MALCOLM, J.

: This appeal presents the specific question of whether or not the defendants and appellants are guilty of a libel of Roman Punsalan, justice of the peace of Macabebe and Masantol, Province ofPampanga. The appeal also submits the larger question of the attitude which the judiciary should take interpreting and enforcing the ibel aw in connection with the basic prerogatives of freedom of speech and press, and of assembly and petition. !or a better understanding, the facts in the present appeal are the first narrated in the order of their occurrence, then certain suggestive aspects relative to the rights of freedom of speech and press and of assembly and petition are interpolated, then the facts are tested by these principles, and, finally, judgment is rendered. !irst, the facts. "n the latter part of #$#%, numerous citi&ens of the Province of Pampanga assembled, and prepared and signed a petition to the '(ecutive )ecretary through the law office of *rossfield and +,-rien, and five individuals signed affidavits, charging Roman Punsalan, justice of the peace of Macabebe and Masantol, Pampanga, with malfeasance in office and asking for his removal. *rossfield and +,-rien submitted this petition and these affidavits with a complaint to the '(ecutive )ecretary. The petition transmitted by these attorneys was signed by thirty.four citi&ens apparently of considerable standing, including councilors and property owners /now the defendants0, and contained the statements set out in the information as libelous. -riefly stated the specific charges against the justice of the peace were. #. That !rancisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the justice of the peace, who first told her that he would draw up complaint for P%1 afterwards he said he would take P2 which she paid1 also kept her in the house for four days as a servant and took from her two chickens and twelve 3gandus13 4. That 5alentin )unga being interested in a case regarding land which was on trial before the justice of the peace, went to see the justice of the peace to ascertain the result of the trial, and was told by the justice of the peace that if he wished to win he must give him P%6. 7ot having this amount, )unga gave the justice nothing, and a few days later was informed that he had lost the case. Returning again to the office of the justice of the peace in order to appeal, the justice told him that he could still win if he would pay P%61 2. That eoncio 8uiambao, having filed a complaint for assault against four persons, on the day of the trial the justice called him over to his house, where he secretly gave him /8uiambao0 P261 and the complaint was thereupon shelved. The '(ecutive )ecretary referred the papers to the judge of first instance for the )eventh 9udicial :istrict requesting investigation, proper action, and report. The justice of the peace was notified and denied the charges. The judge of first instance found the first count not proved and counts 4 and 2 established. "n view of this result, the judge, the ;onorable Percy M. Moir, was of the opinion 3that it must be, and it is hereby, recommended to the <overnor.<eneral that the respondent be removed from his position as justice of the peace of Macabebe and Masantol, Province of Pampanga, and it is ordered that the proceedings had in this case be transmitted to the '(ecutive )ecretary.3 ater the justice of the peace filled a motion for a new trial1 the judge of first instance granted the motion and reopened the hearing1 documents were introduced, including a letter sent by the municipal president and si( councilors of Masantol, Pampanga, asserting that the justice of the peace was the victim of prosecution, and that one =gustin 9aime, the au(iliary justice of the peace, had instituted the charges for personal reasons1 and the judge of first instance ordered a suppression of the charges against Punsalan and acquitted him the same. =ttorneys for complainants thereupon appealed to the <overnor.<eneral, but whether the papers were forwarded to the <overnor.<eneral as requested the record does not disclose. *riminal action against the petitioners, now become the defendants, was instituted on +ctober #4, #$#>, by virtue of the following information? That on or about the month of :ecember, #$#%, in the municipality of Macabebe, Pampanga, P. "., the said accused, voluntarily, illegally, and criminally and with malicious intent to prejudice and defame Mr. Roman Punsalan )errano who was at said time and

place justice of the peace of Macabebe and Masantol of this province, wrote, signed, and published a writing which was false, scandalous, malicious, defamatory, and libelous against the justice of the peace Mr. Roman Punsalan )errano, in which writing appear among other things the following? That the justice of the peace, Mr. Roman Punsalan )errano, of this town of Macabebe, on account of the conduct observed by him heretofore, a conduct highly improper of the office which he holds, is found to be a public functionary who is absolutely unfair, eminently immoral and dangerous to the community, and consequently unworthy of the office. That this assertion of the undersigned is evidenced in a clear and positive manner by facts so certain, so serious, and so denigrating which appear in the affidavits attached hereto, and by other facts no less serious, but which the undersigned refrain from citing herein for the sake of brevity and in order not to bother too much the attention of your ;onor and due to lack of sufficient proof to substantiate them. That should the higher authorities allow the said justice of the peace of this town to continue in his office, the protection of the rights and interests of its inhabitants will be illusory and utopic1 rights and interest solemnly guaranteed by the Philippine -ill of Rights, and justice in this town will not be administered in accordance with law. That on account of the wrongful discharge of his office and of his bad conducts as such justice of the peace, previous to this time, some respectable citi&ens of this town of Macabebe were compelled to present an administrative case against the said Roman Punsalan )errano before the judge of first instance of Pampanga, in which case there were made against him various charges which were true and certain and of different characters. That after the said administrative case was over, the said justice of the peace, far from charging his bad and despicable conduct, which has roused the indignation of this town of Macabebe, subsequently performed the acts abovementioned, as stated in the affidavits herewith attached, as if intending to mock at the people and to show his mistaken valor and heroism., =ll of this has been written and published by the accused with deliberate purpose of attacking the virtue, honor, and reputation of the justice of the peace, Mr. Roman Punsalan )errano, and thus e(posing him to public hatred contempt, and ridicule. =ll contrary to law. "t should be noted that the information omits paragraphs of the petition mentioning the investigation before the judge of first instance, the affidavits upon which based and concluding words, 3To the '(ecutive )ecretary, through the office of *rossfield and +,-rien.3 The ;onorable Percy M. Moir found all the defendants, with the e(ception of !eli( !ernande&, 9uan ). =lfonso, Restituto <arcia, and Manuel Mallari, guilty and sentenced each of them to pay a fine of P#6 and one thirty.second part of the costs, or to suffer subsidiary imprisonment in case of insolvency. 7ew attorneys for the defense, coming into the case, after the handing down of the decision, file on :ecember #>, #$#>, a motion for a new trial, the principal purpose of which was to retire the objection interposed by the then counsel for the defendants to the admission of '(hibit = consisting of the entire administrative proceedings. The trial court denied the motion. =ll the defendants, e(cept Melecio ). )abado and !ortunato Macalino appealed making the following assignments of error? #. The court erred in overruling the motion of the convicted defendants for a new trial. 4. The court erred in refusing to permit the defendants to retire the objection in advertently interposed by their counsel to the admission in evidence of the expediente administrativo out of which the accusation in this case arose. 2. The court erred in sustaining the objection of the prosecution to the introduction in evidence by the accused of the affidavits upon which the petition forming the basis of the libelous charge was based. @. The court erred in not holding that the alleged libelous statement was unqualifiedly privileged. %. The court erred in assuming and impliedly holding that the burden was on the defendants to show that the alleged libelous statements were true and free from malice.

>. The court erred in not acquitting the defendants. A. The evidence adduced fails to show the guilt of the defendants beyond a reasonable doubt. This is especially true of all the defendants, e(cept !elipe -ustos, :ionisio Mallari, and 9ose T. Reyes. Be have thus far taken it for granted that all the proceedings, administrative and judicial, were properly before this court. =s a matter of fact counsel for defendants in the lower court made an improvident objection to the admission of the administrative proceedings on the ground that the signatures were not identified and that the same was immaterial, which objection was partially sustained by the trial court. 7otwithstanding this curious situation by reason of which the attorney for the defense attempted to destroy through his objection the very foundation for the justification of his clients, we shall continue to consider all the proceedings as before us. 7ot indicating specifically the reason for this action, let the following be stated? The administrative proceedings were repeatedly mentioned during the trial. These proceedings were the basis of the accusation, the information, the evidence, and the judgment rendered. The prosecution cannot be understood without knowledge of anterior action. 7othing more unjust could be imagined than to pick out certain words which standing by themselves and une(plained are libelous and then by shutting off all knowledge of facts which would justify these words, to convict the accused. The records in question are attached to the rollo, and either on the ground that the attorneys for the defense retired the objection to the introduction of the administrative proceedings by the prosecution, or that a new trial should have been had because under section @4 of the *ode of *riminal Procedure 3a case may be reopened on account of errors at law committed at the trial,3 or because of the right of this court to call in such records as are sufficiently incorporated into the complaint and are essential to a determination of the case, or finally, because of our conceded right to take judicial notice of official action in administrative cases and of judicial proceedings supplemental to the basis action, we e(amine the record as before us, containing not alone the trial for libel, but the proceedings previous to that trial giving rise to it. To this action, the <overnment can not e(plain for it was the prosecution which tried to incorporate '(hibit = into the record. Bith these facts pleading justification, before testing them by certain principles which make up the law of libel and slander, we feel warranted in sei&ing the opportunity to intrude an introductory and general discussion of freedom of speech and press and assembly and petition in the Philippine "slands. Be conceive that the time is ripe thus to clear up certain misapprehensions on the subject and to place these basic rights in their proper light. Turning to the pages of history, we state nothing new when we set down that freedom of speech as cherished in democratic countries was unknown in the Philippine "slands before #$66. = prime cause for revolt was consequently ready made. 9ose Ri&al in 3!ilipinas :espues de *ien =Cos3 /The Philippines a *entury ;ence, pages >4 et seq.0 describing 3the reforms sine quibus non,3 which the !ilipinos insist upon, said? 3 The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free and by instituting !ilipinos delegates. The !ilipino patriots in )pain, through the columns of 3 a )olidaridad3 and by other means invariably in e(posing the wants of the !ilipino people demanded 3liberty of the press, of cults, and associations.3 /See Mabini, La Revolucion Filipina.0 The Malolos *onstitution, the work of the Revolutionary *ongress, in its -ill of Rights, &ealously guarded freedom of speech and press and assembly and petition. Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the people of these "slands and won at so dear a cost, should now be protected and carried forward as one would protect and preserve the covenant of liberty itself. 7e(t comes the period of =merican.!ilipino cooperative effort. The *onstitution of the Dnited )tates and the )tate constitutions guarantee to the right of freedom of speech and press and the right of assembly and petition. Be are therefore, not surprised to find President McEinley in that Magna *harta of Philippine iberty, the "nstructions to the )econd Philippine *ommission, of =pril A, #$66, laying down the inviolable rule 3That no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the <overnment for a redress of grievances.3 The Philippine -ill, the =ct of *ongress of 9uly #, #$64, and the 9ones aw, the =ct of *ongress

of =ugust 4$, #$#>, in the nature of organic acts for the Philippines, continued this guaranty. The words quoted are not unfamiliar to students of *onstitutional aw, for they are the counterpart of the first amendment to the *onstitution of the Dnited )tates, which the =merican people demanded before giving their approval to the *onstitution. Be mention the foregoing facts only to deduce the position never to be forgotten for an instant that the guaranties mentioned are part and parcel of the +rganic aw F of the *onstitution F of the Philippine "slands. These paragraphs found in the Philippine -ill of Rights are not threadbare verbiage. The language carries with all the applicable jurisprudence of great 'nglish and =merican *onstitutional cases. /Eepner vs. D. ). G#$6@H, #$% D. )., #661 )erra vs. Mortiga G#$6AH, 46@ D. )., @A6.0 =nd what are these principlesI 5olumes would inadequately answer. -ut included are the following? The interest of society and the maintenance of good government demand a full discussion of public affairs. *ompletely liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation1 the wound can be assuaged with the balm of a clear conscience. = public officer must not be too thin.skinned with reference to comment upon his official acts. +nly thus can the intelligence and the dignity of the individual be e(alted. +f course, criticism does not authori&e defamation. 7evertheless, as the individual is less than the )tate, so must e(pected criticism be born for the common good. Rising superior to any official or set of officials, to the *hief of '(ecutive, to the egislature, to the 9udiciary F to any or all the agencies of <overnment F public opinion should be the constant source of liberty and democracy. /)ee the well considered cases of Bason vs. Balter, @ . R. @ 8. -., A21 )eymour vs. -utterworth, 2!. and !., 2A41 The 8ueen vs. )ir R. *arden, % 8. -. :., #0 The guaranties of a free speech and a free press include the right to critici&e judicial conduct. The administration of the law is a matter of vital public concern. Bhether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. "f the people cannot critici&e a justice of the peace or a judge the same as any other public officer, public opinion will be effectively mu&&led. =ttempted terrori&ation of public opinion on the part of the judiciary would be tyranny of the basest sort. The sword of :amocles in the hands of a judge does not hang suspended over the individual who dares to assert his prerogative as a citi&en and to stand up bravely before any official. +n the contrary, it is a duty which every one owes to society or to the )tate to assist in the investigation of any alleged misconduct. "t is further the duty of all who know of any official dereliction on the part of a magistrate or the wrongful act of any public officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. "n the words of Mr. 9ustice <ayner, who contributed so largely to the law of libel. 3The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism.3 /;owarth vs. -arlow G#$6>H, ##2 =pp. :iv., 7. J., %#6.0 The right to assemble and petition is the necessary consequence of republican institutions and the complement of the part of free speech. =ssembly means a right on the part of citi&ens to meet peaceably for consultation in respect to public affairs. Petition means that any person or group of persons can apply, without fear of penalty, to the appropriate branch or office of the government for a redress of grievances. The persons assembling and petitioning must, of course, assume responsibility for the charges made. Public policy, the welfare of society, and the orderly administration of government have demanded protection for public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege. The doctrine of privileged communications rests upon public policy, ,which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil.disposed and malignant slanderer., /=bbott vs. 7ational -ank of *ommerce, Tacoma G#K$$H, #A% D. )., @6$, @##.0 Privilege is classified as either absolute or qualified. Bith the first, we are not concerned. =s to qualified privilege, it is as the words suggest a prima facie privilege which may be lost by proof of malice. The rule is thus stated by ord *ampbell, *. 9. = communication made bona fide upon any subject.matter in which the party communicating has an interest, or in reference to which has a duty, is privileged, if made

to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. /;arrison vs. -ush, % '. and -., 2@@1 # 9ur.G7. ).H, K@>1 4% . 9. 8. -., 4%1 2 B. R., @A@1 K% '. *. ., 2@@.0 = pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. 'ven when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the individual. -ut the statements must be made under an honest sense of duty1 a self.seeking motive is destructive. Personal injury is not necessary. =ll persons have an interest in the pure and efficient administration of justice and of public affairs. The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in good faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact that the communication is made in intemperate terms. = further element of the law of privilege concerns the person to whom the complaint should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective functions of various officials such unintentional error will not take the case out of the privilege. "n the usual case malice can be presumed from defamatory words. Privilege destroy that presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring home to the defendant the e(istence of malice as the true motive of his conduct. !alsehood and the absence of probable cause will amount to proof of malice. /)ee Bhite vs. 7icholls G#K@%H, 2 ;ow., 4>>.0 = privileged communication should not be subjected to microscopic e(amination to discover grounds of malice or falsity. )uch e(cessive scrutiny would defeat the protection which the law throws over privileged communications. The ultimate test is that of bona fides. /)ee Bhite vs. 7icholls G#K@%H, 2 ;ow., 4>>1 -radley vs. ;eath G#K2#H, #4 Pick. GMass.H, #>21 Eent vs. -ongart& G#KK%H, #% R. "., A41 )treet !oundations of egal iability, vol. #, pp. 26K, 26$1 7ewell, )lander and ibel, various citations1 4% *yc. pages 2K% et seq.0 ;aving ascertained the attitude which should be assumed relative to the basic rights of freedom of speech and press and of assembly and petition, having emphasi&ed the point that our ibel aw as a statute must be construed with reference to the guaranties of our +rganic aw, and having sketched the doctrine of privilege, we are in a position to test the facts of this case with these principles. "t is true that the particular words set out in the information, if said of a private person, might well be considered libelous per se. The charges might also under certain conceivable conditions convict one of a libel of a government official. =s a general rule words imputing to a judge or a justice of the peace dishonesty or corruption or incapacity or misconduct touching him in his office are actionable. -ut as suggested in the beginning we do not have present a simple case of direct and vicious accusations published in the press, but of charges predicated on affidavits made to the proper official and thus qualifiedly privileged. '(press malice has not been proved by the prosecution. !urther, although the charges are probably not true as to the justice of the peace, they were believed to be true by the petitioners. <ood faith surrounded their action. Probable cause for them to think that malfeasance or misfeasance in office e(isted is apparent. The ends and the motives of these citi&ensF to secure the removal from office of a person thought to be venal F were justifiable. "n no way did they abuse the privilege. These respectable citi&ens did not eagerly sei&e on a frivolous matter but on instances which not only seemed to them of a grave character, but which were sufficient in an investigation by a judge of first instance to convince him of their seriousness. 7o undue publicity was given to the petition. The manner of commenting on the conduct of the justice of the peace was proper. =nd finally the charges and the petition were submitted through reputable attorneys to the proper functionary, the '(ecutive )ecretary. "n this connection it is sufficient to note that justices of the peace are appointed by the <overnor.<eneral, that they may be removed by the <overnor. <eneral upon the recommendation of a 9udge of !irst "nstance, or on the <overnor.<eneral,s own motion, and that at the time this action took place the '(ecutive -ureau was the office through which the <overnor.<eneral acted in such matter. /)ee =dministrative *ode of #$#A,

secs. 462 and 44$, in connection with the cases of D. ). vs. <alesa G#$#%H, 2# Phil., 2>%, and of ;arrison vs. -ush, % '. and -., 2@@, holding that where defendant was subject to removal by the sovereign, a communication to the )ecretary of )tate was privileged.0 The present facts are further essentially different from those established in other cases in which private individuals have been convicted of libels of public officials. Malice, traduction, falsehood, calumny, against the man and not the officer, have been the causes of the verdict of guilty. /)ee D. ). vs. )enado G#$6$H, #@ Phil., 22K, 22$1 D. ). vs. *ontreras G#$#4H, 42 Phil., %#21 D. ). vs. Montalvo G#$#%H, 4$ Phil., %$%.0 The =ttorney.<eneral bases his recommendation for confirmation on the case of the Dnited )tates vs. 9ulio -ustos /G#$6$H, #2 Phil., >$60. The 9ulio -ustos case, the =ttorney.<eneral says, is identical with the !elipe -ustos case, with the e(ception that there has been more publicity in the present instance and that the person to whom the charge was made had less jurisdiction than had the )ecretary of 9ustice in the 9ulio -ustos case. Publicity is immaterial if the charge against Punsalan is in fact a privileged communication. Moreover, in the 9ulio -ustos case we find wild statements, with no basis in fact, made against reputable members of the judiciary, 3to persons who could not furnish protection.3 Malicious and untrue communications are not privileged. = later case and one more directly in point to which we invite especial attention is Dnited )tates vs. <ale&a /G#$#%H, 2# Phil., 2>%0. / Note also Jancey vs. *ommonwealth G#$6$H, #44 )o. B., #42.0 Be find the defendants and appellants entitled to the protection of the rules concerning qualified privilege, growing out of constitutional guaranties in our bill of rights. "nstead of punishing citi&ens for an honest endeavor to improve the public service, we should rather commend them for their good citi&enship. The defendants and appellants are acquitted with the costs de officio. )o ordered. Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur. REYES, J.B.L., J.: :irect appeal, on factual and legal questions, from the judgment of the *ourt of !irst "nstance of *ebu, in its *ivil *ase 7o. R.@#AA, denying the claim of the plaintiff.appellant, Pastor -. Tenchave&, for legal separation and one million pesos in damages against his wife and parentsin. law, the defendants.appellees, 5icente, Mamerto and Mena,# all surnamed 3'scaCo,3 respectively.4 The facts, supported by the evidence of record, are the following? Missing her late afternoon classes on 4@ !ebruary #$@K in the Dniversity of )an *arlos, *ebu *ity, where she was then enrolled as a second year student of commerce, 5icenta 'scaCo, 4A years of age /scion of a well.to.do and socially prominent !ilipino family of )panish ancestry and a 3sheltered colegiala30, e(changed marriage vows with Pastor Tenchave&, 24 years of age, an engineer, e(.army officer and of undistinguished stock, without the knowledge of her parents, before a *atholic chaplain, t. Moises avares, in the house of one 9uan =lburo in the said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil register. 5icenta,s letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together with a friend, Pacita 7oel, their matchmaker and go.between, they had planned out their marital future whereby Pacita would be the governess of their first.born1 they started saving money in a piggy bank. = few weeks before their secret marriage, their engagement was broken1 5icenta returned the engagement ring and accepted another suitor, 9oseling ao. ;er love for Pastor beckoned1 she pleaded for his return, and they reconciled. This time they planned to get married and then elope. To facilitate the elopement, 5icenta had brought some of her clothes to the room of Pacita 7oel in )t. Mary,s ;all, which was their usual trysting place. =lthough planned for the midnight following their marriage, the elopement did not, however, materiali&e because when 5icente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was already waiting for her at the college. 5icenta was taken home where she admitted that she had already married Pastor. Mamerto and Mena 'scaCo were surprised, because Pastor never asked for the hand of 5icente, and were disgusted

because of the great scandal that the clandestine marriage would provoke /t.s.n., vol. """, pp. ##6%.6>0. The following morning, the 'scaCo spouses sought priestly advice. !ather Reynes suggested a recelebration to validate what he believed to be an invalid marriage, from the standpoint of the *hurch, due to the lack of authority from the =rchbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because on 4> !ebruary #$@K Mamerto 'scaCo was handed by a maid, whose name he claims he does not remember, a letter purportedly coming from )an *arlos college students and disclosing an amorous relationship between Pastor Tenchave& and Pacita 7oel1 5icenta translated the letter to her father, and thereafter would not agree to a new marriage. 5icenta and Pastor met that day in the house of Mrs. Pilar Mende&ona. Thereafter, 5icenta continued living with her parents while Pastor returned to his job in Manila. ;er letter of 44 March #$@K /'(h. 3M30, while still solicitous of her husband,s welfare, was not as endearing as her previous letters when their love was aflame. 5icenta was bred in *atholic ways but is of a changeable disposition, and Pastor knew it. )he fondly accepted her being called a 3jellyfish.3 )he was not prevented by her parents from communicating with Pastor /'(h. 3#.'scaCo30, but her letters became less frequent as the days passed. =s of 9une, #$@K the newlyweds were already estranged /'(h. 34.'scaCo30. 5icenta had gone to 9imene&, Misamis +ccidental, to escape from the scandal that her marriage stirred in *ebu society. There, a lawyer filed for her a petition, drafted by then )enator 'mmanuel Pelae&, to annul her marriage. )he did not sign the petition /'(h. 3-.%30. The case was dismissed without prejudice because of her non.appearance at the hearing /'(h. 3-.@30. +n 4@ 9une #$%6, without informing her husband, she applied for a passport, indicating in her application that she was single, that her purpose was to study, and she was domiciled in *ebu *ity, and that she intended to return after two years. The application was approved, and she left for the Dnited )tates. +n 44 =ugust #$%6, she filed a verified complaint for divorce against the herein plaintiff in the )econd 9udicial :istrict *ourt of the )tate of 7evada in and for the *ounty of Bashoe, on the ground of 3e(treme cruelty, entirely mental in character.3 +n 4# +ctober #$%6, a decree of divorce, 3final and absolute3, was issued in open court by the said tribunal. "n #$%# Mamerto and Mena 'scaCo filed a petition with the =rchbishop of *ebu to annul their daughter,s marriage to Pastor /'(h. 3:30. +n #6 )eptember #$%@, 5icenta sought papal dispensation of her marriage /'(h. 3:3.40. +n #2 )eptember #$%@, 5icenta married an =merican, Russell eo Moran, in 7evada. )he now lives with him in *alifornia, and, by him, has begotten children. )he acquired =merican citi&enship on K =ugust #$%K. -ut on 26 9uly #$%%, Tenchave& had initiated the proceedings at bar by a complaint in the *ourt of !irst "nstance of *ebu, and amended on 2# May #$%>, against 5icenta !. 'scaCo, her parents, Mamerto and Mena 'scaCo, whom he charged with having dissuaded and discouraged 5icenta from joining her husband, and alienating her affections, and against the Roman *atholic *hurch, for having, through its :iocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one million pesos in damages. 5icenta claimed a valid divorce from plaintiff and an equally valid marriage to her present husband, Russell eo Moran1 while her parents denied that they had in any way influenced their daughter,s acts, and counterclaimed for moral damages. The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to acquire property to the e(clusion of his wife. "t allowed the counterclaim of Mamerto 'scaCo and Mena 'scaCo for moral and e(emplary damages and attorney,s fees against the plaintiff.appellant, to the e(tent of P@%,666.66, and plaintiff resorted directly to this *ourt. The appellant ascribes, as errors of the trial court, the following? #. "n not declaring legal separation1 in not holding defendant 5icenta !. 'scaCo liable for damages and in dismissing the complaint1. 4. "n not holding the defendant parents Mamerto 'scano and the heirs of :oCa Mena 'scaCo liable for damages1. 2 "n holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their counterclaims1 and. @. "n dismissing the complaint and in denying the relief sought by the plaintiff.

That on 4@ !ebruary #$@K the plaintiff.appellant, Pastor Tenchave&, and the defendantappellee, 5icenta 'scaCo, were validly married to each other, from the standpoint of our civil law, is clearly established by the record before us. -oth parties were then above the age of majority, and otherwise qualified1 and both consented to the marriage, which was performed by a *atholic priest /army chaplain avares0 in the presence of competent witnesses. "t is nowhere shown that said priest was not duly authori&ed under civil law to solemni&e marriages. The chaplain,s alleged lack of ecclesiastical authori&ation from the parish priest and the +rdinary, as required by *anon law, is irrelevant in our civil law, not only because of the separation of *hurch and )tate but also because =ct 2>#2 of the Philippine egislature /which was the marriage law in force at the time0 e(pressly provided that F )'*. #. Essential re uisites. 'ssential requisites for marriage are the legal capacity of the contracting parties and consent. /'mphasis supplied0 The actual authority of the solemni&ing officer was thus only a formal requirement, and, therefore, not essential to give the marriage civil effects,2 and this is emphasi&ed by section 4A of said marriage act, which provided the following? )'*. 4A. Failure to compl! "ith formal re uirements. 7o marriage shall be declared invalid because of the absence of one or several of the formal requirements of this =ct if, when it was performed, the spouses or one of them believed in good faith that the person who solemni&ed the marriage was actually empowered to do so, and that the marriage was perfectly legal. The good faith of all the parties to the marriage /and hence the validity of their marriage0 will be presumed until the contrary is positively proved / ao vs. :ee Tim, @% Phil. A2$, A@%1 !rancisco vs. 9ason, >6 Phil. @@4, @@K0. "t is well to note here that in the case at bar, doubts as to the authority of the solemni&ing priest arose only after the marriage, when 5icenta,s parents consulted !ather Reynes and the archbishop of *ebu. Moreover, the very act of 5icenta in abandoning her original action for annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was valid and binding. :efendant 5icenta 'scaCo argues that when she contracted the marriage she was under the undue influence of Pacita 7oel, whom she charges to have been in conspiracy with appellant Tenchave&. 'ven granting, for argument,s sake, the truth of that contention, and assuming that 5icenta,s consent was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a competent civil court. This was never done, and admittedly, 5icenta,s suit for annulment in the *ourt of !irst "nstance of Misamis was dismissed for non.prosecution. "t is equally clear from the record that the valid marriage between Pastor Tenchave& and 5icenta 'scaCo remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained on 4# +ctober #$%6 from the )econd 9udicial :istrict *ourt of Bashoe *ounty, )tate of 7evada, on grounds of 3e(treme cruelty, entirely mental in character.3 =t the time the divorce decree was issued, 5icenta 'scaCo, like her husband, was still a !ilipino citi&en.@ )he was then subject to Philippine law, and =rticle #% of the *ivil *ode of the Philippines /Rep. =ct 7o. 2K>0, already in force at the time, e(pressly provided? aws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon the citi&ens of the Philippines, even though living abroad. The *ivil *ode of the Philippines, now in force, does not admit absolute divorce, uo ad vinculo matrimonii1 and in fact does not even use that term, to further emphasi&e its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband /=ct 4A#60. "nstead of divorce, the present *ivil *ode only provides for le#al separation /Title "5, -ook #, =rts. $A to #6K0, and, even in that case, it e(pressly prescribes that 3the marriage bonds shall not be severed3 /=rt. #6>, subpar. #0. !or the Philippine courts to recogni&e and give recognition or effect to a foreign decree of absolute divorce betiveen !ilipino citi&ens could be a patent violation of the declared public policy of the state, specially in view of the third paragraph of =rticle #A of the *ivil *ode that prescribes the following? Prohibitive laws concerning persons, their acts or property, and those which have for

their object public order, policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. 'ven more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and scandalous discrimination in favor of wealthy citi&ens, to the detriment of those members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines. !rom this point of view, it is irrelevant that appellant Pastor Tenchave& should have appeared in the 7evada divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties /*ivil *ode,=rt. #A, jam quot.01 and additionally, because the mere appearance of a non.resident consort cannot confer jurisdiction where the court originally had none /=rea vs. 9avier, $% Phil. %A$0. !rom the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction 5icenta 'scaCo,s divorce and second marriage are not entitled to recognition as valid1 for her previous union to plaintiff Tenchave& must be declared to be e(istent and undissolved. "t follows, likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her fault, for which the husband is entitled to the corresponding indemnity /*ivil *ode, =rt. 4#A>0. 7either an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate e(cuse. Bherefore, her marriage and cohabitation with Russell eo Moran is technically 3intercourse with a person not her husband3 from the standpoint of Philippine aw, and entitles plaintiff.appellant Tenchave& to a decree of 3legal separation under our law, on the basis of adultery3 /Revised Penal *ode, =rt. 2220. The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior to the approval of the absolute divorce act /=ct 4A#6 of the Philippine egislature0. =s a matter of legal history, our statutes did not recogni&e divorces a vinculo before #$#A, when =ct 4A#6 became effective1 and the present *ivil *ode of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing before =ct 4A#6. The rulings, therefore, under the *ivil *ode of #KK$, prior to the =ct above.mentioned, are now, fully applicable. +f these, the decision in Ramire$ vs. %mur, @4 Phil. K%%, is of particular interest. )aid this *ourt in that case? =s the divorce granted by the !rench *ourt must be ignored, it results that the marriage of :r. Mory and eona *astro, celebrated in ondon in #$6%, could not legali&e their relations1 and the circumstance that they afterwards passed for husband and wife in )wit&erland until her death is wholly without legal significance. The claims of the very children to participate in the estate of )amuel -ishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children. The children of adulterous relations are wholly e(cluded. The word 3descendants3 as used in =rticle $@# of the *ivil *ode cannot be interpreted to include illegitimates born of adulterous relations. /'mphasis supplied0 '(cept for the fact that the successional rights of the children, begotten from 5icenta,s marriage to eo Moran after the invalid divorce, are not involved in the case at bar, the %mur case is authority for the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine law. "n not so declaring, the trial court committed error. True it is that our ruling gives rise to anomalous situations where the status of a person /whether divorced or not0 would depend on the territory where the question arises. =nomalies of this kind are not new in the Philippines, and the answer to them was given in &arretto vs. %on$ales, %K Phil. >>A? The hardship of the e(isting divorce laws in the Philippine "slands are well known to the members of the egislature. "t is the duty of the *ourts to enforce the laws of divorce as written by egislature if they are constitutional. *ourts have no right to say that such laws are too strict or too liberal. /p. A40 The appellant,s first assignment of error is, therefore, sustained. ;owever, the plaintiff.appellant,s charge that his wife,s parents, :r. Mamerto 'scaCo and his

wife, the late :oCa Mena 'scaCo, alienated the affections of their daughter and influenced her conduct toward her husband are not supported by credible evidence. The testimony of Pastor Tenchave& about the 'scaCo,s animosity toward him strikes us to be merely conjecture and e(aggeration, and are belied by Pastor,s own letters written before this suit was begun /'(h. 34. 'scaCo3 and 35icenta,3 Rec. on =pp., pp. 4A6.4A@0. "n these letters he e(pressly apologi&ed to the defendants for 3misjudging them3 and for the 3great unhappiness3 caused by his 3impulsive blunders3 and 3sinful pride,3 3effrontery and audacity3 GsicH. Plaintiff was admitted to the 'scaCo house to visit and court 5icenta, and the record shows nothing to prove that he would not have been accepted to marry 5icente had he openly asked for her hand, as good manners and breeding demanded. 'ven after learning of the clandestine marriage, and despite their shock at such une(pected event, the parents of 5icenta proposed and arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon advice that the previous one was canonically defective. "f no recelebration of the marriage ceremony was had it was not due to defendants Mamerto 'scaCo and his wife, but to the refusal of 5icenta to proceed with it. That the spouses 'scaCo did not seek to compel or induce their daughter to assent to the recelebration but respected her decision, or that they abided by her resolve, does not constitute in law an alienation of affections. 7either does the fact that 5icenta,s parents sent her money while she was in the Dnited )tates1 for it was natural that they should not wish their daughter to live in penury even if they did not concur in her decision to divorce Tenchave& /4A =m. 9ur. #26. #240. There is no evidence that the parents of 5icenta, out of improper motives, aided and abetted her original suit for annulment, or her subsequent divorce1 she appears to have acted independently, and being of age, she was entitled to judge what was best for her and ask that her decisions be respected. ;er parents, in so doing, certainly cannot be charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good faith being always presumed until the contrary is proved. )'*. %4$. Liabilit! of 'arents, %uardians or (in. F The law distinguishes between the right of a parent to interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs. ;owever, such distinction between the liability of parents and that of strangers is only in regard to what will justify interference. = parent isliable for alienation of affections resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without justification and from unworthy motives. ;e is not liable where he acts and advises his child in good faith with respect to his child,s marital relations in the interest of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself in, and be e(tremely solicitous for, his child,s welfare and happiness, even where his conduct and advice suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate, although it has been held that the parent is liable for consequences resulting from recklessness. ;e may in good faith take his child into his home and afford him or her protection and support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away, from his or her spouse. This rule has more frequently been applied in the case of advice given to a married daughter, but it is equally applicable in the case of advice given to a son. Plaintiff Tenchave&, in falsely charging 5icenta,s aged parents with racial or social discrimination and with having e(erted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and an(iety, entitling them to recover damages. Bhile this suit may not have been impelled by actual malice, the charges were certainly reckless in the face of the proven facts and circumstances. *ourt actions are not established for parties to give vent to their prejudices or spleen. "n the assessment of the moral damages recoverable by appellant Pastor Tenchave& from defendant 5icente 'scaCo, it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that /a0 the marriage was celebrated in secret, and its failure was not characteri&ed by publicity or undue humiliation on appellant,s part1 /b0 that the parties never lived together1 and /c0 that there is evidence that appellant had originally agreed to

the annulment of the marriage, although such a promise was legally invalid, being against public policy /cf. =rt. KK, *iv. *ode0. Bhile appellant is unable to remarry under our law, this fact is a consequence of the indissoluble character of the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her second marriage. =ll told, we are of the opinion that appellant should recover P4%,666 only by way of moral damages and attorney,s fees. Bith regard to the P@%,666 damages awarded to the defendants, :r. Mamerto 'scaCo and Mena 'scaCo, by the court below, we opine that the same are e(cessive. Bhile the filing of this unfounded suit must have wounded said defendants, feelings and caused them an(iety, the same could in no way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common occurrence in present society. Bhat is important, and has been correctly established in the decision of the court below, is that said defendants were not guilty of any improper conduct in the whole deplorable affair. This *ourt, therefore, reduces the damages awarded to P%,666 only. )umming up, the *ourt rules? /#0 That a foreign divorce between !ilipino citi&ens, sought and decreed after the effectivity of the present *ivil *ode /Rep. =ct 2K>0, is not entitled to recognition as valid in this jurisdiction1 and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country1 /40 That the remarriage of divorced wife and her co.habitation with a person other than the lawful husband entitle the latter to a decree of legal separation conformably to Philippine law1 /20 That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages1 /@0 That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of malice or unworthy motives on their part. B;'R'!+R', the decision under appeal is hereby modified as follows1 /#0 =djudging plaintiff.appellant Pastor Tenchave& entitled to a decree of legal separation from defendant 5icenta !. 'scaCo1 /40 )entencing defendant.appellee 5icenta 'scaCo to pay plaintiff.appellant Tenchave& the amount of P4%,666 for damages and attorneys, fees1 /20 )entencing appellant Pastor Tenchave& to pay the appellee, Mamerto 'scaCo and the estate of his wife, the deceased Mena 'scaCo, P%,666 by way of damages and attorneys, fees. 7either party to recover costs. &en#$on, C.J., &autista An#elo, Concepcion, )i$on, Re#ala, *a+alintal, &en#$on, J.'. and ,aldivar, JJ., concur.

MELENCIO-HERRERA, J.: !or having by.passed a port of call without previous notice, petitioner shipping company and the ship captain were sued for damages by four of its passengers, private respondents herein, before the then *ourt of !irst "nstance of *ebu, -ranch 5""", -riefly, the facts of record show that private respondents purchased first. class tickets from petitioner at the latter,s office in *ebu *ity. They were to board petitioner,s vessel, ML5 )weet <race, bound for *atbalogan, Bestern )amar. "nstead of departing at the scheduled hour of about midnight on 9uly K, #$A4, the vessel set sail at 2?66 =.M. of 9uly $, #$A4 only to be towed back to *ebu due to engine trouble, arriving there at about @?66 P.M. on the same day. Repairs having been accomplished, the vessel lifted anchor again on 9uly #6, #$A4 at around K?66 =.M. "nstead of docking at *atbalogan, which was the first port of call, the vessel proceeded direct to Tacloban at around $?66 P.M. of 9uly #6, #$A4. Private respondents had no recourse but to disembark and board a ferryboat to *atbalogan. ;ence, this suit for damages for breach of contract of carriage which the Trial *ourt, affirmed by respondent =ppellate *ourt, awarded as follows? "7 T;' "<;T +! T;' !+R'<+"7< +-)'R5=T"+7), judgment is rendered ordering the defendant )weet ines, "ncorporated to pay to the plaintiffs the following? l0 P#A%,666.66 as moral damages divided among the plaintiffs as follows? P26,666.66 for Mrs. Micaela -. 8uintos, P4>,666.66 for 9esuit !ather 9ose -acatan1 P#6,666.66 for Mrs. =ndrea 5eloso and P#6,666.66 for plaintiff Mike *abras1 40 P26,666.66 as e(emplary or corrective damages1 20 "nterest at the legal rate of >M per annum on the moral and e(emplary damages as set forth above from the date of this decision until said damages are fully paid1 @0 P%,666.66 as attorney,s fees1 and %0 The costs. *ounterclaim dismissed. The governing provisions are found in the *ode of *ommerce and read as follows? =RT. >#@. = captain who, having agreed to make a voyage, fails to fulfill his undertaking, without being prevented by fortuitous event or force majeure, shall indemnify all the losses which his failure may cause, without prejudice to criminal penalties which may be proper. and =RT. >$K. "n case of interruption of a voyage already begun, the passengers shall only be obliged to pay the fare in proportion to the distance covered, without right to recover damages if the interruption is due to fortuitous event or force majeure, but with a right to indemnity, if the interruption should have been caused by the captain e(clusively. "f the interruption should be caused by the disability of the vessel, and the passenger should agree to wait for her repairs, he may not be required to pay any increased fare of passage, but his living e(penses during the delay shall be for his own account. The crucial factor then is the e(istence of a fortuitous event or force ma-eure. Bithout it, the right to damages and indemnity e(ists against a captain who fails to fulfill his undertaking or where the interruption has been caused by the captain e(clusively. =s found by both *ourts below, there was no fortuitous event or force ma-eure which prevented the vessel from fulfilling its undertaking of taking private respondents to *atbalogan. "n the first place, mechanical defects in the carrier are not considered a caso fortuito that e(empts the carrier from responsibility. 1 "n the second place, even granting ar#uendo that the engine failure was a fortuitous event, it accounted only for the delay in departure. Bhen the vessel finally left the port of *ebu on 9uly #6, #$A4, there was no longer any force ma-eure that justified bypassing a port of call. The vessel was completely repaired the following day after it was towed back to *ebu. "n fact, after docking at Tacloban *ity, it left the ne(t day for Manila to complete its voyage. 2 The reason for by.passing the port of *atbalogan, as admitted by petitioner,s <eneral Manager, was to enable the vessel to catch up with its schedule for the ne(t week. The record also discloses that there were %6 passengers for Tacloban compared to 46

passengers for *atbalogan, 3 so that the *atbalogan phase could be scrapped without too much loss for the company. "n defense, petitioner cannot rely on the conditions in small bold print at the back of the ticket reading. The passenger,s acceptance of this ticket shall be considered as an acceptance of the following conditions? 2. "n case the vessel cannot continue or complete the trip for any cause whatsoever, the carrier reserves the right to bring the passenger to hisLher destination at the e(pense of the carrier or to cancel the ticket and refund the passenger the value of hisLher ticket1 ((( ((( ((( ##. The sailing schedule of the vessel for which this ticket was issued is subject to change without previous notice. /'(hibit 3l .=30 'ven assuming that those conditions are squarely applicable to the case at bar, petitioner did not comply with the same. "t did not cancel the ticket nor did it refund the value of the tickets to private respondents. -esides, it was not the vessel,s sailing schedule that was involved. Private respondents, complaint is directed not at the delayed departure the ne(t day but at the by. passing of *atbalogan, their destination. ;ad petitioner notified them previously, and offered to bring them to their destination at its e(pense, or refunded the value of the tickets purchased, perhaps, this controversy would not have arisen. !urthermore, the conditions relied upon by petitioner cannot prevail over =rticles >#@ and >$K of the *ode of *ommerce heretofore quoted. The voyage to *atbalogan was 3interrupted3 by the captain upon instruction of management. The 3interruption3 was not due to fortuitous event or for ma-eure nor to disability of the vessel. ;aving been caused by the captain upon instruction of management, the passengers, right to indemnity is evident. The owner of a vessel and the ship agent shall be civilly liable for the acts of the captain. 4 Dnder =rticle 4446 of the *ivil *ode, moral damages are justly due in breaches of contract where the defendant acted fraudulently or in bad faith. -oth the Trial *ourt and the =ppellate *ourt found that there was bad faith on the part of petitioner in that? /#0 :efendants.appellants did not give notice to plaintiffs. appellees as to the change of schedule of the vessel1 /40 Enowing fully well that it would take no less than fifteen hours to effect the repairs of the damaged engine, defendants.appellants instead made announcement of assurance that the vessel would leave within a short period of time, and when plaintiffs.appellees wanted to leave the port and gave up the trip, defendants.appellants, employees would come and say, ,we are leaving, already., /20 :efendants.appellants did not offer to refund plaintiffs.appellees, tickets nor provide them with transportation from Tacloban *ity to *atbalogan. 5 That finding of bad faith is binding on us, since it is not the function of the *ourt to analy&e and review evidence on this point all over again, 6 aside from the fact that we find it faithful to the meaning of bad faith enunciated thus? -ad faith means a breach of a known duty through some motive or interest or illwill. )elf.enrichment or fraternal interest, and not personal illwill may have been the motive, but it is malice nevertheless. 7 Dnder the circumstances, however, we find the award of moral damages e(cessive and accordingly reduce them to P2,666.66, respectively, for each of the private respondents. The total award of attorney,s fees of P%,666.66 is in order considering that the case has reached this Tribunal. "nsofar as e(emplary damages are concerned, although there was bad faith, we are not inclined to grant them in addition to moral damages. '(emplary damages cannot be recovered as a matter of right1 the *ourt decides whether or not they should be adjudicated. 8 The objective to meet its schedule might have been called for, but petitioner should have taken the necessary steps for the protection of its passengers under its contract of carriage. =rticle 44#%/40 of the *ivil *ode 9 invoked by petitioner is inapplicable herein. The harm

done to private respondents outweighs any benefits they may have derived from being transported to Tacloban instead of being taken to *atbalogan, their destination and the vessel,s first port of call, pursuant to its normal schedule. =**+R:"7< J, the judgment appealed from is hereby modified in that petitioner is hereby sentenced to indemnify private respondents in the sum of P2,666.66 each, without interest, plus P#,4%6.66, each, by way of attLrney,s fees and litigation e(penses. *osts against petitioner. )+ +R:'R':. .eehan+ee /Chairman0, 'lana, 1as ue$, Relova and %utierre$, Jr., JJ., concur.

CRUZ, J.: "t is said that diamonds are a girl,s best friend, but private respondent 9osie M. )antos may have her doubts about this. The fact is that they have caused her not a little difficulty, and her troubles are not yet over. This case was decided against her by the trial court and later by the respondent court which, however, mitigated the judgment of the former. The petitioner does not like this and wants the earlier decision reinstated. That is why she is now before this *ourt. The basic facts as determined by the trial court 1 and affirmed by the respondent court 2 are no longer in issue. "t has been established that )antos received two diamond rings with a total value of P@A,666.66 in #$>> from the petitioner. )he issued separate receipts therefor in which she acknowledged that they had been delivered by etty ;ahn to her for sale on commission and that they would be returned upon demand if unsold. 3 The rings were not sold nor were they returned when demanded by ;ahn. ;ahn sued for recovery of the rings or their value. Bhile the civil case was pending, she also filed a criminal action for estafa against )antos. )antos was acquitted on reasonable doubt. 4 "n the civil action, however, where she also pleaded that the contracts between her and ;ahn were not of agency but of sale, )antos did not fare as well. The trial court ordered her to return the two rings or pay the plaintiff their value, which was increased to P>%,666.66, with legal interest, plus P#6,666 moral damages, P%,666 e(emplary damages, and P>,666.66 attorney,s fees. 5 The increase on the original value of the rings was based on =rticle #4%6 of the *ivil *ode calling for an adjustment of the payment due in case of e(traordinary inflation or deflation. The moral and e(emplary damages were imposed because of the defendant,s 3seeming lack of scruples and conscientiousness.3 +n appeal, this decision was modified. The *ourt of =ppeals found that =rticle #4%6 was not applicable and that the appellant had not acted in bad faith or with malice. =ccordingly, it rendered judgment? =. +rdering the defendants to return to the plaintiff the two rings in question1 to pay plaintiff legal interest on the value of the ring, P@A,666.66, from the time of the filing of the complaint until restitution in made1 and attorney,s fees in the amount of P>,666.66. -. )entencing the defendants, in case return of the rings is no longer feasible, to pay to the plaintiff the value thereof, which is P@A,666.66, with interest at the legal rate from the time of the filing of the complaint until full payment and P>,666.66 attorney,s fees. 6 "n challenging this decision, the petitioner contends that the respondent erred in not allowing an upward adjustment of the original price of the two rings and in disallowing the moral and e(emplary damages granted by the trial court. These are the issues in this petition. +n the first question, the petitioner cites *entral -ank figures to show that the amount

of P@A,666.66 in #$>>, when the obligation to return it or the rings fell due, was equivalent to about P42%,666.66 in #$K6 /and necessarily to an even higher amount now in view of the continued reduction in the purchasing power of the peso0. =s the increase ordered by the trial court /to P>%,666.66 on =ugust A, #$A#0 was a finding of fact based on official figures, the *ourt of =ppeals was not justified in reversing the same. The petitioner also argues that the award of moral and e(emplary damages by the trial court was entirely justified and should not have been disallowed by the respondent court. The reason is that there was sufficient showing that the private respondent had acted with malice and in bad faith toward the petitioner who had trusted her. Thus, )antos misrepresented her agreements with the petitioner as contracts of sale when the very language of the receipts she herself had written and signed clearly shows that she was receiving the rings in trust from the petitioner, as later found in both the criminal and civil cases. 7 )econd, she claimed she had made installment payments directly and personally to the petitioner during the period from =ugust #@ to 7ovember 46, #$>>, and when this lie was e(posed with evidence that the petitioner was abroad during that period, changed her testimony to make it appear that the alleged payments had been made when ;ahn was in the country. 8 "n fact, the finding of the trial court as sustained by the respondent court was that she had made no payment at all at any time. 9 Third, when )antos offered to return the solitaire ring to the petitioner, the latter readily saw that it was not the same ring she had entrusted to the private respondent, who evidently wanted to foist another deception upon her. 10 !or her part, the private respondent dismisses the claim for upward adjustment of the amount due and says =rticle #4%6 of the *ivil *ode is not applicable, there being no inflation or deflation. The *entral -ank statistics ;ahn invokes are hearsay and immaterial. 7ot in point either is the case of ,ulueta v. 'an2American 3orld Air"a!s,3 11 as cited by the petitioner, where the issue of inflation was not even raised. Moreover, the delay in the payment of the amount due was imputable not to her but to the petitioner, who had unreasonably prevented her from discharging her obligation. =s early as :ecember of #$>>, she says she had offered to return the marquisette ring to the petitioner but the petitioner,s lawyer, acting on her instructions, refused to accept it and demanded the return also of the P2%,666.66 solitaire ring. 12 )he offered to pay for this other ring on installment but this offer was also rejected. 13 =t the trial of the criminal case against her, she brought the solitaire ring to prove that she had not disposed of it, but the petitioner denied it was the ring she had delivered to the accused. 14 )till later, she offered to pay for both rings on installment, but the offer was also rejected without reason by the petitioner. 15 "n sum, it is the petitioner who has delayed payment of the amount due and not the private respondent, who was ready to settle her obligation. The trial court cited no legal basis for the upward adjustment of the original amount due although the reason was presumably =rticle #4%6 of the *ivil *ode. Be agree with the respondent court that such adjustment was erroneous for, as e(plained by 9ustice )erafin M. *uevas /later a member of this *ourt0? Be, however, find the contention of appellant under her fifth assignment of error F that the lower court erred in applying the floating rate to the purely peso transaction F to be meritorious. "n this regard, =rticle #4%6 of the *ivil *ode provides F "n case an e(traordinary inflation or deflation of the currency stipulated should supervene, the value of the currency at the time of the establishment of the obligation should be the basis of payment, unless there is an agreement to the contrary. -y e(traordinary inflation or deflation of currency is understood to be any uncommon decrease or increase in the purchasing power of currency which the parties could not have reasonably foreseen and which has been due to war and the effects thereof, or any unusual force majeure or fortuitous event. /*ivil *ode of the Philippines, :ean *apistrano, 5ol. """, p. #K>.0 Dnder the circumstances, we do not find any legal justification in applying the so.called

,floating rate,3 since there has been no ,e(traordinary inflation3 of currency within the meaning of the aforequoted =rt. #4%6 of the *ivil *ode. 16 The *ourt holds that, in determining the accountability of the private respondent, the trial judge should have applied the following provisions of the *ivil *ode, as the respondent court apparently did? =rt. 446$. "f the obligation consists in the payment of a sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which is si( per cent per annum. =rt. 44#6. "nterest may, in the discretion of the court, be allowed upon damages awarded for breach of contract. =rt. 44#4. "nterest due shall earn legal interest from the time it is judicially demanded, although the obligation may be silent upon this point. The *ourt notes, however, that the respondent court should also have imposed interest on the interest due on the principal amount of P@A,666.66, conformably to =rticle 44#4. The interest due started to earn interest from the date it was judicially demanded with the filing of the complaint on 9anuary >,#$>A. =s to the delay in the performance of the private respondent,s obligation, our ruling is that it was caused by the private respondent herself and not the petitioner who had the right to demand performance in full of the former,s obligation she had assumed under their written agreement. The receipts composed and signed by )antos, which were offered as '(hibits = and -, read as follows? 9une 4, #$>> Received from Mrs. etty ;ahn # ring solo diamond worth P#4,666 to be sold on commission or to be return upon demand. 9osie M. )antos 4>> =. del Mundo <race Park Tel. 7o. 2.%A.KA 9une A,#$>> Received from Mrs. etty ;ahn # ring solo diamond worth P2%,666 to be sold on commission basis or to be return upon demand. 9osie M. )antos 4>> =. del Mundo <race Park Tels. 4.4K.4# N 4.%A.KA !rom the moment demand was made upon )antos and she did not or could not comply, she has already incurred in delay. The meaning of the receipts is unmistakable. ;er contention that it was the private respondent who had prevented her from fulfilling her obligation is simply untenable and unacceptable. There is no doubt that the petitioner could validly reject the private respondent,s offer to pay for the rings on installment because ;ahn was entitled to payment in full. "f such payment could not be made, )antos was obligated to return both of the rings F and not one or the other only at her option F 3upon demand,3 under the separate receipts she had signed. =ccording to =rticle #422 of the *ivil *ode, 3a debt shall not be understood to have been paid unless the thing or service in which the obligation consists has been completely delivered or rendered as the case may be.3 =s for the private respondent,s offer to return the solitaire ring, which was also refused, the pertinent rule is =rticle #4@@, providing that 3the debtor of a thing cannot compel the creditor to receive a different one, although the latter may be of the same value as, or more valuable than that which is due.3 More so then in the case at bar if, as averred by the petitioner, the ring offered was less valuable than the one that was due . 17 Be cannot sustain the respondent court, however, on the moral and e(emplary damages which it disallowed on the ground that 3there was no clear showing of malice and bad faith on the part of the defendant.3 The *ourt thinks otherwise. Be hold that the moral and e(emplary damages should be restored in light of her dubious conduct as recounted in the petitioner,s brief and the following findings of the trial court which we have no reason to disturb? The *ourt cannot but take note of the relative ease with which i 9osie M. )antos says one thing at one given time and another altogether i n subsequently afterwards, even if the statements different version are both under the sanction of an oath. This seeming

lack of scruples and conscientiousness on her part do not place her in a favorable light under the painstaking scrutiny of the *ourt. There is so much deviousness and comple(ity in her testimony that does not invite the confidence of the *ourt. 18 B;'R'!+R', the petition is partly <R=7T':. The decision of the respondent court dated =ugust 4$, #$K6, is M+:"!"': as follows? a0 the award of moral damages in the sum of " P#6,666.66 and e(emplary damages in the sum of P%,666.66 is i added to the other amounts to be paid by the private respondent to the petitioner in accordance with the said decision1 and b0 " interest on the principal amount of P@A,66.66 shall earn interest also at the legal rate, from 9anuary >, #$>A, and until full payment is made. *osts against the private respondent. )+ +R:'R':. Narvasa /Chairman0, %anca!co and *edialdea, JJ., concur. %ri4o2A uino, J., too+ no part.

U!IERREZ, JR., J.: This is a petition for review on certiorari of the decision of the *ourt of =ppeals dismissing for lack of merit the petition for certiorari filed therein. =s factual background, we quote from the *ourt of =ppeals, decision? The factual and procedural antecedents of this case may be briefly stated as follows? +n 9une 46, #$K2, private.respondents filed a complaint before the Regional Trial *ourt of aguna, -ranch OO"5, for rescission of contract and damages, alleging among others? #. ( ( (

4. That on March 2#, #$A%, plaintiffs being the owners of a parcel of land situated at -arrio )an =ntonio, )an Pedro, aguna, entered into a contract denominated as :'': +! )= ' B"T; M+RT<=<', with herein defendants, a true copy of said contract /which is made an integral part hereof0 is hereto attached as =77'O .3=3? 2. ( ( ( @. That the defendants violated the terms and conditions of the contract by failing to pay the stipulated installments and in fact only one installment due in 9uly 5678 /paid very late in the month of )eptember, #$A%0 was made all the others remaining unsettled to the present time1 %. That repeated verbal and written demands were made by plaintiff upon the defendants for the payment of the installments, some of said written demands having been made on )eptember 4@, #$K#, !ebruary A, #$K4, !ebruary 4@, #$K2, March #2, #$K2, and =pril #4, #$K2, but defendants for no justifiable reason failed to comply with the demands of plaintiffs1 >. ( ( ( +n 7ovember #@, #$K2, petitioners filed their answer with counterclaim. +n 9uly #>, #$K@, petitioners filed a motion to disniiss complaint, alleging that? #. That plaintiffs are not entitled to the subsidiar! remedy of rescission because of the presence of remedy of foreclosure in the )eed of Sale "ith *ort#a#e /=nne( 3=3, *omplaint01 4. That, assuming ar#uendo that rescission were a proper remedy, it is apparent in the face of the *omplaint that the plaintiffs failed to comply with the requirements of law, hence the rescission was ineffective, illegal, null and void, and invalid. +n 9uly 4>, #$K@, private.respondents filed their opposition to the above motion. "n the meantime, on =ugust >, #$K@, petitioners formerly offered to pay private.respondents all the outstanding balance under the :eed of )ale with Mortgage, which offer was rejected by private respondents on =ugust A, #$K@. +n 7ovember 4>, #$K@, the respondent.*ourt denied the motion to dismiss. The order reads? :efendants through counsel filed a )econd Motion to :ismiss dated 9uly 4@, #$K@ based on an affirmative defense raised in their answer, that is, that the complaint fails to state a cause of action for rescission against defendants because /#0 F plaintiffs are not entitled to the subsidiary remedy of rescission because of the presence of the remedy of foreclosure in the :eed of )ale with Mortgage /=nne( 3=3, *omplaint0 and /40 F assuming arguendo that rescission were a proper remedy, it is apparent from the face of the *omplaint that the plaintiffs failed to comply with the requirements of law, hence the rescission was ineffective, illegal, null and void, and invalid. =fter a careful perusal of the allegations of the complaint considered in the light of e(isting applicable law and jurisprudence touching on the matters in issue, and mindful of the settled rule that in a motion to dismiss grounded on lack of cause of action the allegations of the complaint must be assumed to be true, the *ourt finds and holds that the motion to dismiss dated 9uly 4@, #$K@ filed by defendants lacks merit and therefore denied the same. )+ +R:'R':. +n 9anuary 2#, #$K%, petitioners filed a motion for reconsideration to which private.respondents filed their opposition on !ebruary ##, #$K%. +n !ebruary #$, #$K%, petitioners filed their reply. +n March #2, #$K%, the respondent.*ourt denied the motion for reconsideration. The order reads in part? ((( ((( ((( Perusing the grounds invoked by the defendants in their Motion for Reconsideration and Reply as well as the objections raised by plaintiffs in their opposition, and it appearing that in its +rder dated 7ovember 4>, #$K@, the *ourt has sufficiently, althou /sic0 succinctly stated its reason for denying the motion to dismiss dated 9uly #>, #$K@, that is, for lack of merit, the *ourt finds no overriding reason or justification from the grounds invoked in the said Motion for Reconsideration for it to reconsider, change, modify, or set aside its +rder dated 7ovember 4>, #$K@. The *ourt still believes that the two /40 grounds invoked by defendants in their Motion to :ismiss dated 9uly #>, #$K@ are not meritorious when considered in the light of prevailing law and jurisprudence and the hypothetically admitted allegations of the complaint, and for that reason it denied the motion to dismiss in its said order of 7ovember 4>, #$K@. The instant Motion for Reconsideration is therefore denied for lack of merit. /Pp, 4$.24, Rollo0 The questions raised by petitioner are as follows?

" "7 = :'': +! )= ', B;"*; ") *+DP ': B"T; = M+RT<=<' T+ )'*DR' P=JM'7T +! T;' -= =7*' +! T;' PDR*;=)' PR"*', M=J T;' )' 'R R')+RT T+ T;' R'M':J +! R')*"))"+7 D7:'R =RT"* ' ##$# +! T;' *"5" *+:' B;"*; PR+5":') !+R T;' )D-)":"=RJ =7: '8D"T=- ' R'M':J +! R')*"))"+7 "7 *=)' +! -R'=*; +! R'*"PR+*= +- "<=T"+7)I +therwise stated, ") T;' )D-)":"=RJ =7: '8D"T=- ' R'M':J +! R')*"))"+7 =5=" =- ' "7 T;' PR')'7*' +! = R'M':J +! !+R'* +)DR' "7 T;' "<;T +! T;' 'OPR')) PR+5")"+7 +! =RT"* ' #2K2 +! T;' *"5" *+:' T;=T? ,T;' =*T"+7 !+R R')*"))"+7 ") )D-)":"=RJ1 "T *=77+T -' "7)T"TDT': 'O*'PT B;'7 T;' P=RTJ )D!!'R"7< :=M=<' ;=) 7+ +T;'R '<= M'=7) T+ +-T="7 R'P=R=T"+7 !+R T;' )=M'I ((( ((( ((( "" M=J T;' )' 'R '<= J :'M=7: R')*"))"+7 +! T;' :'': +! )= ' B"T; M+RT<=<' B"T;+DT +!!'R"7< T+ R')T+R' T+ T;' -DJ'R B;=T ;' ;=) P=":, =) R'8D"R': -J =RT"* ' #2K%, +R *+MP J"7< B"T; T;' R'8D"R'M'7T) +! T;' M=*':= =B /R'PD- "* =*T >%%40 <R=7T"7< T;' -DJ'R = <R=*' P'R"+: T+ P=J B"T;+DT "7T'R')T, =7:, "7 *=)' +! *=7*' =T"+7 "7 *=)' T;' -DJ'R )T" *+D : 7+T P=J B"T;"7 T;' <R=*' P'R"+:, R'8D"R"7< T;' )' 'R T+ +R:'R P=JM'7T +! T;' *=); )DRR'7:'R 5= D' -'!+R' T;' *=7*' =T"+7 M=J '<= J T=E' '!!'*T /)'*. 2GbH, =)T P=R., R'P. =*T >%%40I The petition was denied in a minute resolution on 9une #2, #$K> but was given due course on )eptember 4$, #$K> on a motion for reconsideration. The petition is impressed with merit. The respondent court rejected the petitioners, reliance on paragraph /;0 of the contract which grants to the vendors mortgagees the right to foreclose 3in the event of the failure of the vendeesmortgagors to comply with any provisions of this mortgage.3 =ccording to the appellate court, this stipulation merely recogni&es the right of the vendors to foreclose and reali&e on the mortgage but does not preclude them from availing of other remedies under the law, such as rescission of contract and damages under =rticles ##$# and ##A6 of the *ivil *ode in relation to Republic =ct 7o. >%%4. The appellate court committed reversible error. =s will be e(plained later, =rt. ##$# on reciprocal obligations is not applicable under the facts of this case. Moreover, =rt. #2K2 of the *ivil *ode provides? The action for rescission is subsidiary1 it cannot be instituted e(cept when the party suffering damage has no other legal means to obtain reparation for the same. The concurring opinion of 9ustice 9.-. . Reyes in 9niversal Food Corp. v. Court of Appeals /22 )*R= 440 was cited by the appellate court. "n that case, 9ustice 9.-. . Reyes e(plained? ((( ((( ((( ... The rescission on account of breach of stipulations is not predicated on injury to economic interests of the party plaintiff but on the breach of faith by the defendant, that violates the reciprocity between the parties. "t is not a subsidiary action, and =rticle ##$# may be scanned without disclosing anywhere that the action for rescission thereunder is subordinated to anything other than the culpable breach of his obligations by the defendant. This rescission is a principal action retaliatory in character, it being unjust that a party be held bound to fulfill his promises when the other violates his. =s e(pressed in the old atin aphorism? :Non servanti fidem, non est fides servanda,: ;ence, the reparation of damages for the breach is purely secondary. +n the contrary, in the rescission by reason of lesion or economic prejudice, the cause of action is subordinated to the e(istence of that prejudice, because it is the raison d ;etre as well as the measure of the right to rescind. ;ence, where the defendant makes good the damages caused, the action cannot be maintained or continued, as e(pressly provided in =rticles #2K2 and #2K@. -ut the operation of these two articles is limited to the cases of rescission for lesion enumerated in =rticle #2K# of the *ivil *ode of the Philippines, and does not apply to cases under =rticle

##$#. "t is probable that the petitioner,s confusion arose from the defective technique of the new *ode that terms both instances as 3rescission3 without distinctions between them1 unlike the previous )panish *ivil *ode of #KK$, that differentiated 3resolution3 for breach of stipulations from 3rescission3 by reason of lesion or damage. -ut the terminological vagueness does not justify confusing one case with the other, considering the patent difference in causes and results of either action. =ccording to the private respondents, the applicable law is =rticle ##$# of the *ivil *ode which provides? The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. The injured party may choose between the fulfilment and the rescission of the obligation, with the payment of damages in either case. ;e may also seek rescission, even after he has chosen fulfiument, if the latter should become impossible. The court shall decree the rescission claimed, unless there be just cause authori&ing the fi(ing of a period. This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with articles #2K% and #2KK and the Mortgage aw. There is no dispute that the parties entered into a contract of sale as distinguished from a contract to sell. -y the contract of sale, the vendor obligates himself to transfer the ownership of and to deliver a determinate thing to the buyer, who in turn, is obligated to pay a price certain in money or its equivalent /=rt. #@%K, *ivil *ode0. !rom the respondents, own arguments, we note that they have fully complied with their part of the reciprocal obligation. =s a matter of fact, they have already parted with the title as evidenced by the transfer certificate of title in the petitioners, name as of 9une 4A, #$A%. The buyer, in tum, fulfilled his end of the bargain when he e(ecuted the deed of mortgage. The payments on an installment basis secured by the e(ecution of a mortgage took the place of a cash payment. "n other words, the relationship between the parties is no longer one of buyer and seller because the contract of sale has been perfected and consummated. "t is already one of a mortgagor and a mortgagee. "n consideration of the petitioners,promise to pay on installment basis the sum they owe the respondents, the latter have accepted the mortgage as security for the obligation. The situation in this case is, therefore, different from that envisioned in the cited opinion of 9ustice 9.-. . Reyes. The petitioners, breach of obligations is not with respect to the perfected contract of sale but in the obligations created by the mortgage contract. The remedy of rescission is not a principal action retaliatory in character but becomes a subsidiary one which by law is available only in the absence of any other legal remedy. /=rt. #2K@, *ivil *ode0. !oreclosure here is not only a remedy accorded by law but, as earlier stated, is a specific provision found in the contract between the parties. The petitioners are correct in citing this *ourt,s ruling in 1illaruel v. .an (in# /@2 Phil. 4%#0 where we )tated? =t the outset it must be said that since the subject.matter of the sale in question is real property, it does not come strictly within the provisions of article ##4@ of the *ivil *ode, but is rather subjected to the stipulations agreed upon by the contracting parties and to the provisions of =rticle #%6@ of the *ivil *ode. The 3pacto comisorio3 of 3ley comisoria3 is nothing more than a condition subsequent of the contract of purchase and sale. *onsidered carefully, it is the very condition subsequent that is always attached to all bilateral obligations according to article ##4@1 e(cept that when applied to real property it is not within the scope of said article ##4@, and it is subordinate to the stipulations made by the contracting parties and to the provisions of the article on which we are now commenting3 /article #%6@0. /Manresa, *ivil *ode, volume #6, page 4K>, second edition.0 7ow, in the contract of purchase and sale before us, the parties stipulated that the payment of the balance of one thousand pesos /P#,6660 was guaranteed by the mortgage of the house that was sold. This agreement has the two.fold effect of acknowledging indisputably that the sale had been consummated, so much so that the vendee was disposing of it by mortgaging it to the vendor,

and of waiving the pacto comisorio, that is, the resolution of the sale in the event of failure to pay the one thousand pesos /P#,6660 such waiver being proved by the e(ecution of the mortgage to guarantee the payment, and in accord therewith the vendor,s adequate remedy, in case of nonpayment, is the foreclosure of such mortgage. /at pp. 4%%.4%>0. ((( ((( ((( There is, therefore, no cause for the resolution of the sale as prayed for by the plaintiff. ;is action, at all events, should have been one for the foreclosure of the mortgage, which is not the action brought in this case. =rticle ##4@ of the *ivil *ode, as we have seen, is not applicable to this case. 7either is the doctrine enunciated in the case of +cejo, Pere& N *o. v. "nternational -anking *orporation /2A Phil. >2#0, which plaintiff alleges to be applicable, because that principle has reference to the sale of personal property. /at p. 4%A0 The petitioners have offered to pay au past due accounts. *onsidering the lower purchasing value of the peso in terms of prices of real estate today, the respondents are correct in stating they have suffered losses. ;owever, they are also to blame for trusting persons who could not or would not comply with their obligations in time. They could have foreclosed on the mortgage immediately when it fell due instead of waiting all these years while trying to enforce the wrong remedy. B;'R'!+R', the petition is hereby <R=7T':. The "ntermediate =ppellate *ourt,s decision dated 7ovember K, #$K% and the resolution dated :ecember >, #$K% and !ebruary 4K, #$K> are R'5'R)': and )'T =)":'. The petitioners are ordered to pay the balance of their indebtedness under the :eed of =bsolute )ale with Mortgage with legal interests from the second installment due on +ctober 4@, #$A% until fully paid, failing which the respondents may resort to foreclosure. )+ +R:'R':. Fernan /Chairman0, 'aras, 'adilla, &idin and Cortes, JJ., concur.

"ELICIANO, J.: =ccording to the findings of the )an 9uan Police in their "nvestigation Report, 1 on 4 9uly #$$#, 'ldon Maguan was driving his car along Bilson )t., )an 9uan, Metro Manila, heading towards P. <uevarra )t. Petitioner entered Bilson )t., where it is a one.way street and started travelling in the opposite or 3wrong3 direction. =t the corner of Bilson and 9. =bad )antos )ts., petitioner,s and Maguan,s cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. = security guard at a nearby restaurant was

able to take down petitioner,s car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a $ mm caliber pistol. 5erification at the and Transportation +ffice showed that the car was registered to one 'lsa =ng <o. The following day, the police returned to the scene of the shooting to find out where the suspect had come from1 they were informed that petitioner had dined at *ravings -ake )hop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. ;aving established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. +n K 9uly #$$#, petitioner presented himself before the )an 9uan Police )tation to verify news reports that he was being hunted by the police1 he was accompanied by two /40 lawyers. The police forthwith detained him. =n eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the +ffice of the Provincial Prosecutor of Ri&al. !irst =ssistant Provincial Prosecutor :ennis 5illa "gnacio /3Prosecutor30 informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of =rticle #4% of the Revised Penal *ode. Petitioner refused to e(ecute any such waiver. +n $ 9uly #$$#, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, 'ldon Maguan, died of his gunshot wound/s0. =ccordingly, on ## 9uly #$$#, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial *ourt. 7o bail was recommended. =t the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not e(ecute and sign a waiver of the provisions of =rticle #4% of the Revised Penal *ode. "n the afternoon of the same day, ## 9uly #$$#, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recogni&ance or on bail. Provincial Prosecutor Mauro *astro, acting on the omnibus motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P#66,666.66. +n #4 9uly #$$#, petitioner filed an urgent ex2parte motion for special raffle 5 in order to e(pedite action on the Prosecutor,s bail recommendation. The case was raffled to the sala of respondent 9udge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day. +n #> 9uly #$$#, the Prosecutor filed with the Regional Trial *ourt a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. ;e stated that petitioner had filed before the +ffice of the Provincial Prosecutor of Ri&al an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro *astro, who also agreed to recommend cash bail of P#66,666.66. The Prosecutor attached to the motion for leave a copy of petitioner,s omnibus motion of ## 9uly #$$#. =lso on #> 9uly #$$#, the trial court issued an +rder 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for #% =ugust #$$# until after the prosecution shall have concluded its preliminary investigation. +n #A 9uly #$$#, however, respondent 9udge motu proprio issued an +rder, 10 embodying the following? /#0 the #4 9uly #$$# +rder which granted bail was recalled1 petitioner was given @K hours from receipt of the +rder to surrender himself1 /40 the #> 9uly #$$# +rder which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled1 /20 petitioner,s omnibus motion for immediate

release and preliminary investigation dated ## 9uly #$$# was treated as a petition for bail and set for hearing on 42 9uly #$$#. +n #$ 9uly #$$#, petitioner filed a petition for certiorari, prohibition and mandamus before the )upreme *ourt assailing the #A 9uly #$$# +rder, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the )upreme *ourt of his petition1 this motion was, however, denied by respondent 9udge. +n 42 9uly #$$#, petitioner surrendered to the police. -y a Resolution dated 4@ 9uly #$$#, this *ourt remanded the petition for certiorari, prohibition and mandamus to the *ourt of =ppeals. +n #> =ugust #$$#, respondent 9udge issued an order in open court setting the arraignment of petitioner on 42 =ugust #$$#. +n #$ =ugust #$$#, petitioner filed with the *ourt of =ppeals a motion to restrain his arraignment. +n 42 =ugust #$$#, respondent judge issued a *ommitment +rder directing the Provincial Barden of Ri&al to admit petitioner into his custody at the Ri&al Provincial 9ail. +n the same date, petitioner was arraigned. "n view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on #$, 4@ and 4> )eptember1 on 4, 2, ## and #A +ctober1 and on A, K, #@, #%, 4# and 44 7ovember #$$#. 11 +n 4A =ugust #$$#, petitioner filed a petition for habeas corpus 12 in the *ourt of =ppeals. ;e alleged that in view of public respondent,s failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. +n 26 =ugust #$$#, the *ourt of =ppeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the *ourt of =ppeals. The *ourt of =ppeals, on 4 )eptember #$$#, issued a resolution denying petitioner,s motion to restrain his arraignment on the ground that that motion had become moot and academic. +n #$ )eptember #$$#, trial of the criminal case commenced and the prosecution presented its first witness. +n 42 )eptember #$$#, the *ourt of =ppeals rendered a consolidated decision 14 dismissing the two /40 petitions, on the following grounds? a. Petitioner,s warrantless arrest was valid because the offense for which he was arrested and charged had been 3freshly committed.3 ;is identity had been established through investigation. =t the time he showed up at the police station, there had been an e(isting manhunt for him. :uring the confrontation at the )an 9uan Police )tation, one witness positively identified petitioner as the culprit. b. Petitioner,s act of posting bail constituted waiver of any irregularity attending his arrest. ;e waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules. c. The trial court did not abuse its discretion when it issued the #A 9uly #$$# +rder because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. )ince there was a valid information for murder against petitioner and a valid commitment order /issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Barden0, the petition for habeas corpus could not be granted. +n 2 +ctober #$$#, the prosecution presented three /20 more witnesses at the trial. *ounsel for petitioner also filed a 3Bithdrawal of =ppearance3 15 with the trial court, with petitioner,s conformity. +n @ +ctober #$$#, the present Petition for Review on Certiorari was filed. +n #@ +ctober #$$#, the *ourt issued a Resolution directing respondent 9udge to hold in

abeyance the hearing of the criminal case below until further orders from this *ourt. "n this Petition for Review, two /40 principal issues need to be addressed? first, whether or not a lawful warrantless arrest had been effected by the )an 9uan Police in respect of petitioner <o1 and second, whether petitioner had effectively waived his right to preliminary investigation. Be consider these issues seriatim. "n respect of the first issue, the )olicitor <eneral argues that under the facts of the case, petitioner had been validly arrested without warrant. )ince petitioner,s identity as the gunman who had shot 'ldon Maguan on 4 9uly #$$# had been sufficiently established by police work, petitioner was validly arrested si( />0 days later at the )an 9uan Police )tation. The )olicitor <eneral invokes Na$areno v. Station Commander, etc., et al., 16 one of the seven /A0 cases consolidated with <n the *atter of the 'etition for =abeas Corpus of Roberto 9mil, etc., v. Ramos, et al. 17 where a majority of the *ourt upheld a warrantees arrest as valid although effected fourteen /#@0 days after the killing in connection with which 7a&areno had been arrested. =ccordingly, in the view of the )olicitor <eneral, the provisions of )ection A, Rule ##4 of the Rules of *ourt were applicable and because petitioner had declined to waive the provisions of =rticle #4% of the Revised Penal *ode, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. +n the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station si( />0 days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been 3just committed3 at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the 3personal knowledge3 required for the lawfulness of a warrantees arrest. )ince there had been no lawful warrantless arrest. )ection A, Rule ##4 of the Rules of *ourt which establishes the only e(ception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the )olicitor <eneral upon 9mil v. Ramos is, in the circumstances of this case, misplaced. "n 9mil v. Ramos, by an eight.to.si( vote, the *ourt sustained the legality of the warrantless arrests of petitioners made from one /#0 to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted 3continuing crimes.3 Those offenses were subversion, membership in an outlawed organi&ation like the 7ew People,s =rmy, etc. "n the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. 7o one had pretended that the fatal shooting of Maguan was a 3continuing crime.3 )econdly, we do not believe that the warrantees 3arrest3 or detention of petitioner in the instant case falls within the terms of )ection % of Rule ##2 of the #$K% Rules on *riminal Procedure which provides as follows? )ec. % Arrest "ithout "arrant> "hen la"ful. F = peace officer or a private person may, without warrant, arrest a person? /a0 Bhen, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense1 /b0 Bhen an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it1 and /c0 Bhen the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. "n cases falling under paragraphs /a0 and /b0 hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with Rule ##4, )ection A. Petitioner,s 3arrest3 took place si( />0 days after the shooting of Maguan. The 3arresting3 officers obviously were not present, within the meaning of )ection %/a0, at the time petitioner had allegedly shot Maguan. 7either could the 3arrest3 effected si( />0 days after the shooting be reasonably regarded as effected 3when Gthe shooting hadH in fact

just been committed3 within the meaning of )ection %/b0. Moreover, none of the 3arresting3 officers had any 3personal knowledge3 of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting F one stated that petitioner was the gunman1 another was able to take down the alleged gunman,s car,s plate number which turned out to be registered in petitioner,s wife,s name. That information did not, however, constitute 3personal knowledge.3 18 "t is thus clear to the *ourt that there was no lawful warrantless arrest of petitioner within the meaning of )ection % of Rule ##2. "t is clear too that )ection A of Rule ##4, which provides? )ec. A 3hen accused la"full! arrested "ithout "arrant. F 3hen a person is la"full! arrested "ithout a "arrant for an offense co#ni$able b! the Re#ional .rial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person ;owever, before the filin# of such complaint or information, the person arrested ma! as+ for a preliminar! investi#ation b! a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of =rticle #4% of the Revised Penal *ode, as amended, with the assistance of a lawyer and in case of non.availability of a lawyer, a responsible person of his choice. Not"ithstandin# such "aiver, he ma! appl! for bail as provided in the corresponding rule and the investigation must be terminated within fifteen /#%0 days from its inception. <f the case has been filed in court "ithout a preliminar! investi#ation havin# been first conducted, the accused ma! within five /%0 days from the time he learns of the filing of the information, as+ for a preliminar! investi#ation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. /'mphasis supplied0 is also not applicable. "ndeed, petitioner was not arrested at all. Bhen he walked into )an 9uan Police )tation, accompanied by two /40 lawyers, he in fact placed himself at the disposal of the police authorities. ;e did not state that he was 3surrendering3 himself, in all probability to avoid the implication he was admitting that he had slain 'ldon Maguan or that he was otherwise guilty of a crime. Bhen the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of 'ldon Maguan. "nstead, as noted earlier, the Prosecutor proceed under the erroneous supposition that )ection A of Rule ##4 was applicable and required petitioner to waive the provisions of =rticle #4% of the Revised Penal *ode as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. =s earlier pointed out, on the same day that the information for murder was filed with the Regional Trial *ourt, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The )olicitor <eneral contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. Be do not believe that waiver of petitioner,s statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial *ourt. "t is true that at the time of filing of petitioner,s omnibus motion, the information for murder had already been filed with the Regional Trial *ourt? it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. "n Crespo v. *o#ul, 19 this *ourt held?

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case e(ists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. "n turn, as above stated, the filin# of said information sets in motion the criminal action a#ainst the accused in Court. Should the fiscal find it proper to conduct a reinvesti#ation of the case, at such sta#e, the permission of the Court must be secured. After such reinvesti#ation the findin# and recommendations of the fiscal should be submitted to the Court for appropriate action. Bhile it is true that the fiscal has the uasi2-udicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to *ourt whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the *ourt. The only qualification is that the action of the *ourt must not impair the substantial rights of the accused., or the right of the People to due process of law. ((( ((( ((( The rule therefore in this jurisdiction is that once a complaint or information is filed in Court an! disposition of the case ?such@ as its dismissal or the conviction or ac uittal of the accused rests in the sound discretion of the Court . =lthough the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in *ourt he cannot impose his opinion on the trial court. The *ourt is the best and sole judge on what to do with the case before it. . . . 20 /*itations omitted1 emphasis supplied0 7onetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re.investigation /*respo v. Mogul involved a re2investi#ation0, and since the Prosecutor himself did file with the trial court, on the %th day after filing the information for murder, a motion for leave to conduct preliminary investigation /attaching to his motion a copy of petitioner,s omnibus motion0, we conclude that petitioner,s omnibus motion was in effect filed with the trial court. Bhat was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five /%0 days later apprised of the desire of the petitioner for such preliminary investigation. !inally, the trial court did in fact grant the Prosecutor,s prayer for leave to conduct preliminary investigation. Thus, even on the /mistaken0 supposition apparently made by the Prosecutor that )ection A of Rule ##4 of the Revised *ourt was applicable, the %.day reglementary period in )ection A, Rule ##4 must be held to have been substantially complied with. Be believe and so hold that petitioner did not waive his right to a preliminary investigation. Bhile that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right1 it is a substantive right. The accused in a criminal trial is inevitably e(posed to prolonged an(iety, aggravation, humiliation, not to speak of e(pense1 the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner,s claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 42 =ugust #$$#. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of enterin# a plea at arraignment. 22 "n the instant case, petitioner <o had vigorously insisted on his right to preliminary investigation before his arrai#nment. =t the time of his arraignment, petitioner was already before the *ourt of =ppeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. =gain, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. "n 'eople v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because

immediately after their arrest, they filed bail and proceeded to trial 3 "ithout previousl! claimin# that the! did not have the benefit of a preliminar! investi#ation .3 24 "n the instant case, petitioner <o asked for release on recogni&ance or on bail and for preliminary investigation in one omnibus motion. ;e had thus claimed his right to preliminary investigation before respondent 9udge approved the cash bond posted by petitioner and ordered his release on #4 9uly #$$#. =ccordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. "n fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recogni&ed that petitioner,s claim to preliminary investigation was a legitimate one. Be would clarify, however, that contrary to petitioner,s contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 25 "t must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. =ccordingly, we consider that the #A 9uly #$$# order of respondent 9udge recalling his own order granting bail and requiring petitioner to surrender himself within forty.eight /@K0 hours from notice, was plainly arbitrary considering that no evidence at all F and certainly no ne" or additional evidence F had been submitted to respondent 9udge that could have justified the recall of his order issued just five /%0 days before. "t follows that petitioner was entitled to be released on bail as a matter of right. The final question which the *ourt must face is this? how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four /@0 witnesses, impact upon, firstly, petitioner,s right to a preliminary investigation and, secondly, petitioner,s right to be released on bailI :oes he continue to be entitled to have a preliminary investigation conducted in respect of the charge against himI :oes petitioner remain entitled to be released on bailI Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. 26 "t is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause e(ists1 upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. "n any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with e(traordinary haste, to the applause from the audience that filled the courtroom. "f he submitted to arraignment at trial, petitioner did so 3kicking and screaming,3 in a manner of speaking . :uring the proceedings held before the trial court on 42 =ugust #$$#, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner,s vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 )o energetic and determined were petitioner,s counsel,s protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. :uring the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation? petitioner,s counsel made of record his 3continuin# ob-ection.3 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his detention. 30 "f he did not walk out on the trial, and if he cross.e(amined the prosecution,s witnesses, it was because he was e(tremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process.

"n respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. )hould the evidence already of record concerning petitioner,s guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner,s bail. "t would then be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail. To reach any other conclusions here, that is, to hold that petitioner,s rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimi&e the deprivation of due process and to permit the <overnment to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well.nigh to the vanishing point. "t may be that to require the )tate to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial e(ercise. -ut the *ourt is not compelled to speculate. =nd, in any case, it would not be idle ceremony1 rather, it would be a celebration by the )tate of the rights and liberties of its own people and a re.affirmation of its obligation and determination to respect those rights and liberties. =**+R:"7< J, the *ourt resolved to <R=7T the Petition for Review on Certiorari. The +rder of the trial court dated #A 9uly #$$# is hereby )'T =)":' and 7D "!"':, and the :ecision of the *ourt of =ppeals dated 42 )eptember #$$# hereby R'5'R)':. The +ffice of the Provincial Prosecutor is hereby +R:'R': to conduct forthwith a preliminary investigation of the charge of murder against petitioner <o, and to complete such preliminary investigation within a period of fifteen /#%0 days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial *ourt shall be )D)P'7:': to await the conclusion of the preliminary investigation. Meantime, petitioner is hereby +R:'R': released forthwith upon posting of a cash bail bond of +ne ;undred Thousand Pesos /P#66,666.660. This release shall be without prejudice to any lawful order that the trial court may issue, should the +ffice of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation. 7o pronouncement as to costs. This :ecision is immediately e(ecutory. )+ +R:'R':. Narvasa, C.J., &idin, *edialdea, Romero and Nocon, JJ., concur.

!'R7=7:+, 9.? = statute designed to maintain the purity and integrity of the electoral process by *ongress calling a halt to the undesirable practice of prolonged political campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking public office, is challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act. Thus the question confronting this *ourt is one of transcendental significance.

"t is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy. +ne is the freedom of belief and of e(pression availed of by an individual whether by himself alone or in association with others of similar persuasion, a goal that occupies a place and to none in the legal hierarchy. The other is the safeguarding of the equally vital right of suffrage by a prohibition of the early nomination of candidates and the limitation of the period of election campaign or partisan political activity, with the hope that the time.consuming efforts, entailing huge e(penditures of funds and involving the risk of bitter rivalries that may end in violence, to paraphrase the e(planatory note of the challenged legislation, could be devoted to more fruitful endeavors. The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark opinion, # when we act in these matters we do so not on the assumption that to us is granted the requisite knowledge to set matters right, but by virtue of the responsibility we cannot escape under the *onstitution, one that history authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is appropriately invoked. This then is the crucial question? "s there an infringement of libertyI Petitioners so alleged in his action, which they entitled :eclaratory Relief with Preliminary "njunction, filed on 9uly 44, #$>A, a proceeding that should have been started in the of *ourt of !irst "nstance but treated by this *ourt as one of prohibition in view of the seriousness and the urgency of the constitutional issue raised. Petitioners challenged the validity of two new sections now included in the Revised 'lection *ode, under Republic =ct 7o. @KK6, which was approved and took effect on 9une #A, #$>A, prohibiting the too early nomination of candidates 4 and limiting the period of election campaign or partisan political activity. 2 The terms 3candidate3 and 3election campaign3 or 3partisan political activity3 are likewise defined. The former according to =ct 7o. @KK6 3refers to any person aspiring for or seeking an elective public office regarded of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate.3 3'lection campaign3 or 3partisan political activity3 refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office.3 Then the acts were specified. There is a proviso that simple e(pression of opinion and thoughts concerning the election shall not be considered as part of an election campaign. There is the further proviso that nothing stated in the =ct 3shall be understood to prevent any person from e(pressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports.3 @ Petitioner *abigao was, at the time of the filing >f the petition, an incumbent councilor in the @th :istrict of Manila and the 7acionalista Party official candidate for 5ice.Mayor of Manila to which he was subsequently elected on 7ovember ##, #$>A1 petitioner <on&ales, on the other hand, is a private individual, a registered voter in the *ity of Manila and a political leader of his co.petitioner. "t is their claim that 3the enforcement of said Republic =ct 7o. @KK6 in question GwouldH prejudice GtheirH basic rights..., such as their freedom of speech, their freedom of assembly and their right to form associations or societies for purpose not contrary to law, guaranteed under the Philippine *onstitution,3 and that therefore said act is unconstitutional. =fter invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of assembly with a citation of two =merican )upreme *ourt decisions, % they asserted that 3there is nothing in the spirit or intention of the law that would legally justify its passage and GenforcementH whether for reasons of public policy, public order or morality, and that therefore the enactment of Republic =ct G7o.H @KK6 under, the guise of regulation is but a clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the right to form associations and societies for purposes not contrary to law, ...3 There was the further allegation that the nomination of a candidate and the fi(ing of period of election campaign are matters of political e(pediency and convenience which only political parties can regulate or curtail by and among themselves through self.restraint or mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and without effect.

To the plea of petitioners that after hearing, Republic =ct 7o. @KK6 be declared unconstitutional, null and void, respondent *ommission on 'lections, in its answer filed on =ugust #, #$>A, after denying the allegations as to the validity of the act 3for being mere conclusions of law, erroneous at that,3 and setting forth special affirmative defenses, procedural and substantive character, would have this *ourt dismiss the petition. Thereafter the case was set for hearing on =ugust 2, #$>A. +n the same date a resolution was passed by us to the following effect? 3=t the hearing of case .4AK22 /=rsenio <on&ales, et al. vs. *ommission on 'lections0, =tty. !. Reyes *abigao appeared for the petitioners and =tty. Ramon -arrios appeared for the respondent and they were given a period of four days from today within which to submit, simultaneously,, their respective memorandum in lieu of oral argument.3 +n =ugust $, #$>A, another resolution, self.e(planatory in character, came from this *ourt. Thus? 3"n ease <.R. 7o. .4AK22 /=rsenio <on&ales, et al. vs. *ommission on 'lections0, the *ourt, with eight /K0 9ustice present, having deliberated on the issue of the constitutionality of Republic =ct 7o. @KK61 and a divergence of views having developed among the 9ustices as to the constitutionality of section %6.-, pars. /c0, /d0 and /e0 of the Revised 'lection *ode? considering the *onstitutional provision that 3no treaty or law may be declared unconstitutional without the concurrence of two.thirds of all the members of the /)upreme0 *ourt, /sec. #6, =rt, 5""0, the *ourt GresolvedH to defer final voting on the issue until after the return of the 9ustices now on official leave.3 The case was then reset for oral argument. =t such hearing, one of the co.petitioners, now 5ice. Mayor !elicisimo *abigao of the *ity of Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on =merican )upreme *ourt opinion that warn against curtailment in whatever guise or form of the cherished freedoms of e(pression, of assemble and of association, all embraced in the !irst =mendment of the Dnited )tates *onstitution. Respondent *ommission on 'lections was duly represented by =tty. Ramon -arrios. )enator oren&o M. TaCada was asked to appear as amicus curiae. That he did, arguing most impressively with a persuasive e(position of the e(istence of undeniable conditions that imperatively called for regulation of the electoral process and with full recognition that =ct 7o. @KK6 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and of association. ;e did justify its enactment however under the clear and present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, e(cess of partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as well. The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to the paragraphs above mentioned having continued, on +ct. #6, #$>K, this *ourt, by resolution, invited certain entities to submit memoranda as amici curiae on the question of the validity of R.=. =ct 7o. @KK6. The Philippine -ar =ssociation, the *ivil iberties Dnion, the D.P. aw *enter and the D.P. Bomen awyers, *ircle were included, among them. They did file their respective memoranda with this *ourt and aided it in the consideration of the constitutional issues involved. #. "n the course of the deliberations, a serious procedural objection was raised by five members of the *ourt. > "t is their view that respondent *ommission on 'lections not being sought to be restrained from performing any specific act, this suit cannot be characteri&ed as other than a mere request for an advisory opinion. )uch a view, from the remedial law standpoint, has much to recommend it. 7onetheless, a majority would affirm, the original stand that under the circumstances it could still rightfully be treated as a petition for prohibition. The language of 9ustice aurel fits the case 3=ll await the decision of this *ourt on the constitutional question. *onsidering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that GitsH constitutionality ... be now resolved.3 A "t may likewise be added that the e(ceptional character of the situation that confronts us, the

paramount public interest, and the undeniable necessity for a ruling, the national elections being, barely si( months away, reinforce our stand. "t would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an alleged unconstitutional statute. Be are left with no choice then1 we must act on the matter. There is another procedural obstacle raised by respondent to be hurdled. "t is not insuperable. "t is true that ordinarily, a party who impugns the validity of a statute or ordinance must have a substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. K Respondent cannot see such interest as being possessed by petitioners. "t may indicate the clarity of vision being dimmed, considering that one of the petitioners was a candidate for an elective position. 'ven if such were the case, however, the objection is not necessarily fatal. "n this jurisdiction, the rule has been sufficiently rela(ed to allow a ta(payer to bring an action to restrain the e(penditure of public funds through the enforcement of an invalid or unconstitutional legislative measure. $ 4. "n the answer of the respondent as well as its memorandum, stress was laid on Republic =ct 7o. @KK6 as an e(ercise of the police power of the state, designed to insure a free, orderly and honest election by regulating 3conduct which *ongress has determined harmful if unstrained and carried for a long period before elections it necessarily entails huge e(penditures of funds on the part of the candidates, precipitates violence and even deaths, results in the corruption of the electorate, and inflicts direful consequences upon public interest as the vital affairs of the country are sacrificed to purely partisan pursuits.3 'vidently for respondent that would suffice to meet the constitutional questions raised as to the alleged infringement of free speech, free press, freedom of assembly and ,freedom, of association. Bould it were as simple as thatI =n eloquent e(cerpt from a leading =merican decision #6 admonishes though against such a cavalier approach. 3The case confronts us again with the duty our system places on this *ourt to say where the individual,s, freedom ends the )tate,s power begins. *hoice on that border, now as always delicate, is perhaps more so where the usual. presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the !irst =mendment.... That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. =nd it is the character of the right, not of the limitation, which determines what standard governs the choice...3 'ven a leading =merican )tate court decision on a regulatory measure dealing with elections, cited in the answer of respondent, militates against a stand minimi&ing the importance and significance of the alleged violation of individual rights? 3=s so construed by us, it has not been made to appear that section K#K$, *omp. <en. aws, section %$4%, Rev. <en. )t., is on its face violative of any provision of either the state or !ederal *onstitution on the subject of free speech or liberty of the press, nor that its operation is in any wise subversive of any one,s constitutional liberty.3 ## =nother leading )tate decision is much more emphatic? 3-road as the power of the legislature is with respect to regulation of elections, that power is not wholly without limitation. Dnder the guise of regulating elections, the legislature may not deprive a citi&en of the right of trial by jury. = person charged with its violation may not be compelled to give evidence against himself. "f it destroys the right of free speech, it is to that e(tent void.3 #4 The question then of the alleged violation of *onstitutional rights must be squarely met.lawphi#.nPt 2. 7ow as to the merits. = brief resume of the basic rights on which petitioners premise their stand that the act is unconstitutional may prove illuminating. The primacy, the high estate accorded freedom of e(pression is of course a fundamental postulate of our constitutional system. 7o law shall be passed abridging the freedom of speech or of the press .... #2 Bhat does it embraceI =t the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. #@ There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, #% prosecution for sedition, #> or

action for damages, #A or contempt proceedings #K unless there be a clear and present danger of substantive evil that *ongress has a right to prevent. The vital need in a constitutional democracy for freedom of e(pression is undeniable whether as a means of assuring individual self.fulfillment, of attaining the truth, of assuring participation by the people in social including political decision.making, and of maintaining the balance between stability and change. #$ The trend as reflected in Philippine and =merican decisions is to recogni&e the broadcast scope and assure the widest latitude to this constitutional guaranty. "t represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and wide.open. 46 "t is not going too far, according to another =merican decision, to view the function of free speech as inviting dispute. 3"t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.3 4# !reedom of speech and of the press thus means something more than the right to approve e(isting political beliefs or economic arrangements, to lend support to official measures, to take refuge in the e(isting climate of opinion on any matter of public consequence. )o atrophied, the right becomes meaningless. The right belongs as well, if not more, for those who question, who do not conform, who differ. To paraphrase 9ustice ;olmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 44 )o with 'merson one may conclude that 3the theory of freedom of e(pression involves more than a technique for arriving at better social judgments through democratic procedures. "t comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of new society in which man,s mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational and enlightened civili&ation virtually unlimited. "t is put forward as a prescription for attaining a creative, progressive, e(citing and intellectually robust community. "t contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to reali&e his full potentialities. "t spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant.3 42 !rom the language of the specified constitutional provision, it would appear that the right is not susceptible of any limitation. 7o law may be passed abridging the freedom of speech and of the press. The realities of life in a comple( society preclude however a literal interpretation. !reedom of e(pression is not an absolute. "t would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. ;ow is it to be limited thenI This *ourt spoke, in *abansag v. !ernande&1 4@ of two tests that may supply an acceptable criterion for permissible restriction. Thus? 3These are the ,clear and present danger, rule and the ,dangerous tendency, rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be e(tremely serious and the degree of imminence e(tremely high, before the utterance can be punished. The danger to be guarded against is the ,substantive evil, sought to be prevented.3 "t has the advantage of establishing according to the above decision 3a definite rule in constitutional law. "t provides the criterion as to what words may be public established.3 The *abansag case likewise referred to the other test, the 3dangerous tendency3 rule and e(plained it thus? 3"f the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. "t is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. "t is sufficient that such acts be advocated in general terms. 7or is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. "t is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. Be posed the issue thus? 3;as the letter of *abansag created a sufficient danger to a fair administration of justiceI :id its remittance to the P*=* create a danger sufficiently imminent to come under the two rules mentioned aboveI3 The choice of this *ourt was manifest and indisputable. "t

adopted the clear and present danger test. =s a matter of fact, in an earlier decision, Primicias v. !ugoso, 4% there was likewise an implicit acceptance of the clear and present danger doctrine. Bhy repression is permissible only when the danger of substantive evil is present is e(plained by 9ustice -randers thus? ... the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. "f there be time to e(pose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.3 4> !or him the apprehended evil must be 3relatively serious.3 !or 3GprohibitionH of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society.3 9ustice -lack would go further. ;e would require that the substantive evil be 3e(tremely serious.3 4A +nly thus may there be a reali&ation of the ideal envisioned by *ardo&o? 3There shall be no compromise of the freedom to think one,s thoughts and speak them, e(cept at those e(treme borders where thought merges into action.3 4K "t received its original formulation from ;olmes. Thus? 3The question in every case is whether the words used in such circumstances and of such a nature as to create a clear and present danger that they will bring about the substantive evils that *ongress has a right to prevent. "t is a question of pro(imity and degree.3 4$ This test then as a limitation on freedom of e(pression is justified by the danger or evil a substantive character that the state has a right to prevent. Dnlike the dangerous tendency doctrine, the danger must not only be clear but also present. The term clear seems to point to a causal connection with the danger of the substantially evil arising from the utterance questioned. Present refers to the time element. "t used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable. @. ;ow about freedom of assemblyI The -ill of Rights as thus noted prohibits abridgment by law of freedom of speech or of the press. "t likewise e(tends the same protection to the right of the people peaceably to assemble. =s was pointed out by 9ustice Malcolm in the case of Dnited )tates v. -ustos, 26 this right is a necessary consequence of our republican institution and complements the right of free speech. =ssembly means a right on the part of citi&ens to meet peaceably for consultation in respect to public affairs. !rom the same -ustos opinion? 3Public policy, the welfare of society and orderly administration of government have demanded protection for public opinion.3 To paraphrase the opinion of 9ustice Rutledge speaking for the majority in Thomas v. *ollins,2# it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition the government for redress of grievances. =ll these rights while not identical are inseparable. They are cognate rights and the assurance afforded by the clause of this section of the -ill of Rights wherein they are contained, applies to all. =s emphatically put in the leading case of Dnited )tates v. *ruikshank, 24 3the very idea of a government, republican in form, implies a right on the part of its citi&ens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances.3 =s in the case of freedom of e(pression, this right is not to be limited, much less denied, e(cept on a showing of a clear and present danger of a substantive evil that *ongress has a right to prevent. %. +ur *onstitution likewise recogni&es the freedom to form association for purposes not contrary to law. 22 Bith or without a constitutional provision of this character, it may be assumed that the freedom to organi&e or to be a member of any group or society e(ists. Bith this e(plicit provision, whatever doubts there may be on the matter are dispelled. Dnlike the cases of other guarantee which are mostly =merican in origin, this particular freedom has an indigenous cast. "t can trace its origin to the Malolos *onstitution. "n the Dnited )tates, in the absence of an e(plicit provision of such character, it is the view of 9ustice :ouglas that it is primarily the first amendment of her *onstitution, which safeguards freedom of speech and of the press, of assembly and of petition 3that provides GassociationsH with the protection they need if they are to remain viable and continue to contribute to our !ree )ociety.3 2@ ;e adopted the view of :e Tocqueville on the importance and the significance of the freedom to associate. Thus? 3The most natural privilege of man, ne(t to the right of acting for himself, is that of combining his e(ertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to

me almost inalienable in its nature as the right of personal liberty. 7o legislator can attack it without impairing the foundation of society.3 2% There can be no dispute as to the soundness of the above observation of :e Tocqueville. )ince man lives in social it would be a barren e(istence if he could not freely associate with others of kindred persuasion or of congenial frame of mind. =s a matter of fact, the more common form of associations may be likely to be fraternal, cultural, social or religious. Thereby, for almost everybody, save for those e(ceptional few who glory in aloofness and isolation life is enriched and becomes more meaningful. "n a sense, however, the stress on this freedom of association should be on its political significance. "f such a right were non.e(istent then the likelihood of a one.party government is more than a possibility. =uthoritarianism may become unavoidable. Political opposition will simply cease to e(ist1 minority groups may be outlawed, constitutional democracy as intended by the *onstitution may well become a thing of the past. Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority as the will of the electorate dictates, will lose their constitutional protection. "t is undeniable therefore, that the utmost scope should be afforded this freedom of association. "t is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so for its assurance that the wishes of any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up its own program of government would not be nullified or frustrated. To quote from :ouglas anew? 39ustice !rankfurter thought that political and academic affiliations have a preferred position under the due process version of the !irst =mendment. -ut the associational rights protected by the !irst =mendment are in my view much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion. "n my view, government can neither legislate with respect to nor probe the intimacies of political, spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether popular or unpopular, that e(ist in this country.3 2> 7onetheless, the *onstitution limits this particular freedom in the sense that there could be an abridgment of the right to form associations or societies when their purposes are 3contrary to law3. ;ow should the limitation 3for purposes not contrary to law3 be interpretedI "t is submitted that it is another way of e(pressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association societies.2A =s was so aptly stated? 3There is no other course consistent with the !ree )ociety envisioned by the !irst =mendment. !or the views a citi&en entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces, and the people he associates with are no concern to government F until and unless he moves into action. That article of faith marks indeed the main difference between the !ree )ociety which we espouse and the dictatorships both on the eft and on the Right.3 2K Bith the above principles in mind, we now consider the validity of the prohibition in Republic =ct 7o. @KK6 of the too early nomination of candidates and the limitation found therein on the period of election campaign or partisan political activity alleged by petitioners to offend against the rights of free speech, free press, freedom of assembly and freedom of association. "n effect what are asked to do is to declare the act void on its face evidence having been introduced as to its actual operation. There is respectable authority for the court having the power to so act. )uch fundamental liberties are accorded so high a place in our constitutional scheme that any alleged infringement manifest in the wording of statute cannot be allowed to pass unnoticed. 2$ "n considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in e(istence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one,s eyes to the realities of the situation. 7or can we ignore the e(press legislative purpose apparent in the proviso 3that simple e(pressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign,3 and in the other proviso 3that nothing herein stated shall be understood to prevent any person

from e(pressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports.3 )uch limitations qualify the entire provision restricting the period of an election campaign or partisan political activity. The prohibition of too early nomination of candidates presents a question that is not too formidable in character. =ccording to the act? 3"t shall be unlawful for any political party political committee, or political group to nominate candidates for any elective public officio voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public, office earlier than ninety days immediately preceding an election.3 @6 The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates1 the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. 7either is there infringement of their freedom to assemble. They can do so, but not for such a purpose. Be sustain in validity. Be do so unanimously. The limitation on the period of 3election campaign3 or 3partisan political activity3 calls for a more intensive scrutiny. =ccording to Republic =ct 7o. @KK6? 3"t is unlawful for any person whether or not a voter or candidate, or for any group or association of persons whether or not a political party or political committee, to engage in an election campaign or partisan political activity e(cept during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. The term ,candidate, refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate. The term ,election campaign, or ,partisan political activity, refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office ...3 "f that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. Bhat other conclusion can there be e(tending as it does to so wide and all. encompassing a front that what is valid, being a legitimate e(ercise of press freedom as well as freedom of assembly, becomes prohibitedI That cannot be done1 such an undesirable eventuality, this *ourt cannot allow to pass. "t is a well.settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting effect on speech1 a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.@# Bhere the statutory provision then operates to inhibit the e(ercise of individual freedom affirmatively protected by the *onstitution, the imputation of vagueness sufficient to invalidate the statute is inescapable. @4 The language of 9ustice :ouglas, both appropriate and vigorous, comes to mind? 3Bords which are vague and fluid ... may be as much of a trap for the innocent as the ancient laws of *aligula.3 @2 7or is the reason difficult to discern? .3These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their e(ercise almost as potently as the actual application of sanctions.3 @@ A. The constitutional objections are thus formidable. "t cannot be denied that the limitations thus imposed on the constitutional rights of free speech and press, of assembly, and of association cut deeply, into their substance. This on the one hand. +n the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There can be under the circumstances then no outright condemnation of the statute. "t could not be said to be unwarranted, much less arbitrary. There is need for refraining from the outright assumption that the constitutional infirmity is apparent from a mere reading thereof. !or under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would suffice would indeed be called for. The justification alleged by the proponents of the measures weighs heavily with the members of the *ourt, though in varying degrees, in the appraisal of the aforesaid restrictions to which such precious freedoms are subjected. They are not

unaware of the clear and present danger that calls for measures that may bear heavily on the e(ercise of the cherished rights of e(pression, of assembly, and of association. This is not to say, that once such a situation is found to e(ist there is no limit to the allowable limitations on such constitutional rights. The clear and present danger doctrine rightly viewed requires that not only should there be an occasion for the imposition of such restrictions but also that they be limited in scope. There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with 3election campaign3 or 3partisan political activity3 must be such that they are free from the taint of being violative of free speech, free press, freedom of assembly, and freedom of association. Bhat removes the sting from constitutional objection of vagueness is the enumeration of the acts deemed included in the terms 3election campaign3 or 3partisan political activity.3 They are? 3/a0 !orming organi&ations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes andLor undertaking any campaign or propaganda for or against a party or candidate1 /b0 holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes andLor undertaking any campaign or propaganda for or against a candidate or party1/c0 making speeches, announcements or commentaries or holding interviews for or against the election or any party or candidate for public office1 /d0 publishing or distributing campaign literature or materials1 /e0 directly or indirectly soliciting votes andLor undertaking any campaign or propaganda for or against any party1 /f0 giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly.3 @% =s thus limited the objection that may be raised as to vagueness has been minimi&ed, if not totally set at rest. @> K. This *ourt, with the aforementioned five 9ustices unable to agree, is of the view that no unconstitutional infringement e(ists insofar as the formation of organi&ation, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party is restricted @A and that the prohibition against giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from constitutional infirmity. @K The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party, @$ leaving untouched all other legitimate e(ercise of such poses a more difficult question. 7evertheless, after a thorough consideration, and with the same 9ustices entertaining the opposite conviction, we reject the contention that it should be annulled. *andor compels the admission that the writer of this opinion suffers from the gravest doubts. !or him, such statutory prescription could very well be within the outermost limits of validity, beyond which lies the abyss of unconstitutionality. The other acts, likewise deemed included in 3election campaign3 or 3partisan political activity3 ta( to the utmost the judicial predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical, because of their collision with the preferred right of freedom of e(pression. !rom the outset, such provisions did occasion divergence of views among the members of the *ourt. +riginally only a minority was for their being adjudged as invalid. "t is not so. any more. %6 This is merely to emphasi&e that the scope of the curtailment to which freedom of e(pression may be subjected is not foreclosed by the recognition of the e(istence of a clear and present danger of a substantive evil, the debasement of the electoral process. The majority of the *ourt is thus of the belief that the solicitation or undertaking of any campaign or propaganda whether directly or indirectly, by an individual, %# the making of speeches, announcements or commentaries or holding interview for or against the election for any party or candidate for public office, %4 or the publication or distribution of campaign literature or materials, %2 suffer from the corrosion of invalidity. "t lacks however one more affirmative vote to call for a declaration of unconstitutionality.

This is not to deny that *ongress was indeed called upon to seek remedial measures for the far. from.satisfactory condition arising from the too.early nomination of candidates and the necessarily prolonged, political campaigns. The direful consequences and the harmful effects on the public interest with the vital affairs of the country sacrificed many a time to purely partisan pursuits were known to all. Moreover, it is no e(aggeration to state that violence and even death did frequently occur because of the heat engendered by such political activities. Then, too, the opportunity for dishonesty and corruption, with the right to suffrage being bartered, was further magnified. Dnder the police power then, with its concern for the general welfare and with the commendable aim of safe.guarding the right of suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. "t is understandable for *ongress to believe that without the limitations thus set forth in the challenged legislation, the laudable purpose of Republic =ct 7o. @KK6 would be frustrated and nullified. Bhatever persuasive force such approach may command failed to elicit the assent of a majority of the *ourt. This is not to say that the conclusion reached by the minority that the above poisons of the statute now assailed has passed the constitutional test is devoid of merit. "t only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command. To that e(tent, the challenged statute prohibits what under the *onstitution cannot by any law be abridged. More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and present danger doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an adjudication of invalidity, that the challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear and present danger doctrine. "n a #$>K opinion, the =merican )upreme *ourt made clear that the absence of such reasonable and definite standards in a legislation of its character is fatal. %@ Bhere, as in the case of the above paragraphs, the majority of the *ourt could discern 3an over breadth that makes possible oppressive or capricious application3 %% of the statutory provisions, the line dividing the valid from the constitutionally infirm has been crossed. )uch provisions offend the constitutional principle that 3a governmental purpose constitutionally subject to control or prevent activities state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. %> "t is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. %A !or precision of regulation is the touchstone in an area so closely related to our most precious freedoms. %K Dnder the circumstances then, a majority of the *ourt feels compelled to view the statutory provisions in question as unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties associated with freedom of the mind. %$ )uch a conclusion does not find favor with the other members of the *ourt. !or this minority group, no judgment of nullity insofar as the challenged sections are concerned is called for. "t cannot accept the conclusion that the limitations thus imposed on freedom of e(pression vitiated by their latitudinarian scope, for *ongress was not at all insensible to the problem that an all.encompassing coverage of the practices sought to be restrained would seriously pose. )uch an approach finds support in the e(position made by the author of the measure, )enator oren&o M. TaCada, appearing before us as amicus curiae. ;e did clearly e(plain that such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not

merely to a clear and present danger but to the actual e(istence of a grave and substantive evil of e(cessive partisanship, dishonesty and corruption as well as violence that of late has invariably marred election campaigns and partisan political activities in this country. ;e did invite our attention likewise to the well.settled doctrine that in the choice of remedies for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. 7or should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded. More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of the undeniable legislative determination not to transgress the preferred freedom of speech, of press, of assembly and of association. "t is thus provided? 3That simple e(pressions or opinion and thoughts concerning the election shall not be considered as part of an election campaign Gand that nothing in the =ctH shall be understood to prevent any person from e(pressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports. >6 "f properly implemented then, as it ought to, the barrier to free, e(pression becomes minimal and far from unwarranted. !or the minority of the *ourt, all of the above arguments possess sufficient persuasive force to blunt whatever cutting edge may be ascribed to the fears entertained that *ongress failed to abide by what the *onstitution commands as far as freedom of the mind and of association are concerned. "t is its opinion that it would be premature to say the least, for a judgment of nullity of any provision found in Republic =ct 7o. @KK6. The need for adjudication arises only if in the implementation of the =ct, there is in fact an unconstitutional application of its provisions. 7or are we called upon, under this approach, to anticipate each and every problem that may arise. "t is time enough to consider it when there is in fact an actual, concrete case that requires an e(ercise of judicial power. $. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral process. There is full acceptance by the *ourt of the power of *ongress, under narrowly drawn legislation to impose the necessary restrictions to what otherwise would be liberties traditionally accorded the widest scope and the utmost deference, freedom of speech and of the press, of assembly, and of association. Be cannot, however, be recreant to the trust reposed on us1 we are called upon to safeguard individual rights. "n the language of 9ustice aurel? 3This *ourt is perhaps the last bulwark of constitutional government. "t shall not obstruct the popular will as manifested through proper organs... -ut, in the same way that it cannot renounce the life breathed into it by the *onstitution, so may it not forego its obligation, in proper cases, to apply the necessary,...3 ># Be recogni&e the wide discretion accorded *ongress to protect vital interests. *onsidering the responsibility incumbent on the judiciary, it is not always possible, even with the utmost sympathy shown for the legislative choice of means to cure an admitted evil, that the legislative judgment arrived at, with its possible curtailment of the preferred freedoms, be accepted uncritically. There may be times, and this is one of them, with the majority, with all due reject to a coordinate branch, unable to e(tend their approval to the aforesaid specific provisions of one of the sections of the challenged statute. The necessary two. third vote, however, not being obtained, there is no occasion for the power to annul statutes to come into play. )uch being the case, it is the judgment of this *ourt that Republic =ct 7o. @KK6 cannot be declared unconstitutional. B;'R'!+R', the petition is dismissed and the writ of prayed for denied. Bithout costs. *oncepcion, *.9., Reyes, 9.-. ., Makalintal and Teehankee, 99., concur in the result. #AN ANIBAN, J.: The present case involves a dispute between parents and children. The children were invited by the parents to occupy the latterQs two lots, out of parental love and a desire to foster family solidarity. Dnfortunately, an unresolved conflict terminated this situation. +ut of pique, the parents asked them to vacate the premises. Thus, the children lost their right to remain on the property. They have the right, however, to be indemnified for

the useful improvements that they constructed thereon in good faith and with the consent of the parents. "n short, =rticle @@K of the *ivil *ode applies. !$% C&'% -efore us is a Petition for Review# under Rule @% of the Rules of *ourt, assailing the March 44, 4664 :ecision4 and the 9une 4>, 4664 Resolution2 of the *ourt of =ppeals /*=0 in *=.<R )P 7os. %>46% N %>@>A. The challenged :ecision disposed as follows? 3B;'R'!+R', the assailed :ecision is =!!"RM': with the following M+:"!"*=T"+7)? R#. 5icente and Rosario should reimburse "smael and Teresita one.half of the value of the useful improvements introduced in the premises prior to demand, which is equivalent to P@A%,666.66. "n case the former refuse to reimburse the said amount, the latter may remove the improvements, even though the land may suffer damage thereby. They shall not, however, cause any more impairment upon the property leased than is necessary. R4. The award of attorneyQs fees is :' 'T':. R2. The records of these consolidated cases are R'M=7:': to the *ourt of origin for further proceedings to determine the option to be taken by 5icente and Rosario and to implement the same with dispatch.3@ The assailed Resolution denied petitionersQ Motion for Reconsideration. !$% "&()' Petitioners "smael and Teresita% Macasaet and Respondents 5icente and Rosario Macasaet are first.degree relatives. "smael is the son of respondents, and Teresita is his wife.> +n :ecember #6, #$$A, the parents filed with the Municipal Trial *ourt in *ities /MT**0 of ipa *ity an ejectment suit against the children.A Respondents alleged that they were the owners of two /40 parcels of land covered by Transfer *ertificate of Title /T*T0 7os. T.AK%4# and T.#62#@#, situated at -anay.banay, ipa *ity1 that by way of a verbal lease agreement, "smael and Teresita occupied these lots in March #$$4 and used them as their residence and the situs of their construction business1 and that despite repeated demands, petitioners failed to pay the agreed rental of P%66 per week.K "smael and Teresita denied the e(istence of any verbal lease agreement. They claimed that respondents had invited them to construct their residence and business on the subject lots in order that they could all live near one other, employ Marivic /the sister of "smael0, and help in resolving the problems of the family.$ They added that it was the policy of respondents to allot the land they owned as an advance grant of inheritance in favor of their children. Thus, they contended that the lot covered by T*T 7o. T.#62#@# had been allotted to "smael as advance inheritance. +n the other hand, the lot covered by T*T 7o. T.AK%4# was allegedly given to petitioners as payment for construction materials used in the renovation of respondentsQ house.#6 The MT**## ruled in favor of respondents and ordered petitioners to vacate the premises. "t opined that "smael and Teresita had occupied the lots, not by virtue of a verbal lease agreement, but by tolerance of 5icente and Rosario.#4 =s their stay was by mere tolerance, petitioners were necessarily bound by an implied promise to vacate the lots upon demand.#2 The MT** dismissed their contention that one lot had been allotted as an advance inheritance, on the ground that successional rights were inchoate. Moreover, it disbelieved petitionersQ allegation that the other parcel had been given as payment for construction materials.#@ +n appeal, the regional trial court#% /RT*0 upheld the findings of the MT**. ;owever, the RT* allowed respondents to appropriate the building and other improvements introduced by petitioners, after payment of the indemnity provided for by =rticle @@K in relation to =rticles %@> and %@K of the *ivil *ode.#> "t added that respondents could oblige petitioners to purchase the land, unless its value was considerably more than the building. "n the latter situation, petitioners should pay rent if respondents would not choose to appropriate the building.#A Dpon denial of their individual Motions for Reconsideration, the parties filed with the *= separate Petitions for Review, which were later consolidated.#K

R*+,-. /0 )$% C/*1) /0 A22%&+' The *= sustained the finding of the two lower courts that "smael and Teresita had been occupying the subject lots only by the tolerance of 5icente and Rosario.#$ Thus, possession of the subject lots by petitioners became illegal upon their receipt of respondentsQ letter to vacate it.46 *iting *alubayan v. Pascual,4# the *= further ruled that petitionersQ status was analogous to that of a lessee or a tenant whose term of lease had e(pired, but whose occupancy continued by tolerance of the owner.44 *onsequently, in ascertaining the right of petitioners to be reimbursed for the improvements they had introduced on respondentsQ properties,42 the appellate court applied the *ivil *odeQs provisions on lease. The *= modified the RT* :ecision by declaring that =rticle @@K of the *ivil *ode was inapplicable. The *= opined that under =rticle #>AK of the same *ode, "smael and Teresita had the right to be reimbursed for one half of the value of the improvements made.4@ 7ot satisfied with the *=Qs ruling, petitioners brought this recourse to this *ourt.4% !$% I''*%' Petitioners raise the following issues for our consideration? 3#. a0 Bhether or not )ection #AG,H Rule A6 of the Rules of *ourt on 9udgment should apply in the rendition of the decision in this case1 b0 Bhether or not the *omplaint should have been dismissed1 c0 Bhether or not damages including attorneyQs fees should have been awarded to herein petitioners1 34. a0 Bhether or not the rule on appearance of parties during the Pretrial should apply on appearance of parties during Preliminary *onference in an unlawful detainer suit1 b0 Bhether or not the case of Philippine Pryce =ssurance *orporation vs. *ourt of =ppeals /426 )*R= #>@0 is applicable to appearance of parties in an unlawful detainer suit1 32. Bhether or not =rticle #>AK of the *ivil *ode should apply to the case on the matters of improvements, or is it =rticle @@A of the *ivil *ode in relation to the =rticle @%2 and @%@ thereof that should apply, if ever to apply the *ivil *ode1 3@. Bhether or not the G:Hecision of the *ourt of =ppeals is supported by evidence, appropriate laws, rules and jurisprudence1 3%. Bhether or not =ssisting 9udge 7orberto Mercado of the MT** ipa *ity should be held accountable in rendering the MT** G:Hecision1 3>. Bhether or not =tty. <lenn Mendo&a and =tty. =ndrew inatoc of the same GlHaw office should be held accountable for pursuing the GeHjectment caseG.H34> !$% C/*1)3' R*+,-. The Petition is partly meritorious. ",1') I''*%: E-ectment Bho is entitled to the physical or material possession of the premisesI =t the outset, we stress that this is the main issue in ejectment proceedings.4A "n the present case, petitioners failed to justify their right to retain possession of the subject lots, which respondents own. )ince possession is one of the attributes of ownership,4K respondents clearly are entitled to physical or material possession. Allegations of the Complaint Petitioners allege that they cannot be ejected from the lots, because respondents based their *omplaint regarding the nonpayment of rentals on a verbal lease agreement, which the latter failed to prove.4$ Petitioners contend that the lower courts erred in using another ground /tolerance of possession0 to eject them. "n actions for unlawful detainer, possession that was originally lawful becomes unlawful upon the e(piration or termination of the defendantQs right to possess, arising from an e(press or implied contract.26 "n other words, the plaintiffQs cause of action comes from the e(piration or termination of the defendantQs right to continue possession.2# The case resulting therefrom must be filed within one year from the date of the last demand. To show a cause of action in an unlawful detainer, an allegation that the defendant is

illegally withholding possession from the plaintiff is sufficient. The complaint may lie even if it does not employ the terminology of the law, provided the said pleading is couched in a language adequately stating that the withholding of possession or the refusal to vacate has become unlawful.24 "t is equally settled that the jurisdiction of the court, as well as the nature of the action, is determined from the averments of the complaint.22 "n the present case, the *omplaint alleged that despite demands, petitioners 3refused to pay the accrued rentals and GtoH vacate the leased premises.32@ "t prayed that judgment be rendered 3GoHrdering GpetitionersH and all those claiming rights under them to vacate the properties ( ( ( and remove the structures ( ( ( constructed thereon.32% 'ffectively then, respondents averred that petitionersQ original lawful occupation of the subject lots had become unlawful. The MT** found sufficient cause to eject petitioners. Bhile it disbelieved the e(istence of a verbal lease agreement, it nevertheless concluded that petitionersQ occupation of the subject lots was by mere tolerance of respondents. -asing its conclusion on the fact that the parties were close relatives, the MT** ruled thus? 3( ( ( GTHhe parties herein are first degree relatives. -ecause of this relationship, this *ourt takes judicial notice of the love, care, concern and protection imbued upon the parents towards their GchildrenH, i.e., in the instant case, the love, care, concern and protection of the GrespondentsH to the GpetitionersH. Bith this in mind, this *ourt is inclined to believe the position of the GpetitionersH that there was no such verbal lease agreement between the parties herein that took place in #$$4. ( ( (. 3!rom the allegations of the GpetitionersH, this *ourt is convinced that their stay and occupancy of the subject premises was by mere tolerance of the GrespondentsH, and not by virtue of a verbal lease agreement between them.32> ;aving found a cause of action for unlawful detainer, the MT** /as well as the RT* and the *=0 did not err in ordering the ejectment of petitioners as prayed for by respondents. There was no violation of )ection #A of Rule A62A of the Rules of *ourt. =s earlier e(plained, unlawful detainer was sufficiently alleged in the *omplaint and duly proven during the trial. )ignificantly, the issue of whether there was enough ground to eject petitioners was raised during the preliminary conference.2K Not Merely Tolerated Possession Petitioners dispute the lower courtsQ finding that they occupied the subject lots on the basis of mere tolerance. They argue that their occupation was not under such condition, since respondents had invited, offered and persuaded them to use those properties.2$ This *ourt has consistently held that those who occupy the land of another at the latterQs tolerance or permission, without any contract between them, are necessarily bound by an implied promise that the occupants will vacate the property upon demand.@6 = summary action for ejectment is the proper remedy to enforce this implied obligation.@# The unlawful deprivation or withholding of possession is to be counted from the date of the demand to vacate.@4 Toleration is defined as 3the act or practice of permitting or enduring something not wholly approved of.3@2 )arona v. 5illegas@@ described what tolerated acts means, in this language? 3Professor =rturo M. Tolentino states that acts merely tolerated are Rthose which by reason of neighborliness or familiarity, the owner of property allows his neighbor or another person to do on the property1 they are generally those particular services or benefits which oneQs property can give to another without material injury or prejudice to the owner, who permits them out of friendship or courtesy.Q ( ( (. =nd, Tolentino continues, even though Rthis is continued for a long time, no right will be acquired by prescription.3 ( ( (. !urther e(pounding on the concept, Tolentino writes? RThere is tacit consent of the possessor to the acts which are merely tolerated. Thus, not every case of knowledge and silence on the part of the possessor can be considered mere tolerance. -y virtue of tolerance that is considered as an authori&ation, permission or license, acts of possession are reali&ed or performed. The question reduces itself to the e(istence or

non.e(istence of the permission.3@% Be hold that the facts of the present case rule out the finding of possession by mere tolerance. Petitioners were able to establish that respondents had invited them to occupy the subject lots in order that they could all live near one other and help in resolving family problems.@> -y occupying those lots, petitioners demonstrated their acceptance of the invitation. ;ence, there was a meeting of minds, and an agreement regarding possession of the lots impliedly arose between the parties. The occupancy of the subject lots by petitioners was not merely 3something not wholly approved of3 by respondents. 7either did it arise from what Tolentino refers to as 3neighborliness or familiarity.3 "n point of fact, their possession was upon the invitation of and with the complete approval of respondents, who desired that their children would occupy the premises. "t arose from familial love and a desire for family solidarity, which are basic !ilipino traits. Right to Use the Lots Terminated That "smael and Teresita had a right to occupy the lots is therefore clear. The issue is the duration of possession. "n the absence of a stipulation on this point, =rticle ##$A of the *ivil *ode allows the courts to fi( the duration or the period. 3=rticle ##$A. "f the obligation does not fi( a period, but from its nature and the circumstances it can be inferred that a period was intended, the courts may fi( the duration thereof. 3The courts shall also fi( the duration of the period when it depends upon the will of the debtor. 3"n every case the courts shall determine such period as may under the circumstances have been probably contemplated by the parties. +nce fi(ed by the courts, the period cannot be changed by them.3 =rticle ##$A, however, applies to a situation in which the parties intended a period. )uch qualification cannot be inferred from the facts of the present case. To repeat, when 5icente and Rosario invited their children to use the lots, they did so out of parental love and a desire for solidarity e(pected from !ilipino parents. 7o period was intended by the parties. Their mere failure to fi( the duration of their agreement does not necessarily justify or authori&e the courts to do so.@A -ased on respondentsQ reasons for gratuitously allowing petitioners to use the lots, it can be safely concluded that the agreement subsisted as long as the parents and the children mutually benefited from the arrangement. 'ffectively, there is a resolutory condition in such an agreement.@K Thus, when a change in the condition e(isting between the parties occurs .. like a change of ownership, necessity, death of either party or unresolved conflict or animosity .. the agreement may be deemed terminated. ;aving been based on parental love, the agreement would end upon the dissipation of the affection. Bhen persistent conflict and animosity overtook the love and solidarity between the parents and the children, the purpose of the agreement ceased.@$ Thus, petitioners no longer had any cause for continued possession of the lots. Their right to use the properties became untenable. "t ceased upon their receipt of the notice to vacate. =nd because they refused to heed the demand, ejectment was the proper remedy against them. Their possession, which was originally lawful, became unlawful when the reason therefor .. love and solidarity .. ceased to e(ist between them. No Right to Retain Possession Petitioners have not given this *ourt adequate reasons to reverse the lower courtsQ dismissal of their contention that ots T.AK%4# and T.#62#@#, respectively, were allegedly allotted to them as part of their inheritance and given in consideration for past debts. The right of petitioners to inherit from their parents is merely inchoate and is vested only upon the lattersQ demise. "ndisputably, rights of succession are transmitted only from the moment of death of the decedent.%6 =ssuming that there was an 3allotment3 of inheritance, ownership nonetheless remained with respondents. Moreover, an intention

to confer title to certain persons in the future is not inconsistent with the ownersQ taking back possession in the meantime for any reason deemed sufficient.%# +ther than their self.serving testimonies and their affidavits, petitioners offered no credible evidence to support their outlandish claim of inheritance 3allocation.3 Be also agree with the lower courts that petitioners failed to prove the allegation that, through a dation in payment, ot T.AK%4# had been transferred to the latter as payment for respondentsQ debts.%4 The evidence presented by petitioners related only to the alleged indebtedness of the parents arising from the latterQs purported purchases and advances.%2 There was no sufficient proof that respondents had entered into a contract of dation to settle the alleged debt. Petitioners even stated that there was a disagreement in the accounting of the purported debt,%@ a fact that disproves a meeting of the minds with the parents. Petitioners also admitted that a portion of the alleged debt is the subject matter of a collection case against respondents /*ivil *ase 7o. 6%$@.$>0.%% Thus, the formerQs allegation that the indebtedness has been paid through a dation cannot be given credence, inconsistent as it is with their action to recover the same debt. :espite their protestations, petitioners recogni&ed the right of the parents to recover the premises when they admitted in their Position Paper filed with the MT** that respondents had a title to the lots. 3The GrespondentsH want to get their property because the title is theirs, the GpetitionersH do not object but what is due the GpetitionersH including the reparation for the tarnish of their dignity and honor must be given the GpetitionersH for the benefits of their children before the premises will be turned over.3%> =s a rule, the right of ownership carries with it the right of possession. S%(/-4 I''*%: Appearance at the Preliminary Conference )ection K of Rule A6 of the Rules of *ourt requires the appearance of the plaintiff and the defendant during the preliminary conference. +n the basis of this provision, petitioners claim that the MT** should have dismissed the case upon the failure of respondents to attend the conference. ;owever, petitioners do not dispute that an attorney.in.fact with a written authori&ation from respondents appeared during the preliminary conference.%A The issue then is whether the rules on ejectment allow a representative to substitute for a partyQs personal appearance. Dnless inconsistent with Rule A6, the provisions of Rule #K on pretrial applies to the preliminary conference.%K Dnder )ection @ of this Rule, the nonappearance of a party may be e(cused by the showing of a valid cause1 or by the appearance of a representative, who has been fully authori&ed in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents.%$ )ection @ of Rule #K may supplement )ection K of Rule A6. Thus, the spirit behind the e(ception to personal appearance under the rules on pretrial is applicable to the preliminary conference. "f there are valid reasons or if a representative has a 3special authority,3 a partyQs appearance may be waived. =s petitioners are challenging only the applicability of the rules on pretrial to the rule on preliminary conference, the written authori&ation from respondents can indeed be readily considered as a 3special authori&ation.3 !$,14 I''*%: Rights of a B ilder in !ood "aith =s applied to the present case, accession refers to the right of the owner to everything that is incorporated or attached to the property.>6 =ccession industrial .. building, planting and sowing on an immovable .. is governed by =rticles @@% to @%> of the *ivil *ode. Articles ##$ and %&$' of the Ci(il Code )napplica*le To buttress their claim of reimbursement for the improvements introduced on the property, petitioners cite =rticle @@A.># They allege that the *= erred in applying =rticle

#>AK, since they had no lease agreement with respondents. Be clarify. =rticle @@A is not applicable, because it relates to the rules that apply when the owner of the property uses the materials of another. "t does not refer to the instance when a possessor builds on the property of another, which is the factual milieu here. "n view of the unique factual setting of the instant case, the contention of petitioners regarding the inapplicability of =rticle #>AK deserves attention. The *= applied the provisions on lease, because it found their possession by mere tolerance comparable with that of a lessee, per the pronouncement in *alubayan v. Pascual,>4 from which we quote? 3( ( (. "t has been held that a person who occupies the land of another at the latterQs tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against them. The status of defendant is analogous to that of a lessee or tenant whose term of lease has e(pired but whose occupancy continued by tolerance of the owner. "n such a case, the unlawful deprivation or withholding of possession is to be counted from the date of the demand to vacate.3>2 /'mphasis in the original.0 =s e(plained earlier, "smael and TeresitaQs possession of the two lots was not by mere tolerance, a circumstance that negates the applicability of *alubayan. Article ##' Applica*le +n the other hand, when a person builds in good faith on the land of another, the applicable provision is =rticle @@K, which reads?>@ 3=rticle @@K. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in =rticles %@> and %@K, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. ;owever, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. "n such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fi( the terms thereof.3 This *ourt has ruled that this provision covers only cases in which the builders, sowers or planters believe themselves to be owners of the land or, at least, to have a claim of title thereto.>% "t does not apply when the interest is merely that of a holder, such as a mere tenant, agent or usufructuary.>> !rom these pronouncements, good faith is identified by the belief that the land is owned1 or that .. by some title .. one has the right to build, plant, or sow thereon.>A ;owever, in some special cases, this *ourt has used =rticle @@K by recogni&ing good faith beyond this limited definition. Thus, in :el *ampo v. =besia,>K this provision was applied to one whose house .. despite having been built at the time he was still coowner .. overlapped with the land of another.>$ This article was also applied to cases wherein a builder had constructed improvements with the consent of the owner. The *ourt ruled that the law deemed the builder to be in good faith.A6 "n )armiento v. =gana,A# the builders were found to be in good faith despite their reliance on the consent of another, whom they had mistakenly believed to be the owner of the land.A4 -ased on the aforecited special cases, =rticle @@K applies to the present factual milieu. The established facts of this case show that respondents fully consented to the improvements introduced by petitioners. "n fact, because the children occupied the lots upon their invitation, the parents certainly knew and approved of the construction of the improvements introduced thereon.A2 Thus, petitioners may be deemed to have been in good faith when they built the structures on those lots. The instant case is factually similar to 9avier v. 9avier.A@ "n that case, this *ourt deemed the son to be in good faith for building the improvement /the house0 with the knowledge and consent of his father, to whom belonged the land upon which it was built. Thus, =rticle @@KA% was applied. R le on Usef l +,penses

The structures built by petitioners were 3useful3 improvements, because they augmented the value or income of the bare lots.A> Thus, the indemnity to be paid by respondents under =rticle @@K is provided for by =rticle %@>, which we quote? 3=rt. %@>. 7ecessary e(penses shall be refunded to every possessor1 but only the possessor in good faith may retain the thing until he has been reimbursed therefor. 3Dseful e(penses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the e(penses or of paying the increase in value which the thing may have acquired by reason thereof.3 *onsequently, respondents have the right to appropriate .. as their own .. the building and other improvements on the subject lots, but only after /#0 refunding the e(penses of petitioners or /40 paying the increase in value acquired by the properties by reason thereof. They have the option to oblige petitioners to pay the price of the land, unless its value is considerably more than that of the structures .. in which case, petitioners shall pay reasonable rent. "n accordance with :epra v. :umlao,AA this case must be remanded to the trial court to determine matters necessary for the proper application of =rticle @@K in relation to =rticle %@>. )uch matters include the option that respondents would take and the amount of indemnity that they would pay, should they decide to appropriate the improvements on the lots. Be disagree with the *=Qs computation of useful e(penses, which were based only on petitionersQ bare allegations in their =nswer.AK R*+,-. /- I521/6%5%-) J*'),0,%4 Bhile, ordinarily, the jurisdiction of the MT** on ejectment proceedings is limited to the issue of physical or material possession of the property in question, this *ourt finds it necessary to abbreviate the issue on the improvements in relation to =rticle @@K. !irst, the determination of the partiesQ right to those improvements is intimately connected with the MT** proceedings in the light of the ejectment of petitioners. )econd, there is no dispute that while they constructed the improvements, respondents owned the land. Third, both parties raised no objection when the RT* and the *= ruled accordingly on this matter. 'quitable considerations compel us to settle this point immediately, pro hoc vice, to avoid needless delay. -oth parties have already been heard on this issue1 to dillydally or equivocate would not serve the cause of substantial justice. -ther )ss es Raised <iven the foregoing rulings, it is no longer necessary to address petitionersQ allegation that the MT** judge and respondentsQ lawyers should be respectively held personally accountable for the :ecision and for filing the case.A$ The insinuation of petitioners that the lawyers manipulated the issuance of a false barangay certification is unavailing.K6 Their contention that respondents did not attend the barangay conciliation proceedings was based solely on hearsay, which has little or no probative value.K# 7HERE"ORE, the assailed :ecision and Resolution of the *ourt of =ppeals are A""IRME8 with the following MO8I"ICA!IONS? #. The portion requiring )pouses 5icente and Rosario Macasaet to reimburse one half of the value of the useful improvements, amounting to P@A%,666, and the right of )pouses "smael and Rosita Macasaet to remove those improvements /if the former refuses to reimburse0 is 8ELE!E8. 4. The case is REMAN8E8 to the court of origin for further proceedings to determine the facts essential to the proper application of =rticles @@K and %@> of the *ivil *ode, specifically to the following matters? a. )pouses 5icente and Rosario MacasaetQs option to appropriate .. as their own .. the improvements on the lots, after paying the indemnity, as provided under =rticle %@> in relation to =rticle @@K of the *ivil *ode1 or in requiring )pouses "smael and Rosita Macasaet to pay for the value of the lots, unless it is considerably more than that of the improvements, in which case petitioners shall pay reasonable rent based upon the terms provided under the *ivil *ode b. The value of the useful e(penses incurred by )pouses "smael and Rosita Macasaet

in the construction of the improvements on the lots c. The increase in value acquired by the lots by reason of the useful improvements d. )pouses 5icente and Rosario MacasaetQs choice of type of indemnity to be paid /whether b or c0 e. Bhether the value of the lots is considerably more than that of the improvements built thereon 7o pronouncement as to costs. SO OR8ERE8. Sandoval2%utierre$, Corona, and Carpio *orales, JJ., concur.

PUNO, J.:

For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this Court dated January 4, 1999 temporarily restraining the e ecution of petitioner and

!upplemental Motion to Urgent Motion for Reconsideration" #t is the submission of public respondents that$

%&1' (he )ecision in this case ha*ing become final and e ecutory, its e ecution enters the e clusi*e ambit of authority of the e ecuti*e authority" (he issuance of the (R+ may be construed as trenching on that sphere of e ecuti*e authority, &-' (he issuance of the temporary restraining order creates dangerous precedent as there .ill ne*er be an end to litigation because there is al.ays a possibility that Congress may repeal a la." &/' Congress had earlier deliberated e tensi*ely on the death penalty bill" (o be certain, .hate*er 0uestion may no. be raised on the )eath 1enalty 2a. before the present Congress .ithin the 34month period gi*en by this 5onorable Court had in all probability been fully debated upon " &4' Under the time honored ma im le futuro, 6ude praeterito, the la. loo7s for.ard .hile the 6udge loo7s at the past, the 5onorable Court in issuing the (R+ has transcended its po.er of 6udicial re*ie." &8' 9t this moment, certain circumstances:super*ening e*ents transpired to the effect that the repeal or modification of the la. imposing death penalty has become nil, to .it$ a" (he public pronouncement of 1resident ;strada that he .ill *eto any la. imposing the death penalty in*ol*ing heinous crimes" b" (he resolution of Congressman <ole=, et al", that they are against the repeal of the la., c" (he fact that !enator Roco's resolution to repeal the la. only bears his signature and that of !enator 1imentel"%
#n their !upplemental Motion to Urgent Motion for Reconsideration, public respondents attached a copy of 5ouse Resolution >o" 3-9 introduced by Congressman <ole= entitled %Resolution e pressing the sense of the 5ouse of Representati*e to re6ect any mo*e to re*ie. Republic 9ct >o" ?389 .hich pro*ided for the re4imposition of death penalty, notifying the !enate, the Judiciary and the ; ecuti*e )epartment of the position of the 5ouse of Representati*es on this matter, and urging the 1resident to e haust all means under the la. to immediately implement the death penalty la."% (he Resolution .as concurred in by one hundred thirteen &11/' congressmen" #n their Consolidated Comment, petitioner contends$ &1' the stay order is .ithin the scope of 6udicial po.er and duty and does not trench on e ecuti*e po.ers nor on congressional

prerogati*es, &-' the e ercise by this Court of its po.er to stay e ecution .as reasonable, &/' the Court did not lose 6urisdiction to address incidental matters in*ol*ed or arising from the petition, &4' public respondents are estopped from challenging the Court's 6urisdiction, and &8' there is no certainty that the la. on capital punishment .ill not be repealed or modified until Congress con*enes and considers all the *arious resolutions and bills filed before it" 1refatorily, the Court li7es to emphasi=e that the instant motions concern matters that are not incidents in <"R" >o" 11?4?-, .here the death penalty .as imposed on petitioner on automatic re*ie. of his con*iction by this Court" (he instant motions .ere filed in this case, <"R" >o" 1/-3@1, .here the constitutionality of R"9" >o" A1?? &2ethal #n6ection 2a.' and its implementing rules and regulations .as assailed by petitioner" For this reason, the Court in its Resolution of January 4, 1999 merely noted the Motion to !et 9side of Rodessa %Baby% R" ;chegaray dated January ?, 1999 and ;ntry of 9ppearance of her counsel dated January 8, 1999" Clearly, she has no legal standing to inter*ene in the case at bar, let alone the fact that the interest of the !tate is properly represented by the !olicitor <eneral" Ce shall no. resol*e the basic issues raised by the public respondents"
I

First" Ce do not agree .ith the s.eeping submission of the public respondents that this Court lost its 6urisdiction o*er the case at bar and hence can no longer restrain the e ecution of the petitioner" +b*iously, public respondents are in*o7ing the rule that final 6udgments can no longer be altered in accord .ith the principle that %it is 6ust as important that there should be a place to end as there should be a place to begin litigation"% D1E (o start .ith, the Court is not changing e*en a comma of its final )ecision" #t is appropriate to e amine .ith precision the metes and bounds of the )ecision of this Court that became final" (hese metes and bounds are clearly spelled out in the Entry of Judgment in this case, viz$

%;>(RF +F JU)<M;>( (his is to certify that on +ctober 1-, 199A a decision rendered in the abo*e4entitled case .as filed in this +ffice, the dispositi*e part of .hich reads as follo.s$ GC5;R;F+R;, the petition is );>#;) insofar as petitioner see7s to declare the assailed statute &Republic 9ct >o" A1??' as unconstitutional, but <R9>(;) insofar as !ections 1? and 19 of the Rules and Regulations to #mplement Republic 9ct >o" A1?? are concerned, .hich are hereby declared #>H92#) because &a' !ection 1? contra*enes 9rticle A/ of the Re*ised 1enal Code, as amended by !ection -8 of Republic 9ct >o" ?389, and &b' !ection 19 fails to pro*ide for re*ie. and appro*al of the 2ethal #n6ection Manual by the !ecretary of Justice, and un6ustifiably ma7es the manual confidential, hence una*ailable to interested parties including the accused:con*ict and counsel" Respondents are hereby en6oined from enforcing and implementing Republic 9ct >o" A1?? until the aforesaid !ections 1? and 19 of the Rules and Regulations to #mplement Republic 9ct >o" A1?? are appropriately amended, re*ised and:or corrected in accordance .ith this )ecision"

!+ +R);R;)"' and that the same has, on >o*ember 3, 199A become final and e ecutory and is hereby recorded in the Boo7 of ;ntries of Judgment" Manila, 1hilippines" Cler7 of Court By$ &!<)' (;R;!#(9 <" )#M9#!#1 9cting Chief Judicial Records +ffice%
(he records .ill sho. that before the ;ntry of Judgment, the !ecretary of Justice, the 5onorable !erafin Cue*as, filed .ith this Court on +ctober -1, 199A a Compliance .here he submitted the 9mended Rules and Regulations implementing R"9" >o" A1?? in compliance .ith our )ecision" +n +ctober -A, 199A, !ecretary Cue*as submitted a Manifestation informing the Court that he has caused the publication of the said 9mended Rules and Regulations as re0uired by the 9dministrati*e Code" It is crystalline that the ecision of this Court that !ecame final and unaltera!le mandated$ &1' that R"9" >o" A1?? is not unconstitutional, &-' that sections 1? and 19 of the Rules and Regulations to #mplement R"9" >o" A1?? are in*alid, and &/' R"9" >o" A1?? cannot be enforced and implemented until sections 1? and 19 of the Rules and Regulations to #mplement R"9" >o" A1?? are amended" #t is also daylight clear that this )ecision .as not altered a .hit by this Court" Contrary to the su!mission of the "olicitor #eneral, the rule on finality of $udgment cannot di%est this Court of its $urisdiction to e&ecute and enforce the same $udgment. Retired Justice Camilo Iuiason synthesi=ed the .ell established 6urisprudence on this issue as follo.s$D-E

'the finality of a $udgment does not mean that the Court has lost all its po(ers nor the case" By the finality of the 6udgment, .hat the court loses is its 6urisdiction to amend, modify or alter the same" ;*en after the 6udgment has become final the court retains its 6urisdiction to e ecute and enforce it" D/E )here is a difference !et(een the $urisdiction
of the court to e&ecute its $udgment and its $urisdiction to amend, modify or alter the same. )he former continues e%en after the $udgment has !ecome final for the purpose of enforcement of $udgment* the latter terminates (hen the $udgment !ecomes final"D4E For after the 6udgment has become final facts and circumstances may transpire .hich can render the e ecution un6ust or impossible" D8E

#n truth, the argument of the !olicitor <eneral has long been re6ected by this Court" 9s aptly pointed out by the petitioner, as early as 1918, this Court has une0ui*ocably ruled in the case of irector of Prisons %. Judge of First Instance,D3E *i=$

%(his !upreme Court has repeatedly declared in *arious decisions, .hich constitute 6urisprudence on the sub6ect, that in criminal cases, after the sentence has been pronounced and the period for reopening the same has elapsed, the court cannot

change or alter its 6udgment, as its 6urisdiction has terminated " " " Chen in cases of appeal or re*ie. the cause has been returned thereto for e ecution, in the e*ent that the 6udgment has been affirmed, it performs a ministerial duty in issuing the proper order" But it does not follo( from this cessation of functions on the part of the court (ith reference to the ending of the cause that the $udicial authority terminates !y ha%ing then passed completely to the E&ecuti%e. (he particulars of the e ecution itself, .hich are certainly not al.ays included in the 6udgment and .rit of e ecution, in any e*ent are absolutely under the control of the 6udicial authority, .hile the e ecuti*e has no po.er o*er the person of the con*ict e cept to pro*ide for carrying out of the penalty and to pardon" <etting do.n to the solution of the 0uestion in the case at bar, .hich is that of e ecution of a capital sentence, it must !e accepted as a hypothesis that postponement of the date can !e re+uested. )here can !e no dispute on this point. It is a (ell,-no(n principle that not(ithstanding the order of e&ecution and the e&ecutory nature thereof on the date set or at the proper time, the date therefor can !e postponed, e%en in sentences of death. Under the common la. this postponement can be ordered in three .ays$ &1' By command of the Jing, &-' by discretion &arbitrio) of the court, and &/' by mandate of the la." #t is sufficient to state this principle of the common la. to render impossible that assertion in absolute terms that after the con*ict has once been placed in 6ail the trial court can not reopen the case to in*estigate the facts that sho. the need for postponement" If one of the (ays is !y direction of the court, it is ac-no(ledged that e%en after the date of the e&ecution has !een fi&ed, and not(ithstanding the general rule that after the .court/ has performed its ministerial duty of ordering the e&ecution . . . and its part is ended, if ho(e%er a circumstance arises that ought to delay the e&ecution, and there is an imperati%e duty to in%estigate the emergency and to order a postponement. (hen the 0uestion arises as to .hom the application for postponing the e ecution ought to be addressed .hile the circumstances is under in*estigation and as to .ho has 6urisdiction to ma7e the in*estigation"%
(he po.er to control the e ecution of its decision is an essential aspect of 6urisdiction" #t cannot be the sub6ect of substantial subtraction for our ConstitutionD?E*ests the entirety of $udicial po(er in one !upreme Court and in such lo.er courts as may be estabished by la." )o !e sure, the most important part of a litigation, (hether ci%il or criminal, is the process of e&ecution of decisions (here super%ening e%ents may change the circumstance of the parties and compel courts to inter%ene and ad$ust the rights of the litigants to pre%ent unfairness. It is !ecause of these unforseen, super%ening contingencies that courts ha%e !een conceded the inherent and necessary po(er of control of its processes and orders to ma-e them conforma!le to la( and $ustice "DAE For this purpose, !ection 3 of Rule 1/8 pro*ides that %.hen by la. 6urisdiction is conferred on a court or 6udicial officer, all au iliary .rits, processes and other means necessary to carry it into effect may be employed by such court or officer and if the procedure to !e follo(ed in the e&ercise of such

$urisdiction is not specifically pointed out !y la( or !y these rules, any suita!le process or mode of proceeding may !e adopted (hich appears conforma!le to the spirit of said la( or rules.% #t bears repeating that .hat the Court restrained temporarily is the e ecution of its o.n )ecision to gi*e it reasonble time to chec7 its fairness in light of super*ening e*ents in Congress as alleged by petitioner" (he Court, contrary to popular misimpression, did not restrain the effecti*ity of a la. enacted by Congress" (he more dis0uieting dimension of the submission of the public respondents that this Court has no 6urisdiction to restrain the e ecution of petitioner is that it can diminish the independence of the 6udiciary" !ince the implant of republicanism in our soil, our courts ha*e been conceded the 6urisdiction to enforce their final decisions" #n accord .ith this un0uestioned 6urisdiction, this Court promulgated rules concerning pleading, practice and procedure .hich, among others, spelled out the rules on e&ecution of $udgments. )hese rules are all predicated on the assumption that courts ha%e the inherent, necessary and incidental po(er to control and super%ise the process of e&ecution of their decisions. Rule /9 go*erns e ecution, satisfaction and effects of 6udgments in ci*il cases" Rule 1-@ go*erns 6udgments in criminal cases" It should !e stressed that the po(er to promulgate rules of pleading, practice and procedure (as granted !y our Constitutions to this Court to enhance its independence, for in the .ords of Justice #sagani Cru= %.ithout independence and integrity, courts .ill lose that popular trust so essential to the maintenance of their *igor as champions of 6ustice"%D9E 5ence, our Constitutions continuously *ested this po.er to this Court for it enhances its independence" Under the 0123 Constitution, the po.er of this Court to promulgate rules concerning pleading, practice and procedure .as granted!ut it appeared to !e co,e&istent (ith legislati%e po(er for it (as su!$ect to the po(er of Congress to repeal, alter or supplement" (hus, its !ection 1/, 9rticle H### pro*ides$

%!ec" 1/" (he !upreme Court shall ha*e the po.er to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of la." !aid rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substanti*e rights" (he e isting la.s on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, sub6ect to the po.er of the !upreme Court to alter and modify the same" )he Congress shall ha%e the po(er to repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of la( in the Philippines.%
(he said po.er of Congress, ho.e*er, is not as absolute as it may appear on its surface" #n In re CunananD1@E Congress in the e ercise of its po.er to amend rules of the !upreme Court regarding admission to the practice of la., enacted the Bar Flun7ers 9ct of 198/D11E .hich considered as a passing grade, the a*erage of ?@K in the bar e aminations after July 4, 1943 up to 9ugust 1981 and ?1K in the 198- bar e aminations" )his Court strucdo(n the la( as unconstitutional" #n his ponencia, Mr" Justice )io7no held that % the disputed la. is not a legislation, it is a 6udgment 4 a 6udgment promulgated by this Court during the aforecited years affecting the bar candidates concerned, and although this Court certainly can re*o7e these 6udgments e*en no., for 6ustifiable reasons, it is no less certain that only this Court, and not the legislati*e nor e ecuti*e department, that may do so" 9ny attempt on the part

of these departments .ould be a clear usurpation of its function, as is the case .ith the la. in 0uestion"%D1-E (he *enerable 6urist further ruled$ %#t is ob*ious, therefore, that the ultimate po.er to grant license for the practice of la. belongs e&clusi%ely to this Court, and the la. passed by Congress on the matter is of permissi*e character, or as other authorities say, merely to fi the minimum conditions for the license"% 4y its ruling, this Court +ualified the a!solutist tone of the po(er of Congress to %repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of la. in the 1hilippines" (he ruling of this Court in In re Cunanan .as not changed by the 0152 Constitution" For the 0152 Constitution reiterated the po.er of this Court %to promulgate rules concerning pleading, practice and procedure in all courts, .hich, ho.e*er, may be repealed, altered or supplemented by the Batasang 1ambansa "% More completely, !ection 8&-'8 of its 9rticle L pro*ided$

%!ec" 8" (he !upreme Court shall ha*e the follo.ing po.ers"

&8' 1romulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of la., and the integration of the Bar, .hich, ho.e*er, may be repealed, altered, or supplemented by the Batasang 1ambansa" !uch rules shall pro*ide a simplified and ine pensi*e procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substanti*e rights"%
Cell .orth noting is that the 0152 Constitution further strengthened the independence of the 6udiciary by gi*ing to it the additional po.er to promulgate rules go*erning the integration of the Bar"D1/E (he 0165 Constitution molded an e*en stronger and more independent $udiciary" 9mong others, it enhanced the rule ma-ing po(er of this Court. #ts !ection 8&8', 9rticle H### pro*ides$

%!ection 8" (he !upreme Court shall ha*e the follo.ing po.ers$

&8' Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of la., the #ntegrated Bar, and legal assistance to the underpri*ileged" !uch rules shall pro*ide a simplified and ine pensi*e procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or

modify substanti*e rights" 7ules of procedure of special courts and +uasi,$udicial !odies shall remain effecti%e unless disappro%ed !y the "upreme Court "%
)he rule ma-ing po(er of this Court (as e&panded. (his Court for the first time .as gi*en the po.er to promulgate rules concerning the protection and enforcement of constitutional rights" (he Court .as also granted for the first time the po.er to disappro*e rules of procedure of special courts and 0uasi46udicial bodies" 4ut most importantly, the 0165 Constitution tooa(ay the po(er of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure" #n fine, the po.er to promulgate rules of pleading, practice and procedure is no longer shared by this Court .ith Congress, more so .ith the ; ecuti*e" #f the manifest intent of the 19A? Constitution is to strengthen the independence of the 6udiciary, it is inutile to urge, as public respondents do, that this Court has no 6urisdiction to control the process of e ecution of its decisions, a po.er conceded to it and .hich it has e ercised since time immemorial" (o be sure, it is too late in the day for public respondents to assail the 6urisdiction of this Court to control and super*ise the implementation of its decision in the case at bar" 9s aforestated, our )ecision became final and e ecutory on >o*ember 3, 199A" (he records re*eal that after >o*ember 3, 199A, or on )ecember A, 199A, no less than the "ecretary of Justice recogni8ed the $urisdiction of this Court by filing a Manifestation and Urgent Motion to compel the trial 6udge, the 5onorable (helma 9" 1onferrada, R(C, Br" 1@4, Iue=on City to pro*ide him % a certified true copy of the Carrant of ; ecution dated >o*ember 1?, 199A bearing the designated e ecution day of death con*ict 2eo ;chegaray and allo. &him' to re*eal or announce the contents thereof, particularly the e ecution date fi ed by such trial court to the public .hen re0uested"% (he rele*ant portions of the Manifestation and Urgent Motion filed by the !ecretary of Justice !eseeching this Court 'to pro%ide the appropriate relief % state$

8" #nstead of filing a comment on Judge 1onferrada's Manifestation ho.e*er, herein respondent is submitting the instant Manifestation and Motion &a' to stress,inter alia, that the non4disclosure of the date of e ecution depri*es herein respondent of *ital information necessary for the e ercise of his statutory po.ers, as .ell as renders nugatory the constitutional guarantee that recogni=es the people's right to information of public concern, and .!/ to as- this 9onora!le Court to pro%ide the appropriate relief. 3" (he non4disclosure of the date of e ecution depri*es herein respondent of *ital information necessary for the e ercise of his po.er of super*ision and control o*er the Bureau of Corrections pursuant to !ection /9, Chapter A, Boo7 #H of the 9dministrati*e Code of 19A?, in relation to (itle ###, Boo7 #H of such 9dministrati*e Code, insofar as the enforcement of Republic 9ct >o" A1?? and the 9mended Rules and Regulations to #mplement Republic 9ct >o" A1?? is concerned and for the discharge of the mandate of seeing to it that la.s and rules relati*e to the e ecution of sentence are faithfully obser*ed"

?" +n the other hand, the .illful omission to re*eal the information about the precise day of e ecution limits the e ercise by the 1resident of e ecuti*e clemency po.ers pursuant to !ection 19, 9rticle H## &; ecuti*e )epartment' of the 19A? 1hilippine Constitution and 9rticle A1 of the Re*ised 1enal Code, as amended, .hich pro*ides that the death sentence shall be carried out G.ithout pre6udice to the e ercise by the 1resident of his e ecuti*e clemency po.ers at all times"% &Underscoring supplied' For instance, the 1resident cannot grant reprie*e, i.e., postpone the e ecution of a sentence to a day certain & People v. Vera, 38 1hil" 83, 11@ D19/?E' in the absence of a precise date to rec7on .ith" (he e ercise of such clemency po.er, at this time, might e*en .or7 to the pre6udice of the con*ict and defeat the purpose of the Constitution and the applicable statute as .hen the date of e ecution set by the 1resident .ould be earlier than that designated by the court" A" Moreo*er, the deliberate non4disclosure of information about the date of e ecution to herein respondent and the public *iolates !ection ?, 9rticle ### &Bill of Rights' and !ection -A, 9rticle ## &)eclaration of 1rinciples and !tate 1olicies' of the 19A? 1hilippine Constitution .hich read$ !;C" ?" (he right of the people to information on matters of public concern shall be recogni=ed" 9ccess to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as .ell as to go*ernment research data used as basis for policy de*elopment, shall be afforded the citi=en, sub6ect to such limitations as may be pro*ided by la." !;C" -A" !ub6ect to reasonable conditions prescribed by la., the !tate adopts and implements a policy of full public disclosure of all its transactions in*ol*ing public interest" 9" (he Gright to information' pro*ision is self4e ecuting" #t supplies 'the rules by means of .hich the right to information may be en6oyed &Cooley, 9 (reatise on the Constitutional 2imitations, 13? D19?-E' by guaranteeing the right and mandating the duty to afford access to sources of information" 5ence, the fundamental right therein recogni=ed may be asserted by the people upon the ratification of the Constitution .ithout need for any ancillary act of the 2egislature & Id", at p" 138' Chat may be pro*ided for by the 2egislature are reasonable conditions and limitations upon the access to be afforded .hich must, of necessity, be consistent .ith the declared !tate policy of full public disclosure of all transactions in*ol*ing public interest &Constitution, 9rt" ##, !ec" -A'" 5o.e*er, it cannot be o*eremphasi=ed that .hate*er limitation may be prescribed by the 2egislature, the right and the duty under 9rt" ###, !ec" ? ha*e become operati*e and enforceable by *irtue of the adoption of the >e. Charter"% &)ecision of the !upreme Court En Banc in Legaspi v. Civil Service Commission, 18@ !CR9 8/@, 8/448/8 D19A?E"%

(he same motion to compel Judge 1onferrada to re*eal the date of e ecution of petitioner ;chegaray .as filed by his counsel, 9tty" (heodore (e, on )ecember ?, 199A" 5e in*o7ed his client's right to due process and the public's right to information" )he "olicitor #eneral, as counsel for pu!lic respondents, did not oppose petitioner:s motion on the ground that this Court has no more $urisdiction o%er the process of e&ecution of Echegaray. (his Court granted the relief prayed for by the !ecretary of Justice and by the counsel of the petitioner in its Resolution of )ecember 18, 199A" (here .as not a .himper of protest from the public respondents and they are no. estopped from contending that this Court has lost its 6urisdiction to grant said relief" (he 6urisdiction of this Court does not depend on the con*enience of litigants"
II

"econd" Ce li7e.ise re6ect the public respondents' contention that the %decision in this case ha*ing become final and e ecutory, its e&ecution enters the e&clusi%e am!it of authority of the e&ecuti%e department & & &. 4y granting the )7O, the 9onora!le Court has in effect granted reprie%e (hich is an e&ecuti%e function.%D14E 1ublic respondents cite as their authority for this proposition, !ection 19, 9rticle H## of the Constitution .hich reads$

%; cept in cases of impeachment, or as other.ise pro*ided in this Constitution, the 1resident may grant reprie*es, commutations, and pardons, and remit fines and forfeitures after con*iction by final 6udgment" 5e shall also ha*e the po.er to grant amnesty .ith the concurrence of a ma6ority of all the members of the Congress"%
(he te t and tone of this pro*ision .ill not yield to the interpretation suggested by the public respondents" (he pro*ision is simply the source of po(er of the 1resident to grant reprie*es, commutations, and pardons and remit fines and forfeitures after con*iction by final 6udgment" #t also pro*ides the authority for the 1resident to grant amnesty .ith the concurrence of a ma6ority of all the members of the Congress" (he pro*ision, ho.e*er, cannot be interpreted as denying the po.er of courts to control the enforcement of their decisions after their finality" In truth, an accused (ho has !een con%icted !y final $udgment still possesses collateral rights and these rights can !e claimed in the appropriate courts. For instance, a death con*ict .ho becomes insane after his final con*iction cannot be e ecuted .hile in a state of insanity" D18E 9s obser*ed by 9ntieau, %today, it is generally assumed that due process of la. .ill pre*ent the go*ernment from e ecuting the death sentence upon a person .ho is insane at the time of e ecution"%D13E (he suspension of such a death sentence is undisputably an e ercise of 6udicial po.er" #t is not a usurpation of the presidential po.er of reprie*e though its effect is the same 44 the temporary suspension of the e ecution of the death con*ict" #n the same *ein, it cannot be denied that Congress can at any time amend R"9" >o" ?389 by reducing the penalty of death to life imprisonment" (he effect of such an amendment is li7e that of commutation of sentence" But by no stretch of the imagination can the e ercise by Congress of its plenary po.er to amend la.s be considered as a *iolation of the po.er of the 1resident to commute final sentences of con*iction" )he po(ers of the E&ecuti%e, the ;egislati%e and the Judiciary to sa%e the life of a death con%ict do not e&clude each other for the simple reason that there is no higher right than the right to life. #ndeed, in *arious !tates in the United !tates, la.s ha*e e*en been enacted e pressly granting courts the po.er to suspend e ecution of con*icts and their constitutionality has been upheld o*er arguments that they infringe upon the po.er of the

1resident to grant reprie*es" For the public respondents therefore to contend that only the ; ecuti*e can protect the right to life of an accused after his final con*iction is to *iolate the principle of co4e0ual and coordinate po.ers of the three branches of our go*ernment"
III

)hird" (he Court's resolution temporarily restraining the e ecution of petitioner must be put in its proper perspecti%e as it has been grie%ously distorted especially !y those (ho ma-e a li%ing !y %ilifying courts. 1etitioner filed his Hery Urgent Motion for #ssuance of (R+ on ecem!er <6, 0116 at about 11$/@ p"m" 5e in*o7ed se*eral grounds, *i=$ &1' that his e ecution has been set on January 4, the first .or7ing day of 1999, &b' that members of Congress had either sought for his e ecuti*e clemency and:or re*ie. or repeal of the la. authori=ing capital punishment, &b"1' that !enator 90uilino 1imentel's resolution as7ing that clemency be granted to the petitioner and that capital punishment be re*ie.ed has been concurred by thirteen &1/' other senators, &b"-' !enate 1resident Marcelo Fernan and !enator Miriam !" )efensor ha*e publicly declared they .ould see7 a re*ie. of the death penalty la., &b"/' !enator Raul Roco has also sought the repeal of capital punishment, and &b"4' Congressman !alacrib Baterina, Jr", and thirty fi*e &/8' other congressmen are demanding re*ie. of the same la." Chen the Hery Urgent Motion .as filed, the Court .as already in its traditional recess and .ould only resume session on January 1A, 1999" ;*en then, Chief Justice 5ilario )a*ide, Jr" called the Court to a !pecial !ession on January 4, 1999 D1?E at 1@" a"m" to deliberate on petitioner's Hery Urgent Motion" (he Court hardly had fi*e &8' hours to resol*e petitioner's motion as he .as due to be e ecuted at / p"m" (hus, the Court had the difficult problem of resol*ing .hether petitioner's allegations about the mo*es in Congress to repeal or amend the )eath 1enalty 2a. are mere speculations or not. (o the Court's ma6ority, there .ere good reasons .hy the Court should not immediately dismiss petitioner's allegations as mere speculations and surmises" (hey noted that petitioner's allegations .ere made in a pleading under oath and .ere .idely publici=ed in the print and broadcast media" #t .as also of 6udicial notice that the 11th Congress is a ne( Congress and has no less than one hundred thirty .02=/ ne( mem!ers (hose %ie(s on capital punishment are still une&pressed " (he present Congress is therefore different from the Congress that enacted the )eath 1enalty 2a. &R"9" >o" ?389' and the 2ethal #n6ection 2a. &R"9" >o" A1??'" #n contrast, the Court's minority felt that petitioner's allegations lac7ed clear factual bases" (here .as hardly a time to *erify petitioner's allegations as his e ecution .as set at / p"m" 9nd *erification from Congress .as impossible as Congress .as not in session" <i*en these constraints, the Court's ma6ority did not rush to 6udgment but too7 ane&tremely cautious stance by temporarily restraining the e ecution of petitioner" (he suspension (as temporary 4 4 4 %until June 18, 1999, coe*al .ith the constitutional duration of the present regular session of Congress, unless it sooner !ecomes certain that no repeal or modification of the la( is going to !e made "% (he e treme caution ta7en by the Court .as compelled, among others, by the fear that any error of the Court in not stopping the e&ecution of the petitioner (ill preclude any further relief for all rights stop at the gra%eyard. 9s life .as at sta7e, the Court refused to constitutionali=e haste and the hysteria of some partisans" (he Court's ma6ority felt it needed the certainty that the legislature .ill not change the circumstance of petitioner as alleged by his counsel" #t .as belie*ed that la. and e0uitable considerations demand no less before allo.ing the !tate to ta7e the life of one its citi=ens"

)he temporary restraining order of this Court has produced its desired result, i"e", the crystalli8ation of the issue .hether Congress is disposed to re*ie. capital punishment" (he public respondents, thru the !olicitor <eneral, cite posterior e%ents that negate beyond doubt the possibility that Congress .ill repeal or amend the death penalty la." 5e names these super%ening e%ents as follo.s$

%a" (he public pronouncement of 1resident ;strada that he .ill *eto any la. repealing the death penalty in*ol*ing heinous crimes" b" (he resolution of Congressman <ole=, et al", that they are against the repeal of the la., c" (he fact that !enator Roco's resolution to repeal the la. only bears his signature and that of !enator 1imentel"%D1AE
#n their !upplemental Motion to Urgent Motion for Reconsideration, the !olicitor <eneral cited 5ouse Resolution >o" 3-9 introduced by Congressman <ole= entitled %Resolution e pressing the sense of the 5ouse of Representati*es to re6ect any mo*e to re*ie. R"9" >o" ?389 .hich pro*ided for the reimposition of death penalty, notifying the !enate, the Judiciary and the ; ecuti*e )epartment of the position of the 5ouse of Representati*es on this matter and urging the 1resident to e haust all means under the la. to immediately implement the death penalty la."% (he <ole= resolution .as signed by 11/ congressmen as of January 11, 1999" #n a marathon session yesterday that e tended up to / o'cloc7 in the morning, the 5ouse of Representati*es .ith minor amendments formally adopted the <ole= resolution by an o*er.helming *ote" 5ouse Resolution >o" -8 e pressed the sentiment that the 5ouse % does not desire at this time to re*ie. Republic 9ct ?389"% #n addition, the 1resident has stated that he .ill not re0uest Congress to ratify the !econd 1rotocol in *ie. of the pre*alence of heinous crimes in the country" #n light of these de*elopments, the Court's (R+ should no. be lifted as it has ser*ed its legal and humanitarian purpose" > last note" #n 19--, the famous Clarence )arro. predicted that % the 0uestion of capital punishment has been the sub6ect of endless discussion and (ill pro!a!ly ne%er !e settled so long as men !elie%e in punishment.%D19E #n our clime and time .hen heinous crimes continue to be unchec7ed, the debate on the legal and moral predicates of capital punishment has been regrettably blurred by emotionalism because of the unfaltering faith of the pro and anti4death partisans on the right and righteousness of their postulates" (o be sure, any debate, e*en if it is no more than an e change of epithets is healthy in a democracy" 4ut (hen the de!ate deteriorates to discord due to the o%eruse of (ords that (ound, (hen anger threatens to turn the ma$ority rule to tyranny, it is the especial duty of this Court to assure that the guarantees of the 4ill of 7ights to the minority fully hold " 9s Justice Brennan reminds us % it is the *ery purpose of the Constitution 4 4 4 and particularly the Bill of Rights 4 4 4 to declare certain %alues transcendent, beyond the reach of temporary political ma6orities"%D-@E ?an has yet to in%ent a !etter hatchery of $ustice than the courts. It is a hatchery (here $ustice (ill !loom only (hen (e can pre%ent the roots of reason to !e !lo(n a(ay !y the (inds of rage. )he flame of the rule of la( cannot !e ignited !y rage,

especially the rage of the mo! (hich is the mother of unfairness. )he !usiness of courts in rendering $ustice is to !e fair and they can pass their litmus test only (hen they can !e fair to him (ho is momentarily the most hated !y society"D-1E IN @IEA A9E7EOF, the Court grants the public respondents' Urgent Motion for Reconsideration and !upplemental Motion to Urgent Motion for Reconsideration and lifts the (emporary Restraining +rder issued in its Resolution of January 4, 1999" (he Court also orders respondent trial court 6udge &5on" (helma 9" 1onferrada, Regional (rial Court, Iue=on City, Branch 1@4' to set ane. the date for e ecution of the con*ict:petitioner in accordance .ith applicable pro*isions of la. and the Rules of Court, .ithout further delay" "O O7 E7E . Davide, Jr., C.J., omero, Bellosillo, !elo, "ap#nan, !endoza, !artinez, $#is#mbing, P#risima, and Pardo, JJ., concur. Vit#g, and Panganiban, JJ., see separate opinion" B#ena, and %onzaga& e'es, JJ., no part"