seems to subordinate the life of the laborer to the property rights of the employer. The right to life is guaranteed specifically by the due process clause of the Constitution. To

relieve the employer from liability for the death of his workers arising from his gross or wanton fault or failure to provide safety devices for the protection of his employees or workers against the dangers which are inherent in underground mining, is to deprive the deceased worker and his heirs of the right to recover indemnity for the loss of the life of the worker and the consequent loss to his family without due process of law. The dissent in effect condones and therefore encourages such gross or wanton neglect on the part of the employer to comply with his legal obligation to provide safety measures for the protection of the life, limb and health of his worker. Even from the moral viewpoint alone, such attitude is un-Christian. It is therefore patent that giving effect to the social justice guarantees of the Constitution, as implemented by the provisions of the New Civil Code, is not an exercise of the power of lawmaking, but is rendering obedience to the mandates of the fundamental law and the implementing legislation aforementioned. The Court, to repeat, is not legislating in the instant case. It is axiomatic that no ordinary statute can override a constitutional provision. The words of Section 5 of the Workmen's Compensation Act and of Article 173 of the New Labor Code subvert the rights of the petitioners as surviving heirs of the deceased mining employees. Section 5 of the Workmen's Compensation Act and Article 173 of the New Labor Code are retrogressive; because they are a throwback to the obsolete laissez-faire doctrine of Adam Smith enunciated in 1776 in his treatise Wealth of Nations (Collier's Encyclopedia, Vol. 21, p. 93, 1964), which has been discarded soon after the close of the 18th century due to the Industrial Revolution that generated the machines and other mechanical devices (beginning with Eli Whitney's cotton gin of 1793 and Robert Fulton's steamboat of 1807) for production and transportation which are dangerous to life, limb and health. The old socio-political-economic philosophy of live-and-

let-live is now superdesed by the benign Christian shibboleth of live-and-help others to live. Those who profess to be Christians should not adhere to Cain's selfish affirmation that he is not his brother's keeper. In this our civilization, each one of us is our brother's keeper. No man is an island. To assert otherwise is to be as atavistic and ante-deluvian as the 1837 case of Prisley vs. Fowler (3 MN 1,150 reprint 1030) invoked by the dissent, The Prisley case was decided in 1837 during the era of economic royalists and robber barons of America. Only ruthless, unfeeling capitalistics and egoistic reactionaries continue to pay obeisance to such un-Christian doctrine. The Prisley rule humiliates man and debases him; because the decision derisively refers to the lowly worker as "servant" and utilizes with aristocratic arrogance "master" for "employer." It robs man of his inherent dignity and dehumanizes him. To stress this affront to human dignity, WE only have to restate the quotation from Prisley, thus: "The mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do himself." This is the very selfish doctrine that provoked the American Civil War which generated so much hatred and drew so much precious blood on American plains and valleys from 1861 to 1864. "Idolatrous reverence" for the letter of the law sacrifices the human being. The spirit of the law insures man's survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth; its spirit giveth life." C It is curious that the dissenting opinion clings to the myth that the courts cannot legislate. That myth had been exploded by Article 9 of the New Civil Code, which provides that "No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. " Hence, even the legislator himself, through Article 9 of the New Civil Code, recognizes that

in certain instances, the court, in the language of Justice Holmes, "do and must legislate" to fill in the gaps in the law; because the mind of the legislator, like all human beings, is finite and therefore cannot envisage all possible cases to which the law may apply Nor has the human mind the infinite capacity to anticipate all situations. But about two centuries before Article 9 of the New Civil Code, the founding fathers of the American Constitution foresaw and recognized the eventuality that the courts may have to legislate to supply the omissions or to clarify the ambiguities in the American Constitution and the statutes. 'Thus, Alexander Hamilton pragmatically admits that judicial legislation may be justified but denies that the power of the Judiciary to nullify statutes may give rise to Judicial tyranny (The Federalist, Modern Library, pp. 503-511, 1937 ed.). Thomas Jefferson went farther to concede that the court is even independent of the Nation itself (A.F.L. vs. American Sash Company, 1949 335 US 538). Many of the great expounders of the American Constitution likewise share the same view. Chief Justice Marshall pronounced: "It is emphatically the province and duty of the Judicial department to say what the law is (Marbury vs. Madison I Cranch 127 1803), which was re-stated by Chief Justice Hughes when he said that "the Constitution is what the judge says it is (Address on May 3, 1907, quoted by President Franklin Delano Roosevelt on March 9, 1937). This was reiterated by Justice Cardozo who pronounced that "No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. " (The Nature of the Judicial Process, p. 113). In the language of Chief Justice Harlan F. Stone, "The only limit to the judicial legislation is the restraint of the judge" (U.S. vs. Butler 297 U.S. 1 Dissenting Opinion, p. 79), which view is also entertained by Justice Frankfurter and Justice Robert Jackson. In the rhetoric of Justice Frankfurter, "the courts breathe life, feeble or strong, into the

inert pages of the Constitution and all statute books." It should be stressed that the liability of the employer under Section 5 of the Workmen's Compensation Act or Article 173 of the New Labor Code is limited to death, ailment or injury caused by the nature of the work, without any fault on the part of the employers. It is correctly termed no fault liability. Section 5 of the Workmen's Compensation Act, as amended, or Article 173 of the New Labor Code, does not cover the tortious liability of the employer occasioned by his fault or culpable negligence in failing to provide the safety devices required by the law for the protection of the life, limb and health of the workers. Under either Section 5 or Article 173, the employer remains liable to pay compensation benefits to the employee whose death, ailment or injury is work-connected, even if the employer has faithfully and diligently furnished all the safety measures and contrivances decreed by the law to protect the employee. The written word is no longer the "sovereign talisman." In the epigrammatic language of Mr. Justice Cardozo, "the law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal" (Wood vs. Duff Gordon 222 NW 88; Cardozo, The Nature of the Judicial Process 100). Justice Cardozo warned that: "Sometimes the conservatism of judges has threatened for an interval to rob the legislation of its efficacy. ... Precedents established in those items exert an unhappy influence even now" (citing Pound, Common Law and Legislation 21 Harvard Law Review 383, 387). Finally, Justice Holmes delivered the coup de grace when he pragmatically admitted, although with a cautionary undertone: "that judges do and must legislate, but they can do so only interstitially they are confined from molar to molecular motions" (Southern Pacific Company vs. Jensen, 244 US 204 1917). And in the subsequent case of Springer vs. Government (277 US 188, 210-212, 72 L.ed. 845, 852- 853), Justice Holmes pronounced:

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. x x x. When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on. To make a rule of conduct applicable to an individual who but for such action would be free from it is to legislate yet it is what the judges do whenever they determine which of two competing principles of policy shall prevail. xxx xxx xxx It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into waterlight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires. True, there are jurists and legal writers who affirm that judges should not legislate, but grudgingly concede that in certain cases judges do legislate. They criticize the assumption by the courts of such law-making power as dangerous for it may degenerate into Judicial tyranny. They include Blackstone, Jeremy Bentham, Justice Black, Justice Harlan, Justice Roberts, Justice David Brewer, Ronald Dworkin, Rolf Sartorious, Macklin Fleming and Beryl Harold Levy. But said Justices, jurists or legal commentators, who either deny the power of the courts to legislate in-between gaps of the law, or decry the exercise of such power, have not pointed to examples of the exercise by the courts of such law-making authority in the interpretation and application of the laws in specific cases that gave rise to judicial tyranny or oppression or that such judicial legislation has not protected public interest or individual welfare, particularly the lowly workers or the underprivileged.

On the other hand, there are numerous decisions interpreting the Bill of Rights and statutory enactments expanding the scope of such provisions to protect human rights. Foremost among them is the doctrine in the cases of Miranda vs. Arizona (384 US 436 1964), Gideon vs. Wainright (372 US 335), Escubedo vs. Illinois (378 US 478), which guaranteed the accused under custodial investigation his rights to remain silent and to counsel and to be informed of such rights as even as it protects him against the use of force or intimidation to extort confession from him. These rights are not found in the American Bill of Rights. These rights are now institutionalized in Section 20, Article IV of the 1973 Constitution. Only the peace-and-order adherents were critical of the activism of the American Supreme Court led by Chief Justice Earl Warren. Even the definition of Identical offenses for purposes of the double jeopardy provision was developed by American judicial decisions, not by amendment to the Bill of Rights on double jeopardy (see Justice Laurel in People vs. Tarok, 73 Phil. 260, 261-268). And these judicial decisions have been re-stated in Section 7 of Rule 117 of the 1985 Rules on Criminal Procedure, as well as in Section 9 of Rule 117 of the 1964 Revised Rules of Court. In both provisions, the second offense is the same as the first offense if the second offense is an attempt to commit the first or frustration thereof or necessarily includes or is necessarily included in the first offense. The requisites of double jeopardy are not spelled out in the Bill of Rights. They were also developed by judicial decisions in the United States and in the Philippines even before people vs. Ylagan (58 Phil. 851-853). Again, the equal protection clause was interpreted in the case of Plessy vs. Ferguson (163 US 537) as securing to the Negroes equal but separate facilities, which doctrine was revoked in the case of Brown vs. Maryland Board of Education (349 US 294), holding that the equal protection clause means that the Negroes are entitled to attend the same schools

attended by the whites-equal facilities in the same school-which was extended to public parks and public buses. De-segregation, not segregation, is now the governing principle. Among other examples, the due process clause was interpreted in the case of People vs. Pomar (46 Phil. 440) by a conservative, capitalistic court to invalidate a law granting maternity leave to working women-according primacy to property rights over human rights. The case of People vs. Pomar is no longer the rule. As early as 1904, in the case of Lochner vs. New York (198 US 45, 76, 49 L. ed. 937, 949), Justice Holmes had been railing against the conservatism of Judges perverting the guarantee of due process to protect property rights as against human rights or social justice for the working man. The law fixing maximum hours of labor was invalidated. Justice Holmes was vindicated finally in 1936 in the case of West Coast Hotel vs. Parish (300 US 377-79; 81 L. ed. 703) where the American Supreme Court upheld the rights of workers to social justice in the form of guaranteed minimum wage for women and minors, working hours not exceeding eight (8) daily, and maternity leave for women employees. The power of judicial review and the principle of separation of powers as well as the rule on political questions have been evolved and grafted into the American Constitution by judicial decisions (Marbury vs. Madison, supra Coleman vs. Miller, 307 US 433, 83 L. ed. 1385; Springer vs. Government, 277 US 210-212, 72 L. ed. 852, 853). It is noteworthy that Justice Black, who seems to be against judicial legislation, penned a separate concurring opinion in the case of Coleman vs. Miller, supra, affirming the doctrine of political question as beyond the ambit of judicial review. There is nothing in both the American and Philippine Constitutions expressly providing that the power of the courts is limited by the principle of separation of powers and the

doctrine on political questions. There are numerous cases in Philippine jurisprudence applying the doctrines of separation of powers and political questions and invoking American precedents. Unlike the American Constitution, both the 1935 and 1973 Philippine Constitutions expressly vest in the Supreme Court the power to review the validity or constitutionality of any legislative enactment or executive act. WHEREFORE, THE TRIAL COURT'S ORDER OF DISMISSAL IS HEREBY REVERSED AND SET ASIDE AND THE CASE IS REMANDED TO IT FOR FURTHER PROCEEDINGS. SHOULD A GREATER AMOUNT OF DAMAGES BE DECREED IN FAVOR OF HEREIN PETITIONERS, THE PAYMENTS ALREADY MADE TO THEM PURSUANT TO THE WORKMEN'S COMPENSATION ACT SHALL BE DEDUCTED. NO COSTS. SO ORDERED. Fernando, C.J., Teehankee, Plana, Escolin, De la Fuente, Cuevas and Alampay JJ., concur. Concepcion, Jr., J., is on leave. Abad Santos and Relova, JJ., took no part.

Separate Opinions MELENCIO-HERRERA, J., dissenting: A This case involves a complaint for damages for the death of five employees of PHILEX Mining Corporation under the general provisions of the Civil Code. The Civil Code itself, however, provides for its non-applicability to the complaint. It is specifically provided in Article 2196 of the Code, found in Title XVIIIDamages that:

COMPENSATION FOR WORKMEN AND OTHER EMPLOYEES IN CASE OF DEATH, INJURY OR ILLNESS IS REGULATED BY SPECIAL LAWS. Compensation and damages are synonymous. In Esguerra vs. Muoz Palma, etc., et al., 104 Phil. 582, 586, Justice J.B.L. Reyes had said: Petitioner also avers that compensation is not damages. This argument is but a play on words. The term compensation' is used in the law (Act 3812 and Republic Act 772) in the sense of indemnity for damages suffered, being awarded for a personal injury caused or aggravated by or in the course of employment. ... By the very provisions of the Civil Code, it is a "special law", not the Code itself, which has to apply to the complaint involved in the instant case. That "special law", in reference to the complaint, can be no other than the Workmen's Compensation Even assuming, without conceding, that an employee is entitled to an election of remedies, as the majority rules, both options cannot be exercised simultaneously, and the exercise of one will preclude the exercise of the other. The petitioners had already exercised their option to come under the Workmen's Compensation Act, and they have already received compensation payable to them under that Act. Stated differently, the remedy under the Workmen's Compensation Act had already become a "finished transaction". There are two considerations why it is believed petitioners should no longer be allowed to exercise the option to sue under the Civil Code. In the first place, the proceedings under the Workmen's Compensation Act have already become the law in regards to" the "election of remedies", because those proceedings had become a "finished transaction". In the second place, it should be plainly equitable that, if a person entitled to an "election of remedies" makes a first election and accepts the benefits thereof, he should no longer be

allowed to avail himself of the second option. At the very least, if he wants to make a second election, in disregard of the first election he has made, when he makes the second election he should surrender the benefits he had obtained under the first election, This was not done in the case before the Court. B. 'There is full concurrence on my part with the dissenting opinion of Mr. Justice Gutierrez upholding "the exclusory provision of the Workmen's Compensation Act." I may further add: 1. The Workmen's Compensation Act (Act No. 3428) was approved on December 10, 1927 and took effect on June 10, 1928. It was patterned from Minnesota and Hawaii statutes. Act No. 3428 was adopted by the Philippine legislature, in Spanish and some sections of the law were taken from the statutes of Minnesota and Hawaii, (Chapter 209 of the Revised Laws of Hawaii, 1925). [Morabe & Inton, Workmen's Compensation Act, p. 2] Under the Workmen's Compensation Act of Hawaii, when the Act is applicable, the remedy under the Act is exclusive The following is stated in 1 Schneider Workmen's Compensation Text, pp. 266, 267. Sec. 112. Hawaii Statutory Synopsis. The act is compulsory as to employees in 'all industrial employment' and employees of the territory and its political subdivisions. (Sections 7480-7481, S.S., Vol. 1, p. 713.) Compensation is not payable when injury is due to employee's willful intention to injure himself or another or to his intoxication. (Sec. 7482, S.S., p. 713.) When the act is applicable the remedy thereunder is exclusive (Sec. 7483, S.S., p. 714.)

2. In providing for exclusiveness of the remedy under our Workmen's Compensation Act, the Philippine Legislature worded the first paragraph of Section 5 of the Act as follows: SEC. 5. Exclusive right to compensation.-The rights and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws, because of said injury (Paragraphing and emphasis supplied) In regards to the intent of the Legislature under the foregoing provision: A cardinal rule in the interpretation of statutes is that the meaning and intention of the lawmaking body must be sought, first of all in the words of the statute itself, read and considered in their natural, ordinary, commonly-accepted and most obvious significations, according to good and approved usage and without resorting to forced or subtle construction Courts, therefore, as a rule, cannot presume that the law-making body does not know the meaning of words and the rules of grammar. Consequently, the grammatical reading of a statute must be presumed to yield its correct sense. (Espino vs. Cleofe 52 SCRA 92, 98) [Italics supplied] 3. The original second paragraph of Section 5 provided: Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply exclusively to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment. (Italics supplied)

The use of the word "exclusively is a further confirmation of the exclusory provision of the Act, subject only to exceptions which may be provided in the Act itself. 4. It might be mentioned that, within the Act itself, provision is made for remedies other than within the Act itself. Thus, Section 6, in part, provides: SEC. 6. Liability of third parties.-In case an employee suffers an injury for which compensation is due under this Act by any other person besides his employer, it shall be optional with such injured employee either to claim compensation from his employer, under this Act, or sue such other person for damages, in accordance with law; ... (Emphasis supplied) If the legislative intent under the first paragraph of Section 5 were to allow the injured employee to sue his employer under the Civil Code, the legislator could very easily have formulated the said first paragraph of Section 5 according to the pattern of Section 6. That that was not done shows the legislative intent not to allow any option to an employee to sue the employer under the Civil Code for injuries compensable under the Act. 5. There should be no question but that the original first paragraph of Section 5 of the Workmen's Compensation Act, formulated in 1927, provided that an injured worker or employee, or his heirs, if entitled to compensation under the Act, cannot have independent recourse neither to the Civil Code nor to any other law relative to the liability of the employer. After 1927, there were occasions when the legislator had the opportunity to amend the first paragraph of Section 5 such that the remedies under the Act would not be exclusive; yet, the legislator refrained from doing so. That shows the legislatives continuing intent to maintain the exclusory provision of the first paragraph of Section 5 unless otherwise provided in the Act itself. (a) The original second paragraph of Section 5 provided:

Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply (exclusively) to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment (and all service contracts made in the manner prescribed in this section be presumed to include such agreement). On June 20, 1952, through RA 772, the foregoing second paragraph was amended with the elimination of the underlined words in parentheses, and the addition of this sentence at the end of the paragraph: Such stipulation shall not prejudice the right of the laborers to the benefits of the Workmen's Compensation Law of the place where the accident occurs, should such law be more favorable to them. (Emphasis supplied) It will be seen that, within the Act itself, the exclusory character of the Act was amended. At that time, if he had so desired, the legislator could have amended the first paragraph of Section 5 so that the employee would have the option to sue the employer under the Act, or under the Civil Code, should the latter be more favorable to him. (b) The Workmen's Compensation Act, which took effect in 1927, grants compensation to an injured employee without regard to the presence or absence of negligence on the part of the employer. The compensation is deemed an expense chargeable to the industry (Murillo vs. Mendoza, 66 Phil. 689 [1938]). In time, it must have been thought that it was inequitable to have the amount of compensation, caused by negligence on the part of the employer, to be the same amount payable when the employer was not negligent. Based on that thinking, Section 4-A 1 was included into the Act, on June 20, 1952, through RA 772. Said Section 4-A increased the compensation payable by 50% in case there was negligence on the part of the employer. That additional section evidenced the intent of the legislator not to give

an option to an employee, injured with negligence on the part of the employer, to sue the latter under the provisions of the Civil Code. On June 20, 1964, Section 4-A was amended (insubstantially) by RA 4119. The legislator was again given the opportunity to provide, but he did not, the option to an employee to sue under the Act or under the Civil Code. When a Court gives effect to a statute not in accordance with the intent of the law-maker, the Court is unjustifiably legislating. It is in view of the foregoing that I vote for affirmation of the trial Court's dismissal of the Complaint. GUTIERREZ, JR., J., dissenting: To grant the petition and allow the victims of industrial accidents to file damages suits based on torts would be a radical innovation not only contrary to the express provisions of the Workmen's Compensation Act but a departure from the principles evolved in the long history of workmen's compensation. At the very least, it should be the legislature and not this Court which should remove the exclusory provision of the Workmen's Compensation Act, a provision reiterated in the present Labor Code on employees' compensation. Workmen's compensation evolved to remedy the evils associated with the situation in the early years of the industrial revolution when injured workingmen had to rely on damage suits to get recompense. Before workmen's compensation, an injured worker seeking damages would have to prove in a tort suit that his employer was either negligent or in bad faith, that his injury was caused by the employer and not a fellow worker, and that he was not guilty of contributory negligence. The employer could employ not only his wealth in defeating the claim for damages but a host of common law defenses available to him as well. The worker was supposed to know what he entered into when he accepted employment. As

stated in the leading case of Priestley u. Fowler (3 M. & W. 1, 150 Reprint 1030) decided in 1837 "the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself." By entering into a contract of employment, the worker was deemed to accept the risks of employment that he should discover and guard against himself. The problems associated with the application of the fellow servant rule, the assumption of risk doctrine, the principle of contributory negligence, and the many other defenses so easily raised in protracted damage suits illustrated the need for a system whereby workers had only to prove the fact of covered employment and the fact of injury arising from employment in order to be compensated. The need for a compensation scheme where liability is created solely by statute and made compulsory and where the element of faulteither the fault of the employer or the fault of the employee-disregarded became obvious. Another objective was to have simplified, expeditious, inexpensive, and non-litigious procedures so that victims of industrial accidents could more readily, if not automatically, receive compensation for work-related injuries. Inspite of common law defenses to defeat a claim being recognized, employers' liability acts were a major step in the desired direction. However, employers liability legislation proved inadequate. Legislative reform led to the workmen's compensation. I cite the above familiar background because workmen's compensation represents a compromise. In return for the near certainty of receiving a sum of money fixed by law, the injured worker gives up the right to subject the employer to a tort suit for huge amounts of damages. Thus, liability not only disregards the element of fault but it is also a pre- determined amount based on the wages of the injured worker and in certain cases, the actual cost of rehabilitation. The worker does not receive the

total damages for his pain and suffering which he could otherwise claim in a civil suit. The employer is required to act swiftly on compensation claims. An administrative agency supervises the program. And because the overwhelming mass of workingmen are benefited by the compensation system, individual workers who may want to sue for big amounts of damages must yield to the interests of their entire working class. The nature of the compensation principle is explained as follows: An appreciation of the nature of the compensation principle is essential to an understanding of the acts and the cases interpreting them. By the turn of the century it was apparent that the toll of industrial accidents of both the avoidable and unavoidable variety had become enormous, and government was faced with the problem of who was to pay for the human wreckage wrought by the dangers of modern industry. If the accident was avoidable and could be attributed to the carelessness of the employer, existing tort principles offered some measure of redress. Even here, however, the woeful inadequacy of the fault principle was manifest. The uncertainty of the outcome of torts litigation in court placed the employee at a substantial disadvantage. So long as liability depended on fault there could be no recovery until the finger of blame had been pointed officially at the employer or his agents. In most cases both the facts and the law were uncertain. The witnesses, who were usually fellow workers of the victim, were torn between friendship or loyalty to their class, on the one hand, and fear of reprisal by the employer, on the other. The expense and delay of litigation often prompted the injured employee to accept a compromise settlement for a fraction of the full value of his claim. Even if suit were successfully prosecuted, a large share of the proceeds of the judgment were exacted as contingent fees by counsel. Thus the employer against whom judgment was cast often paid a substantial damage bill, while only a part of this enured to the benefit of the injured employee or

his dependents. The employee's judgment was nearly always too little and too late. xxx xxx xxx Workmen's Compensation rests upon the economic principle that those persons who enjoy the product of a business- whether it be in the form of goods or services- should ultimately bear the cost of the injuries or deaths that are incident to the manufacture, preparation and distribution of the product. ... xxx xxx xxx Under this approach the element of personal fault either disappears entirely or is subordinated to broader economic considerations. The employer absorbs the cost of accident loss only initially; it is expected that this cost will eventually pass down the stream of commerce in the form of increase price until it is spread in dilution among the ultimate consumers. So long as each competing unit in a given industry is uniformly affected, no producer can gain any substantial competitive advantage or suffer any appreciable loss by reason of the general adoption of the compensation principle. In order that the compensation principle may operate properly and with fairness to all parties it is essential that the anticipated accident cost be predictable and that it be fixed at a figure that will not disrupt too violently the traffic in the product of the industry affected. Thus predictability and moderateness of cost are necessary from the broad economic viewpoint. .... Compensation, then, differs from the conventional damage suit in two important respects: Fault on the part of either employer or employee is eliminated; and compensation payable according to a definitely limited schedule is substituted for damages. All compensation acts alike work these two major changes, irrespective of how they may differ in other particulars.

Compensation, when regarded from the viewpoint of employer and employee represents a compromise in which each party surrenders certain advantages in order to gain others which are of more importance both to him and to society. The employer gives up the immunity he otherwise would enjoy in cases where he is not at fault, and the employee surrenders his former right to full damages and accepts instead a more modest claim for bare essentials, represented by compensation. The importance of the compromise character of compensation cannot be overemphasized. The statutes vary a great deal with reference to the proper point of balance. The amount of weekly compensation payments and the length of the period during which compensation is to be paid are matters concerning which the acts differ considerably. The interpretation of any compensation statute will be influenced greatly by the court's reaction to the basic point of compromise established in the Act. If the court feels that the basic compromise unduly favors the employer, it will be tempted to restore what it regards as a proper balance by adopting an interpretation that favors the worker. In this way, a compensation act drawn in a spirit of extreme conservatism may be transformed by a sympathetic court into a fairly liberal instrument; and conversely, an act that greatly favors the laborer may be so interpreted by the courts that employers can have little reason to complain. Much of the unevenness and apparent conflict in compensation decisions throughout the various jurisdictions must be attributed to this." (Malone & Plant, Workmen's Compensation American Casebook Series, pp. 63-65). The schedule of compensation, the rates of payments, the compensable injuries and diseases, the premiums paid by employers to the present system, the actuarial stability of the trust fund and many other interrelated parts have all been carefully studied before the integrated scheme was enacted in to law. We have a system whose parts must mesh harmonious with one another if it is to succeed. The basic theory has to be followed.

If this Court disregards this totality of the scheme and in a spirit of generosity recasts some parts of the system without touching the related others, the entire structure is endangered. For instance, I am personally against stretching the law and allowing payment of compensation for contingencies never envisioned to be compensable when the law was formulated. Certainly, only harmful results to the principle of workmen's compensation can arise if workmen, whom the law allows to receive employment compensation, can still elect to file damage suits for industrial accidents. It was precisely for this reason that Section 5 of the Workmen's Compensation Act, which reads: SEC. 5. Exclusive right to compensation.-The rights and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws because of said injury. ... Article 173 of the labor Code also provides: ART. 173. Exclusivenesss of liability.Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. I am against the Court assuming the role of legislator in a matter calling for actuarial studies and public hearings. If employers already required to contribute to the State Insurance Fund will still have to bear the cost of damage suits or get insurance for that purpose, a major study will be necessary. The issue before us is more far reaching than the interests of the poor victims and their families. All workers covered by workmen's compensation and all employers who employ covered employees are affected. Even as I have deepest sympathies for the victims, I regret that I am constrained to dissent from the majority opinion.

Separate Opinions

MELENCIO-HERRERA, J., dissenting: A This case involves a complaint for damages for the death of five employees of PHILEX Mining Corporation under the general provisions of the Civil Code. The Civil Code itself, however, provides for its non-applicability to the complaint. It is specifically provided in Article 2196 of the Code, found in Title XVIIIDamages that: COMPENSATION FOR WORKMEN AND OTHER EMPLOYEES IN CASE OF DEATH, INJURY OR ILLNESS IS REGULATED BY SPECIAL LAWS. Compensation and damages are synonymous. In Esguerra vs. Muoz Palma, etc., et al., 104 Phil. 582, 586, Justice J.B.L. Reyes had said: Petitioner also avers that compensation is not damages. This argument is but a play on words. The term compensation' is used in the law (Act 3812 and Republic Act 772) in the sense of indemnity for damages suffered, being awarded for a personal injury caused or aggravated by or in the course of employment. ... By the very provisions of the Civil Code, it is a "special law", not the Code itself, which has to apply to the complaint involved in the instant case. That "special law", in reference to the complaint, can be no other than the Workmen's Compensation Even assuming, without conceding, that an employee is entitled to an election of remedies, as the majority rules, both options cannot be exercised simultaneously, and the exercise of one will preclude the exercise of the other. The petitioners had already exercised their option to come under the Workmen's Compensation Act, and they have already received compensation payable to them under that Act. Stated

differently, the remedy under the Workmen's Compensation Act had already become a "finished transaction". There are two considerations why it is believed petitioners should no longer be allowed to exercise the option to sue under the Civil Code. In the first place, the proceedings under the Workmen's Compensation Act have already become the law in regards to" the "election of remedies", because those proceedings had become a "finished transaction". In the second place, it should be plainly equitable that, if a person entitled to an "election of remedies" makes a first election and accepts the benefits thereof, he should no longer be allowed to avail himself of the second option. At the very least, if he wants to make a second election, in disregard of the first election he has made, when he makes the second election he should surrender the benefits he had obtained under the first election, This was not done in the case before the Court. B. 'There is full concurrence on my part with the dissenting opinion of Mr. Justice Gutierrez upholding "the exclusory provision of the Workmen's Compensation Act." I may further add: 1. The Workmen's Compensation Act (Act No. 3428) was approved on December 10, 1927 and took effect on June 10, 1928. It was patterned from Minnesota and Hawaii statutes. Act No. 3428 was adopted by the Philippine legislature, in Spanish and some sections of the law were taken from the statutes of Minnesota and Hawaii, (Chapter 209 of the Revised Laws of Hawaii, 1925). [Morabe & Inton, Workmen's Compensation Act, p. 2] Under the Workmen's Compensation Act of Hawaii, when the Act is applicable, the remedy under the Act is exclusive The following is stated in 1 Schneider Workmen's Compensation Text, pp. 266, 267.

Sec. 112. Hawaii Statutory Synopsis. The act is compulsory as to employees in 'all industrial employment' and employees of the territory and its political subdivisions. (Sections 7480-7481, S.S., Vol. 1, p. 713.) Compensation is not payable when injury is due to employee's willful intention to injure himself or another or to his intoxication. (Sec. 7482, S.S., p. 713.) When the act is applicable the remedy thereunder is exclusive (Sec. 7483, S.S., p. 714.) 2. In providing for exclusiveness of the remedy under our Workmen's Compensation Act, the Philippine Legislature worded the first paragraph of Section 5 of the Act as follows: SEC. 5. Exclusive right to compensation.-The rights and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws, because of said injury (Paragraphing and emphasis supplied) In regards to the intent of the Legislature under the foregoing provision: A cardinal rule in the interpretation of statutes is that the meaning and intention of the lawmaking body must be sought, first of all in the words of the statute itself, read and considered in their natural, ordinary, commonly-accepted and most obvious significations, according to good and approved usage and without resorting to forced or subtle construction Courts, therefore, as a rule, cannot presume that the law-making body does not know the meaning of words and

the rules of grammar. Consequently, the grammatical reading of a statute must be presumed to yield its correct sense. (Espino vs. Cleofe 52 SCRA 92, 98) [Italics supplied] 3. The original second paragraph of Section 5 provided: Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply exclusively to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment. (Italics supplied) The use of the word "exclusively is a further confirmation of the exclusory provision of the Act, subject only to exceptions which may be provided in the Act itself. 4. It might be mentioned that, within the Act itself, provision is made for remedies other than within the Act itself. Thus, Section 6, in part, provides: SEC. 6. Liability of third parties.-In case an employee suffers an injury for which compensation is due under this Act by any other person besides his employer, it shall be optional with such injured employee either to claim compensation from his employer, under this Act, or sue such other person for damages, in accordance with law; ... (Emphasis supplied) If the legislative intent under the first paragraph of Section 5 were to allow the injured employee to sue his employer under the Civil Code, the legislator could very easily have formulated the said first paragraph of Section 5 according to the pattern of Section 6. That that was not done shows the legislative intent not to allow any option to an employee to sue the employer under the Civil Code for injuries compensable under the Act. 5. There should be no question but that the original first paragraph of Section 5 of the Workmen's Compensation Act, formulated in 1927, provided that an injured worker or

employee, or his heirs, if entitled to compensation under the Act, cannot have independent recourse neither to the Civil Code nor to any other law relative to the liability of the employer. After 1927, there were occasions when the legislator had the opportunity to amend the first paragraph of Section 5 such that the remedies under the Act would not be exclusive; yet, the legislator refrained from doing so. That shows the legislatives continuing intent to maintain the exclusory provision of the first paragraph of Section 5 unless otherwise provided in the Act itself. (a) The original second paragraph of Section 5 provided: Employers contracting laborers in the Philippine Islands for work outside the same shall stipulate with such laborers that the remedies prescribed by this Act shall apply (exclusively) to injuries received outside the Islands through accidents happening in and during the performance of the duties of the employment (and all service contracts made in the manner prescribed in this section be presumed to include such agreement). On June 20, 1952, through RA 772, the foregoing second paragraph was amended with the elimination of the underlined words in parentheses, and the addition of this sentence at the end of the paragraph: Such stipulation shall not prejudice the right of the laborers to the benefits of the Workmen's Compensation Law of the place where the accident occurs, should such law be more favorable to them. (Emphasis supplied) It will be seen that, within the Act itself, the exclusory character of the Act was amended. At that time, if he had so desired, the legislator could have amended the first paragraph of Section 5 so that the employee would have the option to sue the employer under the Act, or under the Civil Code, should the latter be more favorable to him. (b) The Workmen's Compensation Act, which took effect in 1927, grants compensation to an

injured employee without regard to the presence or absence of negligence on the part of the employer. The compensation is deemed an expense chargeable to the industry (Murillo vs. Mendoza, 66 Phil. 689 [1938]). In time, it must have been thought that it was inequitable to have the amount of compensation, caused by negligence on the part of the employer, to be the same amount payable when the employer was not negligent. Based on that thinking, Section 4-A 1 was included into the Act, on June 20, 1952, through RA 772. Said Section 4-A increased the compensation payable by 50% in case there was negligence on the part of the employer. That additional section evidenced the intent of the legislator not to give an option to an employee, injured with negligence on the part of the employer, to sue the latter under the provisions of the Civil Code. On June 20, 1964, Section 4-A was amended (insubstantially) by RA 4119. The legislator was again given the opportunity to provide, but he did not, the option to an employee to sue under the Act or under the Civil Code. When a Court gives effect to a statute not in accordance with the intent of the law-maker, the Court is unjustifiably legislating. It is in view of the foregoing that I vote for affirmation of the trial Court's dismissal of the Complaint. GUTIERREZ, JR., J., dissenting: To grant the petition and allow the victims of industrial accidents to file damages suits based on torts would be a radical innovation not only contrary to the express provisions of the Workmen's Compensation Act but a departure from the principles evolved in the long history of workmen's compensation. At the very least, it should be the legislature and not this Court which should remove the exclusory provision of the Workmen's Compensation Act, a provision reiterated in the present Labor Code on employees' compensation.

Workmen's compensation evolved to remedy the evils associated with the situation in the early years of the industrial revolution when injured workingmen had to rely on damage suits to get recompense. Before workmen's compensation, an injured worker seeking damages would have to prove in a tort suit that his employer was either negligent or in bad faith, that his injury was caused by the employer and not a fellow worker, and that he was not guilty of contributory negligence. The employer could employ not only his wealth in defeating the claim for damages but a host of common law defenses available to him as well. The worker was supposed to know what he entered into when he accepted employment. As stated in the leading case of Priestley u. Fowler (3 M. & W. 1, 150 Reprint 1030) decided in 1837 "the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself." By entering into a contract of employment, the worker was deemed to accept the risks of employment that he should discover and guard against himself. The problems associated with the application of the fellow servant rule, the assumption of risk doctrine, the principle of contributory negligence, and the many other defenses so easily raised in protracted damage suits illustrated the need for a system whereby workers had only to prove the fact of covered employment and the fact of injury arising from employment in order to be compensated. The need for a compensation scheme where liability is created solely by statute and made compulsory and where the element of faulteither the fault of the employer or the fault of the employee-disregarded became obvious. Another objective was to have simplified, expeditious, inexpensive, and non-litigious procedures so that victims of industrial accidents could more readily, if not automatically, receive compensation for work-related injuries.

Inspite of common law defenses to defeat a claim being recognized, employers' liability acts were a major step in the desired direction. However, employers liability legislation proved inadequate. Legislative reform led to the workmen's compensation. I cite the above familiar background because workmen's compensation represents a compromise. In return for the near certainty of receiving a sum of money fixed by law, the injured worker gives up the right to subject the employer to a tort suit for huge amounts of damages. Thus, liability not only disregards the element of fault but it is also a pre- determined amount based on the wages of the injured worker and in certain cases, the actual cost of rehabilitation. The worker does not receive the total damages for his pain and suffering which he could otherwise claim in a civil suit. The employer is required to act swiftly on compensation claims. An administrative agency supervises the program. And because the overwhelming mass of workingmen are benefited by the compensation system, individual workers who may want to sue for big amounts of damages must yield to the interests of their entire working class. The nature of the compensation principle is explained as follows: An appreciation of the nature of the compensation principle is essential to an understanding of the acts and the cases interpreting them. By the turn of the century it was apparent that the toll of industrial accidents of both the avoidable and unavoidable variety had become enormous, and government was faced with the problem of who was to pay for the human wreckage wrought by the dangers of modern industry. If the accident was avoidable and could be attributed to the carelessness of the employer, existing tort principles offered some measure of redress. Even here, however, the woeful inadequacy of the fault principle was manifest. The uncertainty of the outcome of torts litigation in court placed the employee at a substantial

disadvantage. So long as liability depended on fault there could be no recovery until the finger of blame had been pointed officially at the employer or his agents. In most cases both the facts and the law were uncertain. The witnesses, who were usually fellow workers of the victim, were torn between friendship or loyalty to their class, on the one hand, and fear of reprisal by the employer, on the other. The expense and delay of litigation often prompted the injured employee to accept a compromise settlement for a fraction of the full value of his claim. Even if suit were successfully prosecuted, a large share of the proceeds of the judgment were exacted as contingent fees by counsel. Thus the employer against whom judgment was cast often paid a substantial damage bill, while only a part of this enured to the benefit of the injured employee or his dependents. The employee's judgment was nearly always too little and too late. xxx xxx xxx Workmen's Compensation rests upon the economic principle that those persons who enjoy the product of a business- whether it be in the form of goods or services- should ultimately bear the cost of the injuries or deaths that are incident to the manufacture, preparation and distribution of the product. ... xxx xxx xxx Under this approach the element of personal fault either disappears entirely or is subordinated to broader economic considerations. The employer absorbs the cost of accident loss only initially; it is expected that this cost will eventually pass down the stream of commerce in the form of increase price until it is spread in dilution among the ultimate consumers. So long as each competing unit in a given industry is uniformly affected, no producer can gain any substantial competitive advantage or suffer any appreciable loss by reason of the general adoption of the compensation principle. In order that the compensation principle may operate properly and with fairness to all parties it is essential that the anticipated accident cost

be predictable and that it be fixed at a figure that will not disrupt too violently the traffic in the product of the industry affected. Thus predictability and moderateness of cost are necessary from the broad economic viewpoint. .... Compensation, then, differs from the conventional damage suit in two important respects: Fault on the part of either employer or employee is eliminated; and compensation payable according to a definitely limited schedule is substituted for damages. All compensation acts alike work these two major changes, irrespective of how they may differ in other particulars. Compensation, when regarded from the viewpoint of employer and employee represents a compromise in which each party surrenders certain advantages in order to gain others which are of more importance both to him and to society. The employer gives up the immunity he otherwise would enjoy in cases where he is not at fault, and the employee surrenders his former right to full damages and accepts instead a more modest claim for bare essentials, represented by compensation. The importance of the compromise character of compensation cannot be overemphasized. The statutes vary a great deal with reference to the proper point of balance. The amount of weekly compensation payments and the length of the period during which compensation is to be paid are matters concerning which the acts differ considerably. The interpretation of any compensation statute will be influenced greatly by the court's reaction to the basic point of compromise established in the Act. If the court feels that the basic compromise unduly favors the employer, it will be tempted to restore what it regards as a proper balance by adopting an interpretation that favors the worker. In this way, a compensation act drawn in a spirit of extreme conservatism may be transformed by a sympathetic court into a fairly liberal instrument; and conversely, an act that greatly favors the laborer may be so interpreted by the courts that employers can have little reason to

complain. Much of the unevenness and apparent conflict in compensation decisions throughout the various jurisdictions must be attributed to this." (Malone & Plant, Workmen's Compensation American Casebook Series, pp. 63-65). The schedule of compensation, the rates of payments, the compensable injuries and diseases, the premiums paid by employers to the present system, the actuarial stability of the trust fund and many other interrelated parts have all been carefully studied before the integrated scheme was enacted in to law. We have a system whose parts must mesh harmonious with one another if it is to succeed. The basic theory has to be followed. If this Court disregards this totality of the scheme and in a spirit of generosity recasts some parts of the system without touching the related others, the entire structure is endangered. For instance, I am personally against stretching the law and allowing payment of compensation for contingencies never envisioned to be compensable when the law was formulated. Certainly, only harmful results to the principle of workmen's compensation can arise if workmen, whom the law allows to receive employment compensation, can still elect to file damage suits for industrial accidents. It was precisely for this reason that Section 5 of the Workmen's Compensation Act, which reads: SEC. 5. Exclusive right to compensation.-The rights and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws because of said injury. ... Article 173 of the labor Code also provides: ART. 173. Exclusivenesss of liability.Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of

the employer to the employee his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. I am against the Court assuming the role of legislator in a matter calling for actuarial studies and public hearings. If employers already required to contribute to the State Insurance Fund will still have to bear the cost of damage suits or get insurance for that purpose, a major study will be necessary. The issue before us is more far reaching than the interests of the poor victims and their families. All workers covered by workmen's compensation and all employers who employ covered employees are affected. Even as I have deepest sympathies for the victims, I regret that I am constrained to dissent from the majority opinion.

Footnotes 1 SEC. 4-A. Right to additional compensation.In case of the employee's death, injury or sickness due to the failure of the to comply with any law, or with any order, rule or regulation of the Workmen's Compensation Commission or the Bureau of Labor Standards or should the employer violate the provisions of Republic Act Numbered Six hundred seventy-nine and its amendments or fail to install and maintain safety appliances, or take other precautions for the prevention of accidents or occupational disease, he shall be liable to pay an additional compensation equal to fifty per centum of the compensation fixed in this Act.

G.R. No. 154380 REPUBLIC OF THE PHILIPPINES, Petitioner, -versusCIPRIANO ORBECDO III, Respondent Promulgated: October 5, 2005 DECISION QUISUMBING, J.: Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. In this petition for review, the Solicitor General assails the Decision[1] dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and itsResolution[2] dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads: WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. IT IS SO ORDERED.[3] The factual antecedents, as narrated by the trial court, are as follows. On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was

blessed with a son and a daughter, Kristoffer Simbortriz G.R. V. No. Orbecido 154380 and Lady Kimberly V. Orbecido. In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law: WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE[4] The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.[5] Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial determination.[6] For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by

operation of law pursuant to Section 12, Article II of the Constitution.[7] At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides: RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, there under. The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.[8] This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage.

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment? Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the Family Code, which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38. On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied) On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the

time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A. Noteworthy, in the Report of the Public Hearings[9] on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26: 1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to remarry, while the spouses of foreigners who validly divorce them abroad can. 2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.) Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of theCivil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.[10] The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.[11] In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.[12] If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the divorced Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.[13] Accordingly, for his plea to prosper, respondent herein must prove his allegation that

his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.[14] Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved.[15] Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondents submission of the aforecited evidence in his favor. ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED.

G.R. No. 166562 BENJAMIN G. TING, Petitioner, -versusCARMEN M. VELEZ-TING, Respondent Promulgated:March 31, 2009 Before us is a petition for review on certiorari seeking to set aside the November 17, 2003 Amended Decision[1] of the Court of Appeals (CA), and its December 13, 2004 Resolution[2] in CA-G.R. CV No. 59903. The appellate court, in its assailed decision and resolution, affirmed the January 9, 1998 Decision[3] of the Regional Trial Court (RTC), Branch 23, Cebu City, declaring the marriage between petitioner and respondent null and void ab initio pursuant to Article 36 of the Family Code.[4] The facts follow. Petitioner Benjamin Ting (Benjamin) and respondent Carmen Velez-Ting (Carmen) first met in 1972 while they were classmates in medical school.[5] They fell in love, and they were wed on July 26, 1975 in Cebu City when respondent was already pregnant with their first child. At first, they resided at Benjamins family home in Maguikay, Mandaue City.[6] When their second child was born, the couple decided to move to Carmens family home inCebu City.[7] In September 1975, Benjamin passed the medical board examinations[8] and thereafter proceeded to take a residency program to become a surgeon but shifted to anesthesiology after two years. By 1979, Benjamin completed the preceptorship program for the said field[9] and, in 1980, he began working for Velez Hospital, owned by Carmens family, as member of its active staff,[10] while Carmen worked as the hospitals Treasurer.[11]

The couple begot six (6) children, namely Dennis, born on December 9, 1975; James Louis, born on August 25, 1977; Agnes Irene, born on April 5, 1981; Charles Laurence, born on July 21, 1986; Myles Vincent, born on July 19, 1988; and Marie Corinne, born on June 16, 1991.[12] On October 21, 1993, after being married for more than 18 years to petitioner and while their youngest child was only two years old, Carmen filed a verified petition before the RTC of Cebu City praying for the declaration of nullity of their marriage based on Article 36 of the Family Code. She claimed that Benjamin suffered from psychological incapacity even at the time of the celebration of their marriage, which, however, only became manifest thereafter. [13] In her complaint, Carmen stated that prior to their marriage, she was already aware that Benjamin used to drink and gamble occasionally with his friends.[14] But after they were married, petitioner continued to drink regularly and would go home at about midnight or sometimes in the wee hours of the morning drunk and violent. He would confront and insult respondent, physically assault her and force her to have sex with him. There were also instances when Benjamin used his gun and shot the gate of their house.[15] Because of his drinking habit, Benjamins job as anesthesiologist was affected to the point that he often had to refuse to answer the call of his fellow doctors and to pass the task to other anesthesiologists. Some surgeons even stopped calling him for his services because they perceived petitioner to be unreliable. Respondent tried to talk to her husband about the latters drinking problem, but Benjamin refused to acknowledge the same.[16] Carmen also complained that petitioner deliberately refused to give financial support to their family and would even get angry at her whenever she asked for money for their children. Instead of providing support, Benjamin would spend his money on drinking and gambling and would even buy expensive equipment for his hobby.[17] He rarely stayed

home[18] and even neglected his obligation to his children.[19] Aside from this, Benjamin also engaged in compulsive gambling.[20] He would gamble two or three times a week and would borrow from his friends, brothers, or from loan sharks whenever he had no money. Sometimes, Benjamin would pawn his wifes own jewelry to finance his gambling.[21] There was also an instance when the spouses had to sell their family car and even a portion of the lot Benjamin inherited from his father just to be able to pay off his gambling debts.[22] Benjamin only stopped going to the casinos in 1986 after he was banned therefrom for having caused trouble, an act which he said he purposely committed so that he would be banned from the gambling establishments.[23] In sum, Carmens allegations of Benjamins psychological incapacity consisted of the following manifestations: 1. Benjamins alcoholism, which adversely affected his family relationship and his profession; 2. Benjamins violent nature brought about by his excessive and regular drinking; 3. His compulsive gambling habit, as a result of which Benjamin found it necessary to sell the family car twice and the property he inherited from his father in order to pay off his debts, because he no longer had money to pay the same; and 4. Benjamins irresponsibility and immaturity as shown by his failure and refusal to give regular financial support to his family.[24] In his answer, Benjamin denied being psychologically incapacitated. He maintained that he is a respectable person, as his peers would confirm. He said that he is an active member of social and athletic clubs and would drink and gamble only for social reasons and for leisure. He also denied being a violent person, except when provoked by circumstances.[25] As

for his alleged failure to support his family financially, Benjamin claimed that it was Carmen herself who would collect his professional fees from VelezHospital when he was still serving there as practicing anesthesiologist.[26] In his testimony, Benjamin also insisted that he gave his family financial support within his means whenever he could and would only get angry at respondent for lavishly spending his hard-earned money on unnecessary things.[27] He also pointed out that it was he who often comforted and took care of their children, while Carmen played mahjong with her friends twice a week.[28] During the trial, Carmens testimony regarding Benjamins drinking and gambling habits and violent behavior was corroborated by Susana Wasawas, who served as nanny to the spouses children from 1987 to 1992.[29] Wasawas stated that she personally witnessed instances when Benjamin maltreated Carmen even in front of their children.[30] Carmen also presented as witness Dr. Pureza Trinidad-Oate, a psychiatrist.[31] Instead of the usual personal interview, however, Dr. Oates evaluation of Benjamin was limited to the transcript of stenographic notes taken during Benjamins deposition because the latter had already gone to work as an anesthesiologist in a hospital in South Africa. After reading the transcript of stenographic notes, Dr. Oate concluded that Benjamins compulsive drinking, compulsive gambling and physical abuse of respondent are clear indications that petitioner suffers from a personality disorder.[32] To refute Dr. Oates opinion, petitioner presented Dr. Renato D. Obra, a psychiatrist and a consultant at the Department of Psychiatry in Don Vicente Sotto MemorialMedical Center, as his expert witness.[33] Dr. Obra evaluated Benjamins psychological behavior based on the transcript of stenographic notes, as well as the psychiatric evaluation report prepared by Dr. A.J.L. Pentz, a psychiatrist from the University of Pretoria in South Africa, and his (Dr. Obras) interview with Benjamins brothers.[34] Contrary to Dr. Oates findings,

Dr. Obra observed that there is nothing wrong with petitioners personality, considering the latters good relationship with his fellow doctors and his good track record as anesthesiologist.[35] On January 9, 1998, the lower court rendered its Decision[36] declaring the marriage between petitioner and respondent null and void. The RTC gave credence to Dr. Oates findings and the admissions made by Benjamin in the course of his deposition, and found him to be psychologically incapacitated to comply with the essential obligations of marriage. Specifically, the trial court found Benjamin an excessive drinker, a compulsive gambler, someone who prefers his extra-curricular activities to his family, and a person with violent tendencies, which character traits find root in a personality defect existing even before his marriage to Carmen. The decretal portion of the decision reads: WHEREFORE, all the foregoing considered, judgment is hereby rendered declaring the marriage between plaintiff and defendant null and void ab initio pursuant to Art. 36 of the Family Code. x x x xxxx SO ORDERED.[37] Aggrieved, petitioner appealed to the CA. On October 19, 2000, the CA rendered a Decision[38] reversing the trial courts ruling. It faulted the trial courts finding, stating that no proof was adduced to support the conclusion that Benjamin was psychologically incapacitated at the time he married Carmen since Dr. Oates conclusion was based only on theories and not on established fact,[39] contrary to the guidelines set forth in Santos v. Court of Appeals[40] and in Rep. of the Phils. v. Court of Appeals and Molina.[41] Because of this, Carmen filed a motion for reconsideration, arguing that the Molina guidelines should not be applied to this case since the Molina decision was promulgated only on February 13, 1997, or more

than five years after she had filed her petition with the RTC.[42] She claimed that the Molina ruling could not be made to apply retroactively, as it would run counter to the principle of stare decisis. Initially, the CA denied the motion for reconsideration for having been filed beyond the prescribed period. Respondent thereafter filed a manifestation explaining compliance with the prescriptive period but the same was likewise denied for lack of merit. Undaunted, respondent filed a petition forcertiorari[43] with this Court. In a Resolution[44] dated March 5, 2003, this Court granted the petition and directed the CA to resolve Carmens motion for reconsideration.[45]On review, the CA decided to reconsider its previous ruling. Thus, on November 17, 2003, it issued an Amended Decision[46] reversing its first ruling and sustaining the trial courts decision.[47] A motion for reconsideration was filed, this time by Benjamin, but the same was denied by the CA in its December 13, 2004 Resolution.[48] Hence, this petition. For our resolution are the following issues: I. Whether the CA violated the rule on stare decisis when it refused to follow the guidelines set forth under the Santos and Molina cases; II. Whether the CA correctly ruled that the requirement of proof of psychological incapacity for the declaration of absolute nullity of marriage based on Article 36 of the Family Code has been liberalized; and III. Whether the CAs decision declaring the marriage between petitioner and respondent null and void [is] in accordance with law and jurisprudence. We find merit in the petition. I. On the issue of stare decisis.

The principle of stare decisis enjoins adherence by lower courts to doctrinal rules established by this Court in its final decisions. It is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument.[49] Basically, it is a bar to any attempt to relitigate the same issues,[50] necessary for two simple reasons: economy and stability. In our jurisdiction, the principle is entrenched in Article 8 of the Civil Code.[51] This doctrine of adherence to precedents or stare decisis was applied by the English courts and was later adopted by the United States. Associate Justice (now Chief Justice) Reynato S. Punos discussion on the historical development of this legal principle in his dissenting opinion in Lambino v. Commission on Elections[52] is enlightening: The latin phrase stare decisis et non quieta movere means stand by the thing and do not disturb the calm. The doctrine started with the English Courts. Blackstone observed that at the beginning of the 18th century, it is an established rule to abide by former precedents where the same points come again in litigation. As the rule evolved, early limits to its application were recognized: (1) it would not be followed if it were plainly unreasonable; (2) where courts of equal authority developed conflicting decisions; and, (3) the binding force of the decision was the actual principle or principles necessary for the decision; not the words or reasoning used to reach the decision. The doctrine migrated to the United States. It was recognized by the framers of the U.S. Constitution. According to Hamilton, strict rules and precedents are necessary to prevent arbitrary discretion in the courts. Madison agreed but stressed that x x x once the precedent ventures into the realm of altering or repealing the law, it should be rejected. Prof. Consovoy well noted that Hamilton and Madison disagree about the countervailing policy considerations that would allow a judge to abandon a precedent. He added that their ideas reveal a deep internal conflict

between the concreteness required by the rule of law and the flexibility demanded in error correction. It is this internal conflict that the Supreme Court has attempted to deal with for over two centuries. Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare decisis developed its own life in the United States. Two strains of stare decisis have been isolated by legal scholars. The first, known as vertical stare decisis deals with the duty of lower courts to apply the decisions of the higher courts to cases involving the same facts. The second, known ashorizontal stare decisis requires that high courts must follow its own precedents. Prof. Consovoy correctly observes that vertical stare decisis has been viewed as an obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not a command. Indeed, stare decisis is not one of the precepts set in stone in our Constitution. It is also instructive to distinguish the two kinds of horizontal stare decisis constitutional stare decisis and statutory stare decisis. Constitutional stare decisis involves judicial interpretations of the Constitution while statutory stare decisis involves interpretations of statutes. The distinction is important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still holds sway today. In soothing prose, Brandeis stated: Stare decisis is not . . . a universal and inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or departed from, is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. In the same vein, the venerable Justice Frankfurter opined: the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it. In contrast, the application ofstare decisis on judicial interpretation of statutes is more inflexible. As Justice Stevens explains: after a statute has been construed, either by this Court or by a consistent course of decision by other federal

judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself. This stance reflects both respect for Congress' role and the need to preserve the courts' limited resources. In general, courts follow the stare decisis rule for an ensemble of reasons, viz.: (1) it legitimizes judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability. Contrariwise, courts refuse to be bound by the stare decisis rule where (1) its application perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social and political understandings; (3) it leaves the power to overturn bad constitutional law solely in the hands of Congress; and, (4) activist judges can dictate the policy for future courts while judges that respect stare decisis are stuck agreeing with them. In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and reversed its decisions in 192 cases. The most famous of these reversals is Brown v. Board of Education which junked Plessy v. Ferguson's separate but equal doctrine. Plessy upheld as constitutional a state law requirement that races be segregated on public transportation. In Brown, the U.S. Supreme Court, unanimously held that separate . . . is inherently unequal. Thus, by freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans from the chains of inequality. In the Philippine setting, this Court has likewise refused to be straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal Association, Inc. v. Ramos, we reversed our original ruling that certain provisions of the Mining Law are unconstitutional. Similarly, in Secretary of Justice v. Lantion, we overturned our first ruling and held, on motion for reconsideration, that a private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. An examination of decisions on stare decisis in major countries will show that courts are agreed

on the factors that should be considered before overturning prior rulings. These are workability, reliance, intervening developments in the law and changes in fact. In addition, courts put in the balance the following determinants: closeness of the voting, age of the prior decision and its merits.

The leading case in deciding whether a court should follow the stare decisis rule in constitutional litigations is Planned Parenthood v. Casey. It established a 4-pronged test. The court should (1) determine whether the rule has proved to be intolerable simply in defying practical workability; (2) consider whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (3) determine whether related principles of law have so far developed as to have the old rule no more than a remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be seen differently, as to have robbed the old rule of significant application or justification.[53] To be forthright, respondents argument that the doctrinal guidelines prescribed in Santos and Molina should not be applied retroactively for being contrary to the principle of stare decisis is no longer new. The same argument was also raised but was struck down in Pesca v. Pesca,[54] and again in Antonio v. Reyes.[55] In these cases, we explained that the interpretation or construction of a law by courts constitutes a part of the law as of the date the statute is enacted. It is only when a prior ruling of this Court is overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith, in accordance therewith under the familiar rule of lex prospicit, non respicit. II. On liberalizing the required proof for the declaration of nullity of marriage under Article 36.

Now, petitioner wants to know if we have abandoned the Molina doctrine. We have not. In Edward Kenneth Ngo Te v. Rowena Ong Gutierrez Yu-Te,[56] we declared that, in hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. We said that instead of serving as a guideline, Molina unintentionally became a straightjacket, forcing all cases involving psychological incapacity to fit into and be bound by it, which is not only contrary to the intention of the law but unrealistic as well because, with respect to psychological incapacity, no case can be considered as on all fours with another.[57] By the very nature of cases involving the application of Article 36, it is logical and understandable to give weight to the expert opinions furnished by psychologists regarding the psychological temperament of parties in order to determine the root cause, juridical antecedence, gravity and incurability of the psychological incapacity. However, such opinions, while highly advisable, are not conditions sine qua non in granting petitions for declaration of nullity of marriage.[58] At best, courts must treat such opinions as decisive but not indispensable evidence in determining the merits of a given case. In fact, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical or psychological examination of the person concerned need not be resorted to.[59] The trial court, as in any other given case presented before it, must always base its decision not solely on the expert opinions furnished by the parties but also on the totality of evidence adduced in the course of the proceedings. It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving the application of Article 36 must be treated distinctly and judged not on the basis of a priori assumptions, predilections or generalizations but according to its own

attendant facts. Courts should 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. Far from abandoning Molina, we simply suggested the relaxation of the stringent requirements set forth therein, cognizant of the explanation given by the Committee on the Revision of the Rules on the rationale of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC), viz.: To require the petitioner to allege in the petition the particular root cause of the psychological incapacity and to attach thereto the verified written report of an accredited psychologist or psychiatrist have proved to be too expensive for the parties. They adversely affect access to justice o poor litigants. It is also a fact that there are provinces where these experts are not available. Thus, the Committee deemed it necessary to relax this stringent requirement enunciated in the Molina Case. The need for the examination of a party or parties by a psychiatrist or clinical psychologist and the presentation of psychiatric experts shall now be determined by the court during the pre-trial conference.[60] But where, as in this case, the parties had the full opportunity to present professional and expert opinions of psychiatrists tracing the root cause, gravity and incurability of a partys alleged psychological incapacity, then such expert opinion should be presented and, accordingly, be weighed by the court in deciding whether to grant a petition for nullity of marriage. III. On petitioners psychological incapacity. Coming now to the main issue, we find the totality of evidence adduced by respondent insufficient to prove that petitioner is psychologically unfit to discharge the duties expected of him as a husband, and more particularly, that he suffered from such

psychological incapacity as of the date of the marriage eighteen (18) years ago. Accordingly, we reverse the trial courts and the appellate courts rulings declaring the marriage between petitioner and respondent null and void ab initio. The intendment of the law has been to confine the application of Article 36 to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.[61] The psychological illness that must have afflicted a party at the inception of the marriage should be a malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond he or she is about to assume.[62] In this case, respondent failed to prove that petitioners defects were present at the time of the celebration of their marriage. She merely cited that prior to their marriage, she already knew that petitioner would occasionally drink and gamble with his friends; but such statement, by itself, is insufficient to prove any pre-existing psychological defect on the part of her husband. Neither did the evidence adduced prove such defects to be incurable. The evaluation of the two psychiatrists should have been the decisive evidence in determining whether to declare the marriage between the parties null and void. Sadly, however, we are not convinced that the opinions provided by these experts strengthened respondents allegation of psychological incapacity. The two experts provided diametrically contradicting psychological evaluations: Dr. Oate testified that petitioners behavior is a positive indication of a personality disorder,[63] while Dr. Obra maintained that there is nothing wrong with petitioners personality. Moreover, there appears to be greater weight in Dr. Obras opinion because, aside from analyzing the transcript of Benjamins deposition similar to what Dr. Oate did, Dr. Obra also took into consideration the psychological evaluation report furnished by another psychiatrist in South Africawho personally examined Benjamin, as well as his

(Dr. Obras) personal interview with Benjamins brothers.[64] Logically, therefore, the balance tilts in favor of Dr. Obras findings. Lest it be misunderstood, we are not condoning petitioners drinking and gambling problems, or his violent outbursts against his wife. There is no valid excuse to justify such a behavior. Petitioner must remember that he owes love, respect, and fidelity to his spouse as much as the latter owes the same to him. Unfortunately, this court finds respondents testimony, as well as the totality of evidence presented by the respondent, to be too inadequate to declare him psychologically unfit pursuant to Article 36. It should be remembered that the presumption is always in favor of the validity of marriage. Semper praesumitur pro matrimonio.[65] In this case, the presumption has not been amply rebutted and must, perforce, prevail. WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The November 17, 2003 Amended Decision and the December 13, 2004 Resolution of the Court of Appeals in CA-G.R. CV No. 59903 are accordingly REVERSED and SET ASIDE. SO ORDERED.

Precs of the Consolidated Cases Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 191002[1] and G.R. No. 191149[2] as special civil actions for certiorari andmandamus, praying that the JBC be compelled to submit to the incumbent President the list of at least three nominees for the position of the next Chief Justice. In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC from conducting its search, selection and nomination proceedings for the position of Chief Justice. DECISION BERSAMIN, J.: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his successor? May the Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or being considered to succeed Chief Justice Puno, and submit the list of nominees to the incumbent President even during the period of the prohibition under Section 15, Article VII? Doesmandamus lie to compel the submission of the shortlist of nominees by the JBC? In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine Constitution Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive Department. In Administrative Matter No. 10-2-5SC,[5] petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary. In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to the President for appointment during the period provided for in Section 15, Article VII. All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with

transcendental importance to the Nation, because the appointment of the Chief Justice is any Presidents most important appointment. A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),[7] by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed. In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries one side holds that the incumbent President is prohibited from making appointments within two months immediately before the coming presidential elections and until the end of her term of office as President on June 30, 2010, while the other insists that the prohibition applies only to appointments to executive positions that may influence the election and, anyway, paramount national interest justifies the appointment of a Chief Justice during the election ban has impelled the JBC to defer the decision to whom to send its list of at least three nominees, whether to the incumbent President or to her successor.[8] He opines that the JBC is thereby arrogating unto itself the judicial function that is not conferred upon it by the Constitution, which has limited it to the task of recommending appointees to the Judiciary, but has not empowered it to finally resolve constitutional questions, which is the power vested only in the Supreme Court under the Constitution. As such, he contends that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to the President; and that a final and definitive resolution of the constitutional questions raised above would diffuse (sic) the tension in the legal community that would go a long way to keep and maintain stability in the judiciary and the political system.[9]

In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010 to open the search, nomination, and selection process for the position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief Justice is the Supreme Court itself, the Presidents authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is not yet a Member of the Supreme Court.[10] For its part, PHILCONSA observes in its petition in G.R. No. 191057 that unorthodox and exceptional circumstances spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have bred a frenzied inflammatory legal debate on the constitutional provisions mentioned that has divided the bench and the bar and the general public as well, because of its dimensional impact to the nation and the people, thereby fashioning transcendental questions or issues affecting the JBCs proper exercise of its principal function of recommending appointees to the Judiciary by submitting only to the President (not to the next President) a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy from which the members of the Supreme Court and judges of the lower courts may be appointed.[11] PHILCONSA further believes and submits that now is the time to revisit and review Valenzuela, the strange and exotic Decision of the Court en banc.[12] Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC to immediately transmit to the President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution in the event that the Court resolves that the President can appoint a Chief Justice even during the election ban under Section 15, Article VII of the Constitution.[13]

The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the JBC has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the applications to the position, and is perilously near completing the nomination process and coming up with a list of nominees for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010, which only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the period of the ban on midnight appointments.[14] Antecedents These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately. In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,[15] which reads: The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno. It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of

candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates. As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter. 18 January 2010. (sgd.) MA. LUISA D. VILLARAMA Clerk of Court & Ex-Officio Secretary Judicial and Bar Council As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement dated January 20, 2010,[16]viz: The Judicial and Bar Council (JBC) announces the opening for application or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO. Applications or recommendations for this position must be submitted not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx: The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.[17] Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice

Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.[18] Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales.[19] Declining their nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of the JBC onFebruary 8, 2010).[20] The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).[21] In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.[22]

Issues Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno. The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter to avoid any possible polemics concerning the matter, but he opines that the polemics leading to Valenzuela would be miniscule [sic] compared to the polemics that have now erupted in regard to the current controversy, and that unless put to a halt, and this may only be achieved by a ruling from the Court, the integrity of the process and the credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired.[23] Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions. G.R. No. 191002 a. Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent President can appoint a Chief Justice during the election ban period? b. Does the incumbent President have the power and authority to appoint during the election ban the successor of Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010?

G.R. No. 191032 a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc? G.R. No. 191057 a. Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable only to positions in the Executive Department? b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition? c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June 30, 2010? A. M. No. 10-2-5-SC a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9, Article VIII of the Constitution? b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010? G.R. No. 191149 a. Does the JBC have the discretion to withhold the submission of the short list to President Gloria Macapagal-Arroyo?

G.R. No. 191342 a. Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnight appointments two months immediately preceding the next presidential elections until the end of her term? b. Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBCs illegal composition allowing each member from the Senate and the House of Representatives to have one vote each? On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342. On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the process for the selection of the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation of the short list of candidates, including the interview of the constitutional experts, as may be needed.[24] It stated:[25] Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments two (2) months immediately before the next presidential elections and up to the end of his term and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines. 12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010. The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend appointees in the Judiciary; (b) the JBCs function to recommend is a continuing process, which does not begin with each vacancy or end with each nomination, because the goal is to submit the list of nominees to Malacaang on the very day the vacancy arises;[26] the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase members of the Supreme Court found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ of mandamus can issue to compel the JBC to submit the list of nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the President; [29] and (e) a writ of mandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBCs determination of who it nominates to the President is an exercise of a discretionary duty.[30]

The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; [31] that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight appointments, or its effects on such period, or vice versa;[32] that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the Presidents power to appoint members of the Supreme Court to ensure its independence from political vicissitudes and its insulation from political pressures,[33] such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice. The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized that there might be the imperative need for an appointment during the period of the ban, like when the membership of the Supreme Court should be so reduced that it will have no quorum, or should the voting on a particular important question requiring expeditious resolution be divided;[34] and that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the appointments during the period of the prohibition.[35]

Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues is quite expected;[36] (b) the Court acts as the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President and, as such, has the power to correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC);[37] (c) if history has shown that during ordinary times the Chief Justice was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next Chief Justice immediately upon the retirement of Chief Justice Puno;[38] and (d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the vacancy in accordance with the constitutional mandate.[39] On March 9, 2010, the Court admitted the following comments/oppositions-inintervention, to wit: (a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);[40] (b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim); (c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan); (d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of Peoples Lawyers (NUPL); (e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano);

(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur); (g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser); (h)The consolidated comment/opposition-inintervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.); (i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and (j) The consolidated comment/opposition-inintervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP). Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De Castros petition was bereft

of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition. Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castros fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable political situation. ice is imperative for the stability of the judicial system and the political situation in the country when the election-related questions reach the Court as false, because there is an existing law on filling the void brought about by a vacancy in the office of Chief Justice; that the law is

Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or an acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has been repeatedly observed and has become a part of its tradition. Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code penalizes as an election offense the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or privilege to any government official or employee during the period of 45 days before a regular election; that the provision covers all appointing heads, officials, and officers of a government office, agency or instrumentality, including the President; that for the incumbent President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code, constitutes an election offense; that even an appointment of the next Chief Justice prior to the election ban is fundamentally invalid and without effect because there can be no appointment until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010. Intervenor Boiser adds that De Castros prayer to compel the submission of nominees by the JBC to the incumbent President is off-tangent

because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy. All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, inValenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void. Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial appointments. Intervenor WTLOP further posits that petitioner Sorianos contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term members was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSAs prayer that the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSAs petition; that the role of the JBC cannot be separated from the constitutional prohibition on the President; and

that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired. Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial nor a quasijudicial body has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception. Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of nominating appointees to the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme Court; and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law. The main question presented in all the filings herein because it involves two seemingly conflicting provisions of the Constitution imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively and finally. The imperative demand rests on the ever-present need, first, to safeguard the independence,

reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to settle once and for all the doubt about an outgoing Presidents power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary. Thus, we resolve. Ruling of the Court Locus Standi of Petitioners The preliminary issue to be settled is whether or not the petitioners have locus standi Black defines locus standi as a right of appearance in a court of justice on a given question.[41] In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42] The question on legal standing is whether such parties have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[43] Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only

that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[44] It is true that as early as in 1937, in People v. Vera,[45] the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi.There, the Court held that the person who would assail the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. Vera was followed in Custodio v. President of the Senate,[46] Manila Race Horse Trainers Association v. De la Fuente,[47] AntiChinese League of the Philippines v. Felix,[48] and Pascual v. Secretary of Public Works.[49] Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan,[50] the Court liberalized the approach when the cases had transcendental importance. Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.[51] In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to resolve the issues raised by the petition due to their farreaching implications, even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary citi zens, legislators, and civic organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.[53]

However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right. Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,[54] the Court aptly explains why: Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction was first laid down in Beauchamp v. Silk,[55] where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[56] In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied. With respect to taxpayers suits, Terr v. Jordan[57] held that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.[58] Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the

continuing proceedings in the JBC, which involve unnecessary, if not, illegal disbursement of public funds.[59] PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that the Court has recognized its legal standing to file cases on constitutional issues in several cases.[60] In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines. The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the JBC to the President, for [a]n adjudication of the proper interpretation and application of the constitutional ban on midnight appointments with regard to respondent JBCs function in submitting the list of nominees is well within the concern of petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution. They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person appointed becomes a member of the body that has constitutional supervision and authority over them and other members of the legal profession.[61]

The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest them with the requisite locus standi. The issues before us are of transcendental importance to the people as a whole, and to the petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of ones personal interest in life, because they concern that great doubt about the authority of the incumbent President to appoint not only the successor of the retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial judges throughout the country. In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.[62] Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v.Philippine International Air Terminals Co., Inc.,[63] we pointed out: Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. But even if, strictly speaking, the petitioners are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.[64] Justiciability Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for adjudication, considering that although

the selection process commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President. Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review. Intervenors Corvera and Lim separately opine that De Castros petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review. Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President should do, and are not invoking any issues that are justiciable in nature. Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are matters of paramount and transcendental importance to the bench, bar and general public; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should rule for the guidance of the JBC; that the fact that the Court supervises the JBC

does not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then, may the person exercising oversight order the action to be redone to conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the law in the absence of an actual case or controversy. We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the interview of constitutional experts, as may be needed. A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an

Associate Justice) within 90 days from the occurrence of the vacancy. The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of nominees; the insistence of some of the petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the incumbent President on the ground that said list should be submitted instead to the next President; the strong position that the incumbent President is already prohibited under Section 15, Article VII from making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so prohibited are only some of the real issues for determination. All such issues establish the ripeness of the controversy, considering that for some the short list must be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle with finality the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process. We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues.[65]Herein, the facts are not in doubt, for only legal issues remain.

Substantive Merits I Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary Two constitutional provisions are seemingly in conflict. The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary. The Court agrees with the submission. First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the

Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain. The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech: We have in the political part of this Constitution opted for the separation of powers in government because we believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of government. Hence, we return to the separation of powers doctrine and the legislative, executive and judicial departments.[66] As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article. Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within90 days from the occurrence of the vacancy. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme

Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court. Although Valenzuela[67] came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail. Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz: V . Intent of the Constitutional Commission The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy must be filled within two months from the date that the vacancy occurs. His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would

not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Courts membership) of the same mandate that IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. He later agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence. In this connection, it may be pointed out that that instruction that any vacancy shall be filled within ninety days (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that a President or Acting President shall not make appointments The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a uniform rule for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one. On the other hand, Section 15, Article VII which in effect deprives the President of his appointing power two months immediately before the next presidential elections up to the end of his term - was approved without discussion.[68]

However, the reference to the records of the Constitutional Commission did not advance or support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, a command [to the President] to fill up any vacancy therein within 90 days from its occurrence, which even Valenzuela conceded.[69] The exchanges during deliberations of the Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the President, viz MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11. MR. CONCEPCION. Yes. MR. DE CASTRO. And the second sentence of this subsection reads: Any vacancy shall be filled within ninety days from the occurrence thereof. MR. CONCEPCION. That is right. MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy? MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement.[70] Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a duty that may be enforced[71] should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution. The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special

provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was couched in stronger negative language. Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commissions deliberations on Section 4 (1), Article VIII. How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:[72] xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled. Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom

applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rules application, largely because of the principle of implied repeal. In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to have Section 4 (1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.[73] Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last after its false premises have been exposed.[74] It will not do to merely distinguishValenzuela from these cases, for the result to be reached herein is entirely incompatible with what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable. We reverse Valenzuela Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary. There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by anoutgoing Chief Executive in the mold of the appointments dealt with in the

leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed, stating that: xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.: The second type of appointments prohibited by Section 15, Article VII consists of the so-called midnight appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a caretaker administrator whose duty was to prepare for the orderly transfer of authority to the incoming President. Said the Court: The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments. As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointees

qualifications, can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld. Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only midnight appointments those made obviously for partisan reasons as shown by their number and the time of their making but also appointments presumed made for the purpose of influencing the outcome of the Presidential election. On the other hand, the exception in the same Section 15 of Article VII allowing appointments to be made during the period of the ban therein provided is much narrower than that recognized inAytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Courts view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.[76] Given the background and rationale for the prohibition in Section 15, Article VII, we have

no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming President or for partisanship,[77] the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBCs prior processing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on the law of the statute, i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.[78] Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President could not always be assured of being recommended for the consideration of the President, because they first had to undergo the vetting of the JBC and pass muster there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments. This insulating process was absent from the Aytona midnight appointment.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming presidential elections. He assured that on the basis of the (Constitutional) Commissions records, the election ban had no application to appointments to the Court of Appeals.[79] This confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of Appeals.[80] The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the Presidents power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado. Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President. Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting President,[81] and evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary, because temporary or acting appointments can only undermine the independence of the Judiciary due to their being revocable at will.[82] The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the books that authorizes the revocation of appointments in the Judiciary.

Prior to their mandatory retirement or resignation, judges of the first and second level courts and the Justices of the third level courts may only be removed for cause, but the Members of the Supreme Court may be removed only by impeachment. Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments. Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement did not include appointments to the Judiciary.[83] Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.[84] It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof. Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the

Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010. Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining. The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Punos retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court. The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment. Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position

to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity. In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President any President to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court. Sec. 9, Article VIII says: xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation. The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC. Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice? The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enriles statement that the President can appoint the

Chief Justice from among the sitting justices of the Court even without a JBC list. II The Judiciary Act of 1948 The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor Section 12 of the Judiciary Act of 1948 states: Section 12. Vacancy in Office of Chief Justice. In case of a vacancy in the office of Chief Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice. The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed. Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now. We cannot agree with the posture. A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC

for every vacancy, which appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution. For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to perform the duties and powers of the office. It ought to be remembered, however, that it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer than expected. The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day

period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President. Historically, under the present Constitution, there has been no wide gap between the retirement and the resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as follows: 1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day; 2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day; 3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991; 4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning of November 30, 1998; 5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and 6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.[85] III Writ of mandamus does not lie against the JBC May the JBC be compelled to submit the list of nominees to the President? Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully

neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station.[86] It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.[87] For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for every vacancy in the Judiciary: Section 8. xxx (5) The Council shall have the principal function of recommending appointees to the Judiciary. xxx Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC

should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy. Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment. The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty.[88] For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President. The distinction between a ministerial act and a discretionary one has been delineated in the following manner: The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the

exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.[89] Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno. IV Writ of prohibition does not lie against the JBC In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice. Hence, Sorianos petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit. On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by raising the minimum number of votes required in accordance with the rules of the JBC, is not based on the petitioners actual interest, because they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standi on that issue.

WHEREFORE, the Court 1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature; 2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and 3. Grants the petition in A.M. No. 10-2-5SC and, accordingly, directs the Judicial and Bar Council: (a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Reynato S. Puno byMay 17, 2010; (b) To prepare the short list of nominees for the position of Chief Justice; (c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010; and (d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with this decision.

SO ORDERED.

national, regional or sectoral party, organization or coalition on any of the following grounds: (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.[Emphasis supplied.] The COMELEC replicated this provision in COMELEC Resolution No. 2847 the Rules and Regulations Governing the Election of the Party-List Representatives through the PartyList System which it promulgated on June 25, 1996. For the upcoming May 2010 elections, the COMELEC en banc issued on October 13, 2009 Resolution No. 8679 deleting several party-list groups or organizations from the list of registered national, regional or sectoral parties, organizations or coalitions. Among the partylist organizations affected was PGBI; it was delisted because it failed to get 2% of the votes cast in 2004 and it did not participate in the 2007 elections. Nevertheless, the COMELEC stated in this Resolution that any national, regional sectoral party or organizations or coalitions adversely affected can personally or through its authorized representative file a verified opposition on October 26, 2009. PGBI filed its Opposition to Resolution No. 8679, but likewise sought, through its pleading, the admission ad cautelam of its petition for accreditation as a party-list organization under the Party-List System Act. Among other arguments, PGBI asserted that: (1) The assailed resolution negates the right of movant and those similarly situated to invoke Section 4 of R.A. No. 7941, which allows any party, organization and coalition already registered with the Commission to no longer register anew; the party though is required to file with the Commission, not later than ninety (90) days before the election, a manifestation of its desire to participate in the

RESOLUTION BRION, J.: The Philippine Guardians Brotherhood, Inc. (PGBI) seeks in this petition for certiorari[1] and in the motion for reconsideration it subsequently filed to nullify Commission on Elections (COMELEC) Resolution No. 8679 dated October 13, 2009 insofar as it relates to PGBI, and the Resolution dated December 9, 2009 denying PGBIs motion for reconsideration in SPP No. 09-004 (MP). Via these resolutions, the COMELEC delisted PGBI from the roster of registered national, regional or sectoral parties, organizations or coalitions under the party-list system. BACKGROUND Section 6(8) of Republic Act No. 7941 (RA 7941), otherwise known as the Party-List System Act, provides: Section 6. Removal and/or Cancellation of Registration. The COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any

party-list system; since PGBI filed a Request/Manifestation seeking a deferment of its participation in the 2007 elections within the required period prior to the 2007 elections, it has the option to choose whether or not to participate in the next succeeding election under the same conditions as to rights conferred and responsibilities imposed; (2) The Supreme Courts ruling in G.R. No. 177548 Philippine Mines Safety Environment Association, also known as MINERO v. Commission on Elections cannot apply in the instant controversy for two reasons: (a) the factual milieu of the cited case is removed from PGBIs; (b) MINERO, prior to delisting, was afforded the opportunity to be heard, while PGBI and the 25 others similarly affected by Resolution No. 8679 were not. Additionally, the requirement of Section 6(8) has been relaxed by the Courts ruling in G.R. No. 179271 (Banat v. COMELEC) and the exclusion of PGBI and the 25 other party-list is a denial of the equal protection of the laws; (3) The implementation of the challenged resolution should be suspended and/or aborted to prevent a miscarriage of justice in view of the failure to notify the parties in accordance with the same Section 6(8) or R.A. No. 7941.[2] The COMELEC denied PGBIs motion/opposition for lack of merit. First, the COMELEC observed that PGBI clearly misunderstood the import of Section 4 of R.A. 7941.[3] The provision simply means that without the required manifestation or if a party or organization does not participate, the exemption from registration does not arise and the party, organization or coalition must go through the process again and apply for requalification; a request for deferment would not exempt PGBI from registering anew. Second, the MINERO ruling is squarely in point, as MINERO failed to get 2% of the votes in 2001 and did not participate at all in the 2004 elections.

Third, PGBI was given an opportunity to be heard or to seek the reconsideration of the action or ruling complained of the essence of due process; this is clear from Resolution No. 8679 which expressly gave the adversely affected parties the opportunity to file their opposition. As regards the alternative relief of application for accreditation, the COMELEC found the motion to have been filed out of time, as August 17, 2009 was the deadline for accreditation provided in Resolution 8646. The motion was obviously filed months after the deadline. PGBI came to us in its petition for certiorari, arguing the same positions it raised with the COMELEC when it moved to reconsider its delisting. We initially dismissed the petition in light of our ruling in Philippine Mines Safety Environment Association, also known as MINERO v. Commission on Elections(Minero);[4] we said that no grave abuse of discretion exists in a ruling that correctly applies the prevailing law and jurisprudence. Applying Section 6(8) of RA 7941, the Court disqualified MINERO under the following reasoning: Since petitioner by its own admission failed to get 2% of the votes in 2001 and did not participate at all in the 2004 elections, it necessarily failed to get at least two per centum (2%) of the votes cast in the two preceding elections. COMELEC, therefore, is not duty bound to certify it. PGBI subsequently moved to reconsider the dismissal of its petition. Among other arguments, PGBI claimed that the dismissal of the petition was contrary to law, the evidence and existing jurisprudence. Essentially, PGBI asserts that Section 6(8) of RA 7941 does not apply if one is to follow the tenor and import of the deliberations inclusive of the interpellations in Senate Bill No. 1913 on October 19, 1994. It cited the following excerpts from the Records of the Senate:

Senator Gonzales: On the other hand, Mr. President, underground no. (7), Section 5 there are actually two grounds it states: Failure to participate in the last two (2) preceding elections or its failure to obtain at least ten percent (10%) of the votes case under the party-list system in either of the last two (2) preceding elections for the constituency in which it has registered In short, the first ground is that, it failed to participate in the last two (2) preceding elections. The second is, failure to obtain at least 10 percent of the votes cast under the partylist system in either of the last two preceding elections, Mr. President, Senator Tolentino: Actually, these are two separate grounds. Senator Gonzales: There are actually two grounds, Mr. President. Senator Tolentino: Yes, Mr. President.[5] [Underscoring supplied.] PGBI thus asserts that Section 6(8) does not apply to its situation, as it is obvious that it failed to participate in one (1) but not in the two (2) preceding elections. Implied in this is that it also failed to secure the required percentage in one (1) but not in the two (2) preceding elections. Considering PGBIs arguments, we granted the motion and reinstated the petition in the courts docket. THE ISSUES We are called upon to resolve: (a) whether there is legal basis for delisting PGBI; and (b) whether PGBIs right to due process was violated. OUR RULING We find the petition partly impressed with merit. a. The Minero Ruling

Our Minero ruling is an erroneous application of Section 6(8) of RA 7941; hence, it cannot sustain PGBIs delisting from the roster of registered national, regional or sectoral parties, organizations or coalitions under the party-list system. First, the law is clear the COMELEC may motu proprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition if it: (a) fails to participate in the last two (2) preceding elections; or (b) fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.[6] The word or is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word.[7] Thus, the plain, clear and unmistakable language of the law provides for two (2) separate reasons for delisting. Second, Minero is diametrically opposed to the legislative intent of Section 6(8) of RA 7941, as PGBIs cited congressional deliberations clearly show. Minero therefore simply cannot stand. Its basic defect lies in its characterization of the nonparticipation of a party-list organization in an election as similar to a failure to garner the 2% threshold party-list vote. What Minero effectively holds is that a party list organization that does not participate in an election necessarily gets, by default, less than 2% of the party-list votes. To be sure, this is a confused interpretation of the law, given the laws clear and categorical language and the legislative intent to treat the two scenarios differently. A delisting based on a mixture or fusion of these two different and separate grounds for delisting is therefore a strained application of the law in jurisdictional terms, it is an interpretation not within the contemplation of the framers of the law and hence is a gravely abusive interpretation of the law.[8]

What we say here should of course take into account our ruling in Barangay Association for Advancement and National Transparency v. COMELEC[9] (Banat) where we partly invalidated the 2% party-list vote requirement provided in RA 7941 as follows We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. The disqualification for failure to get 2% partylist votes in two (2) preceding elections should therefore be understood in light of the Banat ruling that party-list groups or organizations garnering less than 2% of the party-list votes may yet qualify for a seat in the allocation of additional seats. We need not extensively discuss Banats significance, except to state that a party-list group or organization which qualified in the second round of seat allocation cannot now validly be delisted for the reason alone that it garnered less than 2% in the last two elections. In other words, the application of this disqualification should henceforth be contingent on the percentage of party-list votes garnered by the last party-list organization that qualified for a seat in the House of Representatives, a percentage that is less than the 2% threshold invalidated in Banat. The disqualification should now necessarily be read to apply to party-list groups or organizations that did not qualify for a seat in the two preceding elections for the constituency in which it registered.

To reiterate, (a) Section 6(8) of RA 7941 provides for two separate grounds for delisting; these grounds cannot be mixed or combined to support delisting; and (b) the disqualification for failure to garner 2% party-list votes in two preceding elections should now be understood, in light of the Banat ruling, to mean failure to qualify for a party-list seat in two preceding elections for the constituency in which it has registered. This, we declare, is how Section 6(8) of RA 7941 should be understood and applied. We do so under our authority to state what the law is,[10] and as an exception to the application of the principle of stare decisis. The doctrine of stare decisis et non quieta movere (to adhere to precedents and not to unsettle things which are established) is embodied in Article 8 of the Civil Code of the Philippines which provides, thus: ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. The doctrine enjoins adherence to judicial precedents. It requires courts in a country to follow the rule established in a decision of its Supreme Court. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land. The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument.[11] The doctrine is grounded on the necessity for securing certainty and stability of judicial decisions, thus: Time and again, the court has held that it is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled. Stare decisissimply means that for the sake of certainty, a conclusion reached in one case should be applied to those

that follow if the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward by the parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue.[12] The doctrine though is not cast in stone for upon a showing that circumstances attendant in a particular case override the great benefits derived by our judicial system from the doctrine of stare decisis, the Court is justified in setting it aside.[13] As our discussion above shows, the most compelling reason to abandon Minero exists;it was clearly an erroneous application of the law an application that the principle of stability or predictability of decisions alone cannot sustain. Minero did unnecessary violence to the language of the law, the intent of the legislature, and to the rule of law in general. Clearly, we cannot allow PGBI to be prejudiced by the continuing validity of an erroneous ruling. Thus, we now abandon Minero and strike it out from our ruling case law. We are aware that PGBIs situation a party list group or organization that failed to garner 2% in a prior election and immediately thereafter did not participate in the preceding election is something that is not covered by Section 6(8) of RA 7941. From this perspective, it may be an unintended gap in the law and as such is a matter for Congress to address. We cannot and do not address matters over which full discretionary authority is given by the Constitution to the legislature; to do so will offend the principle of separation of powers. If a gap indeed exists, then the present case should bring this concern to the legislatures notice. b. The Issue of Due Process

On the due process issue, we agree with the COMELEC that PGBIs right to due process was not violated for PGBI was given an opportunity to seek, as it did seek, a reconsideration of Resolution No. 8679. The essence of due process, we have consistently held, is simply the opportunity to be heard; as applied to administrative proceedings, due process is the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential. The requirement is satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing x x x.[14] We find it obvious under the attendant circumstances that PGBI was not denied due process. In any case, given the result of this Resolution, PGBI has no longer any cause for complaint on due process grounds. WHEREFORE, premises considered, we GRANT the petition and accordingly ANNUL COMELEC Resolution No. 8679 dated October 13, 2009 insofar as the petitioner PGBI is concerned, and the Resolution dated December 9, 2009 which denied PGBIs motion for reconsideration in SPP No. 09-004 (MP). PGBI is qualified to be voted upon as a party-list group or organization in the coming May 2010 elections. SO ORDERED.

[G.R. No. 137571. September 21, 2000] TUNG CHIN HUI, petitioner, vs. RUFUS B. RODRIGUEZ, Commissioner of Immigration; and the BOARD OF COMMISSIONERS, Bureau of Immigration and Deportation, respondents. DECISION PANGANIBAN, J.: Provisions that were not reproduced in the 1997 Rules of Civil Procedure are deemed repealed. Hence, having been omitted from the 1997 Rules, deemed already repealed is Section 18, Rule 41 of the pre-1997 Rules of Court, which had theretofore provided for a 48-hour reglementary period within which to appeal habeas corpus cases. Accordingly, the period for perfecting appeals in said cases and ordinary civil actions is now uniform -- 15 days from notice of the judgment or order.
The Case

Meanwhile, the Branch Clerk of Court is hereby ordered to immediately transmit the record of the instant case to the Honorable Court of Appeals within ten (10) days from today.
The Facts

From the records and the pleadings of the parties, the following facts appear undisputed. After obtaining a visa at the Philippine Embassy in Singapore, petitioner, a Taiwanese citizen,[3] arrived in this country on November 5, 1998. On November 15, 1998, he was arrested by several policemen, who subsequently turned him over to the Bureau of Immigration and Deportation (BID). Thereafter, on November 25, 1998, the BID Board of Commissioners, after finding him guilty of possessing a tampered passport earlier canceled by Taiwanese authorities, ordered his summary deportation. On December 11, 1998, petitioner filed before the RTC of Manila a Petition for Habeas Corpus on the ground that his detention was illegal. After respondents filed a Return of Writ controverting his claim, the trial court issued a Decision dated January 7, 1999, granting his Petition and ordering his release from custody. On January 11, 1999, respondents filed a Motion for Reconsideration, which was denied by the trial court in an Order dated January 29, 1999. Respondents then filed a [N]otice of [A]ppeal from the judgment of the Honorable Court in the above-stated case, dated January 29, 1999, a copy of which was received by the Bureau on February 11, 1999 and was received by the undersigned counsel on February 15, 1999 x x x.[4] Dated February 15, 1999, it was received by the RTC on February 16, 1999 at 9:45 a.m. Petitioner filed an Opposition, claiming that the Notice had been filed beyond the 48-hour reglementary period for filing appeals in habeas corpus cases as prescribed by the pre-1997 Rules of Court. Although respondents alleged

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing the March 2, 1999 Order[1]of the Regional Trial Court (RTC) of Manila (Branch 26) in Special Proceedings No. 98-92014. The challenged Order reads in full as follows:[2] For resolution is a Motion For Reconsideration filed by petitioner thru counsel with comment/opposition thereto filed by respondents thru counsel. After careful consideration of the grounds relied upon by both parties, this Court finds for the respondents. The Notice of Appeal filed by the respondents is actually fo[r] the Court Decision dated January 7, 1999 and not for [the] Court Order dated January 29, 1999. In view of the foregoing, the Motion for Reconsideration filed by petitioner is hereby DENIED for lack of merit.

that they had received the said Order on February 15, 1999, petitioner contended that they had in fact received it on February 11, 1999, as evidenced by the receipt of the service thereof and by the Sheriffs Return.[5] In an Order dated February 18, 1999, the RTC rejected petitioners contention and granted due course to the Notice of Appeal. Petitioner then filed a Motion for Reconsideration, arguing this time that the Notice should be rejected because it had referred not to the RTC Decision but to the January 29, 1999 Order denying reconsideration. In its assailed March 2, 1999 Order, the trial court denied his Motion. Hence, this Petition raising pure questions of law.[6] In a Resolution dated March 22, 1999, this Court issued a Temporary Restraining Order directing the respondents to cease and desist from deporting the petitioner x x x until further orders.[7]
The Issues

liberty of persons illegally detained is involved? In the main, the Court will resolve whether the Notice of Appeal was seasonably filed. In the process, it will determine the applicable reglementary period for filing an appeal in habeas corpuscases.
The Courts Ruling

The Petition is not meritorious.

Main Issue: Reglementary Period for Appealing

Habeas Corpus Cases

Petitioner contends that the Notice of Appeal was late because respondents filed it only on February 16, 1999, five days after they had received the Order denying the Motion for Reconsideration on February 11, 1999.[9] He argues that the reglementary period for filing an appeal is 48 hours, as prescribed in Section 18 of Rule 41 of the pre-1997 Rules of Court, which reads as follows: SEC. 18. Appeal in habeas corpus cases, how taken. - An appeal in habeas corpus cases shall be perfected by filing with the clerk of court or the judge who rendered the judgment, within forty-eight (48) hours from notice of such judgment, a statement that the person making it appeals therefrom. The argument is devoid of merit, because the foregoing provision was omitted from and thereby repealed by the 1997 Revised Rules of Court, which completely replaced Rules 1 to 71. The well-settled rule of statutory construction is that provisions of an old law that were not reproduced in the revision thereof covering the same subject are deemed repealed and discarded.[10] The omission shows the intention of the rule-making body, the Supreme Court in this case,[11] to abrogate those provisions of the old laws that are not reproduced in the revised statute or code.[12]

Petitioner submits the following issues for our consideration:[8] (a) Is the reglementary period to appeal [a] habeas corpus [case] now 15 days from notice of judgment as contended by [the] lower court? (b) Is the reglementary period to appeal [a] habeas corpus [case] still 48 hours from notice of judgment as provided for in Section 18, Rule 41 of the Revised Rules of Court? or (c) Is the provision of Sec. 1, sub-paragraph (a) of Rule 41 of the 1997 Rules of Civil Procedure -- prohibiting appeal from an Order denying a motion for reconsideration mandatory or merely discretionary on the part of the lower courts? (d) Are petitions for writs of habeas corpus already brought down to the level of ordinary cases despite the fact that in habeas corpus the

Clearly then, the reglementary period for filing an appeal in a habeas corpus case is now similar to that in ordinary civil actions[13] and is governed by Section 3, Rule 41 of the 1997 Rules of Court, which provides: SEC. 3. Period of ordinary appeal. -- The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. In this light, the appeal was seasonably filed within the 15-day reglementary period.
Stare Decisis

effect. On the other hand, all the cited precedents had been resolved under the pre-1997 Rules. Accordingly, stare decisis cannot compel this Court to apply to the present case the alleged precedents decided during the regime of the pre-1997 Rules. The cited cases applied a specific provision of the Rules in effect at the time. But because that provision had already been repealed when the facts under present consideration occurred, the Court can no longer rely on those cases. Indeed, to rule otherwise is to bar the effectivity of the 1997 amendments, which conflict with jurisprudence decided under an old and repealed rule. Verily, petitioners contention effectively precludes changes and freezes our procedural rules.
Subject of the Notice of Appeal

Petitioner insists, however, that the application of Section 18, Rule 41 under the Revised Rules of Court must be maintained under the doctrine of stare decisis.[14], Thus he urges the Court to apply precedents that held that the 48-hour period for perfecting an appeal was mandatory and jurisdictional. He specifically cites Saulo v. Cruz,[15] Garcia v. Echiverri[16] and Elepante v. Madayag.[17] The principle cited by petitioner is an abbreviated form of the maxim Stare decisis, et non quieta movere.[18] That is, When the court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same.[19] This principle assures certainty and stability in our legal system.[20] It should be stressed that stare decisis presupposes that the facts of the precedent and the case to which it is applied are substantially the same. In this case, there is one crucial difference. All the incidents of the present controversy occurred when the 1997 Revised Rules of Court was already in

As earlier observed, the Notice of Appeal referred to the judgment of the Honorable Court in the above-stated case, dated January 29, 1999. Petitioner now argues that the Notice was improper because it referred to the Order denying respondents Motion for Reconsideration, not the Decision itself which was dated January 7, 1999. He cites Section 1 of Rule 41 of the 1997 Rules, which provides that an order denying a motion for a new trial or a reconsideration may not be appealed.[21] Respondents, on the other hand, claim that because the Notice of Appeal contained the word judgment, their clear intent was to appeal the Decision. We agree with respondents. In referring to the trial courts judgment, respondents were clearly appealing the January 7, 1999 Decision. Had they thought otherwise, they would have referred to the Order. Indeed, judgment is normally synonymous with decision.[22] Furthermore, the wrong date of the appealed judgment may be attributed merely to inadvertence. Such error should not, by itself, deprive respondents of their right to appeal. Time and time again, it has been held that courts should proceed with caution so as not to deprive a party of this right.[23] They are

encouraged to hear the merits of appealed cases; hence, the dismissal of an appeal on grounds of technicality is generally frowned upon.[24] Indeed, the postulates of justice and fairness demand that all litigants be afforded the opportunity for a full disposition of their disputes, free as much as legally possible from the constraints of technicalities.[25] To rule otherwise is to let technicality triumph over substantial justice. Indeed, the real essence of justice does not emanate from quibblings over patchwork legal technicality.[26]
Other Matters

Petitioner insists that the Order deporting him is invalid, as he was not given notice or hearing.[27] We reject this argument because it properly pertains to the appeal before the CA, not in these proceedings instituted merely to determine the timeliness of the Notice of Appeal. Likewise, we reject the submission of the Office of the Solicitor General that the promulgation of the CA Decision resolving the appeal rendered the present case moot and academic.[28] It should be stressed that the validity of the proceedings before the appellate court ultimately hinges on the issue before us: whether the Notice of Appeal was seasonably filed. WHEREFORE, the Petition is DENIED and the assailed Order AFFIRMED. The Temporary Restraining Order issued by the Court is hereby immediately LIFTED. No pronouncement as to costs. SO ORDERED.