Persons Art. 1-10 Cases

PERSONS and FAMILY RELATIONS (Atty.
Vincent Juan)
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EXAM COVERAGE CASE COMPILATION

ARTICLE 2

TANADA v TUVERA
G.R. No. L-63915, April 24, 1985
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive
Assistant to the President, HON. JOAQUIN VENUS, in
his capacity as Deputy Executive Assistant to the
President , MELQUIADES P. DE LA CRUZ, in his capacity
as Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director,
Bureau of Printing, respondents.

ESCOLIN, J .:
Invoking the people's right to be informed on matters of
public concern, a right recognized in Section 6, Article IV of
the 1973 Philippine Constitution,
1
as well as the principle
that laws to be valid and enforceable must be published in
the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent
public officials to publish, and/or cause the publication in the
Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders,
letter of implementation and administrative orders.
The respondents, through the Solicitor General, would have
this case dismissed outright on the ground that petitioners
have no legal personality or standing to bring the instant
petition. The view is submitted that in the absence of any
showing that petitioners are personally and directly affected
or prejudiced by the alleged non-publication of the
presidential issuances in question
2
said petitioners are
without the requisite legal personality to institute this
mandamus proceeding, they are not being "aggrieved
parties" within the meaning of Section 3, Rule 65 of the
Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal,
corporation, board or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use a rd enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty and
praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do
the act required to be done to Protect the rights of the
petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the
subject of the petition concerns a public right and its object is
to compel the performance of a public duty, they need not
show any specific interest for their petition to be given due
course.
The issue posed is not one of first impression. As early as
the 1910 case of Severino vs. Governor General,
3
this Court
held that while the general rule is that "a writ of mandamus
would be granted to a private individual only in those cases
where he has some private or particular interest to be
subserved, or some particular right to be protected,
independent of that which he holds with the public at large,"
and "it is for the public officers exclusively to apply for the
writ when public rights are to be subserved [Mithchell vs.
Boardmen, 79 M.e., 469]," nevertheless, "when the question
is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at whose
instigation the proceedings are instituted need not show that
he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal
Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope
Severino, a private individual, as a proper party to the
mandamus proceedings brought to compel the Governor
General to call a special election for the position of municipal
president in the town of Silay, Negros Occidental. Speaking
for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority
supports the proposition that the relator is a proper party to
proceedings of this character when a public right is sought to
be enforced. If the general rule in America were otherwise,
we think that it would not be applicable to the case at bar for
the reason 'that it is always dangerous to apply a general
rule to a particular case without keeping in mind the reason
for the rule, because, if under the particular circumstances
the reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general
rule insisted upon by counsel for the respondent. The
circumstances which surround this case are different from
those in the United States, inasmuch as if the relator is not a
proper party to these proceedings no other person could be,
as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of
this character.
The reasons given by the Court in recognizing a private
citizen's legal personality in the aforementioned case apply
squarely to the present petition. Clearly, the right sought to
be enforced by petitioners herein is a public right recognized
by no less than the fundamental law of the land. If petitioners
were not allowed to institute this proceeding, it would indeed
be difficult to conceive of any other person to initiate the
same, considering that the Solicitor General, the government
officer generally empowered to represent the people, has
entered his appearance for respondents in this case.
Respondents further contend that publication in the Official
Gazette is not a sine qua non requirement for the effectivity
PERSONS and FAMILY RELATIONS (Atty. Vincent Juan)
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of laws where the laws themselves provide for their own
effectivity dates. It is thus submitted that since the
presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the
Official Gazette is not indispensable for their effectivity. The
point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless
it is otherwise provided, ...
The interpretation given by respondent is in accord with this
Court's construction of said article. In a long line of
decisions,
4
this Court has ruled that publication in the Official
Gazette is necessary in those cases where the legislation
itself does not provide for its effectivity date-for then the date
of publication is material for determining its date of effectivity,
which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into
effect.
Respondents' argument, however, is logically correct only
insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes
applicable to the issue at hand, the conclusion is easily
reached that said Article 2 does not preclude the requirement
of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1]
all important legisiative acts and resolutions of a public
nature of the, Congress of the Philippines; [2] all executive
and administrative orders and proclamations, except such as
have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as
may be deemed by said courts of sufficient importance to be
so published; [4] such documents or classes of documents
as may be required so to be published by law; and [5] such
documents or classes of documents as the President of the
Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to
be published. ...
The clear object of the above-quoted provision is to give the
general public adequate notice of the various laws which are
to regulate their actions and conduct as citizens. Without
such notice and publication, there would be no basis for the
application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law of which he
had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine
Republic has the publication of laws taken so vital
significance that at this time when the people have bestowed
upon the President a power heretofore enjoyed solely by the
legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan
Pambansaand for the diligent ones, ready access to the
legislative recordsno such publicity accompanies the law-
making process of the President. Thus, without publication,
the people have no means of knowing what presidential
decrees have actually been promulgated, much less a
definite way of informing themselves of the specific contents
and texts of such decrees. As the Supreme Court of Spain
ruled: "Bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su
potestad.
5

The very first clause of Section I of Commonwealth Act 638
reads: "There shall be published in the Official Gazette ... ."
The word "shall" used therein imposes upon respondent
officials an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters
of public concern is to be given substance and reality. The
law itself makes a list of what should be published in the
Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must
be included or excluded from such publication.
The publication of all presidential issuances "of a public
nature" or "of general applicability" is mandated by law.
Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise impose
a burden or. the people, such as tax and revenue measures,
fall within this category. Other presidential issuances which
apply only to particular persons or class of persons such as
administrative and executive orders need not be published
on the assumption that they have been circularized to all
concerned.
6

It is needless to add that the publication of presidential
issuances "of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and
specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC
7
:
In a time of proliferating decrees, orders and letters of
instructions which all form part of the law of the land, the
requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository
promulgate and publish the texts of all such decrees, orders
and instructions so that the people may know where to
obtain their official and specific contents.
The Court therefore declares that presidential issuances of
general application, which have not been published, shall
have no force and effect. Some members of the Court, quite
apprehensive about the possible unsettling effect this
decision might have on acts done in reliance of the validity of
those presidential decrees which were published only during
the pendency of this petition, have put the question as to
whether the Court's declaration of invalidity apply to P.D.s
which had been enforced or implemented prior to their
publication. The answer is all too familiar. In similar situations
in the past this Court had taken the pragmatic and realistic
course set forth in Chicot County Drainage District vs. Baxter
Bank
8
to wit:
The courts below have proceeded on the theory that the Act
of Congress, having been found to be unconstitutional, was
not a law; that it was inoperative, conferring no rights and
imposing no duties, and hence affording no basis for the
challenged decree. Norton v. Shelby County, 118 U.S. 425,
442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566.
It is quite clear, however, that such broad statements as to
the effect of a determination of unconstitutionality must be
taken with qualifications. The actual existence of a statute,
prior to such a determination, is an operative fact and may
have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be
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considered in various aspects-with respect to particular
conduct, private and official. Questions of rights claimed to
have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of
public policy in the light of the nature both of the statute and
of its previous application, demand examination. These
questions are among the most difficult of those which have
engaged the attention of courts, state and federal and it is
manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity
cannot be justified.
Consistently with the above principle, this Court in Rutter vs.
Esteban
9
sustained the right of a party under the Moratorium
Law, albeit said right had accrued in his favor before said law
was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential
decrees prior to their publication in the Official Gazette is "an
operative fact which may have consequences which cannot
be justly ignored. The past cannot always be erased by a
new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court,
it appears that of the presidential decrees sought by
petitioners to be published in the Official Gazette, only
Presidential Decrees Nos. 1019 to 1030, inclusive, 1278,
and 1937 to 1939, inclusive, have not been so
published.
10
Neither the subject matters nor the texts of
these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has ever
been implemented or enforced by the government.
In Pesigan vs. Angeles,
11
the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the
public of the contents of [penal] regulations and make the
said penalties binding on the persons affected thereby. " The
cogency of this holding is apparently recognized by
respondent officials considering the manifestation in their
comment that "the government, as a matter of policy, refrains
from prosecuting violations of criminal laws until the same
shall have been published in the Official Gazette or in some
other publication, even though some criminal laws provide
that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to
publish in the Official Gazette all unpublished presidential
issuances which are of general application, and unless so
published, they shall have no binding force and effect.
SO ORDERED.

TANADA v TUVERA
G.R. No. L-63915, December 29, 1986
SUPREME COURT
Manila
G.R. No. L-63915 December 29, 1986
LORENZO M. TA;ADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC.
(MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive
Assistant to the President, HON. JOAQUIN VENUS, in
his capacity as Deputy Executive Assistant to the
President, MELQUIADES P. DE LA CRUZ, ETC., ET
AL., respondents.
R E S O L U T I O N

CRUZ, J .:
Due process was invoked by the petitioners in demanding
the disclosure of a number of presidential decrees which
they claimed had not been published as required by law. The
government argued that while publication was necessary as
a rule, it was not so when it was "otherwise provided," as
when the decrees themselves declared that they were to
become effective immediately upon their approval. In the
decision of this case on April 24, 1985, the Court affirmed the
necessity for the publication of some of these decrees,
declaring in the dispositive portion as follows:
WHEREFORE, the Court hereby orders
respondents to publish in the Official Gazette all
unpublished presidential issuances which are of
general application, and unless so published, they
shall have no binding force and effect.
The petitioners are now before us again, this time to move
for reconsideration/clarification of that decision.
1
Specifically,
they ask the following questions:
1. What is meant by "law of public nature" or "general
applicability"?
2. Must a distinction be made between laws of general
applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that
there should be no distinction between laws of general
applicability and those which are not; that publication means
complete publication; and that the publication must be made
forthwith in the Official Gazette.
2

In the Comment
3
required of the then Solicitor General, he
claimed first that the motion was a request for an advisory
opinion and should therefore be dismissed, and, on the
merits, that the clause "unless it is otherwise provided" in
Article 2 of the Civil Code meant that the publication required
therein was not always imperative; that publication, when
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necessary, did not have to be made in the Official Gazette;
and that in any case the subject decision was concurred in
only by three justices and consequently not binding. This
elicited a Reply
4
refuting these arguments. Came next the
February Revolution and the Court required the new Solicitor
General to file a Rejoinder in view of the supervening events,
under Rule 3, Section 18, of the Rules of Court. Responding,
he submitted that issuances intended only for the internal
administration of a government agency or for particular
persons did not have to be 'Published; that publication when
necessary must be in full and in the Official Gazette; and
that, however, the decision under reconsideration was not
binding because it was not supported by eight members of
this Court.
5

The subject of contention is Article 2 of the Civil Code
providing as follows:
ART. 2. Laws shall take effect after fifteen days
following the completion of their publication in
the Official Gazette, unless it is otherwise provided.
This Code shall take effect one year after such
publication.
After a careful study of this provision and of the arguments of
the parties, both on the original petition and on the instant
motion, we have come to the conclusion and so hold, that
the clause "unless it is otherwise provided" refers to the date
of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not
mean that the legislature may make the law effective
immediately upon approval, or on any other date, without its
previous publication.
Publication is indispensable in every case, but the legislature
may in its discretion provide that the usual fifteen-day period
shall be shortened or extended. An example, as pointed out
by the present Chief Justice in his separate concurrence in
the original decision,
6
is the Civil Code which did not
become effective after fifteen days from its publication in the
Official Gazette but "one year after such publication." The
general rule did not apply because it was "otherwise
provided. "
It is not correct to say that under the disputed clause
publication may be dispensed with altogether. The reason. is
that such omission would offend due process insofar as it
would deny the public knowledge of the laws that are
supposed to govern the legislature could validly provide that
a law e effective immediately upon its approval
notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely
that persons not aware of it would be prejudiced as a result
and they would be so not because of a failure to comply with
but simply because they did not know of its existence,
Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal
measures, like a law on prescription, which must also be
communicated to the persons they may affect before they
can begin to operate.
We note at this point the conclusive presumption that every
person knows the law, which of course presupposes that the
law has been published if the presumption is to have any
legal justification at all. It is no less important to remember
that Section 6 of the Bill of Rights recognizes "the right of the
people to information on matters of public concern," and this
certainly applies to, among others, and indeed especially,
the legislative enactments of the government.
The term "laws" should refer to all laws and not only to those
of general application, for strictly speaking all laws relate to
the people in general albeit there are some that do not apply
to them directly. An example is a law granting citizenship to a
particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said
that such a law does not affect the public although it
unquestionably does not apply directly to all the people. The
subject of such law is a matter of public interest which any
member of the body politic may question in the political
forums or, if he is a proper party, even in the courts of
justice. In fact, a law without any bearing on the public would
be invalid as an intrusion of privacy or as class legislation or
as anultra vires act of the legislature. To be valid, the law
must invariably affect the public interest even if it might be
directly applicable only to one individual, or some of the
people only, and t to the public as a whole.
We hold therefore that all statutes, including those of local
application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days
after publication unless a different effectivity date is fixed by
the legislature.
Covered by this rule are presidential decrees and executive
orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated
by the legislature or, at present, directly conferred by the
Constitution. administrative rules and regulations must a also
be published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature,
that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the
performance of their duties.
Accordingly, even the charter of a city must be published
notwithstanding that it applies to only a portion of the
national territory and directly affects only the inhabitants of
that place. All presidential decrees must be published,
including even, say, those naming a public place after a
favored individual or exempting him from certain prohibitions
or requirements. The circulars issued by the Monetary Board
must be published if they are meant not merely to interpret
but to "fill in the details" of the Central Bank Act which that
body is supposed to enforce.
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However, no publication is required of the instructions issued
by, say, the Minister of Social Welfare on the case studies to
be made in petitions for adoption or the rules laid down by
the head of a government agency on the assignments or
workload of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not covered by this
rule but by the Local Government Code.
We agree that publication must be in full or it is no
publication at all since its purpose is to inform the public of
the contents of the laws. As correctly pointed out by the
petitioners, the mere mention of the number of the
presidential decree, the title of such decree, its whereabouts
(e.g., "with Secretary Tuvera"), the supposed date of
effectivity, and in a mere supplement of the Official Gazette
cannot satisfy the publication requirement. This is not even
substantial compliance. This was the manner, incidentally, in
which the General Appropriations Act for FY 1975, a
presidential decree undeniably of general applicability and
interest, was "published" by the Marcos administration.
7
The
evident purpose was to withhold rather than disclose
information on this vital law.
Coming now to the original decision, it is true that only four
justices were categorically for publication in the Official
Gazette
8
and that six others felt that publication could be
made elsewhere as long as the people were sufficiently
informed.
9
One reserved his vote
10
and another merely
acknowledged the need for due publication without indicating
where it should be made.
11
It is therefore necessary for the
present membership of this Court to arrive at a clear
consensus on this matter and to lay down a binding decision
supported by the necessary vote.
There is much to be said of the view that the publication
need not be made in the Official Gazette, considering its
erratic releases and limited readership. Undoubtedly,
newspapers of general circulation could better perform the
function of communicating, the laws to the people as such
periodicals are more easily available, have a wider
readership, and come out regularly. The trouble, though, is
that this kind of publication is not the one required or
authorized by existing law. As far as we know, no
amendment has been made of Article 2 of the Civil Code.
The Solicitor General has not pointed to such a law, and we
have no information that it exists. If it does, it obviously has
not yet been published.
At any rate, this Court is not called upon to rule upon the
wisdom of a law or to repeal or modify it if we find it
impractical. That is not our function. That function belongs to
the legislature. Our task is merely to interpret and apply the
law as conceived and approved by the political departments
of the government in accordance with the prescribed
procedure. Consequently, we have no choice but to
pronounce that under Article 2 of the Civil Code, the
publication of laws must be made in the Official Gazett and
not elsewhere, as a requirement for their effectivity after
fifteen days from such publication or after a different period
provided by the legislature.
We also hold that the publication must be made forthwith or
at least as soon as possible, to give effect to the law
pursuant to the said Article 2. There is that possibility, of
course, although not suggested by the parties that a law
could be rendered unenforceable by a mere refusal of the
executive, for whatever reason, to cause its publication as
required. This is a matter, however, that we do not need to
examine at this time.
Finally, the claim of the former Solicitor General that the
instant motion is a request for an advisory opinion is
untenable, to say the least, and deserves no further
comment.
The days of the secret laws and the unpublished decrees are
over. This is once again an open society, with all the acts of
the government subject to public scrutiny and available
always to public cognizance. This has to be so if our country
is to remain democratic, with sovereignty residing in the
people and all government authority emanating from them.
Although they have delegated the power of legislation, they
retain the authority to review the work of their delegates and
to ratify or reject it according to their lights, through their
freedom of expression and their right of suffrage. This they
cannot do if the acts of the legislature are concealed.
Laws must come out in the open in the clear light of the sun
instead of skulking in the shadows with their dark, deep
secrets. Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their existence and
contents are confirmed by a valid publication intended to
make full disclosure and give proper notice to the people.
The furtive law is like a scabbarded saber that cannot feint
parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above
defined shall immediately upon their approval, or as soon
thereafter as possible, be published in full in the Official
Gazette, to become effective only after fifteen days from their
publication, or on another date specified by the legislature, in
accordance with Article 2 of the Civil Code.
SO ORDERED.
DE ROY v COURT OF APPEALS
157 SCRA 757

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,
vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA
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BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA
BERNAL, namely, GLICERIA DELA CRUZ BERNAL and
LUIS BERNAL, SR., respondents.
R E S O L U T I O N

CORTES, J .:
This special civil action for certiorari seeks to declare null
and void two (2) resolutions of the Special First Division of
the Court of Appeals in the case of Luis Bernal, Sr., et al. v.
Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The
first resolution promulgated on 30 September 1987 denied
petitioners' motion for extension of time to file a motion for
reconsideration and directed entry of judgment since the
decision in said case had become final; and the second
Resolution dated 27 October 1987 denied petitioners' motion
for reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition
outright for not being verified as required by Rule 65 section
1 of the Rules of Court. However, even if the instant petition
did not suffer from this defect, this Court, on procedural and
substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a
burned-out building owned by petitioners collapsed and
destroyed the tailoring shop occupied by the family of private
respondents, resulting in injuries to private respondents and
the death of Marissa Bernal, a daughter. Private respondents
had been warned by petitioners to vacate their shop in view
of its proximity to the weakened wall but the former failed to
do so. On the basis of the foregoing facts, the Regional Trial
Court. First Judicial Region, Branch XXXVIII, presided by the
Hon. Antonio M. Belen, rendered judgment finding
petitioners guilty of gross negligence and awarding damages
to private respondents. On appeal, the decision of the trial
court was affirmed in toto by the Court of Appeals in a
decision promulgated on August 17, 1987, a copy of which
was received by petitioners on August 25, 1987. On
September 9, 1987, the last day of the fifteen-day period to
file an appeal, petitioners filed a motion for extension of time
to file a motion for reconsideration, which was eventually
denied by the appellate court in the Resolution of September
30, 1987. Petitioners filed their motion for reconsideration on
September 24, 1987 but this was denied in the Resolution of
October 27, 1987.
This Court finds that the Court of Appeals did not commit a
grave abuse of discretion when it denied petitioners' motion
for extension of time to file a motion for reconsideration,
directed entry of judgment and denied their motion for
reconsideration. It correctly applied the rule laid down
in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895,
August 5, 1985,138 SCRA 461, that the fifteen-day period for
appealing or for filing a motion for reconsideration cannot be
extended. In its Resolution denying the motion for
reconsideration, promulgated on July 30, 1986 (142 SCRA
208), this Court en banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this
Resolution, the rule shall be strictly enforced that no motion
for extension of time to file a motion for reconsideration may
be filed with the Metropolitan or Municipal Trial Courts, the
Regional Trial Courts, and the Intermediate Appellate Court.
Such a motion may be filed only in cases pending with the
Supreme Court as the court of last resort, which may in its
sound discretion either grant or deny the extension
requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the
intermediate Appellate Court, [G.R. No. 73146-53, August
26, 1986, 143 SCRA 643], reiterated the rule and went
further to restate and clarify the modes and periods of
appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824,
Sept. 15, 1986,144 SCRA 161],stressed the prospective
application of said rule, and explained the operation of the
grace period, to wit:
In other words, there is a one-month grace period from the
promulgation on May 30, 1986 of the Court's Resolution in
the clarificatory Habaluyas case, or up to June 30, 1986,
within which the rule barring extensions of time to file
motions for new trial or reconsideration is, as yet, not strictly
enforceable.
Since petitioners herein filed their motion for extension on
February 27, 1986, it is still within the grace period, which
expired on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate
Appellate Court [G.R. No. 73669, October 28, 1986, 145
SCRA 306].]
In the instant case, however, petitioners' motion for
extension of time was filed on September 9, 1987, more than
a year after the expiration of the grace period on June 30,
1986. Hence, it is no longer within the coverage of the grace
period. Considering the length of time from the expiration of
the grace period to the promulgation of the decision of the
Court of Appeals on August 25, 1987, petitioners cannot
seek refuge in the ignorance of their counsel regarding said
rule for their failure to file a motion for reconsideration within
the reglementary period.
Petitioners contend that the rule enunciated in
the Habaluyas case should not be made to apply to the case
at bar owing to the non-publication of the Habaluyas decision
in the Official Gazette as of the time the subject decision of
the Court of Appeals was promulgated. Contrary to
petitioners' view, there is no law requiring the publication of
Supreme Court decisions in the Official Gazette before they
can be binding and as a condition to their becoming
effective. It is the bounden duty of counsel as lawyer in
active law practice to keep abreast of decisions of the
Supreme Court particularly where issues have been clarified,
consistently reiterated, and published in the advance reports
of Supreme Court decisions (G. R. s) and in such
publications as the Supreme Court Reports Annotated
(SCRA) and law journals.
This Court likewise finds that the Court of Appeals committed
no grave abuse of discretion in affirming the trial court's
decision holding petitioner liable under Article 2190 of the
Civil Code, which provides that "the proprietor of a building
or structure is responsible for the damage resulting from its
total or partial collapse, if it should be due to the lack of
necessary repairs.
1
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Nor was there error in rejecting petitioners argument that
private respondents had the "last clear chance" to avoid the
accident if only they heeded the. warning to vacate the
tailoring shop and , therefore, petitioners prior negligence
should be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular accidents, is
inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved
to DENY the instant petition for lack of merit.

ARTICLE 3

TANADA v TUVERA
G.R. No. L-63915, April 24, 1985

TANADA v TUVERA
G.R. No. L-63915, December 29, 1986

ZULUETA v ZULUETA
G.R. No. 428, April 30, 1902
SUPREME COURT
Manila
EN BANC
G.R. No. 428 April 30, 1902
JOSE ZULUETA, plaintiff-appellee,
vs.
FRANCISCA ZULUETA, defendant-appellant.
Aylett R. Cotton, for appellant.
Francisco Ortigas, for appellee.
LADD, J .:
Don Jose Zulueta and his sister, Doa Francisca Zulueta,
are sole heirs under the will of their father, Don Clemente
Zulueta, who died in Iloilo in 1900. In the course of the
voluntary testamentary proceedings instituted in the Court of
First Instance of Iloilo by Don Jose, three auditors were
appointed to make a division of the estate under article 1053
of the Ley de Enjuiciamiento Civil, of whom Don Jose and
Doa Francisca each nominated one, the third or auditor
umpire being chosen by common accord of the parties. The
two auditors nominated by the parties respectively failed to
agree, and each rendered a separate report. The auditor
umpire, whose report was filed March 29, 1901, agreed with
and accepted in its entirety the report of the auditor
nominated by Don Jose. The procedure marked out in
articles 1062 and 1067 of the Ley de Enjuiciamiento
Civil was then followed, and upon the application of Doa
Francisca the record was on April 13 delivered to her for
examination. April 25 she filed her opposition to the report of
the auditor umpire, and a meeting of the interested parties
having been had, as provided in article 1069 of the Ley de
Enjuiciamiento Civil, and no agreement having been
reached, the court, by a providencia of May 4, directed that
the procedure prescribed for declarative actions be followed,
and that the record be again delivered to Doa Francisca in
order that she might formulate her demand in accordance
with article 1071 of the Ley de Enjuiciamiento Civil. On
petition of Don Jose the court by a providencia of May 7 fixed
the term of fifteen days as that within which Doa Francisca
should formulate her demand, which term was subsequently
enlarged seven days on petition of Doa Francisca. June 5
Doa Francisca petitioned the court, stating that the new
Code of Procedure enacted by the Civil Commission was
soon to become operative, and that she deemed it more
advantageous to her rights that the declarative action which
she had to bring should be governed by the new Code rather
than that then in force, and asking that proceedings in the
action should be suspended till the new Code went into
effect. This petition the court denied in an auto rendered
June 15, declaring, furthermore, that the term fixed for the
filing of the demand having expired, Doa Francisca has lost
her right to institute the action. June 22 Doa Francisca
petitioned for the reform of this auto. On the same day this
petition was denied in an auto rendered by Don Cirilo Mapa,
a justice of the peace of the city of Iloilo, who had been
designated, as would appear from the record, by the judge of
the then recently constituted Ninth Judicial District to preside
in the Court of First Instance of the Province of Iloilo during
the illness of the latter. The denial of this petition was put on
the ground that the auto of June 15 was not one against
which the remedy of reform was available, but that the
remedy was by way of appeal under article 365 of the Ley de
Enjuiciamiento Civil. On June 29 Doa Francisca interposed
an appeal against the auto of June 22, which the court, now
presided over by the regular judge of first instance of the
district, declined to admit, on the ground that it was not
presented within three days, as prescribed in article 363 of
the Ley de Enjuiciamiento Civil. Thereupon, upon petition of
Don Jose the partition proceedings were approved by the
court by an auto of July 16 from which Doa Francisca took
the present appeal.
While the appeal was pending in this Court Doa Francisca
presented a petition under Act No. 75 of the Civil
Commission, alleging that the auto of June 22 was rendered
through a mistake of the acting judge of first instance, who
erroneously believed that he had jurisdiction to render the
same; that Doa Francisca was prevented from entering an
appeal from that auto by her mistake as to the term
prescribed by the Ley de Enjuiciamiento Civil for entering
appeals in such cases; and finally that the auto of July 16
approving the partition proceedings was rendered by a
mistake of the judge, who erroneously believed that
the auto of June 22, was valid, whereas it and all subsequent
proceedings were absolutely void; and asking that
the auto of June 22, the providencia denying the admission
of the appeal, and the auto of July 16 be set aside and the
proceedings restored to the condition in which they were
previous to June 22, when the first mistake was made. Upon
this petition a hearing has been had, and we have also heard
arguments upon the appeal.
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Taking up the petition first, we do not find it necessary to
decide whether the acting judge of first instance by whom
the auto of June 22 was rendered had such de
facto authority that legal validity will be accorded to his acts.
Assuming that he was without jurisdiction to render the auto,
we are of opinion that Doa Francisca can not take
advantage of the error in such a proceeding as the present.
Act No. 75 provides a remedy "against judgments obtained
in Courts of First Instance by fraud, accident, or mistake," but
although the language of the law is somewhat broad, the
general scope and purpose of the enactment indicate too
clearly to require argument that the mistake against which
relief is provided can not be a mistake into which the court
may have fallen in the findings of fact or conclusions of law
upon which its judgment is based. If such were the effect of
the enactment, every case in which a party felt himself
aggrieved by the judgment of the court below could be
brought to this court for revision in this way, and the ordinary
remedy by appeal or otherwise would be thus entirely
superseded by the more summary proceeding therein
provided. "The meaning of the word "mistake" as used in the
statute does not extend nor was it intended that it should
to an error of law which may have been committed by the
judge in the trial in question. Such errors may be corrected
by appeal. The statute under consideration can by no means
be employed as a substitute for that remedy." (Jose
Emeterio Guevara vs. Tuason & Company, decided October
7, 1901, p. 27, supra.) The result is that we can not set aside
the auto of June 22 on this petition, and that on July 16
stands upon precisely the same footing, the allegation being
that auto also was rendered under a mistake of law on the
part of the judge.
The remaining question upon the petition is whether Doa
Francisca is entitled to relief against the consequences of
her failure to interpose her appeal against the auto of June
22 within the period fixed by the law. The mistake in this
instance was her own, but it was a mistake of law, and while
we should be unwilling to say that special cases might not
occur in which relief would be afforded in such a proceeding
as this against a mistake of law made by a party, we are of
opinion that the present is not such a case. Nothing is shown
here except the bare fact that the party acted under
ignorance or misconception of the provisions of the law in
regard to the time within which the appeal could be taken,
and there is no reason why the general principle, a principle
"founded no only on expediency and policy but on
necessity," that "ignorance of the law does not excuse from
compliance therewith" (Civil Code, art. 2), should be relaxed.
The framers of Act No. 75 could not have intended to totally
abrogate this principle with reference to the class of cases
covered by the act. If such were the effect of this legislation
the court "would be involved and perplexed with questions
incapable of any just solution and embarrassed by inquiries
almost interminable."
Act No. 75 was framed for the purpose of preventing
injustice, and although the legal construction to be placed
upon its provisions can not of course be affected by any
considerations as to the hardships of the particular case in
which it is invoked, it is proper to say that if the question
determined in the auto of June 15, which is that against the
consequences of which the petitioner seeks ultimately to be
relieved, were to be decided upon its merits, thatauto would
necessarily be sustained, so that the petitioner has in fact
suffered no hardship or injustice by reason of
the auto having been left in effect as a result of the mistakes
which she claims to have vitiated the subsequent
proceedings.
The petition for the suspension of the declarative action till
the new Code went into effect was totally without merit. No
reason was alleged in the petition itself why the suspension
should be granted other than the mere convenience of the
party, and none has been suggested on the argument. The
petition could not in any possible view that occurs to us have
been granted. With reference to the declaration in
the auto that the plaintiff had lost her right to file her demand
in the declarative action, it may be said that this declaration
followed as a necessary consequence from
the providencia of May 7, fixing the time within which the
demand must be formulated, and the
subsequent providencia enlarging the period, from neither of
which providencias had any appeal or other remedy been
attempted by Doa Francisca. But going back to what may
be called the fundamental question of the right of the court to
fix a definite term within which the declarative action must be
instituted, we are of opinion that such right clearly existed,
and that the providencia of May 7 was in exact conformity
with the procedure prescribed by article 1071 of the Ley de
Enjuiciamiento Civil. It might be claimed with much reason
that if the parties interested in the partition of the estate
failed to agree on that made by the auditor, either should be
allowed to institute a declarative action against the other for
the purpose of settling the dispute within such time as he
might think proper, the property remaining in the meantime
undivided, were it not that the law in language of
unmistakable import prescribes a different rule of procedure.
Article 1071 of the Ley de Enjuiciamiento Civil is as follows:
"If no agreement is had, the procedure prescribed for
declarative actions, according to the amount involved, shall
be followed, and the delivery of the papers shall be first
made to the parties who first requested delivery to them of
the partition report as provided in article 1067." Article 1067
is as follows: "If the interested parties, or any of them,
request, within eight days, that the record of the proceedings
and the report on partition be delivered to them for
examination, the judge shall order said delivery for a period
of fifteen days to each person making such request." The law
does not treat the partition proceedings as terminated by the
failure of the parties to agree, but provides that "the case"
shall in that event "be given the procedure of the declarative
action" and goes on to designate the party who is to take the
initiative in the pleadings, a provision utterly irreconcilable
with the idea that it is optional for either party to commence
the proceeding at his pleasure. And it then proceeds by
reference to article 1067 to fix the time within which the
proceeding is to be instituted. The petitioner had the benefit
of that period and was accorded besides an extension of
seven days, and has consequently had all the rights to which
she was strictly entitled under the law and something more.
She has, we think, no just ground to complain that she has
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been deprived of any substantial right either by her own
mistake or that of the court below, in any possible view in
which the facts of the case may be regarded.
What has been said with reference to the petition disposes
also of the question involved in the appeal. If Doa Francisca
had, as we think must be the case, lost her right to institute
the declarative action, there was no other course for the
court to take except to approve the partition proceedings,
unless there was some defect which vitiated them, and none
has been pointed out. It was suggested in the argument that
the report of the auditor umpire was of prior date to that of
the auditor nominated by Don Jose, and it was claimed that
this rendered the proceedings defective. An examination of
the record shows that the report of the auditor nominated by
Don Jose was dated March 24 and filed March 29, and that
of the auditor umpire was dated March 28 and filed March
29. The contention of counsel on this point is therefore not
supported by the facts.
The result is that the petition must be denied and the
judgment appealed from affirmed, with costs to the appealing
party both as to the petition and the appeal. So ordered.
MANZANO v SANCHEZ
A.M. No. MTJ-00-1329, March 8, 2001

FIRST DIVISION
[A.M. No. MTJ-00-1329. March 8, 2001]
HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE
ROQUE R. SANCHEZ, MTC, Infanta,
Pangasinan, respondent.
R E S O L U T I O N
DAVIDE, JR., C.J .:
The solemnization of a marriage between two
contracting parties who were both bound by a prior existing
marriage is the bone of contention of the instant complaint
against respondent Judge Roque R. Sanchez, Municipal
Trial Court, Infanta, Pangasinan. For this act, complainant
Herminia Borja-Manzano charges respondent Judge with
gross ignorance of the law in a sworn Complaint-Affidavit
filed with the Office of the Court Administrator on 12 May
1999.
Complainant avers that she was the lawful wife of the
late David Manzano, having been married to him on 21 May
1966 in San Gabriel Archangel Parish, Araneta Avenue,
Caloocan City.
[1]
Four children were born out of that
marriage.
[2]
On 22 March 1993, however, her husband
contracted another marriage with one Luzviminda Payao
before respondent Judge.
[3]
When respondent Judge
solemnized said marriage, he knew or ought to know that the
same was void and bigamous, as the marriage contract
clearly stated that both contracting parties were separated.
Respondent Judge, on the other hand, claims in his
Comment that when he officiated the marriage between
Manzano and Payao he did not know that Manzano was
legally married. What he knew was that the two had been
living together as husband and wife for seven years already
without the benefit of marriage, as manifested in their joint
affidavit.
[4]
According to him, had he known that the late
Manzano was married, he would have advised the latter not
to marry again; otherwise, he (Manzano) could be charged
with bigamy. He then prayed that the complaint be
dismissed for lack of merit and for being designed merely to
harass him.
After an evaluation of the Complaint and the Comment,
the Court Administrator recommended that respondent
Judge be found guilty of gross ignorance of the law and be
ordered to pay a fine of P2,000, with a warning that a
repetition of the same or similar act would be dealt with more
severely.
On 25 October 2000, this Court required the parties to
manifest whether they were willing to submit the case for
resolution on the basis of the pleadings thus
filed. Complainant answered in the affirmative.
For his part, respondent Judge filed a Manifestation
reiterating his plea for the dismissal of the complaint and
setting aside his earlier Comment. He therein invites the
attention of the Court to two separate affidavits
[5]
of the late
Manzano and of Payao, which were allegedly unearthed by a
member of his staff upon his instruction. In those affidavits,
both David Manzano and Luzviminda Payao expressly stated
that they were married to Herminia Borja and Domingo
Relos, respectively; and that since their respective marriages
had been marked by constant quarrels, they had both left
their families and had never cohabited or communicated with
their spouses anymore. Respondent Judge alleges that on
the basis of those affidavits, he agreed to solemnize the
marriage in question in accordance with Article 34 of the
Family Code.
We find merit in the complaint.
Article 34 of the Family Code provides:
No license shall be necessary for the marriage of a man and
a woman who have lived together as husband and wife for at
least five years and without any legal impediment to marry
each other. The contracting parties shall state the foregoing
facts in an affidavit before any person authorized by law to
administer oaths. The solemnizing officer shall also state
under oath that he ascertained the qualifications of the
contracting parties and found no legal impediment to the
marriage.
For this provision on legal ratification of marital
cohabitation to apply, the following requisites must concur:
1. The man and woman must have been living
together as husband and wife for at least five
years before the marriage;
2. The parties must have no legal impediment to
marry each other;
3. The fact of absence of legal impediment
between the parties must be present at the
time of marriage;
4. The parties must execute an affidavit stating
that they have lived together for at least five
years [and are without legal impediment to
marry each other]; and
5. The solemnizing officer must execute a sworn
statement that he had ascertained the
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qualifications of the parties and that he had
found no legal impediment to their marriage.
[6]

Not all of these requirements are present in the case at
bar. It is significant to note that in their separate affidavits
executed on 22 March 1993 and sworn to before respondent
Judge himself, David Manzano and Luzviminda Payao
expressly stated the fact of their prior existing
marriage. Also, in their marriage contract, it was indicated
that both were separated.
Respondent Judge knew or ought to know that a
subsisting previous marriage is a diriment impediment, which
would make the subsequent marriage null and void.
[7]
In fact,
in his Comment, he stated that had he known that the late
Manzano was married he would have discouraged him from
contracting another marriage. And respondent Judge cannot
deny knowledge of Manzanos and Payaos subsisting
previous marriage, as the same was clearly stated in their
separate affidavits which were subscribed and sworn to
before him.
The fact that Manzano and Payao had been living apart
from their respective spouses for a long time already is
immaterial. Article 63(1) of the Family Code allows spouses
who have obtained a decree of legal separation to live
separately from each other, but in such a case the marriage
bonds are not severed. Elsewise stated, legal separation
does not dissolve the marriage tie, much less authorize the
parties to remarry. This holds true all the more when the
separation is merely de facto, as in the case at bar.
Neither can respondent Judge take refuge on the Joint
Affidavit of David Manzano and Luzviminda Payao stating
that they had been cohabiting as husband and wife for seven
years. Just like separation, free and voluntary cohabitation
with another person for at least five years does not severe
the tie of a subsisting previous marriage. Marital
cohabitation for a long period of time between two individuals
who are legally capacitatedto marry each other is merely a
ground for exemption from marriage license. It could not
serve as a justification for respondent Judge to solemnize a
subsequent marriage vitiated by the impediment of a prior
existing marriage.
Clearly, respondent Judge demonstrated gross
ignorance of the law when he solemnized a void and
bigamous marriage. The maxim ignorance of the law
excuses no one has special application to judges,
[8]
who,
under Rule 1.01 of the Code of Judicial Conduct, should be
the embodiment of competence, integrity, and
independence. It is highly imperative that judges be
conversant with the law and basic legal principles.
[9]
And
when the law transgressed is simple and elementary, the
failure to know it constitutes gross ignorance of the law.
[10]

ACCORDINGLY, the recommendation of the Court
Administrator is hereby ADOPTED, with
the MODIFICATION that the amount of fine to be imposed
upon respondent Judge Roque Sanchez is increased to
P20,000.
SO ORDERED.

In re: MEDADO
B.M. No. 2540, September 24, 2013
EN BANC
B.M. No. 2540, September 24, 2013
IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS
MICHAEL A. MEDADO, Petitioner.
R E S O L U T I O N
SERENO, C.J .:
We resolve the instant Petition to Sign in the Roll of
Attorneys filed by petitioner Michael A. Medado (Medado).

Medado graduated from the University of the Philippines with
the degree of Bachelor of Laws in 1979
1
and passed the
same years bar examinations with a general weighted
average of 82.7.
2
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On 7 May 1980, he took the Attorneys Oath at the Philippine
International Convention Center (PICC) together with the
successful bar examinees.
3
He was scheduled to sign in the
Roll of Attorneys on 13 May 1980,
4
but he failed to do so on
his scheduled date, allegedly because he had misplaced the
Notice to Sign the Roll of Attorneys
5
given by the Bar Office
when he went home to his province for a vacation.
6
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Several years later, while rummaging through his old college
files, Medado found the Notice to Sign the Roll of Attorneys.
It was then that he realized that he had not signed in the roll,
and that what he had signed at the entrance of the PICC was
probably just an attendance record.
7

By the time Medado found the notice, he was already
working. He stated that he was mainly doing corporate and
taxation work, and that he was not actively involved in
litigation practice. Thus, he operated under the mistaken
belief [that] since he ha[d] already taken the oath, the signing
of the Roll of Attorneys was not as urgent, nor as crucial to
his status as a lawyer;
8
and the matter of signing in the Roll
of Attorneys lost its urgency and compulsion, and was
subsequently forgotten.
9

In 2005, when Medado attended Mandatory Continuing
Legal Education (MCLE) seminars, he was required to
provide his roll number in order for his MCLE compliances to
be credited.
10
Not having signed in the Roll of Attorneys, he
was unable to provide his roll number.

About seven years later, or on 6 February 2012, Medado
filed the instant Petition, praying that he be allowed to sign in
the Roll of Attorneys.
11

The Office of the Bar Confidant (OBC) conducted a
clarificatory conference on the matter on 21 September
2012
12
and submitted a Report and Recommendation to this
Court on 4 February 2013.
13
The OBC recommended that
the instant petition be denied for petitioners gross
negligence, gross misconduct and utter lack of merit.
14
It
explained that, based on his answers during the clarificatory
conference, petitioner could offer no valid justification for his
negligence in signing in the Roll of Attorneys.
15
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After a judicious review of the records, we grant Medados
prayer in the instant petition, subject to the payment of a fine
and the imposition of a penalty equivalent to suspension
from the practice of law.

At the outset, we note that not allowing Medado to sign in the
Roll of Attorneys would be akin to imposing upon him the
ultimate penalty of disbarment, a penalty that we have
reserved for the most serious ethical transgressions of
members of the Bar.

In this case, the records do not show that this action is
warranted.

For one, petitioner demonstrated good faith and good moral
character when he finally filed the instant Petition to Sign in
the Roll of Attorneys. We note that it was not a third party
who called this Courts attention to petitioners omission;
rather, it was Medado himself who acknowledged his own
lapse, albeit after the passage of more than 30 years. When
asked by the Bar Confidant why it took him this long to file
the instant petition, Medado very candidly replied:chanrobles
virtua1aw 1ibrary
Mahirap hong i-explain yan pero, yun bang at the time, what
can you say? Takot ka kung anong mangyayari sa yo, you
dont know whats gonna happen. At the same time, its a
combination of apprehension and anxiety of whats gonna
happen. And, finally its the right thing to do. I have to come
here sign the roll and take the oath as necessary.
16

For another, petitioner has not been subject to any action for
disqualification from the practice of law,
17
which is more than
what we can say of other individuals who were successfully
admitted as members of the Philippine Bar. For this Court,
this fact demonstrates that petitioner strove to adhere to the
strict requirements of the ethics of the profession, and that
he has prima facie shown that he possesses the character
required to be a member of the Philippine Bar.

Finally, Medado appears to have been a competent and able
legal practitioner, having held various positions at the Laurel
Law Office,
18
Petron, Petrophil Corporation, the Philippine
National Oil Company, and the Energy Development
Corporation.
19

All these demonstrate Medados worth to become a full-
fledged member of the Philippine Bar. While the practice of
law is not a right but a privilege,
20
this Court will not
unwarrantedly withhold this privilege from individuals who
have shown mental fitness and moral fiber to withstand the
rigors of the profession.

That said, however, we cannot fully exculpate petitioner
Medado from all liability for his years of inaction.

Petitioner has been engaged in the practice of law since
1980, a period spanning more than 30 years, without having
signed in the Roll of Attorneys.
21
He justifies this behavior by
characterizing his acts as neither willful nor intentional but
based on a mistaken belief and an honest error of
judgment.
22

We disagree.

While an honest mistake of fact could be used to excuse a
person from the legal consequences of his acts
23
as it
negates malice or evil motive,
24
a mistake of law cannot be
utilized as a lawful justification, because everyone is
presumed to know the law and its
consequences.
25
Ignorantia facti excusat; ignorantia legis
neminem excusat.

Applying these principles to the case at bar, Medado may
have at first operated under an honest mistake of fact when
he thought that what he had signed at the PICC entrance
before the oath-taking was already the Roll of Attorneys.
However, the moment he realized that what he had signed
was merely an attendance record, he could no longer claim
an honest mistake of fact as a valid justification. At that point,
Medado should have known that he was not a full-fledged
member of the Philippine Bar because of his failure to sign in
the Roll of Attorneys, as it was the act of signing therein that
would have made him so.
26
When, in spite of this knowledge,
he chose to continue practicing law without taking the
necessary steps to complete all the requirements for
admission to the Bar, he willfully engaged in the
unauthorized practice of law.

Under the Rules of Court, the unauthorized practice of law by
ones assuming to be an attorney or officer of the court, and
acting as such without authority, may constitute indirect
contempt of court,
27
which is punishable by fine or
imprisonment or both.
28
Such a finding, however, is in the
nature of criminal contempt
29
and must be reached after the
filing of charges and the conduct of hearings.
30
In this case,
while it appears quite clearly that petitioner committed
indirect contempt of court by knowingly engaging in
unauthorized practice of law, we refrain from making any
finding of liability for indirect contempt, as no formal charge
pertaining thereto has been filed against him.

Knowingly engaging in unauthorized practice of law likewise
transgresses Canon 9 of the Code of Professional
Responsibility, which provides:chanrobles virtua1aw 1ibrary
CANON 9 A lawyer shall not, directly or indirectly, assist in
the unauthorized practice of law.
While a reading of Canon 9 appears to merely prohibit
lawyers from assisting in the unauthorized practice of law,
the unauthorized practice of law by the lawyer himself is
subsumed under this provision, because at the heart of
Canon 9 is the lawyers duty to prevent the unauthorized
practice of
law. This duty likewise applies to law students and Bar
candidates. As aspiring members of the Bar, they are bound
to comport themselves in accordance with the ethical
standards of the legal profession.

Turning now to the applicable penalty, previous violations of
Canon 9 have warranted the penalty of suspension from the
practice of law.
31
As Medado is not yet a full-fledged lawyer,
we cannot suspend him from the practice of law. However,
we see it fit to impose upon him a penalty akin to suspension
1
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by allowing him to sign in the Roll of Attorneys one (1) year
after receipt of this Resolution. For his transgression of the
prohibition against the unauthorized practice of law, we
likewise see it fit to fine him in the amount of P32,000. During
the one year period, petitioner is warned that he is not
allowed to engage in the practice of law, and is sternly
warned that doing any act that constitutes practice of law
before he has signed in the Roll of Attorneys will be dealt
with severely by this Court.

WHEREFORE, the instant Petition to Sign in the Roll of
Attorneys is hereby GRANTED. Petitioner Michael A.
Medado is ALLOWED to sign in the Roll of Attorneys ONE
(1) YEAR after receipt of this Resolution. Petitioner is
likewise ORDERED to pay a FINE of P32,000 for his
unauthorized practice of law. During the one year period,
petitioner is NOT ALLOWED to practice law, and
is STERNLY WARNED that doing any act that constitutes
practice of law before he has signed in the Roll of Attorneys
will be dealt with severely by this Court.

Let a copy of this Resolution be furnished the Office of the
Bar Confidant, the Integrated Bar of the Philippines, and the
Office of the Court Administrator for circulation to all courts in
the country.chanroblesvirtualawlibrary

SO ORDERED.

GARCIA-RECIO v RECIO
G.R. No. 138322, October 2, 2001

THIRD DIVISION
[G.R. No. 138322. October 2, 2001]
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-
RECIO, petitioner, vs. REDERICK A.
RECIO, respondent.
D E C I S I O N
PANGANIBAN, J .:
A divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided such decree is valid
according to the national law of the foreigner. However, the
divorce decree and the governing personal law of the alien
spouse who obtained the divorce must be proven. Our
courts do not take judicial notice of foreign laws and
judgments; hence, like any other facts, both the divorce
decree and the national law of the alien must be alleged and
proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the
Rules of Court, seeking to nullify the January 7, 1999
Decision
[1]
and the March 24, 1999 Order
[2]
of the Regional
Trial Court of Cabanatuan City, Branch 28, in Civil Case No.
3026AF. The assailed Decision disposed as follows:
WHEREFORE, this Court declares the marriage between
Grace J. Garcia and Rederick A. Recio solemnized on
January 12, 1994 at Cabanatuan City as dissolved and both
parties can now remarry under existing and applicable laws
to any and/or both parties.
[3]

The assailed Order denied reconsideration of the
above-quoted Decision.

The Facts
Rederick A. Recio, a Filipino, was married to Editha
Samson, an Australian citizen, in Malabon, Rizal, on March
1, 1987.
[4]
They lived together as husband and wife in
Australia. On May 18, 1989,
[5]
a decree of divorce,
purportedly dissolving the marriage, was issued by an
Australian family court.
On June 26, 1992, respondent became an Australian
citizen, as shown by a Certificate of Australian Citizenship
issued by the Australian government.
[6]
Petitioner -- a Filipina
-- and respondent were married on January 12, 1994 in Our
Lady of Perpetual Help Church in Cabanatuan City.
[7]
In
their application for a marriage license, respondent was
declared as single and Filipino.
[8]

Starting October 22, 1995, petitioner and respondent
lived separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal
assets were divided on May 16, 1996, in accordance with
their Statutory Declarations secured in Australia.
[9]

On March 3, 1998, petitioner filed a Complaint for
Declaration of Nullity of Marriage
[10]
in the court a quo, on the
ground of bigamy -- respondent allegedly had a prior
subsisting marriage at the time he married her on January
12, 1994. She claimed that she learned of respondents
marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as
1993, he had revealed to petitioner his prior marriage and its
subsequent dissolution.
[11]
He contended that his first
marriage to an Australian citizen had been validly dissolved
by a divorce decree obtained in Australia in 1989;
[12]
thus, he
was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples
wedding and while the suit for the declaration of nullity was
pending -- respondent was able to secure a divorce decree
from a family court in Sydney, Australia because the
marriage ha[d] irretrievably broken down.
[13]

Respondent prayed in his Answer that the Complaint
be dismissed on the ground that it stated no cause of
action.
[14]
The Office of the Solicitor General agreed with
respondent.
[15]
The court marked and admitted the
documentary evidence of both parties.
[16]
After they
submitted their respective memoranda, the case was
submitted for resolution.
[17]

Thereafter, the trial court rendered the assailed
Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the
ground that the divorce issued in Australia was valid and
recognized in the Philippines. It deemed the marriage
ended, but not on the basis of any defect in an essential
element of the marriage; that is, respondents alleged lack of
1
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legal capacity to remarry. Rather, it based its Decision on
the divorce decree obtained by respondent. The Australian
divorce had ended the marriage; thus, there was no more
marital union to nullify or annul.
Hence, this Petition.
[18]

Issues
Petitioner submits the following issues for our
consideration:
1
The trial court gravely erred in finding that the divorce decree
obtained in Australia by the respondent ipso facto terminated
his first marriage to Editha Samson thereby capacitating him
to contract a second marriage with the petitioner.
2
The failure of the respondent, who is now a naturalized
Australian, to present a certificate of legal capacity to marry
constitutes absence of a substantial requisite voiding the
petitioners marriage to the respondent
3
The trial court seriously erred in the application of Art. 26 of
the Family Code in this case.
4
The trial court patently and grievously erred in disregarding
Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the
applicable provisions in this case.
5
The trial court gravely erred in pronouncing that the divorce
decree obtained by the respondent in Australia ipso
facto capacitated the parties to remarry, without first securing
a recognition of the judgment granting the divorce decree
before our courts.
[19]

The Petition raises five issues, but for purposes of this
Decision, we shall concentrate on two pivotal ones: (1)
whether the divorce between respondent and Editha
Samson was proven, and (2) whether respondent was
proven to be legally capacitated to marry
petitioner. Because of our ruling on these two, there is no
more necessity to take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha
Samson
Petitioner assails the trial courts recognition of the
divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng Gee,
[20]
petitioner
argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only
upon proof of the existence of (1) the foreign law allowing
absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish
these elements.
Petitioner adds that, based on the first paragraph of
Article 26 of the Family Code, marriages solemnized abroad
are governed by the law of the place where they were
celebrated (the lex loci celebrationis). In effect, the Code
requires the presentation of the foreign law to show the
conformity of the marriage in question to the legal
requirements of the place where the marriage was
performed.
At the outset, we lay the following basic legal principles
as the take-off points for our discussion. Philippine law does
not provide for absolute divorce; hence, our courts cannot
grant it.
[21]
A marriage between two Filipinos cannot be
dissolved even by a divorce obtained abroad, because of
Articles 15
[22]
and 17
[23]
of the Civil Code.
[24]
In mixed
marriages involving a Filipino and a foreigner, Article 26
[25]
of
the Family Code allows the former to contract a subsequent
marriage in case the divorce is validly obtained abroad by
the alien spouse capacitating him or her to remarry.
[26]
A
divorce obtained abroad by a couple, who are both aliens,
may be recognized in the Philippines, provided it is
consistent with their respective national laws.
[27]

A comparison between marriage and divorce, as far as
pleading and proof are concerned, can be made. Van Dorn
v. Romillo Jr. decrees that aliens may obtain divorces
abroad, which may be recognized in the Philippines,
provided they are valid according to their national
law.
[28]
Therefore, before a foreign divorce decree can be
recognized by our courts, the party pleading it must prove
the divorce as a fact and demonstrate its conformity to the
foreign law allowing it.
[29]
Presentation solely of the divorce
decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be
admitted in evidence, it must first comply with the registration
requirements under Articles 11, 13 and 52 of the Family
Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the
contracting parties shall file separately a sworn application
for such license with the proper local civil registrar which
shall specify the following:
x x x x x
x x x x
(5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
x x x x x
x x x x
ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to
ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to furnish,
instead of the birth or baptismal certificate required in the last
preceding article, the death certificate of the deceased
spouse or the judicial decree of the absolute divorce, or the
judicial decree of annulment or declaration of nullity of his or
her previous marriage. x x x.
1
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ART. 52. The judgment of annulment or of absolute nullity
of the marriage, the partition and distribution of the properties
of the spouses, and the delivery of the childrens
presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same
shall not affect their persons.
Respondent, on the other hand, argues that the
Australian divorce decree is a public document -- a written
official act of an Australian family court. Therefore, it
requires no further proof of its authenticity and due
execution.
Respondent is getting ahead of himself. Before a
foreign judgment is given presumptive evidentiary value, the
document must first be presented and admitted in
evidence.
[30]
A divorce obtained abroad is proven by the
divorce decree itself. Indeed the best evidence of a
judgment is the judgment itself.
[31]
The decree purports to be
a written act or record of an act of an official body or tribunal
of a foreign country.
[32]

Under Sections 24 and 25 of Rule 132, on the other
hand, a writing or document may be proven as a public or
official record of a foreign country by either (1) an official
publication or (2) a copy thereof attested
[33]
by the officer
having legal custody of the document. If the record is not
kept in the Philippines, such copy must be (a) accompanied
by a certificate issued by the proper diplomatic or consular
officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b)
authenticated by the seal of his office.
[34]

The divorce decree between respondent and Editha
Samson appears to be an authentic one issued by an
Australian family court.
[35]
However, appearance is not
sufficient; compliance with the aforementioned rules on
evidence must be demonstrated.
Fortunately for respondents cause, when the divorce
decree of May 18, 1989 was submitted in evidence, counsel
for petitioner objected, not to its admissibility, but only to the
fact that it had not been registered in the Local Civil Registry
of Cabanatuan City.
[36]
The trial court ruled that it was
admissible, subject to petitioners qualification.
[37]
Hence, it
was admitted in evidence and accorded weight by the
judge. Indeed, petitioners failure to object properly rendered
the divorce decree admissible as a written act of the Family
Court of Sydney, Australia.
[38]

Compliance with the quoted articles (11, 13 and 52) of
the Family Code is not necessary; respondent was no longer
bound by Philippine personal laws after he acquired
Australian citizenship in 1992.
[39]
Naturalization is the legal
act of adopting an alien and clothing him with the political
and civil rights belonging to a citizen.
[40]
Naturalized citizens,
freed from the protective cloak of their former states, don the
attires of their adoptive countries. By becoming an
Australian, respondent severed his allegiance to the
Philippines and the vinculum juris that had tied him to
Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove
Australian divorce law falls upon petitioner, because she is
the party challenging the validity of a foreign judgment. He
contends that petitioner was satisfied with the original of the
divorce decree and was cognizant of the marital laws of
Australia, because she had lived and worked in that country
for quite a long time. Besides, the Australian divorce law is
allegedly known by Philippine courts; thus, judges may take
judicial notice of foreign laws in the exercise of sound
discretion.
We are not persuaded. The burden of proof lies with
the party who alleges the existence of a fact or thing
necessary in the prosecution or defense of an action.
[41]
In
civil cases, plaintiffs have the burden of proving the material
allegations of the complaint when those are denied by the
answer; and defendants have the burden of proving the
material allegations in their answer when they introduce new
matters.
[42]
Since the divorce was a defense raised by
respondent, the burden of proving the pertinent Australian
law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot
take judicial notice of foreign laws.
[43]
Like any other facts,
they must be alleged and proved. Australian marital laws are
not among those matters that judges are supposed to know
by reason of their judicial function.
[44]
The power of judicial
notice must be exercised with caution, and every reasonable
doubt upon the subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof
of the divorce, respondent was legally incapacitated to marry
her in 1994. Hence, she concludes that their marriage was
void ab initio.
Respondent replies that the Australian divorce decree,
which was validly admitted in evidence, adequately
established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union
for a cause arising after marriage. But divorces are of
different types. The two basic ones are (1) absolute divorce
or a vinculo matrimonii and (2) limited divorce or a mensa et
thoro. The first kind terminates the marriage, while the
second suspends it and leaves the bond in full
force.
[45]
There is no showing in the case at bar which type of
divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory
decree -- a conditional or provisional judgment of divorce. It
is in effect the same as a separation from bed and board,
although an absolute divorce may follow after the lapse of
the prescribed period during which no reconciliation is
effected.
[46]

Even after the divorce becomes absolute, the court
may under some foreign statutes and practices, still restrict
remarriage. Under some other jurisdictions, remarriage may
be limited by statute; thus, the guilty party in a divorce which
was granted on the ground of adultery may be prohibited
from marrying again. The court may allow a remarriage only
after proof of good behavior.
[47]

On its face, the herein Australian divorce decree
contains a restriction that reads:
1. A party to a marriage who marries
again before this decree becomes absolute
(unless the other party has died) commits the
offence of bigamy.
[48]

This quotation bolsters our contention that the divorce
obtained by respondent may have been restricted. It did not
absolutely establish his legal capacity to remarry according
to his national law. Hence, we find no basis for the ruling of
the trial court, which erroneously assumed that the Australian
1
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divorce ipso facto restored respondents capacity to remarry
despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce
decree raises a disputable presumption or presumptive
evidence as to his civil status based on Section 48, Rule
39
[49]
of the Rules of Court, for the simple reason that no
proof has been presented on the legal effects of the divorce
decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity
required by Article 21 of the Family Code was not submitted
together with the application for a marriage
license. According to her, its absence is proof that
respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract
marriage is determined by the national law of the party
concerned. The certificate mentioned in Article 21 of the
Family Code would have been sufficient to establish the legal
capacity of respondent, had he duly presented it in court. A
duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien
applicant for a marriage license.
[50]

As it is, however, there is absolutely no evidence that
proves respondents legal capacity to marry petitioner. A
review of the records before this Court shows that only the
following exhibits were presented before the lower court: (1)
for petitioner: (a) Exhibit A Complaint;
[51]
(b) Exhibit B
Certificate of Marriage Between Rederick A. Recio (Filipino-
Australian) and Grace J. Garcia (Filipino) on January 12,
1994 in Cabanatuan City, Nueva Ecija;
[52]
(c) Exhibit C
Certificate of Marriage Between Rederick A. Recio (Filipino)
and Editha D. Samson (Australian) on March 1, 1987 in
Malabon, Metro Manila;
[53]
(d) Exhibit D Office of the City
Registrar of Cabanatuan City Certification that no information
of annulment between Rederick A. Recio and Editha D.
Samson was in its records;
[54]
and (e) Exhibit E Certificate
of Australian Citizenship of Rederick A. Recio;
[55]
(2) for
respondent: (a) Exhibit 1 -- Amended Answer;
[56]
(b) Exhibit
2 Family Law Act 1975 Decree Nisi of Dissolution of
Marriage in the Family Court of Australia;
[57]
(c) Exhibit 3
Certificate of Australian Citizenship of Rederick A.
Recio;
[58]
(d) Exhibit 4 Decree Nisi of Dissolution of
Marriage in the Family Court of Australia Certificate;
[59]
and
Exhibit 5 -- Statutory Declaration of the Legal Separation
Between Rederick A. Recio and Grace J. Garcia Recio since
October 22, 1995.
[60]

Based on the above records, we cannot conclude that
respondent, who was then a naturalized Australian citizen,
was legally capacitated to marry petitioner on January 12,
1994. We agree with petitioners contention that the court a
quo erred in finding that the divorce decree ipso facto
clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the
Australian personal law governing his status; or at the very
least, to prove his legal capacity to contract the second
marriage.
Neither can we grant petitioners prayer to declare her
marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian law,
he was really capacitated to marry petitioner as a direct
result of the divorce decree. Hence, we believe that the
most judicious course is to remand this case to the trial court
to receive evidence, if any, which show petitioners legal
capacity to marry petitioner. Failing in that, then the court a
quo may declare a nullity of the parties marriage on the
ground of bigamy, there being already in evidence two
existing marriage certificates, which were both obtained in
the Philippines, one in Malabon, Metro Manila dated March
1, 1987 and the other, in Cabanatuan City dated January 12,
1994.
WHEREFORE, in the interest of orderly procedure and
substantial justice, we REMAND the case to the court a
quo for the purpose of receiving evidence which conclusively
show respondents legal capacity to marry petitioner; and
failing in that, of declaring the parties marriage void on the
ground of bigamy, as above discussed. No costs.
SO ORDERED.

YAO KEE v SY-GONZALES
G.R. No. 55960, November 24, 1988
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-55960 November 24, 1988
YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN
YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-
BERNABE, RODOLFO SY, and HONORABLE COURT OF
APPEALS, respondents.
Montesa, Albon, & Associates for petitioners.
De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J .:
Sy Kiat, a Chinese national. died on January 17, 1977 in
Caloocan City where he was then residing, leaving behind
real and personal properties here in the Philippines worth
P300,000.00 more or less.
Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-
Bernabe and Rodolfo Sy filed a petition for the grant of
letters of administration docketed as Special Proceedings
Case No. C-699 of the then Court of First Instance of Rizal
Branch XXXIII, Caloocan City. In said petition they alleged
among others that (a) they are the children of the deceased
with Asuncion Gillego; (b) to their knowledge Sy Mat died
intestate; (c) they do not recognize Sy Kiat's marriage to Yao
Kee nor the filiation of her children to him; and, (d) they
nominate Aida Sy-Gonzales for appointment as
administratrix of the intestate estate of the deceased [Record
on Appeal, pp. 4-9; Rollo, p. 107.]
The petition was opposed by Yao Kee, Sze Sook Wah, Sze
Lai Cho and Sy Yun Chen who alleged that: (a) Yao Kee is
the lawful wife of Sy Kiat whom he married on January 19,
1931 in China; (b) the other oppositors are the legitimate
children of the deceased with Yao Kee; and, (c) Sze Sook
Wah is the eldest among them and is competent, willing and
desirous to become the administratrix of the estate of Sy Kiat
1
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[Record on Appeal, pp. 12-13; Rollo, p. 107.] After hearing,
the probate court, finding among others that:
(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp.
12-27; Rollo, pp. 49-64;]
(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the
legitimate children of Yao Kee with Sy Mat [CFI decision, pp.
28-31; Rollo. pp. 65-68;] and,
(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and
Rodolfo Sy are the acknowledged illegitimate offsprings of
Sy Kiat with Asuncion Gillego [CFI decision, pp. 27-28; Rollo,
pp. 64- 65.]
held if favor of the oppositors (petitioners herein) and
appointed Sze Sook Wah as the administratrix of the
intestate estate of the deceased [CFI decision, pp. 68-69;
Rollo, pp. 105-106.]
On appeal the Court of Appeals rendered a decision
modifying that of the probate court, the dispositive portion of
which reads:
IN VIEW OF THE FOREGOING, the decision of the lower
Court is hereby MODIFIED and SET ASIDE and a new
judgment rendered as follows:
(1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy,
Teresita Sy- Bernabe and Rodolfo Sy acknowledged natural
children of the deceased Sy Kiat with Asuncion Gillego, an
unmarried woman with whom he lived as husband and wife
without benefit of marriage for many years:
(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and
Sze Chun Yen, the acknowledged natural children of the
deceased Sy Kiat with his Chinese wife Yao Kee, also known
as Yui Yip, since the legality of the alleged marriage of Sy
Mat to Yao Kee in China had not been proven to be valid to
the laws of the Chinese People's Republic of China (sic);
(3) Declaring the deed of sale executed by Sy Kiat on
December 7, 1976 in favor of Tomas Sy (Exhibit "G-1",
English translation of Exhibit "G") of the Avenue Tractor and
Diesel Parts Supply to be valid and accordingly, said
property should be excluded from the estate of the deceased
Sy Kiat; and
(4) Affirming the appointment by the lower court of Sze Sook
Wah as judicial administratrix of the estate of the deceased.
[CA decision, pp. 11-12; Rollo, pp. 36- 37.]
From said decision both parties moved for partial
reconsideration, which was however denied by respondent
court. They thus interposed their respective appeals to this
Court.
Private respondents filed a petition with this Court docketed
as G.R. No. 56045 entitled "Aida Sy-Gonzales, Manuel Sy,
Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals,
Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Chun Yen"
questioning paragraphs (3) and (4) of the dispositive portion
of the Court of Appeals' decision. The Supreme Court
however resolved to deny the petition and the motion for
reconsideration. Thus on March 8, 1982 entry of judgment
was made in G.R. No. 56045. **
The instant petition, on the other hand, questions paragraphs
(1) and (2) of the dispositive portion of the decision of the
Court of Appeals. This petition was initially denied by the
Supreme Court on June 22, 1981. Upon motion of the
petitioners the Court in a resolution dated September 16,
1981 reconsidered the denial and decided to give due
course to this petition. Herein petitioners assign the following
as errors:
I. RESPONDENT COURT OF APPEALS SERIOUSLY
ERRED IN DECLARING THE MARRIAGE OF SY KIAT TO
YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID IN
ACCORDANCE WITH LAWS OF THE PEOPLE'S
REPUBLIC OF CHINA.
II. RESPONDENT COURT OF APPEALS GRAVELY
ERRED IN DECLARING AIDA SY-GONZALES, MANUEL
SY, TERESITA SY-BERNABE AND RODOLFO SY AS
NATURAL CHILDREN OF SY KIAT WITH ASUNCION
GILLEGO. [Petition, p. 2; Rollo, p. 6.]
I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in
accordance with Chinese law and custom was conclusively
proven. To buttress this argument they rely on the following
testimonial and documentary evidence.
First, the testimony of Yao Kee summarized by the trial court
as follows:
Yao Kee testified that she was married to Sy Kiat on January
19, 1931 in Fookien, China; that she does not have a
marriage certificate because the practice during that time
was for elders to agree upon the betrothal of their children,
and in her case, her elder brother was the one who
contracted or entered into [an] agreement with the parents of
her husband; that the agreement was that she and Sy Mat
would be married, the wedding date was set, and invitations
were sent out; that the said agreement was complied with;
that she has five children with Sy Kiat, but two of them died;
that those who are alive are Sze Sook Wah, Sze Lai Cho,
and Sze Chun Yen, the eldest being Sze Sook Wah who is
already 38 years old; that Sze Sook Wah was born on
November 7, 1939; that she and her husband, Sy Mat, have
been living in FooKien, China before he went to the
Philippines on several occasions; that the practice during the
time of her marriage was a written document [is exchanged]
just between the parents of the bride and the parents of the
groom, or any elder for that matter; that in China, the custom
is that there is a go- between, a sort of marriage broker who
is known to both parties who would talk to the parents of the
bride-to-be; that if the parents of the bride-to-be agree to
have the groom-to-be their son in-law, then they agree on a
date as an engagement day; that on engagement day, the
parents of the groom would bring some pieces of jewelry to
the parents of the bride-to-be, and then one month after that,
a date would be set for the wedding, which in her case, the
wedding date to Sy Kiat was set on January 19, 1931; that
during the wedding the bridegroom brings with him a couch
(sic) where the bride would ride and on that same day, the
parents of the bride would give the dowry for her daughter
and then the document would be signed by the parties but
there is no solemnizing officer as is known in the Philippines;
that during the wedding day, the document is signed only by
the parents of the bridegroom as well as by the parents of
the bride; that the parties themselves do not sign the
document; that the bride would then be placed in a carriage
where she would be brought to the town of the bridegroom
and before departure the bride would be covered with a sort
1
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of a veil; that upon reaching the town of the bridegroom, the
bridegroom takes away the veil; that during her wedding to
Sy Kiat (according to said Chinese custom), there were
many persons present; that after Sy Kiat opened the door of
the carriage, two old ladies helped her go down the carriage
and brought her inside the house of Sy Mat; that during her
wedding, Sy Chick, the eldest brother of Sy Kiat, signed the
document with her mother; that as to the whereabouts of that
document, she and Sy Mat were married for 46 years
already and the document was left in China and she doubt if
that document can still be found now; that it was left in the
possession of Sy Kiat's family; that right now, she does not
know the whereabouts of that document because of the
lapse of many years and because they left it in a certain
place and it was already eaten by the termites; that after her
wedding with Sy Kiat, they lived immediately together as
husband and wife, and from then on, they lived together; that
Sy Kiat went to the Philippines sometime in March or April in
the same year they were married; that she went to the
Philippines in 1970, and then came back to China; that again
she went back to the Philippines and lived with Sy Mat as
husband and wife; that she begot her children with Sy Kiat
during the several trips by Sy Kiat made back to China. [CFI
decision, pp. 13-15; Rollo, pp. 50-52.]
Second, the testimony of Gan Ching, a younger brother of
Yao Kee who stated that he was among the many people
who attended the wedding of his sister with Sy Kiat and that
no marriage certificate is issued by the Chinese government,
a document signed by the parents or elders of the parties
being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when she
testified before the trial court to the effect that (a) Sy Mat was
married to Yao Kee according to Chinese custom; and, (b)
Sy Kiat's admission to her that he has a Chinese wife whom
he married according to Chinese custom [CFI decision, p.
17; Rollo, p. 54.]
Fourth, Sy Kiat's Master Card of Registered Alien issued in
Caloocan City on October 3, 1972 where the following
entries are found: "Marital statusMarried"; "If married give
name of spousesYao Kee"; "Address-China; "Date of
marriage1931"; and "Place of marriageChina" [Exhibit
"SS-1".]
Fifth, Sy Kiat's Alien Certificate of Registration issued in
Manila on January 12, 1968 where the following entries are
likewise found: "Civil statusMarried"; and, 'If married, state
name and address of spouseYao Kee Chingkang, China"
[Exhibit "4".]
And lastly, the certification issued in Manila on October 28,
1977 by the Embassy of the People's Republic of China to
the effect that "according to the information available at the
Embassy Mr. Sy Kiat a Chinese national and Mrs. Yao Kee
alias Yui Yip also Chinese were married on January 19, 1931
in Fukien, the People's Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of
marriage between Yao Kee and Sy Kiat. However, the same
do not suffice to establish the validity of said marriage in
accordance with Chinese law or custom.
Custom is defined as "a rule of conduct formed by repetition
of acts, uniformly observed (practiced) as a social rule,
legally binding and obligatory" [In the Matter of the Petition
for Authority to Continue Use of the Firm Name "Ozaeta,
Romulo, de Leon, Mabanta and Reyes", July 30, 1979,
SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil.
Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires that "a
custom must be proved as a fact, according to the rules of
evidence" [Article 12, Civil Code.] On this score the Court
had occasion to state that "a local custom as a source of
right can not be considered by a court of justice unless such
custom is properly established by competent evidence like
any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).]
The same evidence, if not one of a higher degree, should be
required of a foreign custom.
The law on foreign marriages is provided by Article 71 of the
Civil Code which states that:
Art. 71. All marriages performed outside the Philippines in
accordance with the laws in force in the country where they
were performed and valid there as such, shall also be valid in
this country, except bigamous, Polygamous, or incestuous
marriages, as determined by Philippine law. (Emphasis
supplied.) ***
Construing this provision of law the Court has held that to
establish a valid foreign marriage two things must be proven,
namely: (1) the existence of the foreign law as a question of
fact; and (2) the alleged foreign marriage by convincing
evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49
(1922).]
In proving a foreign law the procedure is provided in the
Rules of Court. With respect to an unwritten foreign law, Rule
130 section 45 states that:
SEC. 45. Unwritten law.The oral testimony of witnesses,
skilled therein, is admissible as evidence of the unwritten law
of a foreign country, as are also printed and published books
of reports of decisions of the courts of the foreign country, if
proved to be commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided
for under Rule 132 section 25, thus:
SEC. 25. Proof of public or official record.An official record
or an entry therein, when admissible for any purpose, may
be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record,
or by his deputy, and accompanied, if the record is not kept
in the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of
embassy or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the
record is kept and authenticated by the seal of his office.
The Court has interpreted section 25 to include competent
evidence like the testimony of a witness to prove the
existence of a written foreign law [Collector of Internal
Revenue v. Fisher 110 Phil. 686, 700-701 (1961) citing
Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471
(1935).]
In the case at bar petitioners did not present any competent
evidence relative to the law and custom of China on
marriage. The testimonies of Yao and Gan Ching cannot be
considered as proof of China's law or custom on marriage
1
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not only because they are
self-serving evidence, but more importantly, there is no
showing that they are competent to testify on the subject
matter. For failure to prove the foreign law or custom, and
consequently, the validity of the marriage in accordance with
said law or custom, the marriage between Yao Kee and Sy
Kiat cannot be recognized in this jurisdiction.
Petitioners contend that contrary to the Court of Appeals'
ruling they are not duty bound to prove the Chinese law on
marriage as judicial notice thereof had been taken by this
Court in the case of Sy Joc Lieng v. Sy Quia [16 Phil. 137
(1910).]
This contention is erroneous. Well-established in this
jurisdiction is the principle that Philippine courts cannot take
judicial notice of foreign laws. They must be alleged and
proved as any other fact [Yam Ka Lim v. Collector of
Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610
(1930).]
Moreover a reading of said case would show that the party
alleging the foreign marriage presented a witness, one Li
Ung Bieng, to prove that matrimonial letters mutually
exchanged by the contracting parties constitute the essential
requisite for a marriage to be considered duly solemnized in
China. Based on his testimony, which as found by the Court
is uniformly corroborated by authors on the subject of
Chinese marriage, what was left to be decided was the issue
of whether or not the fact of marriage in accordance with
Chinese law was duly proven [Sy Joc Lieng v. Sy
Quia, supra., at p. 160.]
Further, even assuming for the sake of argument that the
Court has indeed taken judicial notice of the law of China on
marriage in the aforecited case, petitioners however have not
shown any proof that the Chinese law or custom obtaining at
the time the Sy Joc Lieng marriage was celebrated in 1847
was still the law when the alleged marriage of Sy Kiat to Yao
Kee took place in 1931 or eighty-four (84) years later.
Petitioners moreover cite the case of U.S. v. Memoracion [34
Phil. 633 (1916)] as being applicable to the instant case.
They aver that the judicial pronouncement in the
Memoracion case, that the testimony of one of the
contracting parties is competent evidence to show the fact of
marriage, holds true in this case.
The Memoracion case however is not applicable to the case
at bar as said case did not concern a foreign marriage and
the issue posed was whether or not the oral testimony of a
spouse is competent evidence to prove the fact of
marriage in a complaint for adultery.
Accordingly, in the absence of proof of the Chinese law on
marriage, it should be presumed that it is the same as
ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March
31, 1965, 13 SCRA 552, 555.] Since Yao Kee admitted in
her testimony that there was no solemnizing officer as is
known here in the Philippines [See Article 56, Civil Code]
when her alleged marriage to Sy Mat was celebrated [CFI
decision, p. 14; Rollo, p. 51], it therefore follows that her
marriage to Sy Kiat, even if true, cannot be recognized in this
jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]
II. The second issue raised by petitioners concerns the
status of private respondents.
Respondent court found the following evidence of petitioners'
filiation:
(1) Sy Kiat's Master Card of Registered Alien where the
following are entered: "Children if any: give number of
childrenFour"; and, "NameAll living in China" [Exhibit
"SS-1";]
(2) the testimony of their mother Yao Kee who stated that
she had five children with Sy Kiat, only three of whom are
alive namely, Sze Sook Wah, Sze Lai Chu and Sze Chin Yan
[TSN, December 12, 1977, pp. 9-11;] and,
(3) an affidavit executed on March 22,1961 by Sy Kiat for
presentation to the Local Civil Registrar of Manila to support
Sze Sook Wah's application for a marriage license, wherein
Sy Kiat expressly stated that she is his daughter [Exhibit "3".]
Likewise on the record is the testimony of Asuncion Gillego
that Sy Kiat told her he has three daughters with his Chinese
wife, two of whomSook Wah and Sze Kai Choshe
knows, and one adopted son [TSN, December 6,1977, pp.
87-88.]
However, as petitioners failed to establish the marriage of
Yao Kee with Sy Mat according to the laws of China, they
cannot be accorded the status of legitimate children but only
that of acknowledged natural children. Petitioners are natural
children, it appearing that at the time of their conception Yao
Kee and Sy Kiat were not disqualified by any impediment to
marry one another [See Art. 269, Civil Code.] And they are
acknowledged children of the deceased because of Sy Kiat's
recognition of Sze Sook Wah [Exhibit "3"] and its extension
to Sze Lai Cho and Sy Chun Yen who are her sisters of the
full blood [See Art. 271, Civil Code.]
Private respondents on the other hand are also the
deceased's acknowledged natural children with Asuncion
Gillego, a Filipina with whom he lived for twenty-five (25)
years without the benefit of marriage. They have in their
favor their father's acknowledgment, evidenced by a
compromise agreement entered into by and between their
parents and approved by the Court of First Instance on
February 12, 1974 wherein Sy Kiat not only acknowleged
them as his children by Asuncion Gillego but likewise made
provisions for their support and future inheritance, thus:
xxx xxx xxx
2. The parties also acknowledge that they are common-law
husband and wife and that out of such relationship, which
they have likewise decided to definitely and finally terminate
effective immediately, they begot five children, namely: Aida
Sy, born on May 30, 1950; Manuel Sy, born on July 1, 1953;
Teresita Sy, born on January 28, 1955; Ricardo Sy now
deceased, born on December 14, 1956; and Rodolfo Sy,
born on May 7, 1958.
3. With respect to the AVENUE TRACTOR AND DIESEL
PARTS SUPPLY ... , the parties mutually agree and
covenant that
(a) The stocks and merchandize and the furniture and
equipments ..., shall be divided into two equal shares
between, and distributed to, Sy Kiat who shall own
one-half of the total and the other half to Asuncion Gillego
1
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who shall transfer the same to their children, namely, Aida
Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy.
(b) the business name and premises ... shall be retained by
Sy Kiat. However, it shall be his obligation to give to
the aforenamed children an amount of One Thousand Pesos
( Pl,000.00 ) monthly out of the rental of the two doors of the
same building now occupied by Everett Construction.
xxx xxx xxx
(5) With respect to the acquisition, during the existence of
the
common-law husband-and-wife relationship between the
parties, of the real estates and properties registered and/or
appearing in the name of Asuncion Gillego ... , the parties
mutually agree and covenant that the said real estates and
properties shall be transferred in equal shares to their
children, namely, Aida Sy, Manuel Sy, Teresita Sy, and
Rodolfo Sy, but to be administered by Asuncion Gillego
during her lifetime ... [Exhibit "D".] (Emphasis supplied.)
xxx xxx xxx
This compromise agreement constitutes a statement before
a court of record by which a child may be voluntarily
acknowledged [See Art. 278, Civil Code.]
Petitioners further argue that the questions on the validity of
Sy Mat's marriage to Yao Kee and the paternity and filiation
of the parties should have been ventilated in the Juvenile
and Domestic Relations Court.
Specifically, petitioners rely on the following provision of
Republic Act No. 5502, entitled "An Act Revising Rep. Act
No. 3278, otherwise known as the Charter of the City of
Caloocan', with regard to the Juvenile and Domestic
Relations Court:
SEC. 91-A. Creation and Jurisdiction of the Court.
xxx xxx xxx
The provisions of the Judiciary Act to the contrary
notwithstanding, the court shall have exclusive original
jurisdiction to hear and decide the following cases:
xxx xxx xxx
(2) Cases involving custody, guardianship, adoption,
revocation of adoption, paternity and acknowledgment;
(3) Annulment of marriages, relief from marital obligations,
legal separation of spouses, and actions for support;
(4) Proceedings brought under the provisions of title six and
title seven, chapters one to three of the civil code;
xxx xxx xxx
and the ruling in the case of Bartolome v. Bartolome [G.R.
No. L-23661, 21 SCRA 1324] reiterated in Divinagracia v.
Rovira [G.R. No. L-42615, 72 SCRA 307.]
With the enactment of Batas Pambansa Blg. 129, otherwise
known as the Judiciary Reorganization Act of 1980, the
Juvenile and Domestic Relations Courts were abolished.
Their functions and jurisdiction are now vested with the
Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and
Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986,
143 SCRA 356, 360] hence it is no longer necessary to pass
upon the issue of jurisdiction raised by petitioners.
Moreover, even without the exactment of Batas Pambansa
Blg. 129 we find in Rep. Act No. 5502 sec. 91-A last
paragraph that:
xxx xxx xxx
If any question involving any of the above
matters should arise as an incident in any
case pending in the ordinary court, said
incident shall be determined in the main
case.
xxx xxx xxx
As held in the case of Divinagracia v. Rovira [G.R. No.
L42615. August 10, 1976, 72 SCRA 307]:
xxx xxx xxx
It is true that under the aforequoted section 1 of Republic Act
No. 4834 **** a case involving paternity and
acknowledgment may be ventilated as an incident in the
intestate or testate proceeding (See Baluyot vs. Ines
Luciano, L-42215, July 13, 1976). But that legal provision
presupposes that such an administration proceeding is
pending or existing and has not been terminated. [at pp. 313-
314.] (Emphasis supplied.)
xxx xxx xxx
The reason for ths rule is not only "to obviate the rendition of
conflicting rulings on the same issue by the Court of First
Instance and the Juvenile and Domestic Relations Court"
[Vda. de Baluyut v. Luciano, G.R. No. L-42215, July 13,
1976, 72 SCRA 52, 63] but more importantly to prevent
multiplicity of suits. Accordingly, this Court finds no reversible
error committed by respondent court.
WHEREFORE, the decision of the Court of Appeals is
hereby AFFIRMED.
SO ORDERED.

MICIANO v BRIMO
G.R. No. L-22595, November 1, 1927
SUPREME COURT
Manila
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EN BANC
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J .:
The partition of the estate left by the deceased Joseph G.
Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of
partition. Andre Brimo, one of the brothers of the deceased,
opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his
participation in the inheritance; (3) the denial of the motion
for reconsideration of the order approving the partition; (4)
the approval of the purchase made by the Pietro Lana of the
deceased's business and the deed of transfer of said
business; and (5) the declaration that the Turkish laws are
impertinent to this cause, and the failure not to postpone the
approval of the scheme of partition and the delivery of the
deceased's business to Pietro Lanza until the receipt of the
depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of Joseph
G. Brimo's will which are not in accordance with the laws of
his Turkish nationality, for which reason they are void as
being in violation or article 10 of the Civil Code which, among
other things, provides the following:
Nevertheless, legal and testamentary successions,
in respect to the order of succession as well as to
the amount of the successional rights and the
intrinsic validity of their provisions, shall be
regulated by the national law of the person whose
succession is in question, whatever may be the
nature of the property or the country in which it may
be situated.
But the fact is that the oppositor did not prove that said
testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any evidence
showing what the Turkish laws are on the matter, and in the
absence of evidence on such laws, they are presumed to be
the same as those of the Philippines. (Lim and Lim vs.
Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the
Turkish laws are. He, himself, acknowledges it when he
desires to be given an opportunity to present evidence on
this point; so much so that he assigns as an error of the court
in not having deferred the approval of the scheme of partition
until the receipt of certain testimony requested regarding the
Turkish laws on the matter.
The refusal to give the oppositor another opportunity to
prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into
consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no
abuse of discretion on the part of the court in this particular.
There is, therefore, no evidence in the record that the
national law of the testator Joseph G. Brimo was violated in
the testamentary dispositions in question which, not being
contrary to our laws in force, must be complied with and
executed. lawphil.net
Therefore, the approval of the scheme of partition in this
respect was not erroneous.
In regard to the first assignment of error which deals with the
exclusion of the herein appellant as a legatee, inasmuch as
he is one of the persons designated as such in will, it must
be taken into consideration that such exclusion is based on
the last part of the second clause of the will, which says:
Second. I like desire to state that although by law, I
am a Turkish citizen, this citizenship having been
conferred upon me by conquest and not by free
choice, nor by nationality and, on the other hand,
having resided for a considerable length of time in
the Philippine Islands where I succeeded in
acquiring all of the property that I now possess, it is
my wish that the distribution of my property and
everything in connection with this, my will, be made
and disposed of in accordance with the laws in
force in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul and
cancel beforehand whatever disposition found in
this will favorable to the person or persons who fail
to comply with this request.
The institution of legatees in this will is conditional, and the
condition is that the instituted legatees must respect the
testator's will to distribute his property, not in accordance
with the laws of his nationality, but in accordance with the
laws of the Philippines.
If this condition as it is expressed were legal and valid, any
legatee who fails to comply with it, as the herein oppositor
who, by his attitude in these proceedings has not respected
the will of the testator, as expressed, is prevented from
receiving his legacy.
The fact is, however, that the said condition is void, being
contrary to law, for article 792 of the civil Code provides the
following:
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Impossible conditions and those contrary to law or
good morals shall be considered as not imposed
and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator
otherwise provide.
And said condition is contrary to law because it expressly
ignores the testator's national law when, according to article
10 of the civil Code above quoted, such national law of the
testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above
cited, is considered unwritten, and the institution of legatees
in said will is unconditional and consequently valid and
effective even as to the herein oppositor.
It results from all this that the second clause of the will
regarding the law which shall govern it, and to the condition
imposed upon the legatees, is null and void, being contrary
to law.
All of the remaining clauses of said will with all their
dispositions and requests are perfectly valid and effective it
not appearing that said clauses are contrary to the testator's
national law.
Therefore, the orders appealed from are modified and it is
directed that the distribution of this estate be made in such a
manner as to include the herein appellant Andre Brimo as
one of the legatees, and the scheme of partition submitted
by the judicial administrator is approved in all other respects,
without any pronouncement as to costs.
So ordered.
ARTICLE 4

JULIANO-LLAVE v REPUBLIC
G.R. No. 169766, March 30, 2011
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 169766 March 30, 2011
ESTRELLITA JULIANO-LLAVE, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, HAJA PUTRI
ZORAYDA A. TAMANO and ADIB AHMAD A.
TAMANO,Respondents.
D E C I S I O N
DEL CASTILLO, J .:
A new law ought to affect the future, not what is past. Hence,
in the case of subsequent marriage laws, no vested rights
shall be impaired that pertain to the protection of the
legitimate union of a married couple.
This petition for review on certiorari assails the
Decision
1
dated August 17, 2004 of the Court of Appeals
(CA) in CA-G.R. CV No. 61762 and its subsequent
Resolution
2
dated September 13, 2005, which affirmed the
Decision of the Regional Trial Court (RTC) of Quezon City,
Branch 89 declaring petitioner Estrellita Juliano-Llaves
(Estrellita) marriage to Sen. Mamintal A.J. Tamano (Sen.
Tamano) as void ab initio.
Factual Antecedents
Around 11 months before his death, Sen. Tamano married
Estrellita twice initially under the Islamic laws and tradition
on May 27, 1993 in Cotabato City
3
and, subsequently, under
a civil ceremony officiated by an RTC Judge at Malabang,
Lanao del Sur on June 2, 1993.
4
In their marriage contracts,
Sen. Tamanos civil status was indicated as divorced.
Since then, Estrellita has been representing herself to the
whole world as Sen. Tamanos wife, and upon his death, his
widow.
On November 23, 1994, private respondents Haja Putri
Zorayda A. Tamano (Zorayda) and her son Adib Ahmad A.
Tamano (Adib), in their own behalf and in behalf of the rest
of Sen. Tamanos legitimate children with Zorayda,
5
filed a
complaint with the RTC of Quezon City for the declaration of
nullity of marriage between Estrellita and Sen. Tamano for
being bigamous. The complaint
6
alleged, inter alia, that Sen.
Tamano married Zorayda on May 31, 1958 under civil rites,
and that this marriage remained subsisting when he married
Estrellita in 1993. The complaint likewise averred that:
11. The marriage of the deceased and Complainant
Zorayda, having been celebrated under the New
Civil Code, is therefore governed by this law. Based
on Article 35 (4) of the Family Code, the
subsequent marriage entered into by deceased
Mamintal with Defendant Llave is void ab initio
because he contracted the same while his prior
marriage to Complainant Zorayda was still
subsisting, and his status being declared as
"divorced" has no factual or legal basis, because
the deceased never divorced Complainant Zorayda
in his lifetime, and he could not have validly done so
because divorce is not allowed under the New Civil
Code;
11.1 Moreover, the deceased did not and could not
have divorced Complainant Zorayda by invoking the
provision of P.D. 1083, otherwise known as the
Code of Muslim Personal Laws, for the simple
reason that the marriage of the deceased with
Complainant Zorayda was never deemed, legally
and factually, to have been one contracted under
1
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Muslim law as provided under Art. 186 (2) of P.D.
1083, since they (deceased and Complainant
Zorayda) did not register their mutual desire to be
thus covered by this law;
7

Summons was then served on Estrellita on December 19,
1994. She then asked from the court for an extension of 30
days to file her answer to be counted from January 4,
1995,
8
and again, another 15 days
9
or until February 18,
1995, both of which the court granted.
10

Instead of submitting her answer, however, Estrellita filed a
Motion to Dismiss
11
on February 20, 1995 where she
declared that Sen. Tamano and Zorayda are both Muslims
who were married under the Muslim rites, as had been
averred in the latters disbarment complaint against Sen.
Tamano.
12
Estrellita argued that the RTC has no jurisdiction
to take cognizance of the case because under Presidential
Decree (PD) No. 1083, or the Code of Muslim Personal Laws
of the Philippines (Muslim Code), questions and issues
involving Muslim marriages and divorce fall under the
exclusive jurisdiction of sharia courts.
The trial court denied Estrellitas motion and asserted its
jurisdiction over the case for declaration of nullity.
13
Thus,
Estrellita filed in November 1995 a certiorari petition with this
Court questioning the denial of her Motion to Dismiss. On
December 15, 1995, we referred the petition to the
CA
14
which was docketed thereat as CA-G.R. SP No. 39656.
During the pendency of CA-G.R. SP No. 39656, the RTC
continued to try the case since there can be no default in
cases of declaration of nullity of marriage even if the
respondent failed to file an answer. Estrellita was allowed to
participate in the trial while her opposing parties presented
their evidence. When it was Estrellitas turn to adduce
evidence, the hearings set for such purpose
15
were
postponed mostly at her instance until the trial court, on
March 22, 1996, suspended the proceedings
16
in view of the
CAs temporary restraining order issued on February 29,
1996, enjoining it from hearing the case.
17

Eventually, however, the CA resolved the petition adverse to
Estrellita in its Decision dated September 30,
1996.
18
Estrellita then elevated the appellate courts judgment
to this Court by way of a petition for review on certiorari
docketed as G.R. No. 126603.
19

Subsequent to the promulgation of the CA Decision, the RTC
ordered Estrellita to present her evidence on June 26,
1997.
20
As Estrellita was indisposed on that day, the hearing
was reset to July 9, 1997.
21
The day before this scheduled
hearing, Estrellita again asked for a postponement.
22

Unhappy with the delays in the resolution of their case,
Zorayda and Adib moved to submit the case for
decision,
23
reasoning that Estrellita had long been delaying
the case. Estrellita opposed, on the ground that she has not
yet filed her answer as she still awaits the outcome of G.R.
No. 126603.
24

On June 29, 1998, we upheld the jurisdiction of the RTC of
Quezon City,
25
stating as one of the reasons that as sharia
courts are not vested with original and exclusive jurisdiction
in cases of marriages celebrated under both the Civil Code
and PD 1083, the RTC, as a court of general jurisdiction, is
not precluded from assuming jurisdiction over such cases. In
our Resolution dated August 24, 1998,
26
we denied
Estrellitas motion for reconsideration
27
with finality.
A few days before this resolution, or on August 18, 1998, the
RTC rendered the aforementioned judgment declaring
Estrellitas marriage with Sen. Tamano as void ab initio.
28

Ruling of the Regional Trial Court
The RTC, finding that the marital ties of Sen. Tamano and
Zorayda were never severed, declared Sen. Tamanos
subsequent marriage to Estrellita as void ab initio for being
bigamous under Article 35 of the Family Code of the
Philippines and under Article 83 of the Civil Code of the
Philippines.
29
The court said:
A comparison between Exhibits A and B (supra) immediately
shows that the second marriage of the late Senator with
[Estrellita] was entered into during the subsistence of his first
marriage with [Zorayda]. This renders the subsequent
marriage void from the very beginning. The fact that the late
Senator declared his civil status as "divorced" will not in any
way affect the void character of the second marriage
because, in this jurisdiction, divorce obtained by the Filipino
spouse is not an acceptable method of terminating the
effects of a previous marriage, especially, where the
subsequent marriage was solemnized under the Civil Code
or Family Code.
30

Ruling of the Court of Appeals
In her appeal,
31
Estrellita argued that she was denied her
right to be heard as
the RTC rendered its judgment even without waiting for the
finality of the Decision of the Supreme Court in G.R. No.
126603. She claimed that the RTC should have required her
to file her answer after the denial of her motion to dismiss.
She maintained that Sen. Tamano is capacitated to marry
her as his marriage and subsequent divorce with Zorayda is
governed by the Muslim Code. Lastly, she highlighted
Zoraydas lack of legal standing to question the validity of her
marriage to the deceased.
In dismissing the appeal in its Decision dated August 17,
2004,
32
the CA held that Estrellita can no longer be allowed
to file her answer as she was given ample opportunity to be
heard but simply ignored it by asking for numerous
postponements. She never filed her answer despite the
lapse of around 60 days, a period longer than what was
prescribed by the rules. It also ruled that Estrellita cannot rely
on her pending petition for certiorari with the higher courts
since, as an independent and original action, it does not
interrupt the proceedings in the trial court.
1
st

As to the substantive merit of the case, the CA adjudged that
Estrellitas marriage to Sen. Tamano is void ab initio for
being bigamous, reasoning that the marriage of Zorayda and
Sen. Tamano is governed by the Civil Code, which does not
provide for an absolute divorce. It noted that their first nuptial
celebration was under civil rites, while the subsequent
Muslim celebration was only ceremonial. Zorayda then,
according to the CA, had the legal standing to file the action
as she is Sen. Tamanos wife and, hence, the injured party in
the senators subsequent bigamous marriage with Estrellita.
In its September 13, 2005 Resolution,
33
the CA denied
Estrellitas Motion for Reconsideration/Supplemental Motion
for Reconsideration where it debunked the additional errors
she raised. The CA noted that the allegation of lack of the
public prosecutors report on the existence of collusion in
violation of both Rule 9, Section 3(e) of the Rules of
Court
34
and Article 48 of the Family Code
35
will not invalidate
the trial courts judgment as the proceedings between the
parties had been adversarial, negating the existence of
collusion. Assuming that the issues have not been joined
before the RTC, the same is attributable to Estrellitas refusal
to file an answer. Lastly, the CA disregarded Estrellitas
allegation that the trial court erroneously rendered its
judgment way prior to our remand to the RTC of the records
of the case ratiocinating that G.R. No. 126603 pertains to the
issue on the denial of the Motion to Dismiss, and not to the
issue of the validity of Estrellitas marriage to Sen. Tamano.
The Parties Respective Arguments
Reiterating her arguments before the court a quo, Estrellita
now argues that the CA erred in upholding the RTC
judgment as the latter was prematurely issued, depriving her
of the opportunity to file an answer and to present her
evidence to dispute the allegations against the validity of her
marriage. She claims that Judge Macias v. Macias
36
laid
down the rule that the filing of a motion to dismiss instead of
an answer suspends the period to file an answer and,
consequently, the trial court is obliged to suspend
proceedings while her motion to dismiss on the ground of
lack of jurisdiction has not yet been resolved with finality.
She maintains that she merely participated in the RTC
hearings because of the trial courts assurance that the
proceedings will be without prejudice to whatever action the
High Court will take on her petition questioning the RTCs
jurisdiction and yet, the RTC violated this commitment as it
rendered an adverse judgment on August 18, 1998, months
before the records of G.R. No. 126603 were remanded to the
CA on November 11, 1998.
37
She also questions the lack of
a report of the public prosecutor anent a finding of whether
there was collusion, this being a prerequisite before further
proceeding could be held when a party has failed to file an
answer in a suit for declaration of nullity of marriage.
Estrellita is also steadfast in her belief that her marriage with
the late senator is valid as the latter was already divorced
under the Muslim Code at the time he married her. She
asserts that such law automatically applies to the marriage of
Zorayda and the deceased without need of registering their
consent to be covered by it, as both parties are Muslims
whose marriage was solemnized under Muslim law. She
pointed out that Sen. Tamano married all his wives under
Muslim rites, as attested to by the affidavits of the siblings of
the deceased.
38

Lastly, Estrellita argues that Zorayda and Adib have no legal
standing to file suit because only the husband or the wife can
file a complaint for the declaration of nullity of marriage under
Supreme Court Resolution A.M. No. 02-11-10-SC.
39

Refuting the arguments, the Solicitor General (Sol Gen)
defends the CAs reasoning and stresses that Estrellita was
never deprived of her right to be heard; and, that filing an
original action for certiorari does not stay the proceedings of
the main action before the RTC.
As regards the alleged lack of report of the public prosecutor
if there is collusion, the Sol Gen says that this is no longer
essential considering the vigorous opposition of Estrellita in
the suit that obviously shows the lack of collusion. The Sol
Gen also supports private respondents legal standing to
challenge the validity of Estrellitas purported marriage with
Sen. Tamano, reasoning that any proper interested party
may attack directly or collaterally a void marriage, and
Zorayda and Adib have such right to file the action as they
are the ones prejudiced by the marital union.
Zorayda and Adib, on the other hand, did not file any
comment.
Issues
The issues that must be resolved are the following:
1. Whether the CA erred in affirming the trial courts
judgment, even though the latter was rendered
prematurely because: a) the judgment was
rendered without waiting for the Supreme Courts
final resolution of her certiorari petition, i.e., G.R.
No. 126603; b) she has not yet filed her answer and
thus was denied due process; and c) the public
prosecutor did not even conduct an investigation
whether there was collusion;
2. Whether the marriage between Estrellita and the
late Sen. Tamano was bigamous; and
3. Whether Zorayda and Adib have the legal
standing to have Estrellitas marriage declared void
ab initio.
Our Ruling
Estrellitas refusal to file an answer eventually led to the loss
of her right to answer; and her pending petition for
certiorari/review on certiorari questioning the denial of the
motion to dismiss before the higher courts does not at all
1
st

suspend the trial proceedings of the principal suit before the
RTC of Quezon City.
Firstly, it can never be argued that Estrellita was deprived of
her right to due process. She was never declared in default,
and she even actively participated in the trial to defend her
interest.
Estrellita invokes Judge Macias v. Macias
40
to justify the
suspension of the period to file an answer and of the
proceedings in the trial court until her petition
for certiorari questioning the validity of the denial of her
Motion to Dismiss has been decided by this Court. In said
case, we affirmed the following reasoning of the CA which,
apparently, is Estrellitas basis for her argument, to wit:
However, she opted to file, on April 10, 2001, a Motion to
Dismiss, instead of filing an Answer to the complaint. The
filing of said motion suspended the period for her to file her
Answer to the complaint. Until said motion is resolved by the
Respondent Court with finality, it behooved the Respondent
Court to suspend the hearings of the case on the merits. The
Respondent Court, on April 19, 2001, issued its Order
denying the Motion to Dismiss of the Petitioner. Under
Section 6, Rule 16 of the 1997 Rules of Civil Procedure [now
Section 4], the Petitioner had the balance of the period
provided for in Rule 11 of the said Rules but in no case less
than five (5) days computed from service on her of the
aforesaid Order of the Respondent Court within which to file
her Answer to the complaint: x x x
41
(Emphasis supplied.)
Estrellita obviously misappreciated Macias. All we
pronounced therein is that the trial court is mandated to
suspend trial until it finally resolves the motion to dismiss that
is filed before it. Nothing in the above excerpt states that the
trial court should suspend its proceedings should the issue of
the propriety or impropriety of the motion to dismiss be
raised before the appellate courts. In Macias, the trial court
failed to observe due process in the course of the
proceeding of the case because after it denied the wifes
motion to dismiss, it immediately proceeded to allow the
husband to present evidence ex parte and resolved the case
with undue haste even when, under the rules of procedure,
the wife still had time to file an answer. In the instant case,
Estrellita had no time left for filing an answer, as she filed the
motion to dismiss beyond the extended period earlier
granted by the trial court after she filed motions for extension
of time to file an answer.
Estrellita argues that the trial court prematurely issued its
judgment, as it should have waited first for the resolution of
her Motion to Dismiss before the CA and, subsequently,
before this Court. However, in upholding the RTC, the CA
correctly ruled that the pendency of a petition for certiorari
does not suspend the proceedings before the trial court. "An
application for certiorari is an independent action which is not
part or a continuation of the trial which resulted in the
rendition of the judgment complained of."
42
Rule 65 of the
Rules of Court is explicit in stating that "[t]he petition shall not
interrupt the course of the principal case unless a temporary
restraining order or a writ of preliminary injunction has been
issued against the public respondent from further proceeding
in the case."
43
In fact, the trial court respected the CAs
temporary restraining order and only after the CA rendered
judgment did the RTC again require Estrellita to present her
evidence.
Notably, when the CA judgment was elevated to us by way
of Rule 45, we never issued any order precluding the trial
court from proceeding with the principal action. With her
numerous requests for postponements, Estrellita remained
obstinate in refusing to file an answer or to present her
evidence when it was her turn to do so, insisting that the trial
court should wait first for our decision in G.R. No. 126603.
Her failure to file an answer and her refusal to present her
evidence were attributable only to herself and she should not
be allowed to benefit from her own dilatory tactics to the
prejudice of the other party. Sans her answer, the trial court
correctly proceeded with the trial and rendered its Decision
after it deemed Estrellita to have waived her right to present
her side of the story. Neither should the lower court wait for
the decision in G.R. No. 126603 to become final and
executory, nor should it wait for its records to be remanded
back to it because G.R. No. 126603 involves strictly the
propriety of the Motion to Dismiss and not the issue of
validity of marriage.
The Public Prosecutor issued a report as
to the non-existence of collusion.
Aside from Article 48 of the Family Code and Rule 9, Section
3(e) of the Rules of Court, the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC)
44
also requries
the participation of the public prosecutor in cases involving
void marriages. It specifically mandates the prosecutor to
submit his investigation report to determine whether there is
collusion between the parties:
Sec. 9. Investigation report of public prosecutor.(1)
Within one month after receipt of the court order mentioned
in paragraph (3) of Section 8 above, the public prosecutor
shall submit a report to the court stating whether the parties
are in collusion and serve copies thereof on the parties and
their respective counsels, if any.
(2) If the public prosecutor finds that collusion
exists, he shall state the basis thereof in his report.
The parties shall file their respective comments on
the finding of collusion within ten days from receipt
of a copy of the report. The court shall set the report
for hearing and if convinced that the parties are in
collusion, it shall dismiss the petition.
(3) If the public prosecutor reports that no collusion
exists, the court shall set the case for pre-trial. It
shall be the duty of the public prosecutor to appear
for the State at the pre-trial.
1
st

Records show that the trial court immediately directed the
public prosecutor to submit the required report,
45
which we
find to have been sufficiently complied with by Assistant City
Prosecutor Edgardo T. Paragua in his Manifestation dated
March 30, 1995,
46
wherein he attested that there could be no
collusion between the parties and no fabrication of evidence
because Estrellita is not the spouse of any of the private
respondents.
Furthermore, the lack of collusion is evident in the case at
bar. Even assuming that there is a lack of report of collusion
or a lack of participation by the public prosecutor, just as we
held in Tuason v. Court of Appeals,
47
the lack of participation
of a fiscal does not invalidate the proceedings in the trial
court:
The role of the prosecuting attorney or fiscal in annulment of
marriage and legal separation proceedings is to determine
whether collusion exists between the parties and to take care
that the evidence is not suppressed or fabricated. Petitioner's
vehement opposition to the annulment proceedings negates
the conclusion that collusion existed between the parties.
There is no allegation by the petitioner that evidence was
suppressed or fabricated by any of the parties. Under these
circumstances, we are convinced that the non-intervention of
a prosecuting attorney to assure lack of collusion between
the contending parties is not fatal to the validity of the
proceedings in the trial court.
48

The Civil Code governs the marriage of Zorayda and the late
Sen. Tamano; their marriage was never invalidated by PD
1083. Sen. Tamanos subsequent marriage to Estrellita is
void ab initio.
The marriage between the late Sen. Tamano and Zorayda
was celebrated in 1958, solemnized under civil and Muslim
rites.
49
The only law in force governing marriage
relationships between Muslims and non-Muslims alike was
the Civil Code of 1950, under the provisions of which only
one marriage can exist at any given time.
50
Under the
marriage provisions of the Civil Code, divorce is not
recognized except during the effectivity of Republic Act No.
394
51
which was not availed of during its effectivity.
As far as Estrellita is concerned, Sen. Tamanos prior
marriage to Zorayda has been severed by way of divorce
under PD 1083,
52
the law that codified Muslim personal laws.
However, PD 1083 cannot benefit Estrellita. Firstly, Article
13(1) thereof provides that the law applies to "marriage and
divorce wherein both parties are Muslims, or wherein only
the male party is a Muslim and the marriage is solemnized in
accordance with Muslim law or this Code in any part of the
Philippines." But we already ruled in G.R. No. 126603 that
"Article 13 of PD 1083 does not provide for a situation where
the parties were married both in civil and Muslim rites."
53

Moreover, the Muslim Code took effect only on February 4,
1977, and this law cannot retroactively override the Civil
Code which already bestowed certain rights on the marriage
of Sen. Tamano and Zorayda. The former explicitly provided
for the prospective application of its provisions unless
otherwise provided:
Art. 186 (1). Effect of code on past acts. Acts executed
prior to the effectivity of this Code shall be governed by the
laws in force at the time of their execution, and nothing
herein except as otherwise specifically provided, shall affect
their validity or legality or operate to extinguish any right
acquired or liability incurred thereby.
It has been held that:
The foregoing provisions are consistent with the principle
that all laws operate prospectively, unless the contrary
appears or is clearly, plainly and unequivocably expressed or
necessarily implied; accordingly, every case of doubt will be
resolved against the retroactive operation of laws. Article 186
aforecited enunciates the general rule of the Muslim Code to
have its provisions applied prospectively, and implicitly
upholds the force and effect of a pre-existing body of law,
specifically, the Civil Code in respect of civil acts that took
place before the Muslim Codes enactment.
54

An instance of retroactive application of the Muslim Code is
Article 186(2) which states:
A marriage contracted by a Muslim male prior to the
effectivity of this Code in accordance with non-Muslim law
shall be considered as one contracted under Muslim law
provided the spouses register their mutual desire to this
effect.
Even granting that there was registration of mutual consent
for the marriage to be considered as one contracted under
the Muslim law, the registration of mutual consent between
Zorayda and Sen. Tamano will still be ineffective, as both are
Muslims whose marriage was celebrated under both civil and
Muslim laws. Besides, as we have already settled, the Civil
Code governs their personal status since this was in effect at
the time of the celebration of their marriage. In view of Sen.
Tamanos prior marriage which subsisted at the time
Estrellita married him, their subsequent marriage is correctly
adjudged by the CA as void ab initio.
Zorayda and Adib, as the injured parties, have the legal
personalities to file the declaration of nullity of marriage. A.M.
No. 02-11-10-SC, which limits to only the husband or the
wife the filing of a petition for nullity is prospective in
application and does not shut out the prior spouse from filing
suit if the ground is a bigamous subsequent marriage.
Her marriage covered by the Family Code of the
Philippines,
55
Estrellita relies on A.M. No. 02-11-10-SC which
took effect on March 15, 2003 claiming that under Section
2(a)
56
thereof, only the husband or the wife, to the exclusion
of others, may file a petition for declaration of absolute
nullity, therefore only she and Sen. Tamano may directly
attack the validity of their own marriage.
1
st

Estrellita claims that only the husband or the wife in a void
marriage can file a petition for declaration of nullity of
marriage. However, this interpretation does not apply if the
reason behind the petition is bigamy.
In explaining why under A.M. No. 02-11-10-SC only the
spouses may file the petition to the exclusion of compulsory
or intestate heirs, we said:
The Rationale of the Rules on Annulment of Voidable
Marriages and Declaration of Absolute Nullity of Void
Marriages, Legal Separation and Provisional Orders
explicates on Section 2(a) in the following manner, viz:
(1) Only an aggrieved or injured spouse may file petitions for
annulment of voidable marriages and declaration of absolute
nullity of void marriages. Such petitions cannot be filed by
the compulsory or intestate heirs of the spouses or by the
State. [Section 2; Section 3, paragraph a]
Only an aggrieved or injured spouse may file a petition for
annulment of voidable marriages or declaration of absolute
nullity of void marriages. Such petition cannot be filed by
compulsory or intestate heirs of the spouses or by the State.
The Committee is of the belief that they do not have a legal
right to file the petition. Compulsory or intestate heirs have
only inchoate rights prior to the death of their predecessor,
and hence can only question the validity of the marriage of
the spouses upon the death of a spouse in a proceeding for
the settlement of the estate of the deceased spouse filed in
the regular courts. On the other hand, the concern of the
State is to preserve marriage and not to seek its
dissolution.
57

Note that the Rationale makes it clear that Section 2(a) of
A.M. No. 02-11-10-SC refers to the "aggrieved or injured
spouse." If Estrellitas interpretation is employed, the prior
spouse is unjustly precluded from filing an action. Surely, this
is not what the Rule contemplated.
The subsequent spouse may only be expected to take action
if he or she had only discovered during the connubial period
that the marriage was bigamous, and especially if the
conjugal bliss had already vanished. Should parties in a
subsequent marriage benefit from the bigamous marriage, it
would not be expected that they would file an action to
declare the marriage void and thus, in such circumstance,
the "injured spouse" who should be given a legal remedy is
the one in a subsisting previous marriage. The latter is
clearly the aggrieved party as the bigamous marriage not
only threatens the financial and the property ownership
aspect of the prior marriage but most of all, it causes an
emotional burden to the prior spouse. The subsequent
marriage will always be a reminder of the infidelity of the
spouse and the disregard of the prior marriage which sanctity
is protected by the Constitution.
Indeed, Section 2(a) of A.M. No. 02-11-10-SC precludes the
son from impugning the subsequent marriage.1wphi1 But in
the case at bar, both Zorayda and Adib have legal
personalities to file an action for nullity. Albeit the Supreme
Court Resolution governs marriages celebrated under the
Family Code, such is prospective in application and does not
apply to cases already commenced before March 15, 2003.
58

Zorayda and Adib filed the case for declaration of nullity of
Estrellitas marriage in November 1994. While the Family
Code is silent with respect to the proper party who can file a
petition for declaration of nullity of marriage prior to A.M. No.
02-11-10-SC, it has been held that in a void marriage, in
which no marriage has taken place and cannot be the source
of rights, any interested party may attack the marriage
directly or collaterally without prescription, which may be filed
even beyond the lifetime of the parties to the
marriage.
59
Since A.M. No. 02-11-10-SC does not apply,
Adib, as one of the children of the deceased who has
property rights as an heir, is likewise considered to be the
real party in interest in the suit he and his mother had filed
since both of them stand to be benefited or injured by the
judgment in the suit.
60

Since our Philippine laws protect the marital union of a
couple, they should be interpreted in a way that would
preserve their respective rights which include striking down
bigamous marriages. We thus find the CA Decision correctly
rendered.
WHEREFORE, the petition is DENIED. The assailed August
17, 2004 Decision of the Court of Appeals in CA-G.R. CV
No. 61762, as well as its subsequent Resolution issued on
September 13, 2005, are hereby AFFIRMED.
SO ORDERED.
CO v COURT OF APPEALS
G.R. No. 100776, October 28, 1993
SUPREME COURT
Manila
EN BANC

G.R. No. 100776 October 28, 1993
ALBINO S. CO, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
Antonio P. Barredo for petitioner.
The Solicitor General for the people.

1
st

NARVASA, C.J .:
In connection with an agreement to salvage and refloat
asunken vessel and in payment of his share of the
expenses of the salvage operations therein stipulated
petitioner Albino Co delivered to the salvaging firm on
September 1, 1983 a check drawn against the Associated
Citizens' Bank, postdated November 30, 1983 in the sum of
P361,528.00.
1
The check was deposited on January 3,
1984. It was dishonored two days later, the tersely-stated
reason given by the bank being: "CLOSED ACCOUNT."
A criminal complaint for violation of Batas Pambansa Bilang
22
2
was filed by the salvage company against Albino Co with
the Regional Trial Court of Pasay City. The case eventuated
in Co's conviction of the crime charged, and his being
sentenced to suffer a term of imprisonment of sixty (60) days
and to indemnify the salvage company in the sum of
P361,528.00.
Co appealed to the Court of Appeals. There he sought
exoneration upon the theory that it was reversible error for
the Regional Trial Court to have relied, as basis for its verdict
of conviction, on the ruling rendered on September 21, 1987
by this Court in Que v. People, 154 SCRA 160 (1987)
3

i.e., that a check issued merely to guarantee the
performance of an obligation is nevertheless covered by B.P.
Blg. 22. This was because at the time of the issuance of the
check on September 1, 1983, some four (4) years prior to the
promulgation of the judgment in Que v. People on
September 21, 1987, the delivery of a "rubber" or "bouncing"
check as guarantee for an obligation was not considered a
punishable offense, an official pronouncement made in a
Circular of the Ministry of Justice. That Circular (No. 4),
dated December 15, 1981, pertinently provided as follows:
2.3.4. Where issuance of bouncing check is neither estafa
nor violation of B.P. Blg. 22.
Where the check is issued as part of an arrangement to
guarantee or secure the payment of an obligation, whether
pre-existing or not, the drawer is not criminally liable for
either estafa or violation of B.P. Blg. 22 (Res. No. 438, s.
1981, Virginia Montano vs. Josefino Galvez, June 19, 1981;
Res. No. 707, s. 1989; Alice Quizon vs. Lydia Calingo,
October 23, 1981, Res. No. 769, s. 1981, Alfredo Guido vs.
Miguel A. Mateo, et. al., November 17, 1981; Res. No. 589,
s. 1981, Zenaida Lazaro vs. Maria Aquino, August 7, 1981).
This administrative circular was subsequently reversed by
another issued on August 8, 1984 (Ministry Circular No. 12)
almost one (1) year after Albino Co had delivered the
"bouncing" check to the complainant on September 1, 1983.
Said Circular No. 12, after observing inter alia that Circular
No. 4 of December 15, 1981 appeared to have been based
on "a misapplication of the deliberation in the Batasang
Pambansa, . . . (or) the explanatory note on the original bill,
i.e. that the intention was not to penalize the issuance of a
check to secure or guarantee the payment of an obligation,"
as follows:
4

Henceforth, conforming with the rule that an administrative
agency having interpreting authority may reverse its
administration interpretation of a statute, but that its review
interpretation applies only prospectively (Waterbury Savings
Bank vs. Danaher, 128 Conn., 476; 20 a2d 455 (1941), in all
cases involving violation of Batas Pambansa Blg. 22 where
the check in question is issued after this date, the claim that
the check is issued as a guarantee or part of an arrangement
to secure an obligation collection will no longer be
considered a valid defense.
Co's theory was rejected by the Court of Appeals which
affirmed his conviction. Citing Senarillos v. Hermosisima, 101
Phil. 561, the Appellate Court opined that the Que doctrine
did not amount to the passage of new law but was merely a
construction or interpretation of a pre-existing one, i.e., BP
22, enacted on April 3, 1979.
From this adverse judgment of the Court of Appeals, Albino
Co appealed to this Court on certiorari under Rule 45 of the
Rules of Court. By Resolution dated September 9, 1991, the
Court dismissed his appeal. Co moved for reconsideration
under date of October 2, 1991. The Court required comment
thereon by the Office of the Solicitor General. The latter
complied and, in its comment dated December 13, 1991,
extensively argued against the merits of Albino Co's theory
on appeal, which was substantially that proffered by him in
the Court of Appeals. To this comment, Albino Co filed a
reply dated February 14, 1992. After deliberating on the
parties' arguments and contentions, the Court resolved, in
the interests of justice, to reinstate Albino Co's appeal and
adjudicate the same on its merits.
Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the
Philippines," according to Article 8 of the Civil Code. "Laws
shall have no retroactive effect, unless the contrary is
provided," declares Article 4 of the same Code, a declaration
that is echoed by Article 22 of the Revised Penal Code:
"Penal laws shall have, a retroactive effect insofar as they
favor the person guilty of a felony, who is not a habitual
criminal . . .
5

The principle of prospectivity of statutes, original or
amendatory, has been applied in many cases. These
include: Buyco v. PNB, 961 2 SCRA 682 (June 30, 1961),
holding that Republic Act No. 1576 which divested the
Philippine National Bank of authority to accept back pay
certificates in payment of loans, does not apply to an offer of
payment made before effectivity of the act; Largado
v. Masaganda, et al., 5 SCRA 522 (June 30, 1962), ruling
that RA 2613, s amended by RA 3090 on June, 1961,
granting to inferior courts jurisdiction over guardianship
cases, could not be given retroactive effect, in the absence
of a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the
effect that Sections 9 and 10 of Executive Order No. 90,
amending Section 4 of PD 1752, could have no retroactive
application; People v. Que Po Lay, 94 Phil. 640, holding that
a person cannot be convicted of violating Circular No. 20 of
the Central, when the alleged violation occurred before
1
st

publication of the Circular in the Official Gazette; Baltazar
v. C.A., 104 SCRA 619, denying retroactive application to
P.D. No. 27 decreeing the emancipation of tenants from the
bondage of the soil, and P.D. No. 316 prohibiting ejectment
of tenants from rice and corn farmholdings, pending the
promulgation of rules and regulations implementing P.D. No.
27; Nilo v. Court of Appeals, 128 SCRA 519, adjudging that
RA 6389 whichremoved "personal cultivation" as a ground
for the ejectment of a tenant cannot be given retroactive
effect in the absence of a statutory statement for
retroactivity;Tac-An v. CA, 129 SCRA 319, ruling that the
repeal of the old Administrative Code by RA 4252 could not
be accorded retroactive effect; Ballardo v. Borromeo, 161
SCRA 500, holding that RA 6389 should have only
prospective application; (see also Bonifacio v. Dizon, 177
SCRA 294 and Balatbat v. CA, 205 SCRA 419).
The prospectivity principle has also been made to apply to
administrative rulings and circulars, to wit: ABS-CBN
Broadcasting Corporation v. CTA, Oct. 12, 1981, 108 SCRA
142, holding that a circular or ruling of the Commissioner of
Internal Revenue may not be given retroactive effect
adversely to a taxpayer: Sanchez v.COMELEC, 193 SCRA
317, ruling that Resolution No. 90-0590 of the Commission
on Elections, which directed the holding of recall
proceedings, had no retroactive application; Romualdez
v. CSC, 197 SCRA 168, where it was ruled that CSC
Memorandum Circular No. 29, s. 1989 cannot be given
retrospective effect so as to entitle to permanent
appointment an employee whose temporary appointment
had expired before the Circular was issued.
The principle of prospectivity has also been applied to
judicial decisions which, "although in themselves not laws,
are nevertheless evidence of what the laws mean, . . . (this
being) the reason whyunder Article 8 of the New Civil Code,
'Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system . . .'"
So did this Court hold, for example, in Peo. v. Jabinal, 55
SCRA 607, 611:
It will be noted that when appellant was appointed Secret
Agent by the Provincial Government in 1962, and
Confidential Agent by the Provincial commander in 1964, the
prevailing doctrine on the matter was that laid down by Us
in People v. Macarandang (1959) and People
v. Lucero (1958).
6
Our decision in People
v. Mapa,
7
reversing the aforesaid doctrine, came only in
1967. The sole question in this appeal is: should appellant
be acquitted on the basis of Our rulings
in Macarandang and Lucero, or should his conviction stand
in view of the complete reverse of the Macarandang and
Lucero doctrine in Mapa? . . .
Decisions of this Court, although in themselves not laws, are
nevertheless evidence of what the laws mean, and this is the
reason why under Article 8 of the New Civil Code, "Judicial
decisions applying or interpreting the laws or the Constitution
shall form a part of the legal system . . ."The interpretation
upon a law by this Court constitutes, in a way, a part of the
law as of the date that law was originally passed, since this
Court's construction merely establishes the
contemporaneous legislative intent that the law thus
construed intends to effectuate. The settled rule supported
by numerous authorities is a restatement of the legal
maxim "legis interpretation legis vim obtinet" the
interpretation placed upon the written law by a competent
court has the force of law. The doctrine laid down
in Lucero andMacarandang was part of the jurisprudence,
hence, of the law, of the land, at the time appellant was
found in possession of the firearm in question and where he
was arraigned by the trial court. It is true that the doctrine
was overruled in the Mapa case in 1967, but when a doctrine
of this Court is overruled and a different view is adopted, the
new doctrine should be applied prospectively, and should not
apply to parties who had relied on, the old doctrine and acted
on the faith thereof. This is especially true in the construction
and application of criminal laws, where it is necessary that
the punishment of an act be reasonably foreseen for the
guidance of society.
So, too, did the Court rule in Spouses Gauvain and
Bernardita Benzonan v. Court of Appeals, et al. (G.R. No.
97973) and Development Bank of the Philippines v. Court of
Appeals, et al (G.R. No 97998), Jan. 27, 1992, 205 SCRA
515, 527-528:
8

We sustain the petitioners' position, It is undisputed that the
subject lot was mortgaged to DBP on February 24, 1970. It
was acquired by DBP as the highest bidder at a foreclosure
sale on June 18, 1977, and then sold to the petitioners on
September 29, 1979.
At that time, the prevailing jurisprudence interpreting section
119 of R.A. 141 as amended was that enunciated
in Monge and Tupas cited above. The petitioners Benzonan
and respondent Pe and the DBP are bound by these
decisions for pursuant to Article 8 of the Civil Code "judicial
decisions applying or interpreting the laws or the Constitution
shall form a part of the legal system of the Philippines." But
while our decisions form part of the law of the land, they are
also subject to Article 4 of the Civil Code which provides that
"laws shall have no retroactive effect unless the contrary is
provided." This is expressed in the familiar legal maxim lex
prospicit, non respicit, the law looks forward not backward.
The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that
have already become vested or impairs the obligations of
contract and hence, is unconstitutional (Francisco vs.
Certeza, 3 SCRA 565 [1061]).
The same consideration underlies our rulings giving only
prospective effect to decisions enunciating new doctrines.
Thus, we emphasized in People v. Jabinal, 55 SCRA 607
[1974]" . . . when a doctrine of this Court is overruled and a
different view is adopted, the new doctrine should be applied
prospectively and should not apply to parties who had relied
on the old doctrine and acted on the faith thereof.
1
st

A compelling rationalization of the prospectivity principle of
judicial decisions is well set forth in the oft-cited case
ofChicot County Drainage Dist. v. Baxter States Bank, 308
US 371, 374 [1940]. The Chicot doctrine advocates the
imperative necessity to take account of the actual existence
of a statute prior to its nullification, as an operative fact
negating acceptance of "a principle of absolute retroactive
invalidity.
Thus, in this Court's decision in Taada
v. Tuvera,
9
promulgated on April 24, 1985 which declared
"that presidential issuances of general application, which
have not been published,shall have no force and effect," and
as regards which declaration some members of the Court
appeared "quite apprehensive about the possible unsettling
effect . . . (the) decision might have on acts done in reliance
on the validity of these presidential decrees . . ." the Court
said:
. . . . The answer is all too familiar. In similar situation is in
the past this Court, had taken the pragmatic and realistic
course set forth in Chicot County Drainage District vs. Baxter
Bank (308 U.S. 371, 374) to wit:
The courts below have proceeded on the theory that the Act
of Congress, having found to be unconstitutional, was not a
law; that it was inoperative, conferring no rights and imposing
no duties, and hence affording no basis for the challenged
decree. Norton vs. Shelby County, 118 US 425, 442;
Chicago, I. & L. Ry. Co. v. Hackett, 228 U. S. 559, 566. It is
quite clear, however, that such broad statements as to the
effect of a determination of unconstitutionality must be taken
with qualifications. The actual existence of a statute, prior to
such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be
considered in various aspects with respect to particular
conduct, private and official. Questions of rights claimed to
have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of
public policy in the light of the nature both of the statute and
of its previous application, demand examination. These
questions are among the most difficult of those who have
engaged the attention of courts, state and federal, and it is
manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity
cannot be justified.
Much earlier, in De Agbayani v. PNB, 38 SCRA 429
concerning the effects of the invalidation of "Republic Act No.
342, the moratorium legislation, which continued Executive
Order No. 32, issued by the then President Osmea,
suspending the enforcement of payment of all debts and
other monetary obligations payable by war sufferers," and
which had been "explicitly held in Rutter v. Esteban (93 Phil.
68 [1953]
10
. . . (to be) in 1953 'unreasonable and
oppressive, and should not be prolonged a minute longer . .
." the Court made substantially the same observations, to
wit:
11

. . . . The decision now on appeal reflects the orthodox view
that an unconstitutional act, for that matter an executive
order or a municipal ordinance likewise suffering from that
infirmity, cannot be the source of any legal rights or duties.
Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared
results in its being to all intents and purposes amere scrap of
paper. . . . It is understandable why it should be so, the
Constitution being supreme and paramount. Any legislative
or executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of
simplicity. lt may not however be sufficiently realistic. It does
not admit of doubt that prior to the declaration of nullity such
challenged legislative or executive act must have been in
force and had to be compiled with. This is so as until after
the judiciary, in an appropriate case, declares its invalidity,, it
is entitled to obedience and respect. Parties may have acted
under it and may have changed theirpositions, what could be
more fitting than that in a subsequent litigation regard be had
to what has been done while such legislative or executive act
was in operation and presumed to be valid in all respects. It
is now accepted as a doctrine that prior to its being nullified,
its existence is a fact must be reckoned with. This is merely
to reflect awareness that precisely because the judiciary is
the governmental organ which has the final say on whether
or not a legislative or executive measure is valid, a, period of
time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and
justice then, if there be no recognition of what had transpired
prior to such adjudication.
In the language of an American Supreme Court decision:
'The actual existence of a statute, prior to such a
determination [of unconstitutionality], is an operative fact and
may have consequences which cannot justly be ignored. The
past cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have
to be considered in various aspects, with respect to
particular relations, individual and corporate, and particular
conduct, private and official (Chicot County Drainage Dist. v.
Baxter States Bank, 308 US 371, 374 [1940]). This language
has been quoted with approval in a resolution in Araneta v.
Hill (93 Phil. 1002 [1953]) and the decision in Manila Motor
Co. Inc. v. Flores (99 Phil. 738 [1956]). An even more recent
instance is the opinion of Justice Zaldivar speaking for the
Court in Fernandez v. Cuerva and Co. (L-21114, Nov. 28,
1967, 21 SCRA 1095).
Again, treating of the effect that should be given to its
decision in Olaguer v. Military Commission No 34,
12

declaring invalid criminal proceedings conducted during the
martial law regime against civilians, which had resulted in the
conviction and incarceration of numerous persons this
Court, in Tan vs. Barrios, 190 SCRA 686, at p. 700, ruled as
follows:
In the interest of justice and consistently, we hold that
Olaguer should, in principle, be applied prospectively only to
1
st

future cases and cases still ongoing or not yet final when that
decision was promulgated. Hence, there should be no
retroactive nullification of final judgments, whether of
conviction or acquittal, rendered by military courts against
civilians before the promulgation of the Olaguer decision.
Such final sentences should not be disturbed by the State.
Only in particular cases where the convicted person or the
State shows that there was serious denial of constitutional
rights of the accused, should the nullity of the sentence be
declared and a retrial be ordered based on the violation of
the constitutional rights of the accused and not on the
Olaguer doctrine. If a retrial is no longer possible, the
accused should be released since judgment against him is
null on account of the violation of his constitutional rights and
denial of due process.
xxx xxx xxx
The trial of thousands of civilians for common crimes before
the military tribunals and commissions during the ten-year
period of martial rule (1971-1981) which were created under
general orders issued by President Marcos in the exercise of
his legislative powers is an operative fact that may not just
be ignored. The belated declaration in 1987 of the
unconstitutionality and invalidity of those proceedings did not
erase the reality of their consequences which occurred long
before our decision in Olaguer was promulgated and which
now prevent us from carrying Olaguer to the limit of its logic.
Thus did this Court rule in Municipality of Malabang
v. Benito, 27 SCRA 533, where the question arose as to
whether the nullity of creation of a municipality by executive
order wiped out all the acts of the local government
abolished.
13

It would seem then, that the weight of authority is decidedly
in favor of the proposition that the Court's decision of
September 21, 1987 in Que v. People, 154 SCRA 160
(1987)
14
that a check issued merely to guarantee the
performance of an obligation is nevertheless covered by B.P.
Blg. 22 should not be given retrospective effect to the
prejudice of the petitioner and other persons situated, who
relied on the official opinion of the Minister of Justice that
such a check did not fall within the scope of B.P. Blg. 22.
Inveighing against this proposition, the Solicitor General
invokes U.S. v. Go Chico, 14 Phil. 128, applying the familiar
doctrine that in crimes mala prohibita, the intent or motive of
the offender is inconsequential, the only relevant inquiry
being, "has the law been violated?" The facts in Go
Chico are substantially different from those in the case at
bar. In the former, there was no official issuance by the
Secretary of Justice or other government officer construing
the special law violated;
15
and it was there observed, among
others, that "the defense . . . (of) an honest misconstruction
of the law under legal advice"
16
could not be appreciated as
a valid defense. In the present case on the other hand, the
defense is that reliance was placed, not on the opinion of a
private lawyer but upon an official pronouncement of no less
than the attorney of the Government, the Secretary of
Justice, whose opinions, though not law, are entitled to great
weight and on which reliance may be placed by private
individuals is reflective of the correct interpretation of a
constitutional or statutory provision; this, particularly in the
case of penal statutes, by the very nature and scope of the
authority that resides in as regards prosecutions for their
violation.
17
Senarillos vs. Hermosisima, supra, relied upon
by the respondent Court of Appeals, is crucially different in
that in said case, as in U.S. v. Go Chico, supra, no
administrative interpretation antedated the contrary
construction placed by the Court on the law invoked.
This is after all a criminal action all doubts in which, pursuant
to familiar, fundamental doctrine, must be resolved in favor of
the accused. Everything considered, the Court sees no
compelling reason why the doctrine of mala prohibita should
override the principle of prospectivity, and its clear
implications as herein above set out and discussed, negating
criminal liability.
WHEREFORE, the assailed decisions of the Court of
Appeals and of the Regional Trial Court are reversed and set
aside, and the criminal prosecution against the accused-
petitioner is DISMISSED, with costs de oficio.
SO ORDERED.
FRIVALDO v COMELEC
G.R. No. 120295, June 28, 1996
SUPREME COURT
Manila
EN BANC

G.R. No. 120295 June 28, 1996
JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R.
LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G.
FRIVALDO, respondents.

PANGANIBAN, J .:p
The ultimate question posed before this Court in these twin
cases is: Who should be declared the rightful governor of
Sorsogon -
1
st

(i) Juan G. Frivaldo, who unquestionably obtained the
highest number of votes in three successive elections but
who was twice declared by this Court to be disqualified to
hold such office due to his alien citizenship, and who now
claims to have re-assumed his lost Philippine citizenship thru
repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass,
but who claims that the votes cast in favor of Frivaldo should
be considered void; that the electorate should be deemed to
have intentionally thrown away their ballots; and that legally,
he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who
obviously was not voted directly to the position of governor,
but who according to prevailing jurisprudence should take
over the said post inasmuch as, by the ineligibility of
Frivaldo, a "permanent vacancy in the contested office has
occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on
repatriation, clarifies/reiterates/amplifies existing
jurisprudence on citizenship and elections, and upholds the
superiority of substantial justice over pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the
Rules of Court for certiorari and preliminary injunction to
review and annul a Resolution of the respondent
Commission on Elections (Comelec), First
Division,
1
promulgated on December 19, 1995
2
and another
Resolution of the Comelec en banc promulgated February
23, 1996
3
denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo
filed his Certificate of Candidacy for the office of Governor of
Sorsogon in the May 8, 1995 elections. On March 23, 1995,
petitioner Raul R. Lee, another candidate, filed a
petition
4
with the Comelec docketed as SPA No. 95-028
praying that Frivaldo "be disqualified from seeking or holding
any public office or position by reason of not yet being a
citizen of the Philippines", and that his Certificate of
Candidacy be canceled. On May 1, 1995, the Second
Division of the Comelec promulgated a Resolution
5
granting
the petition with the following disposition
6
:
WHEREFORE, this Division resolves to
GRANT the petition and declares that
respondent is DISQUALIFIED to run for
the Office of Governor of Sorsogon on the
ground that he is NOT a citizen of the
Philippines. Accordingly, respondent's
certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained
unacted upon until after the May 8, 1995 elections. So, his
candidacy continued and he was voted for during the
elections held on said date. On May 11, 1995, the
Comelec en banc
7
affirmed the aforementioned Resolution
of the Second Division.
The Provincial Board of Canvassers completed the canvass
of the election returns and a Certificate of Votes
8
dated May
27, 1995 was issued showing the following votes obtained by
the candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a
(supplemental) petition
9
praying for his proclamation as the
duly-elected Governor of Sorsogon.
In an order
10
dated June 21, 1995, but promulgated
according to the petition "only on June 29, 1995," the
Comelec en banc directed "the Provincial Board of
Canvassers of Sorsogon to reconvene for the purpose of
proclaiming candidate Raul Lee as the winning gubernatorial
candidate in the province of Sorsogon on June 29, 1995 . . ."
Accordingly, at 8:30 in the evening of June 30, 1995, Lee
was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new
petition,
11
docketed as SPC No. 95-317, praying for the
annulment of the June 30, 1995 proclamation of Lee and for
his own proclamation. He alleged that on June 30, 1995, at
2:00 in the afternoon, he took his oath of allegiance as a
citizen of the Philippines after "his petition for repatriation
under P.D. 725 which he filed with the Special Committee on
Naturalization in September 1994 had been granted". As
such, when "the said order (dated June 21, 1995) (of the
Comelec) . . . was released and received by Frivaldo on
June 30, 1995 at 5:30 o'clock in the evening, there was no
more legal impediment to the proclamation (of Frivaldo) as
governor . . ." In the alternative, he averred that pursuant to
the two cases of Labo vs. Comelec,
12
the Vice-Governor -
not Lee - should occupy said position of governor.
On December 19, 1995, the Comelec First Division
promulgated the herein assailed Resolution
13
holding that
Lee, "not having garnered the highest number of votes," was
not legally entitled to be proclaimed as duly-elected
governor; and that Frivaldo, "having garnered the highest
number of votes,
and . . . having reacquired his Filipino citizenship by
repatriation on June 30, 1995 under the provisions of
Presidential Decree No. 725 . . . (is) qualified to hold the
office of governor of Sorsogon"; thus:
1
st

PREMISES CONSIDERED, the Commission (First Division),
therefore RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the
proclamation of Raul R. Lee as Governor of Sorsogon is
hereby ordered annulled, being contrary to law, he not
having garnered the highest number of votes to warrant his
proclamation.
Upon the finality of the annulment of the proclamation of
Raul R. Lee, the Provincial Board of Canvassers is directed
to immediately reconvene and, on the basis of the completed
canvass, proclaim petitioner Juan G. Frivaldo as the duly
elected Governor of Sorsogon having garnered the highest
number of votes, and he having reacquired his Filipino
citizenship by repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725 and, thus, qualified
to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code
(B.P. Blg. 881), the Clerk of the Commission is directed to
notify His Excellency the President of the Philippines, and
the Secretary of the Sangguniang Panlalawigan of the
Province of Sorsogon of this resolution immediately upon the
due implementation thereof.
On December 26, 1995, Lee filed a motion for
reconsideration which was denied by the Comelec en
banc in its Resolution
14
promulgated on February 23, 1996.
On February 26, 1996, the present petition was filed. Acting
on the prayer for a temporary restraining order, this Court
issued on February 27, 1996 a Resolution which inter
alia directed the parties "to maintain the status quo prevailing
prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly
be capsulized in the following propositions"
15
:
First -- The initiatory petition below was so far insufficient in
form and substance to warrant the exercise by the
COMELEC of its jurisdiction with the result that, in effect, the
COMELEC acted without jurisdiction in taking cognizance of
and deciding said petition;
Second -- The judicially declared disqualification of
respondent was a continuing condition and rendered him
ineligible to run for, to be elected to and to hold the Office of
Governor;
Third -- The alleged repatriation of respondent was neither
valid nor is the effect thereof retroactive as to cure his
ineligibility and qualify him to hold the Office of Governor;
and
Fourth -- Correctly read and applied, the Labo Doctrine fully
supports the validity of petitioner's proclamation as duly
elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the
respondent Comelec, the first two of which are also at issue
in G.R. No. 123755, as follows:
1. Resolution
16
of the Second Division, promulgated on May
1, 1995, disqualifying Frivaldo from running for governor of
Sorsogon in the May 8, 1995 elections "on the ground that
he is not a citizen of the Philippines";
2. Resolution
1
7 of the Comelec en banc, promulgated on
May 11, 1995; and
3. Resolution
18
of the Comelec en banc, promulgated also
on May 11, 1995 suspending the proclamation of, among
others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in
G.R. No. 123755. However, Frivaldo assails the above-
mentioned resolutions on a different ground: that under
Section 78 of the Omnibus Election Code, which is
reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate
of candidacy. -- A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material
representation contained therein as required under Section
74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided, after notice
and hearing, not later than fifteen days before the election.
(Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions
because they were not rendered "within the period allowed
by law" i.e., "not later than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the
Comelec to act on the petition for disqualification within the
period of fifteen days prior to the election as provided by law
is a jurisdictional defect which renders the said Resolutions
null and void.
By Resolution on March 12, 1996, the Court consolidated
G.R. Nos. 120295 and 123755 since they are intimately
related in their factual environment and are identical in the
ultimate question raised, viz., who should occupy the position
of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the
parties and required them thereafter to file simultaneously
their respective memoranda.
The Consolidated Issues
1
st

From the foregoing submissions, the consolidated issues
may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it
seasonably cure his lack of citizenship as to qualify him to be
proclaimed and to hold the Office of Governor? If not, may it
be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of
Filipino citizenship a continuing bar to his eligibility to run for,
be elected to or hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the
initiatory petition in SPC No. 95-317 considering that said
petition is not "a pre-proclamation case, an election protest
or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election,
valid and legal in light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its
jurisdiction in promulgating the assailed Resolutions, all of
which prevented Frivaldo from assuming the governorship of
Sorsogon, considering that they were not rendered within the
period referred to in Section 78 of the Omnibus Election
Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis
mota, the threshold legal issue in this case. All the other
matters raised are secondary to this.
The Local Government Code of 1991
19
expressly requires
Philippine citizenship as a qualification for elective local
officials, including that of provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must
be a citizen of the Philippines; a registered voter in the
barangay, municipality, city, or province or, in the case of a
member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1)
year immediately preceding the day of the election; and able
to read and write Filipino or any other local language or
dialect.
(b) Candidates for the position of governor, vice governor or
member of the sangguniang panlalawigan, or mayor, vice
mayor or member of the sangguniang panlungsod of highly
urbanized cities must be at least twenty-three (23) years of
age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court
20
as a
non-citizen, it is therefore incumbent upon him to show that
he has reacquired citizenship; in fine, that he possesses the
qualifications prescribed under the said statute (R.A. 7160).
Under Philippine law,
21
citizenship may be reacquired by
direct act of Congress, by naturalization or by repatriation.
Frivaldo told this Court in G.R. No. 104654
22
and during the
oral argument in this case that he tried to resume his
citizenship by direct act of Congress, but that the bill allowing
him to do so "failed to materialize, notwithstanding the
endorsement of several members of the House of
Representatives" due, according to him, to the "maneuvers
of his political rivals." In the same case, his attempt
at naturalization was rejected by this Court because of
jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was
overwhelmingly elected governor by the electorate of
Sorsogon, with a margin of 27,000 votes in the 1988
elections, 57,000 in 1992, and 20,000 in 1995 over the same
opponent Raul Lee. Twice, he was judicially declared a non-
Filipino and thus twice disqualified from holding and
discharging his popular mandate. Now, he comes to us a
third time, with a fresh vote from the people of Sorsogon and
a favorable decision from the Commission on Elections to
boot. Moreover, he now boasts of having successfully
passed through the third and last mode of reacquiring
citizenship: by repatriation under P.D. No. 725, with no less
than the Solicitor General himself, who was the prime
opposing counsel in the previous cases he lost, this time, as
counsel for co-respondent Comelec, arguing the validity of
his cause (in addition to his able private counsel Sixto S.
Brillantes, Jr.). That he took his oath of allegiance under the
provisions of said Decree at 2:00 p.m. on June 30, 1995 is
not disputed. Hence, he insists that he -- not Lee -- should
have been proclaimed as the duly-elected governor of
Sorsogon when the Provincial Board of Canvassers met at
8:30 p.m. on the said date since, clearly and unquestionably,
he garnered the highest number of votes in the elections and
since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted
with serious defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively
repealed", asserting that "then President Corazon Aquino
exercising legislative powers under the Transitory Provisions
of the 1987 Constitution, forbade the grant of citizenship by
Presidential Decree or Executive Issuances as the same
poses a serious and contentious issue of policy which the
present government, in the exercise of prudence and sound
discretion, should best leave to the judgment of the first
Congress under the 1987 Constitution", adding that in her
memorandum dated March 27, 1987 to the members of the
Special Committee on Naturalization constituted for
purposes of Presidential Decree No. 725, President Aquino
directed them "to cease and desist from undertaking any and
all proceedings within your functional area of responsibility
as defined under Letter of Instructions (LOI) No. 270 dated
April 11, 1975, as amended."
23

This memorandum dated March 27, 1987
24
cannot by any
stretch of legal hermeneutics be construed as a law
sanctioning or authorizing a repeal of P.D. No. 725. Laws are
1
st

repealed only by subsequent ones
25
and a repeal may be
express or implied. It is obvious that no express repeal was
made because then President Aquino in her memorandum --
based on the copy furnished us by Lee -- did not
categorically and/or impliedly state that P.D. 725 was being
repealed or was being rendered without any legal effect. In
fact, she did not even mention it specifically by its number or
text. On the other hand, it is a basic rule of statutory
construction that repeals by implication are not favored. An
implied repeal will not be allowed "unless it is convincingly
and unambiguously demonstrated that the two laws are
clearly repugnant and patently inconsistent that they cannot
co-exist".
26

The memorandum of then President Aquino cannot even be
regarded as a legislative enactment, for not every
pronouncement of the Chief Executive even under the
Transitory Provisions of the 1987 Constitution can nor should
be regarded as an exercise of her law-making powers. At
best, it could be treated as an executive policy addressed to
the Special Committee to halt the acceptance and
processing of applications for repatriation pending whatever
"judgment the first Congress under the 1987 Constitution"
might make. In other words, the former President did not
repeal P.D. 725 but left it to the first Congress -- once
created -- to deal with the matter. If she had intended to
repeal such law, she should have unequivocally said so
instead of referring the matter to Congress. The fact is she
carefully couched her presidential issuance in terms that
clearly indicated the intention of "the present government, in
the exercise of prudence and sound discretion" to leave the
matter of repeal to the new Congress. Any other
interpretation of the said Presidential Memorandum, such as
is now being proffered to the Court by Lee, would visit
unmitigated violence not only upon statutory construction but
on common sense as well.
Second, Lee also argues that "serious congenital
irregularities flawed the repatriation proceedings," asserting
that Frivaldo's application therefor was "filed on June 29,
1995 . . . (and) was approved in just one day or on June 30,
1995 . . .", which "prevented a judicious review and
evaluation of the merits thereof." Frivaldo counters that he
filed his application for repatriation with the Office of the
President in Malacaang Palace on August 17, 1994. This is
confirmed by the Solicitor General. However, the Special
Committee was reactivated only on June 8, 1995, when
presumably the said Committee started processing his
application. On June 29, 1995, he filled up and re-submitted
the FORM that the Committee required. Under these
circumstances, it could not be said that there was "indecent
haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the
Special Committee on Naturalization was intended solely for
the personal interest of respondent,"
2
7 the Solicitor General
explained during the oral argument on March 19, 1996 that
such allegation is simply baseless as there were many
others who applied and were considered for repatriation, a
list of whom was submitted by him to this Court, through a
Manifestation
28
filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced
that the presumption of regularity in the performance of
official duty and the presumption of legality in the repatriation
of Frivaldo have not been successfully rebutted by Lee. The
mere fact that the proceedings were speeded up is by itself
not a ground to conclude that such proceedings were
necessarily tainted. After all, the requirements of repatriation
under P.D. No. 725 are not difficult to comply with, nor are
they tedious and cumbersome. In fact, P.D.
725
29
itself requires very little of an applicant, and even the
rules and regulations to implement the said decree were left
to the Special Committee to promulgate. This is not unusual
since, unlike in naturalization where an alien covets a first-
timeentry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely
seeking to reacquire his previous citizenship. In the case of
Frivaldo, he was undoubtedly a natural-born citizen who
openly and faithfully served his country and his province prior
to his naturalization in the United States -- a naturalization he
insists was made necessary only to escape the iron clutches
of a dictatorship he abhorred and could not in conscience
embrace -- and who, after the fall of the dictator and the re-
establishment of democratic space, wasted no time in
returning to his country of birth to offer once more his talent
and services to his people.
So too, the fact that ten other persons, as certified to by the
Solicitor General, were granted repatriation argues
convincingly and conclusively against the existence of
favoritism vehemently posited by Raul Lee. At any rate, any
contest on the legality of Frivaldo's repatriation should have
been pursued before the Committee itself, and, failing there,
in the Office of the President, pursuant to the doctrine of
exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed
repatriation to be valid, nevertheless it could only be effective
as at 2:00 p.m. of June 30, 1995 whereas the citizenship
qualification prescribed by the Local Government Code
"must exist on the date of his election, if not when the
certificate of candidacy is filed," citing our decision in G.R.
104654
30
which held that "both the Local Government Code
and the Constitution require that only Philippine citizens can
run and be elected to public office." Obviously, however, this
was a mere obiter as the only issue in said case was
whether Frivaldo's naturalization was valid or not -- and NOT
the effective date thereof. Since the Court held his
naturalization to be invalid, then the issue of when an
aspirant for public office should be a citizen was NOT
resolved at all by the Court. Which question we shall now
directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective
local official must be:
* a citizen of the Philippines;
1
st

* a registered voter in the barangay,
municipality, city, or province . . . where he
intends to be elected;
* a resident therein for at least one (1) year
immediately preceding the day of the
election;
* able to read and write Filipino or any
other local language or dialect.
* In addition, "candidates for the position of
governor . . . must be at least twenty-three
(23) years of age on election day.
From the above, it will be noted that the law does not specify
any particular date or time when the candidate must possess
citizenship, unlike that for residence (which must consist of at
least one year's residency immediately preceding the day of
election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for
holding an elective public office,
31
and the purpose of the
citizenship qualification is none other than to ensure that no
alien, i.e., no person owing allegiance to another nation,
shall govern our people and our country or a unit of territory
thereof. Now, an official begins to govern or to discharge his
functions only upon his proclamation and on the day the law
mandates his term of office to begin. Since Frivaldo re-
assumed his citizenship on June 30, 1995 -- the very
day
32
the term of office of governor (and other elective
officials) began -- he was therefore already qualified to be
proclaimed, to hold such office and to discharge the
functions and responsibilities thereof as of said date. In
short, at that time, he was already qualified to govern his
native Sorsogon. This is the liberal interpretation that should
give spirit, life and meaning to our law on qualifications
consistent with the purpose for which such law was enacted.
So too, even from a literal (as distinguished from liberal)
construction, it should be noted that Section 39 of the Local
Government Code speaks of "Qualifications" of "ELECTIVE
OFFICIALS", not of candidates. Why then should such
qualification be required at the time of election or at the time
of the filing of the certificates of candidacies, as Lee insists?
Literally, such qualifications -- unless otherwise expressly
conditioned, as in the case of age and residence -- should
thus be possessed when the "elective [or elected] official"
begins to govern, i.e., at the time he is proclaimed and at the
start of his term -- in this case, on June 30, 1995.
Paraphrasing this Court's ruling in Vasquez vs. Giap and Li
Seng Giap & Sons,
33
if the purpose of the citizenship
requirement is to ensure that our people and country do not
end up being governed by aliens,i.e., persons owing
allegiance to another nation, that aim or purpose would not
be thwarted but instead achieved by construing the
citizenship qualification as applying to the time of
proclamation of the elected official and at the start of his
term.
But perhaps the more difficult objection was the one raised
during the oral argument
34
to the effect that the citizenship
qualification should be possessed at the time the candidate
(or for that matter the elected official) registered as a voter.
After all, Section 39, apart from requiring the official to be a
citizen, also specifies as another item of qualification, that he
be a "registered voter". And, under the law
35
a "voter" must
be a citizen of the Philippines. So therefore, Frivaldo could
not have been a voter -- much less a validly registered one --
if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the
purpose of the requirement. If the law intended
thecitizenship qualification to be possessed prior to election
consistent with the requirement of being a registered voter,
then it would not have made citizenship a SEPARATE
qualification. The law abhors a redundancy. It therefore
stands to reason that the law intended CITIZENSHIP to be a
qualification distinct from being a VOTER, even if being a
voter presumes being a citizen first. It also stands to reason
that the voter requirement was included as another
qualification (aside from "citizenship"), not to reiterate the
need for nationality but to require that the official be
registered as a voter IN THE AREA OR TERRITORY he
seeks to govern, i.e., the law states: "a registered voter in the
barangay, municipality, city, or province . . . where he intends
to be elected." It should be emphasized that the Local
Government Code requires an elective official to be
a registered voter. It does not require him to vote actually.
Hence, registration -- not the actual voting -- is the core of
this "qualification". In other words, the law's purpose in this
second requirement is to ensure that the prospective official
is actually registered in the area he seeks to govern -- and
not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and
Lee has not disputed -- that he "was and is a registered voter
of Sorsogon, and his registration as a voter has been
sustained as valid by judicial declaration . . . In fact, he cast
his vote in his precinct on May 8, 1995."
36

So too, during the oral argument, his counsel steadfastly
maintained that "Mr. Frivaldo has always been a registered
voter of Sorsogon. He has voted in 1987, 1988, 1992, then
he voted again in 1995. In fact, his eligibility as a voter was
questioned, but the court dismissed (sic) his eligibility as a
voter and he was allowed to vote as in fact, he voted in all
the previous elections including on May 8, 1995."
3
7
It is thus clear that Frivaldo is a registered voter in the
province where he intended to be elected.
There is yet another reason why the prime issue
of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of
filing of the certificate of candidacy. Section 253 of the
Omnibus Election Code
38
gives any voter, presumably
including the defeated candidate, the opportunity to question
the ELIGIBILITY (or the disloyalty) of a candidate. This is the
only provision of the Code that authorizes a remedy on how
1
st

to contest before the Comelec an incumbent's ineligibility
arising from failure to meet the qualifications enumerated
under Sec. 39 of the Local Government Code. Such remedy
of Quo Warranto can be availed of "within ten days after
proclamation" of the winning candidate. Hence, it is only at
such time that the issue of ineligibility may be taken
cognizance of by the Commission. And since, at the very
moment of Lee's proclamation (8:30 p.m., June 30, 1995),
Juan G. Frivaldo was already and indubitably a citizen,
having taken his oath of allegiance earlier in the afternoon of
the same day, then he should have been the candidate
proclaimed as he unquestionably garnered the highest
number of votes in the immediately preceding elections and
such oath had already cured his previous "judicially-
declared" alienage. Hence, at such time, he was no longer
ineligible.
But to remove all doubts on this important issue, we also
hold that the repatriation of Frivaldo RETROACTED to the
date of the filing of his application on August 17, 1994.
It is true that under the Civil Code of the
Philippines,
39
"(l)aws shall have no retroactive effect, unless
the contrary is provided." But there are settled
exceptions
40
to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES
NEW RIGHTS.
According to Tolentino,
41
curative statutes are those which
undertake to cure errors and irregularities, thereby validating
judicial or administrative proceedings, acts of public officers,
or private deeds and contracts which otherwise would not
produce their intended consequences by reason of some
statutory disability or failure to comply with some technical
requirement. They operate on conditions already existing,
and are necessarily retroactive in operation. Agpalo,
42
on the
other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of
enforcing existing obligations . . . (and) are intended to
supply defects, abridge superfluities in existing laws, and
curb certain evils. . . . By their very nature, curative statutes
are retroactive . . . (and) reach back to past events to correct
errors or irregularities and to render valid and effective
attempted acts which would be otherwise ineffective for the
purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those
statutes relating to remedies or modes of procedure, which
do not create new or take away vested rights, but only
operate in furtherance of the remedy or confirmation of such
rights, ordinarily do not come within the legal meaning of a
retrospective law, nor within the general rule against the
retrospective operation of statutes.
43

A reading of P.D. 725 immediately shows that it creates a
new right, and also provides for a new remedy, thereby filling
certain voids in our laws. Thus, in its preamble, P.D. 725
expressly recognizes the plight of "many Filipino women
(who) had lost their Philippine citizenship by marriage to
aliens" and who could not, under the existing law (C.A. No.
63, as amended) avail of repatriation until "after the death of
their husbands or the termination of their marital status" and
who could neither be benefitted by the 1973 Constitution's
new provision allowing "a Filipino woman who marries an
alien to retain her Philippine citizenship . . ." because "such
provision of the new Constitution does not apply to Filipino
women who had married aliens before said constitution took
effect." Thus, P.D. 725 granted a new right to these women -
- the right to re-acquire Filipino citizenship even during their
marital coverture, which right did not exist prior to P.D. 725.
On the other hand, said statute also provided a new
remedyand a new right in favor of other "natural born
Filipinos who (had) lost their Philippine citizenship but now
desire to re-acquire Philippine citizenship", because prior to
the promulgation of P.D. 725 such former Filipinos would
have had to undergo the tedious and cumbersome process
of naturalization, but with the advent of P.D. 725 they could
now re-acquire their Philippine citizenship under the
simplified procedure of repatriation.
The Solicitor General
44
argues:
By their very nature, curative statutes are
retroactive, (DBP vs. CA, 96 SCRA 342),
since they are intended to supply defects,
abridge superfluities in existing laws (Del
Castillo vs. Securities and Exchange
Commission, 96 Phil. 119) and curb
certain evils (Santos vs. Duata, 14 SCRA
1041).
In this case, P.D. No. 725 was enacted to
cure the defect in the existing
naturalization law, specifically C.A. No. 63
wherein married Filipino women are
allowed to repatriate only upon the death
of their husbands, and natural-born
Filipinos who lost their citizenship by
naturalization and other causes faced the
difficulty of undergoing the rigid
procedures of C.A. 63 for reacquisition of
Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a
remedy for the aforementioned legal
aberrations and thus its provisions are
considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of
the preamble, it is unarguable that the legislative intent was
precisely to give the statute retroactive operation. "(A)
retrospective operation is given to a statute or amendment
where the intent that it should so operate clearly appears
from a consideration of the act as a whole, or from the terms
thereof."
45
It is obvious to the Court that the statute was
meant to "reach back" to those persons, events and
transactions not otherwise covered by prevailing law and
jurisprudence. And inasmuch as it has been held that
citizenship is a political and civil right equally as important as
1
st

the freedom of speech, liberty of abode, the right against
unreasonable searches and seizures and other guarantees
enshrined in the Bill of Rights, therefore the legislative intent
to give retrospective operation to P.D. 725 must be given the
fullest effect possible. "(I)t has been said that a remedial
statute must be so construed as to make it effect the evident
purpose for which it was enacted, so that if the reason of the
statute extends to past transactions, as well as to those in
the future, then it will be so applied although the statute does
not in terms so direct, unless to do so would impair some
vested right or violate some constitutional guaranty."
46
This
is all the more true of P.D. 725, which did not specify any
restrictions on or delimit or qualify the right of repatriation
granted therein.
At this point, a valid question may be raised: How can the
retroactivity of P.D. 725 benefit Frivaldo considering that said
law was enacted on June 5, 1975, while Frivaldo lost his
Filipino citizenship much later, on January 20, 1983, and
applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time
that Frivaldo became an American citizen, nevertheless, it is
not only the law itself (P.D. 725) which is to be given
retroactive effect, but even the repatriation granted under
said law to Frivaldo on June 30, 1995 is to be deemed to
have retroacted to the date of his application therefor,
August 17, 1994. The reason for this is simply that if, as in
this case, it was the intent of the legislative authority that the
law should apply to past events -- i.e., situations and
transactions existing even before the law came into being --
in order to benefit the greatest number of former Filipinos
possible thereby enabling them to enjoy and exercise the
constitutionally guaranteed right of citizenship, and such
legislative intention is to be given the fullest effect and
expression, then there is all the more reason to have the law
apply in a retroactive or retrospective manner to situations,
events and transactions subsequent to the passage of such
law. That is, the repatriation granted to Frivaldo on June 30,
1995 can and should be made to take effect as of date of his
application. As earlier mentioned, there is nothing in the law
that would bar this or would show a contrary intention on the
part of the legislative authority; and there is no showing that
damage or prejudice to anyone, or anything unjust or
injurious would result from giving retroactivity to his
repatriation. Neither has Lee shown that there will result the
impairment of any contractual obligation, disturbance of any
vested right or breach of some constitutional guaranty.
Being a former Filipino who has served the people
repeatedly, Frivaldo deserves a liberal interpretation of
Philippine laws and whatever defects there were in his
nationality should now be deemed mooted by his
repatriation.
Another argument for retroactivity to the date of filing is that it
would prevent prejudice to applicants. If P.D. 725 were not to
be given retroactive effect, and the Special Committee
decides not to act, i.e., to delay the processing of
applications for any substantial length of time, then the
former Filipinos who may be stateless, as Frivaldo -- having
already renounced his American citizenship -- was, may be
prejudiced for causes outside their control. This should not
be. In case of doubt in the interpretation or application of
laws, it is to be presumed that the law-making body intended
right and justice to prevail.
4
7
And as experience will show, the Special Committee was
able to process, act upon and grant applications for
repatriation within relatively short spans of time after the
same were filed.
48
The fact that such interregna were
relatively insignificant minimizes the likelihood of prejudice to
the government as a result of giving retroactivity to
repatriation. Besides, to the mind of the Court, direct
prejudice to the government is possible only where a
person's repatriation has the effect of wiping out a liability of
his to the government arising in connection with or as a
result of his being an alien, and accruing only during the
interregnum between application and approval, a situation
that is not present in the instant case.
And it is but right and just that the mandate of the people,
already twice frustrated, should now prevail. Under the
circumstances, there is nothing unjust or iniquitous in treating
Frivaldo's repatriation as having become effective as of the
date of his application, i.e., on August 17, 1994. This being
so, all questions about his possession of the nationality
qualification -- whether at the date of proclamation (June 30,
1995) or the date of election (May 8, 1995) or date of filing
his certificate of candidacy (March 20, 1995) would become
moot.
Based on the foregoing, any question regarding Frivaldo's
status as a registered voter would also be deemed settled.
Inasmuch as he is considered as having been repatriated --
i.e., his Filipino citizenship restored -- as of August 17, 1994,
his previous registration as a voter is likewise deemed
validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became
an American. Would the retroactivity of his repatriation not
effectively give him dual citizenship, which under Sec. 40 of
the Local Government Code would disqualify him "from
running for any elective local position?"
49
We answer this
question in the negative, as there is cogent reason to hold
that Frivaldo was really STATELESS at the time he took said
oath of allegiance and even before that, when he ran for
governor in 1988. In his Comment, Frivaldo wrote that he
"had long renounced and had long abandoned his American
citizenship -- long before May 8, 1995. At best, Frivaldo was
stateless in the interim -- when he abandoned and
renounced his US citizenship but before he was repatriated
to his Filipino citizenship."
50

On this point, we quote from the assailed Resolution dated
December 19, 1995:
51

By the laws of the United States, petitioner
Frivaldo lost his American citizenship when
he took his oath of allegiance to the
1
st

Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an
oath of allegiance to the Philippine
Government."
These factual findings that Frivaldo has lost his foreign
nationality long before the elections of 1995 have not been
effectively rebutted by Lee. Furthermore, it is basic that such
findings of the Commission are conclusive upon this Court,
absent any showing of capriciousness or arbitrariness or
abuse.
52

The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution
53
of the
Comelec Second Division in SPA No. 95-028 as affirmed in
totoby Comelec En Banc in its Resolution of May 11, 1995
"became final and executory after five (5) days or on May 17,
1995, no restraining order having been issued by this
Honorable Court.
54
Hence, before Lee "was proclaimed as
the elected governor on June 30, 1995, there was already a
final and executory judgment disqualifying" Frivaldo. Lee
adds that this Court's two rulings (which Frivaldo now
concedes were legally "correct") declaring Frivaldo an alien
have also become final and executory way before the 1995
elections, and these "judicial pronouncements of his political
status as an American citizen absolutely and for all time
disqualified (him) from running for, and holding any public
office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193
disqualifying Frivaldo was rendered in connection with the
1988 elections while that in G.R. No. 104654 was in
connection with the 1992 elections. That he was disqualified
for such elections is final and can no longer be changed. In
the words of the respondent Commission (Second Division)
in its assailed Resolution:
55

The records show that the Honorable
Supreme Court had decided that Frivaldo
was not a Filipino citizen and thus
disqualified for the purpose of the 1988
and 1992 elections. However, there is no
record of any "final judgment" of the
disqualification of Frivaldo as a candidate
for the May 8, 1995 elections. What the
Commission said in its Order of June 21,
1995 (implemented on June 30, 1995),
directing the proclamation of Raul R. Lee,
was that Frivaldo was not a Filipino citizen
"having been declared by the Supreme
Court in its Order dated March 25, 1995,
not a citizen of the Philippines." This
declaration of the Supreme Court,
however, was in connection with the 1992
elections.
Indeed, decisions declaring the acquisition or denial of
citizenship cannot govern a person's future status with
finality. This is because a person may subsequently
reacquire, or for that matter lose, his citizenship under any of
the modes recognized by law for the purpose. Hence, in Lee
vs. Commissioner of Immigration,
56
we held:
Everytime the citizenship of a person is
material or indispensable in a judicial or
administrative case, whatever the
corresponding court or administrative
authority decides therein as to such
citizenship is generally not considered res
judicata, hence it has to be threshed out
again and again, as the occasion
demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction
to entertain the petition in SPC No. 95-317 because the only
"possible types of proceedings that may be entertained by
the Comelec are a pre-proclamation case, an election protest
or a quo warranto case". Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No.
95-317 questioning his (Lee's) proclamation only on July 6,
1995 -- "beyond the 5-day reglementary period." Hence,
according to him, Frivaldo's "recourse was to file either an
election protest or a quo warranto action."
This argument is not meritorious. The Constitution
5
7 has
given the Comelec ample power to "exercise exclusive
original jurisdiction over all contests relating to the elections,
returns and qualifications of all elective . . . provincial . . .
officials." Instead of dwelling at length on the various
petitions that Comelec, in the exercise of its constitutional
prerogatives, may entertain, suffice it to say that this Court
has invariably recognized the Commission's authority to hear
and decide petitions for annulment of proclamations -- of
which SPC No. 95-317 obviously is one.
58
Thus, in Mentang
vs. COMELEC,
59
we ruled:
The petitioner argues that after
proclamation and assumption of office, a
pre-proclamation controversy is no longer
viable. Indeed, we are aware of cases
holding that pre-proclamation
controversies may no longer be
entertained by the COMELEC after the
winning candidate has been proclaimed.
(citing Gallardo vs. Rimando, 187 SCRA
463; Salvacion vs. COMELEC, 170 SCRA
513; Casimiro vs. COMELEC, 171 SCRA
468.) This rule, however, is premised on
an assumption that the proclamation is no
proclamation at all and the proclaimed
candidate's assumption of office cannot
deprive the COMELEC of the power to
make such declaration of nullity.
1
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(citing Aguam vs. COMELEC, 23 SCRA
883; Agbayani vs. COMELEC, 186 SCRA
484.)
The Court however cautioned that such power to annul a
proclamation must "be done within ten (10) days following
the proclamation." Inasmuch as Frivaldo's petition was filed
only six (6) days after Lee's proclamation, there is no
question that the Comelec correctly acquired jurisdiction over
the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We
uphold him for the following reasons:
First. To paraphrase this Court in Labo
vs. COMELEC,
60
"the fact remains that he (Lee) was not the
choice of the sovereign will," and
in Aquino vs. COMELEC,
61
Lee is "a second placer, . . . just
that, a second placer."
In spite of this, Lee anchors his claim to the governorship on
the pronouncement of this Court in the aforesaid
Labo
62
case, as follows:
The rule would have been different if the
electorate fully aware in fact and in law of
a candidate's disqualification so as to bring
such awareness within the realm of
notoriety, would nonetheless cast their
votes in favor of the ineligible candidate. In
such case, the electorate may be said to
have waived the validity and efficacy of
their votes by notoriously misapplying their
franchise or throwing away their votes, in
which case, the eligible candidate
obtaining the next higher number of votes
may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the
instant dispute. It has not been shown, and
none was alleged, that petitioner Labo was
notoriously known as an ineligible
candidate, much less the electorate as
having known of such fact. On the
contrary, petitioner Labo was even allowed
by no less than the Comelec itself in its
resolution dated May 10, 1992 to be voted
for the office of the city Payor as its
resolution dated May 9, 1992 denying due
course to petitioner Labo's certificate of
candidacy had not yet become final and
subject to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is
the ruling appropriate in this case because Frivaldo was in
1995 in an identical situation as Labo was in 1992 when the
Comelec's cancellation of his certificate of candidacy was not
yet final on election day as there was in both cases a
pending motion for reconsideration, for which reason
Comelec issued an (omnibus) resolution declaring that
Frivaldo (like Labo in 1992) and several others can still be
voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence
presented to show that the electorate of Sorsogon was "fully
aware in fact and in law" of Frivaldo's alleged disqualification
as to "bring such awareness within the realm of notoriety;" in
other words, that the voters intentionally wasted their ballots
knowing that, in spite of their voting for him, he was
ineligible. If Labo has any relevance at all, it is that the vice-
governor -- and not Lee -- should be proclaimed, since in
losing the election, Lee was, to paraphrase Labo again,
"obviously not the choice of the people" of Sorsogon. This is
the emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a
candidate receiving majority votes does
not entitle the eligible candidate receiving
the next highest number of votes to be
declared elected. A minority or defeated
candidate cannot be deemed elected to
the office.
Second. As we have earlier declared Frivaldo to have
seasonably reacquired his citizenship and inasmuch as he
obtained the highest number of votes in the 1995 elections,
he -- not Lee -- should be proclaimed. Hence, Lee's
proclamation was patently erroneous and should now be
corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed
Resolution of the Comelec (Second Division) dated May 1,
1995 and the confirmatory en banc Resolution of May 11,
1995 disqualifying him for want of citizenship should be
annulled because they were rendered beyond the fifteen (15)
day period prescribed by Section 78, of the Omnibus
Election Code which reads as follows:
Sec. 78. Petition to deny due course or to
cancel a certificate of candidacy. -- A
verified petition seeking to deny due
course or to cancel a certificate of
candidacy may be filed by any person
exclusively on the ground that any material
representation contained therein as
required under Section 74 hereof is false.
The petition may be filed at any time not
later than twenty-five days from the time of
the filing of the certificate of candidacy and
shall be decided after notice and
hearing, not later than fifteen days before
the election. (Emphasis supplied.)
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This claim is now moot and academic inasmuch as these
resolutions are deemed superseded by the subsequent ones
issued by the Commission (First Division) on December 19,
1995, affirmed en banc
63
on February 23, 1996; which both
upheld his election. At any rate, it is obvious that Section 78
is merely directory as Section 6 of R.A. No. 6646 authorizes
the Commission to try and decide petitions for
disqualifications even after the elections, thus:
Sec. 6. Effect of Disqualification Case. --
Any candidate who has been declared by
final judgment to be disqualified shall not
be voted for, and the votes cast for him
shall not be counted. If for any reason a
candidate is not declared by final judgment
before an election to be disqualified and he
is voted for and receives the winning
number of votes in such election, the Court
or Commission shall continue with the trial
and hearing of the action, inquiry or protest
and upon motion of the complainant or any
intervenor, may during the pendency
thereof order the suspension of the
proclamation of such candidate whenever
the evidence of his guilt is strong.
(emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G.
Davide, Jr. argues that President Aquino's memorandum
dated March 27, 1987 should be viewed as a suspension
(not a repeal, as urged by Lee) of P.D. 725. But whether it
decrees a suspension or a repeal is a purely academic
distinction because the said issuance is not a statute that
can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized
in the first Frivaldo case;
64
viz., "(u)nder CA No. 63 as
amended by CA No. 473 and P.D. No. 725, Philippine
citizenship maybe reacquired by . . . repatriation". He also
contends that by allowing Frivaldo to register and to remain
as a registered voter, the Comelec and in effect this Court
abetted a "mockery" of our two previous judgments declaring
him a non-citizen. We do not see such abetting or mockery.
The retroactivity of his repatriation, as discussed earlier,
legally cured whatever defects there may have been in his
registration as a voter for the purpose of the 1995 elections.
Such retroactivity did not change his disqualifications in 1988
and 1992, which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not
the sole remedy to question the ineligibility of a candidate,
citing the Comelec's authority under Section 78 of the
Omnibus Election Code allowing the denial of a certificate of
candidacy on the ground of a false material representation
therein as required by Section 74. Citing Loong, he then
states his disagreement with our holding that Section 78 is
merely directory. We really have no quarrel. Our point is that
Frivaldo was in error in his claim in G.R. No. 120295 that the
Comelec Resolutions promulgated on May 1, 1995 and May
11, 1995 were invalid because they were issued "not later
than fifteen days before the election" as prescribed by
Section 78. In dismissing the petition in G.R. No. 120295, we
hold that the Comelec did not commit grave abuse of
discretion because "Section 6 of R.A. 6646 authorizes the
Comelec to try and decide disqualifications even after the
elections." In spite of his disagreement with us on this
point, i.e., that Section 78 "is merely directory", we note that
just like us, Mr. Justice Davide nonetheless votes to
"DISMISS G.R. No. 120295". One other point. Loong, as
quoted in the dissent, teaches that a petition to deny due
course under Section 78 must be filed within the 25-
day period prescribed therein. The present case however
deals with the period during which the Comelec
may decide such petition. And we hold that it may be
decided even after thefifteen day period mentioned in
Section 78. Here, we rule that a decision promulgated by the
Comelec even after the elections is valid but Loong held that
a petition filed beyond the 25-day period is out of time. There
is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding
that, given the unique factual circumstances of Frivaldo,
repatriation may be given retroactive effect. He argues that
such retroactivity "dilutes" our holding in the first Frivaldo
case. But the first (and even the second Frivaldo) decision
did not directly involve repatriation as a mode of acquiring
citizenship. If we may repeat, there is no question that
Frivaldo was not a Filipino for purposes of determining his
qualifications in the 1988 and 1992 elections. That is settled.
But his supervening repatriation has changed his political
status -- not in 1988 or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo
was stateless prior to his repatriation, saying that "informal
renunciation or abandonment is not a ground to lose
American citizenship". Since our courts are charged only
with the duty of determining who are Philippine nationals, we
cannot rule on the legal question of who are or who are not
Americans. It is basic in international law that a State
determines ONLY those who are its own citizens -- not who
are the citizens of other countries.
65
The issue here is: the
Comelec made a finding of fact that Frivaldo was stateless
and such finding has not been shown by Lee to be arbitrary
or whimsical. Thus, following settled case law, such finding is
binding and final.
The dissenting opinion also submits that Lee who lost by
chasmic margins to Frivaldo in all three previous elections,
should be declared winner because "Frivaldo's ineligibility for
being an American was publicly known". First, there is
absolutely no empirical evidence for such "public"
knowledge. Second, even if there is, such knowledge can be
true post facto only of the last two previous elections. Third,
even the Comelec and now this Court were/are still
deliberating on his nationality before, during and after the
1995 elections. How then can there be such "public"
knowledge?
1
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Mr. Justice Davide submits that Section 39 of the Local
Government Code refers to the qualifications of electivelocal
officials, i.e., candidates, and not elected officials, and that
the citizenship qualification [under par. (a) of that section]
must be possessed by candidates, not merely at the
commencement of the term, but by election day at the latest.
We see it differently. Section 39, par. (a) thereof speaks of
"elective local official" while par. (b) to (f) refer to
"candidates". If the qualifications under par. (a) were
intended to apply to "candidates" and not elected officials,
the legislature would have said so, instead of differentiating
par. (a) from the rest of the paragraphs. Secondly, if
Congress had meant that the citizenship qualification should
be possessed at election day or prior thereto, it would have
specifically stated such detail, the same way it did in pars. (b)
to (f) far other qualifications of candidates for governor,
mayor, etc.
Mr. Justice Davide also questions the giving of retroactive
effect to Frivaldo's repatriation on the ground, among others,
that the law specifically provides that it is only after taking the
oath of allegiance that applicants shall be deemed to have
reacquired Philippine citizenship. We do not question what
the provision states. We hold however that the provision
should be understood thus: that after taking the oath of
allegiance the applicant is deemed to have reacquired
Philippine citizenship, which reacquisition (or repatriation) is
deemed for all purposes and intents to have retroacted to the
date of his application therefor.
In any event, our "so too" argument regarding the literal
meaning of the word "elective" in reference to Section 39 of
the Local Authority Code, as well as regarding Mr. Justice
Davide's thesis that the very wordings of P.D. 725 suggest
non-retroactivity, were already taken up rather extensively
earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This
Court must be the first to uphold the Rule of Law." We agree
-- we must all follow the rule of law. But that is NOT the issue
here. The issue is how should the law be interpreted and
applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of
philosophy and perception of how to interpret and apply laws
relating to elections: literal or liberal; the letter or the spirit,
the naked provision or its ultimate purpose; legal syllogism or
substantial justice; in isolation or in the context of social
conditions; harshly against or gently in favor of the voters'
obvious choice. In applying election laws, it would be far
better to err in favor of popular sovereignty than to be right in
complex but little understood legalisms. Indeed, to inflict a
thrice rejected candidate upon the electorate of Sorsogon
would constitute unmitigated judicial tyranny and an
unacceptable assault upon this Court's conscience.
E P I L O G U E
In sum, we rule that the citizenship requirement in the Local
Government Code is to be possessed by an elective official
at the latest as of the time he is proclaimed and at the start of
the term of office to which he has been elected. We further
hold P.D. No. 725 to be in full force and effect up to the
present, not having been suspended or repealed expressly
nor impliedly at any time, and Frivaldo's repatriation by virtue
thereof to have been properly granted and thus valid and
effective. Moreover, by reason of the remedial or curative
nature of the law granting him a new right to resume his
political status and the legislative intent behind it, as well as
his unique situation of having been forced to give up his
citizenship and political aspiration as his means of escaping
a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor,
during the pendency of which he was stateless, he having
given up his U.S. nationality. Thus, in contemplation of law,
he possessed the vital requirement of Filipino citizenship as
of the start of the term of office of governor, and should have
been proclaimed instead of Lee. Furthermore, since his
reacquisition of citizenship retroacted to August 17, 1994, his
registration as a voter of Sorsogon is deemed to have been
validated as of said date as well. The foregoing, of course,
are precisely consistent with our holding that lack of the
citizenship requirement is not a continuing disability or
disqualification to run for and hold public office. And once
again, we emphasize herein our previous rulings recognizing
the Comelec's authority and jurisdiction to hear and decide
petitions for annulment of proclamations.
This Court has time and again liberally and equitably
construed the electoral laws of our country to give fullest
effect to the manifest will of our people,
66
for in case of
doubt, political laws must be interpreted to give life and spirit
to the popular mandate freely expressed through the ballot.
Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. Consistently, we have
held:
. . . (L)aws governing election contests
must be liberally construed to the end that
the will of the people in the choice of public
officials may not be defeated by mere
technical objections (citations omitted).
6
7
The law and the courts must accord Frivaldo every possible
protection, defense and refuge, in deference to the popular
will. Indeed, this Court has repeatedly stressed the
importance of giving effect to the sovereign will in order to
ensure the survival of our democracy. In any action involving
the possibility of a reversal of the popular electoral choice,
this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it
is merely sound public policy to cause elective offices to be
filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications,
the petitioner must clearly demonstrate that the ineligibility is
so patently antagonistic
68
to constitutional and legal
principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people, would ultimately
create greater prejudice to the very democratic institutions
and juristic traditions that our Constitution and laws so
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zealously protect and promote. In this undertaking, Lee has
miserably failed.
In Frivaldo's case. it would have been technically easy to find
fault with his cause. The Court could have refused to grant
retroactivity to the effects of his repatriation and hold him still
ineligible due to his failure to show his citizenship at the time
he registered as a voter before the 1995 elections. Or, it
could have disputed the factual findings of the Comelec that
he was stateless at the time of repatriation and thus hold his
consequent dual citizenship as a disqualification "from
running for any elective local position." But the real essence
of justice does not emanate from quibblings over patchwork
legal technicality. It proceeds from the spirit's gut
consciousness of the dynamic role of law as a brick in the
ultimate development of the social edifice. Thus, the Court
struggled against and eschewed the easy, legalistic,
technical and sometimes harsh anachronisms of the law in
order to evoke substantial justice in the larger social context
consistent with Frivaldo's unique situation approximating
venerability in Philippine political life. Concededly, he sought
American citizenship only to escape the clutches of the
dictatorship. At this stage, we cannot seriously entertain any
doubt about his loyalty and dedication to this country. At the
first opportunity, he returned to this land, and sought to serve
his people once more. The people of Sorsogon
overwhelmingly voted for him three times. He took an oath of
allegiance to this Republic every time he filed his certificate
of candidacy and during his failed naturalization bid. And let
it not be overlooked, his demonstrated tenacity and sheer
determination to re-assume his nationality of birth despite
several legal set-backs speak more loudly, in spirit, in fact
and in truth than any legal technicality, of his consuming
intention and burning desire to re-embrace his native
Philippines even now at the ripe old age of 81 years. Such
loyalty to and love of country as well as nobility of purpose
cannot be lost on this Court of justice and equity. Mortals of
lesser mettle would have given up. After all, Frivaldo was
assured of a life of ease and plenty as a citizen of the most
powerful country in the world. But he opted, nay, single-
mindedly insisted on returning to and serving once more his
struggling but beloved land of birth. He therefore deserves
every liberal interpretation of the law which can be applied in
his favor. And in the final analysis, over and above Frivaldo
himself, the indomitable people of Sorsogon most certainly
deserve to be governed by a leader of their overwhelming
choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED.
The assailed Resolutions of the respondent Commission are
AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for
being moot and academic. In any event, it has no merit.
No costs.
SO ORDERED.

MANUEL QUEZON UNIVERSITY v NLRC
G.R. No. 141673, October 17, 2001
FIRST DIVISION
[G.R. No. 141673. October 17, 2001]
MANUEL L. QUEZON UNIVERSITY/AUGUSTO B.
SUNICO, President, petitioners, vs. NATIONAL
LABOR RELATIONS COMMISSION (Third
Division), NOEMI B. JUAT and EDILBERTO
AZURIN, respondents.
D E C I S I O N
PARDO, J .:
The Case
The case is an appeal via certiorari from the
decision
[1]
of the Court of Appeals affirming the resolutions of
the National Labor Relations Commission ruling that
respondents retiring faculty members of petitioner Manuel L.
Quezon University were entitled to retirement benefits under
Republic Act No. 7641, even if petitioner had an existing
valid retirement plan.
The Facts
The facts, as found by the Court of Appeals, are as
follows:
Petitioner Manuel L. Quezon University (MLQU) is a private
educational institution which established a retirement plan for
its employees as early as June 26, 1967. The Retirement
Plan which was duly approved by the Bureau of Internal
Revenue for tax purposes provides as follows:
x x x
ARTICLE I PURPOSE
The Board of Regents of the Manuel L. Quezon Educational
Institution, Inc., recognizing the value of long and loyal
service and desiring to reward those who remain in its
employ continuously for a substantial number of
years, approves this Retirement Plan to assist financially its
1
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officers, faculty members and administrative personnel by
providing for their retirement. (Underscoring supplied)
xxx x x x x x x

ARTICLE III
PERSONS ENTITLED TO RETIREMENT PRIVILEGES
(a) All faculty members and employees who attain the age
of 65 years while employed with the Manuel L. Quezon
Educational Institution, Inc., provided that they have
rendered at least ten (10) years of continuous
service. (Underscoring supplied)
(b) Those who have not attained the age of 65 years, but
who have rendered at least 20 years of continuous service to
the Manuel L. Quezon Educational Institution, Inc. at the
date of retirement.(Underscoring supplied)
(c) This plan does not apply to members of the Board of
Regents, the President, the Executive Officer, and the
Treasurer, whose retirement shall be determined by the
Board of Regents without prejudice to their retirement under
this plan as members of the faculty.
ARTICLE IV
COMPULSORY NATURE OF RETIREMENT
(a) Upon fulfillment of the conditions set forth in paragraphs
(a) and (b) of Article III, retirement of faculty members and
employees concerned shall be compulsory, unless the Board
of Regents expressly and in writing decides to defer their
retirement on a year to year basis or for a definite period.
ARTICLE V
THE RETIREMENT PLAN
(a) Every faculty member or employee is entitled to receive
as retirement compensation an amount equivalent to one
month pay for every year of service. The one month shall be
computed as specified in paragraph (b)
below. (Underscoring supplied)
(b) In determining the one month salary to which a retiree is
entitled, all salaries, bonuses and other amounts received by
him as a faculty member or employee during the entire
period of his employment shall be added and the same shall
be divided by the number of years that he has been
employed; service exceeding six (6) months shall be
considered as service for one year. The quotient shall then
be divided by twelve (12), in case of retirees rendering
services throughout the year, that is, during a period of
twelve (12) months, and in the case of retirees, not rendering
service throughout the year, such as faculty members not
receiving monthly compensations, the quotient shall then be
divided by the number of months determined as follows: (1)
if they taught for only one semester during the year, four and
one half (4 & 1/2) months; (2) if for two semesters, nine (9)
months; (3) if for one semester and summer, 6 months. This
last quotient shall be considered for the purpose of this
retirement plan.
However, any sums paid to the employee by reason of his
membership in the Social Security System and any sums
paid to him as compensation under the Workmens
Compensation Act shall be excluded, that is, it shall not be
considered as part of his gross income for the purpose of
computing his retirement pay.
If the retiree is an employee and a faculty member at the
same time, his earnings received from the Manuel L. Quezon
Educational Institution, Inc. in both categories shall be added
for the purpose of determining his retirement pay.
(c) The faculty member or employee who is on an extended
leave of absence may, at the discretion of the Board of
Regents, be considered in the service continuously until the
end of his extended leave for the purpose of determining the
twenty (20) years service requirement. Hereafter, no
extended leave of absence shall be granted for a longer
period than one year unless, in special cases, the Board of
Regents decides otherwise. Extended leave of absence
heretofore granted shall continue only for a period of two
years from the approval of this plan by the Board of Regents,
unless in special cases, the Board decides otherwise.
xxx x x x x x x
Noemi B. Juat, now 68 years of age, worked for almost
twenty nine (29) years and started as a part-time instructor of
the petitioner, Manuel L. Quezon University (MLQU), from
June 16, 1965 until her compulsory retirement on March 31,
1994.
x x x On January 14, 1993, then MLQU President Amado
Dizon informed in writing private respondent Juat that she
was eligible for retirement under Article III, Section I of the
MLQU Retirement Plan as cited in the Revised Faculty
Manual of June 13, 1990. The retirement of private
respondent was deferred because she was still given
teaching load for school year 1993-1994. On February 1,
1994 she received another letter from President Dizon
informing her that she was considered compulsorily retired
effective at the end of second semester of school year 1993-
1994 pursuant to the Retirement Plan. On February 3, 1994,
private respondent Juat received a third letter from Dean
Leticia L. Lava of petitioner Universitys School of Arts and
Science informing her of the approval by the Board of
Regents considering her as compulsorily retired. On
November 17, 1992, a letter was sent by private respondent
to petition inquiring the amount of retirement benefits due to
1
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her and in response petitioner provided her with a
computation of the retirement benefits through a letter dated
July 29, 1994. On the same day private respondent Juat
received, under protest, the two installments of her
retirement pay in the total amount of P71,674.91, as
evidenced by the general voucher, when the alleged correct
amount should be P149, 401.62.
Believing that she was entitled to a higher amount of
retirement benefits, private respondent engaged the services
of the University of the Philippines, Office of Legal Aid to
prosecute her claim for deficiency. On September 20, 1996
private respondent through counsel sent a letter of demand
to MLQU President August Sunico, demanding the payment
of the deficiency plus interest at the rate of 12% a year from
the date of retirement. On October 3, 1996, petitioner
replied, alleging that private respondent was not entitled to
receive retirement benefits as she was only a part-time
employee of MLQU, much less to the payment of
deficiency. In the same letter it expressed its willingness to
settle the matter amicably but to no avail as no amicable
settlement was reached. On March 25, 1997, private
respondent filed a complaint before the National Labor
Relations Commission (NLRC) to recover the balance of her
retirement benefits under Republic Act No. 7641.
Edilberto D. Azurin is a Certified Public Accountant (CPA)
and was hired as a teacher/instructor, on a full-time basis, of
the petitioner (MLQU) for twenty-five (25) years, from
September 1969 until June 7, 1994. As member of the
faculty of the School of Commerce, private respondent
taught accounting subjects in semestral and summer classes
and was likewise given teaching assignments in other
colleges of petitioner university. He received monthly
compensation, the last and highest of which was
P11,100.50, payable every thirtieth day of every month.
On June 7, 1994, a letter was received by private
respondent Azurin, informing him that he was being retired
under Article III, Section (a) of the MLQU Retirement
Plan. As stated in said letter, he will receive the amount of
P34,282.02 which amount he received under protest, as
evidenced formally requested for reconsideration and
recomputation of his retirement of his retirement gratuity,
stating that under R.A. 7641, he should have received the
total amount of P150,215.75 based on the last salary and
benefits received by him. Despite receipt of said demand
letter, petitioner failed and refused and continuously refuse
to heed complainants demand for the payment of his valid
claim, prompting private respondent to institute a complaint
against petitioner asking for the payment of deficiency of
retirement benefits and attorneys fee. This was assigned to
Honorable Labor Arbiter Jovencio Mayor. However, upon
motion for reconsideration by herein petitioners, the
complaint was consolidated with private respondent Juats
complaint filed with the Honorable Labor Arbiter Manuel R.
Caday. After the parties failed to reach an amicable
settlement during the conciliatory proceedings of the cases,
they were required to submit their respective position
papers. On June 24, 1998, Labor Arbiter Manuel R. Caday
rendered a decision for petitioners, disposing thus:
WHEREFORE, premises considered, the instant complaints
should be, as they are hereby DISMISSED for lack of merit
and want of legal and factual bases.
SO ORDERED.
Believing that the decision of Labor Arbityer Caday was
erroneous private respondents Azurin and Juat filed their
Memorandum of Appeal on July 27, 1998 and July 30, 1998,
respectively, with the NLRC.
On October 28, 1998, the Third Division of the NLRC came
out with the questioned resolution, reversing the ruling of the
Labor Arbiter, and disposing thus:
WHEREFORE, premises considered, the twin Appeals are
hereby GRANTED except with regard to the claims for actual
damages and ten percent (10%) attorneys
fees. Accordingly, the Decision appealed from is hereby
REVERSED and SET ASIDE and a new one entered
directing respondent University to pay complainants Juat and
Azurin their retirement differential pay of P77,726.72 and
P115,933.73, respectively, plus legal interest of six percent
(6%) per annum from the date of filing of their complaints on
March 27, 1997 up to actual payment.
SO ORDERED.
On January 18, 1999, a motion for reconsideration was filed
by petitioner which was outrightly denied in a resolution
dated March 17, 1999. Dissatisfied with the aforesaid
decision, petitioner found its way to this Court via the petition
under consideration, contending that the NLRC gravely
abused its discretion in reversing the decision of the Labor
Arbiter and awarding retirement benefits to private
respondents Juat and Azurin by giving retroactive application
to the provision of R. A. 7641.
[2]

On September 3, 1999, the Court of Appeals
promulgated a decision
[3]
affirming the resolutions of the
NLRC as set out in the opening paragraph of this decision.
On October 14, 1999, petitioners filed a motion for
reconsideration of the NLRC resolution.
[4]

On January 18, 2000, the Court of Appeals denied
petitioners motion for reconsideration.
[5]

Hence, this appeal.
[6]

The Issue
The issue raised is whether respondents are entitled to
the retirement benefits provided for under Republic Act No.
1
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7641, even if the petitioner has an existing valid retirement
plan.
The Courts Ruling
We affirm the decision of the Court of Appeals. The
law, Republic Act No. 7641, intends to give the minimum
retirement benefits to employees not entitled thereto under
collective bargaining and other agreements. Its coverage
applies to establishments with existing collective bargaining
or other agreements or voluntary retirement plans whose
benefits are less than those prescribed under the proviso in
question.
Republic Act No. 7641 is a curative social
legislation.
[7]
By their nature, curative statutes may be given
retroactive effect, unless it will impair vested
rights.
[8]
Republic Act No. 7641 has retroactive effect to
include in its coverage the employees services to an
employer rendered prior to its effectivity.
[9]
It applies to
employees in the employ of employers at the time the law
took effect and who are eligible to benefits under that
statute.
[10]

The Fallo
WHEREFORE, we AFFIRM the decision of the Court of
Appeals in toto.
No costs.
SO ORDERED.

ATIENZA v BRILLANTES
A.M. No. MTJ-92-706, March 29, 1995
SUPREME COURT
Manila
EN BANC

A.M. No. MTJ-92-706 March 29, 1995
LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan
Trial Court, Branch 28, Manila, respondent.

QUIASON, J .:
This is a complaint by Lupo A. Atienza for Gross Immorality
and Appearance of Impropriety against Judge Francisco
Brillantes, Jr., Presiding Judge of the Metropolitan Trial
Court, Branch 20, Manila.
Complainant alleges that he has two children with Yolanda
De Castro, who are living together at No. 34 Galaxy Street,
Bel-Air Subdivision, Makati, Metro Manila. He stays in said
house, which he purchased in 1987, whenever he is in
Manila.
In December 1991, upon opening the door to his bedroom,
he saw respondent sleeping on his (complainant's) bed.
Upon inquiry, he was told by the houseboy that respondent
had been cohabiting with De Castro. Complainant did not
bother to wake up respondent and instead left the house
after giving instructions to his houseboy to take care of his
children.
Thereafter, respondent prevented him from visiting his
children and even alienated the affection of his children for
him.
Complainant claims that respondent is married to one
Zenaida Ongkiko with whom he has five children, as
appearing in his 1986 and 1991 sworn statements of assets
and liabilities. Furthermore, he alleges that respondent
caused his arrest on January 13, 1992, after he had a
heated argument with De Castro inside the latter's office.
For his part, respondent alleges that complainant was not
married to De Castro and that the filing of the administrative
action was related to complainant's claim on the Bel-Air
residence, which was disputed by De Castro.
Respondent denies that he caused complainant's arrest and
claims that he was even a witness to the withdrawal of the
complaint for Grave Slander filed by De Castro against
complainant. According to him, it was the sister of De Castro
who called the police to arrest complainant.
Respondent also denies having been married to Ongkiko,
although he admits having five children with her. He alleges
that while he and Ongkiko went through a marriage
ceremony before a Nueva Ecija town mayor on April 25,
1965, the same was not a valid marriage for lack of a
marriage license. Upon the request of the parents of
Ongkiko, respondent went through another marriage
ceremony with her in Manila on June 5, 1965. Again, neither
party applied for a marriage license. Ongkiko abandoned
respondent 17 years ago, leaving their children to his care
and custody as a single parent.
Respondent claims that when he married De Castro in civil
rites in Los Angeles, California on December 4, 1991, he
believed, in all good faith and for all legal intents and
purposes, that he was single because his first marriage was
solemnized without a license.
Under the Family Code, there must be a judicial declaration
of the nullity of a previous marriage before a party thereto
can enter into a second marriage. Article 40 of said Code
provides:
The absolute nullity of a previous marriage
may be invoked for the purposes of
remarriage on the basis solely of a final
1
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judgment declaring such previous
marriage void.
Respondent argues that the provision of Article 40 of the
Family Code does not apply to him considering that his first
marriage took place in 1965 and was governed by the Civil
Code of the Philippines; while the second marriage took
place in 1991 and governed by the Family Code.
Article 40 is applicable to remarriages entered into after the
effectivity of the Family Code on August 3, 1988 regardless
of the date of the first marriage. Besides, under Article 256 of
the Family Code, said Article is given "retroactive effect
insofar as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws." This
is particularly true with Article 40, which is a rule of
procedure. Respondent has not shown any vested right that
was impaired by the application of Article 40 to his case.
The fact that procedural statutes may somehow affect the
litigants' rights may not preclude their retroactive application
to pending actions. The retroactive application of procedural
laws is not violative of any right of a person who may feel
that he is adversely affected (Gregorio v. Court of Appeals,
26 SCRA 229 [1968]). The reason is that as a general rule
no vested right may attach to, nor arise from, procedural
laws (Billones v. Court of Industrial Relations, 14 SCRA 674
[1965]).
Respondent is the last person allowed to invoke good faith.
He made a mockery of the institution of marriage and
employed deceit to be able to cohabit with a woman, who
beget him five children.
Respondent passed the Bar examinations in 1962 and was
admitted to the practice of law in 1963. At the time he went
through the two marriage ceremonies with Ongkiko, he was
already a lawyer. Yet, he never secured any marriage
license. Any law student would know that a marriage license
is necessary before one can get married. Respondent was
given an opportunity to correct the flaw in his first marriage
when he and Ongkiko were married for the second time. His
failure to secure a marriage license on these two occasions
betrays his sinister motives and bad faith.
It is evident that respondent failed to meet the standard of
moral fitness for membership in the legal profession.
While the deceit employed by respondent existed prior to his
appointment as a Metropolitan Trial Judge, his immoral and
illegal act of cohabiting with De Castro began and continued
when he was already in the judiciary.
The Code of Judicial Ethics mandates that the conduct of a
judge must be free of a whiff of impropriety, not only with
respect to his performance of his judicial duties but also as to
his behavior as a private individual. There is no duality of
morality. A public figure is also judged by his private life. A
judge, in order to promote public confidence in the integrity
and impartiality of the judiciary, must behave with propriety at
all times, in the performance of his judicial duties and in his
everyday life. These are judicial guideposts too self-evident
to be overlooked. No position exacts a greater demand on
moral righteousness and uprightness of an individual than a
seat in the judiciary (Imbing v. Tiongzon, 229 SCRA 690
[1994]).
WHEREFORE, respondent is DISMISSED from the service
with forfeiture of all leave and retirement benefits and with
prejudice to reappointment in any branch, instrumentality, or
agency of the government, including government-owned and
controlled corporations. This decision is immediately
executory.
SO ORDERED.

ZULUETA v ASIA BREWERY
G.R. No. 138137, March 8, 2001
THIRD DIVISION
[G.R. No. 138137. March 8, 2001]
PERLA S. ZULUETA, petitioner, vs. ASIA BREWERY,
Inc., respondent.
D E C I S I O N
PANGANIBAN, J .:
When two or more cases involve the same parties and
affect closely related subject matters, they must be
consolidated and jointly tried, in order to serve the best
interests of the parties and to settle expeditiously the issues
involved. Consolidation, when appropriate, also contributes
to the declogging of court dockets.

The Case
Before us is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court, questioning the August 4,
1998 Decision[1] of the Court of Appeals (CA) in CA-GR SP
No. 45020; as well as the February 23, 1999
Resolution[2] denying petitioners Motion for
Reconsideration. The decretal portion of the CA Decision
reads as follows:
WHEREFORE, the instant petition is given due course. The
assailed orders of the Regional Trial Court, Makati City,
Branch 142 dated 13 February 1997 and 19 May 1997 are
hereby ANNULED and SET ASIDE.
SO ORDERED.
1
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The Facts
Respondent Asia Brewery, Inc., is engaged in the
manufacture, the distribution and sale of beer; while
Petitioner Perla Zulueta is a dealer and an operator of an
outlet selling the formers beer products. A Dealership
Agreement governed their contractual relations.
On March 30, 1992, petitioner filed before the Regional
Trial Court (RTC) of Iloilo, Branch 22, a Complaint against
respondent for Breach of Contract, Specific Performance and
Damages. The Complaint, docketed as Civil Case No.
20341 (hereafter referred to as the Iloilo case), was
grounded on the alleged violation of the Dealership
Agreement.
On July 7, 1994, during the pendency of the Iloilo case,
respondent filed with the Makati Regional Trial Court, Branch
66, a Complaint docketed as Civil Case No. 94-2110
(hereafter referred to as the Makati case). The Complaint
was for the collection of a sum of money in the amount
of P463,107.75 representing the value of beer products,
which respondent had delivered to petitioner.
In view of the pendency of the Iloilo case, petitioner
moved to dismiss the Makati case on the ground that it had
split the cause of action and violated the rule against the
multiplicity of suits. The Motion was denied by the Makati
RTC through Judge Eriberto U. Rosario.
Upon petitioners Motion, however, Judge Rosario
inhibited himself. The case was raffled again and thereafter
assigned to Branch 142 of the Makati RTC, presided by
Judge Jose Parentala Jr.
On January 3, 1997, petitioner moved for the
consolidation of the Makati case with the Iloilo
case. Granting the Motion, Judge Parentala ordered on
February 13, 1997, the consolidation of the two
cases. Respondent filed a Motion for Reconsideration, which
was denied in an Order dated May 19, 1997.
On August 18, 1997, respondent filed before the Court
of Appeals a Petition for Certiorari assailing Judge
Parentalas February 13, 1997 and May 19, 1997 Orders.
Ruling of the Court of Appeals
Setting aside the trial courts assailed Orders which
consolidated the Iloilo and the Makati cases, the CA ruled in
this wise:
There is no common issue of law or fact between the two
cases. The issue in Civil Case No. 94-2110 is private
respondents indebtedness for unpaid beer products; while in
Civil Case No. 20341, it is whether or not petitioner (therein
defendant) breached its dealership contract with private
respondent.
Private respondent in her complaint aforequoted attempts to
project a commonality between the two civil cases, but it
cannot be denied that her obligation to pay for the beer
deliveries can exist regardless of any stop payment order
she made with regard to the checks. Thus, the rationale for
consolidation, which is to avoid the possibility of conflicting
decisions being rendered, (Active Wood products, Co. vs.
Court of Appeals, 181 SCRA 774, Benguet Corporation, Inc.
vs. Court of Appeals, 165 SCRA 27; Vallacar Transit, Inc. vs.
Yap, 126 SCRA 503) does not exist.[3]
Hence, this Petition.[4]
The Issues
In her Memorandum,[5] petitioner interposes the
following issues for the consideration of this Court:
a. Were the Orders of February 13, 1997 and May
19, 1997 of the Regional Trial Court, Branch 142 in
Makati City (ordering consolidation of Makati Civil Case
No. 94-2110 with the Iloilo Civil Case No. 20341)
already final and executory when respondent filed its
petition for certiorari with the Hon. Court of Appeals
such that said Court could no longer acquire jurisdiction
over the case and should have dismissed it outright (as
it originally did) x x x, instead of due giving course to
the petition?; and
b. Independent of the first issue, did the Makati RTC,
Branch 142, correctly order the consolidation of the
Makati case (which was filed later) with the Iloilo Case
(which was filed earlier) for the reason that the
obligation sought to be collected in the Makati case is
the same obligation that is also one of the subject
matters of the Iloilo case, x x x?[6]
The Courts Ruling
The Petition is meritorious.

First Issue:
Propriety of Petition with the CA
Petitioner avers that the Makati RTCs February 13,
1997 and May 19, 1997 Orders consolidating the two cases
could no longer be assailed. Allegedly, respondents Petition
for Certiorari was filed with the CA beyond the reglementary
sixty-day period prescribed in the 1997 Revised Rules of
1
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Civil Procedure, which took effect on July 1, 1997. Hence,
the CA should have dismissed it outright.
The records show that respondent received on May 23,
1997, the Order denying its Motion for Reconsideration. It
had, according to petitioner, only sixty days or until July 22,
1997, within which to file the Petition for Certiorari. It did so,
however, only on August 21, 1997.
On the other hand, respondent insists that its Petition
was filed on time, because the reglementary period before
the effectivity of the 1997 Rules was ninety days. It theorizes
that the sixty-day period under the 1997 Rules does not
apply.
As a general rule, laws have no retroactive effect. But
there are certain recognized exceptions, such as when they
are remedial or procedural in nature. This Court explained
this exception in the following language:
It is true that under the Civil Code of the Philippines, (l)aws
shall have no retroactive effect, unless the contrary is
provided. But there are settled exceptions to this general
rule, such as when the statute is CURATIVE
or REMEDIAL in nature or when it CREATES NEW RIGHTS.
x x x x x x x x x
On the other hand, remedial or procedural laws, i.e., those
operate in furtherance of the remedy or confirmation of such
rights, ordinarily do not come within the legal meaning of a
retrospective law, nor within the general rule against the
retrospective operation of statutes.[7] (emphasis supplied)
Thus, procedural laws may operate retroactively as to
pending proceedings even without express provision to that
effect.[8] Accordingly, rules of procedure can apply to cases
pending at the time of their enactment.[9]In fact, statutes
regulating the procedure of the courts will be applied on
actions undetermined at the time of their
effectivity. Procedural laws are retrospective in that sense
and to that extent.[10]
Clearly, the designation of a specific period of sixty
days for the filing of an original action for certiorari under
Rule 65 is purely remedial or procedural in nature. It does
not alter or modify any substantive right of respondent,
particularly with respect to the filing of petitions for
certiorari. Although the period for filing the same may have
been effectively shortened, respondent had not been unduly
prejudiced thereby considering that he was not at all
deprived of that right.
It is a well-established doctrine that rules of procedure
may be modified at any time to become effective at once, so
long as the change does not affect vested
rights.[11] Moreover, it is equally axiomatic that there are no
vested rights to rules of procedure.[12]
It also bears noting that the ninety-day limit established
by jurisprudence cannot be deemed a vested right. It is
merely a discretionary prerogative of the courts that may be
exercised depending on the peculiar circumstances of each
case. Hence, respondent was not entitled, as a matter of
right, to the 90-day period for filing a petition for certiorari;
neither can it imperiously demand that the same period be
extended to it.
Upon the effectivity of the 1997 Revised Rules of Civil
Procedure on July 1, 1997, respondents lawyers still had 21
days or until July 22, 1997 to file a petition for certiorari and
to comply with the sixty-day reglementary period. Had they
been more prudent and circumspect in regard to the
implications of these procedural changes, respondents right
of action would not have been foreclosed. After all, the 1997
amendments to the Rules of Court were well-publicized prior
to their date of effectivity. At the very least counsel should
have asked for as extension of time to file the petition.
Certification of Non-forum
Shopping Defective
Petitioner likewise assails the validity of the sworn
certification against forum-shopping, arguing that the same
was signed by counsel and not by petitioner as required by
Supreme Court Circular No. 28-91. For his part, respondent
claims that even if it was its counsel who signed the
certification, there was still substantial compliance with
Circular No. 28-91 because, a corporation acts through its
authorized officers or agents, and its counsel is an agent
having personal knowledge of other pending cases.
The requirement that the petitioner should sign the
certificate of non-forum shopping applies even to
corporations, considering that the mandatory directives of the
Circular and the Rules of Court make no distinction between
natural and juridical persons. In this case, the Certification
should have been signed by a duly authorized director or
officer of the corporation,[13] who has knowledge of the
matter being certified.[14] In Robern Development
Corporation v. Quitain,[15] in which the Certification was
signed by Atty. Nemesio S. Caete who was the acting
regional legal counsel of the National Power Corporation in
Mindanao, the Court held that he was not merely a retained
lawyer, but an NPC in-house counsel and officer, whose
basic function was to prepare legal pleadings and to
represent NPC-Mindanao in legal cases. As regional legal
counsel for the Mindanao area, he was the officer who was
in the best position to verify the truthfulness and the
correctness of the allegations in the Complaint for
expropriation in Davao City. As internal legal counsel, he
was also in the best position to know and to certify if an
action for expropriation had already been filed and pending
with the courts.
Verily, the signatory in the Certification of the Petition
before the CA should not have been respondents retained
counsel, who would not know whether there were other
similar cases of the corporation.[16] Otherwise, this
requirement would easily be circumvented by the signature
of every counsel representing corporate parties.
No Explanation for
Non-Filing by Personal Service
1
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Citing Section 11 of Rule 13 of the 1997 Rules,
petitioner also faults respondent for the absence of a written
explanation why the Petition with the Court of Appeals was
served on her counsel by registered mail. In reply,
respondent points out that such explanation was not
necessary, because its counsel held office in Makati City
while petitioner and her counsel were in Iloilo City.
We agree with petitioner. Under Section 11, Rule 13 of
the 1997 Rules, personal service of petitions and other
pleadings is the general rule, while a resort to other modes of
service and filing is the exception. Where recourse is made
to the exception, a written explanation why the service and
the filing were not done personally is indispensable, even
when such explanation by its nature is acceptable and
manifest. Where no explanation is offered to justify the
resort to other modes, the discretionary power of the court to
expunge the pleading becomes mandatory.[17] Thus, the CA
should have considered the Petition as not having been filed,
in view of the failure of respondent to present a written
explanation of its failure to effect personal service.
In sum, the Petition for Certiorari filed with the CA by
herein respondent, questioning the orders of consolidation
by the Makati RTC, should not have been given due
course. Not only was the Petition filed beyond the sixty-day
reglementary period; it likewise failed to observe the
requirements of non-forum shopping and personal service or
filing. All or any of these acts ought to have been sufficient
cause for its outright denial.
Second Issue:
Propriety of Consolidation
Apart from procedural problems, respondents cause is
also afflicted with substantial defects. The CA ruled that
there was no common issue in law or in fact between the
Makati case and the Iloilo case. The former involved
petitioners indebtedness to respondent for unpaid beer
products, while the latter pertained to an alleged breach of
the Dealership Agreement between the parties. We
disagree.
True, petitioners obligation to pay for the beer products
delivered by respondent can exist regardless of an alleged
breach in the Dealership Agreement. Undeniably, however,
this obligation and the relationship between respondent and
petitioner, as supplier and distributor respectively, arose from
the Dealership Agreement which is now the subject of inquiry
in the Iloilo case. In fact, petitioner herself claims that her
obligation to pay was negated by respondents contractual
breach. In other words, the non-payment -- the res of the
Makati case -- is an incident of the Iloilo case.
Inasmuch as the binding force of the Dealership
Agreement was put in question, it would be more practical
and convenient to submit to the Iloilo court all the incidents
and their consequences. The issues in both civil cases
pertain to the respective obligations of the same parties
under the Dealership Agreement. Thus, every transaction as
well as liability arising from it must be resolved in the judicial
forum where it is put in issue. The consolidation of the two
cases then becomes imperative to a complete,
comprehensive and consistent determination of all these
related issues.
Two cases involving the same parties and affecting
closely related subject matters must be ordered consolidated
and jointly tried in court, where the earlier case was
filed.[18] The consolidation of cases is proper when they
involve the resolution of common questions of law or
facts.[19]
Indeed, upon the consolidation of the cases, the
interests of both parties in the two civil cases will best be
served and the issues involved therein expeditiously
settled. After all, there is no question on the propriety of the
venue in the Iloilo case.
WHEREFORE, the Petition is hereby GRANTED and
the assailed Decision REVERSED and SET ASIDE. The
Orders of the Makati RTC (Br. 142) dated February 13, 1997
and May 19, 1997 are herebyREINSTATED. No costs.
SO ORDERED.

TAN v COURT OF APPEALS
G.R. No. 136368, January 16, 2002
FIRST DIVISION
[G.R. No. 136368. January 16, 2002]
JAIME TAN, JR., as Judicial Administrator of the
Intestate Estate of Jaime C. Tan, petitioner,
vs. HON. COURT OF APPEALS (Ninth Special
Div.) and JOSE A. MAGDANGAL and ESTRELLA
MAGDANGAL, respondents.
D E C I S I O N
PUNO, J .:
This is a petition for review of the Decision of the
Court of Appeals dated July 15, 1998
[1]
and its Resolution
dated November 9, 1998
[2]
denying petitioners motion for
reconsideration in CA-G.R. SP-41738.
The facts are as stated in the impugned Decision, viz:
Involved in this case is a parcel of land, designated as Lot
No. 645-C, with an area of 34,829 square meters, more or
less, situated in Bunawan, Davao City. The lot was once
covered by TCT No. T-72067 of the Registry of
Deeds of Davao City in the name of the late Jaime C. Tan
(Tan, for short) married to Praxedes V. Tan.
1
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From the petition, the motion to dismiss petition, their
respective annexes and other pleadings, we gather the
following factual antecedents:
On January 22, 1981, Tan, for a consideration of
P59,200.00, executed a deed of absolute sale over the
property in question in favor of
spouses Jose Magdangal and Estrella Magdangal. Simult
aneous with the execution of this deed, the same contracting
parties entered into another agreement whereunder Tan was
given one (1) year within which to redeem or repurchase the
property.
Albeit given several opportunities and/or extensions to
exercise the option, Tan failed to redeem the property until
his death on January 4, 1988.
On May 2, 1988, Tans heirs filed before the Regional Trial
Court at Davao City a suit against the Magdangals for
reformation of instrument. Docketed as CIVIL CASE
NO. 19049-88, the complaint alleged that, while Tan and
the Magdangals denominated their agreement as deed of
absolute sale, their real intention was to conclude an
equitable mortgage.
Barely hours after the complaint was stamped received,
the Magdangals were able to have Tans title over the lot in
question canceled and to secure in their names TCT No. T-
134470. This development prompted the heirs of Tan, who
were to be later substituted by Jaime V. Tan, Jr. (Tan, Jr.) as
plaintiff, to file a supplemental complaint.
The intervening legal tussles are not essential to this
narration. What is material is that on June 4, 1991, Branch
11 of the Regional Trial Court of Davao City rendered
judgment finding for Tan, Jr., as plaintiff
therein. Thedispositive portion of the decision reads:.
WHEREFORE, judgment is rendered:
1. The Deed of Absolute Sale (Exhibits B, B-1) is, in
accordance with the true intention of the parties, hereby
declared and reformed an equitable mortgage;
2. The plaintiff is ordered to pay the defendants
within 120 days after the finality of this decision P59,200
plus interest at the rate of 12% per annum from May 2, 1988,
the date the complaint was filed, until paid;
3. In order to avoid multiplicity of suits and to fully give
effect to the true intention of the parties, upon the payment of
the aforesaid amount, TCT No. T-134470 in the name of
defendants Jose Magdangal andEstrella Magdangal (Exh.
13) and shall be deemed canceled and null and
void and TCT No. T-72067 in the name of Jaime C. Tan
and Praxedes Valles Tan (Exh. A) be reinstated.
No pronouncement as to costs.
SO ORDERED. (Annex B, Petition; Emphasis added).
From the above, the Magdangals appealed to this Court in
CA-G.R. CV No. 33657.
In a decision promulgated on September 28, 1995, this
Court, thru its then Special Third Division, affirmed in toto the
appealed decision of the lower court. Copy of
this affirmatory judgment was each received by
theMagdangals and Tan, Jr. on October 5, 1995.
On March 13, 1996, the Clerk of this Court entered in the
Book of Entries of Judgment the Decision in CA-G.R. CV No.
33657 and issued the corresponding Entry of Judgment
which, on its face, stated that the said Decision has on
October 21, 1995 become final and executory (Annex L,
Petition; Emphasis added).
On March 21, 1996, the Magdangals filed in the lower court a
MOTION FOR CONSOLIDATION AND WRIT OF
POSSESSION, therein alleging that they did
not appeal from the aforesaid decision of this Court, adding
[T]hat the appealed judgment of the Court of Appeals has
become final and executory 15 days from October 5, 1995 or
up to October 20, 1995, which the 120 days redemption
period commences. And noting that the redemption period
has expired without Tan, Jr. exercising his option,
the Magdangals thus prayed that the title in the name of
Jaime C. Tan and Praxedes Tan be consolidated and
confirmed in the name of the (Magdangals) x x x and
pending such issuance, a writ of possession be ordered
issued (Annex C, Petition).
In opposition to this motion (Annex F, Petition), Tan, Jr.
alleged, among other things, that until an entry of judgment
has been issued by the Court of Appeals and copy thereof
furnished the parties, the appealed decision of the court
a quo in this case cannot be considered final
and executory. Pressing the point, Tan, Jr.,
citing Cueto vs. Collantes, infra., would then assert that the
period of redemption on his part commenced to run from
receipt of entry of judgment in CA-G.R. CV No. 33657.
Meanwhile, Tan, Jr. via a motion for execution dated March
27, 1996, which he filed directly with this court, prayed this
court to direct the court a quo to
issue the corresponding writ of execution in Civil Case No.
19049-88. In a related move, Tan, Jr. filed on April 16,
1996, a MANIFESTATION AND MOTION therein advising
the court a quo of his intention to redeem the property in
question and of the fact that, on such date, he has deposited
with its clerk of court the repurchase price, plus interest, as
required by its original decision. By way of relief, Tan, Jr.
prayed that the Magdangals be ordered to claim the amount
thus deposited and the Register of Deeds of Davao City,
to reinstate the title of Jaime Tan and Praxedes Tan.
Jointly acting on the aforementioned MOTION FOR
CONSOLIDATION AND WRIT OF POSSESSION of
the Magdangals (Annex C, Petition), MANIFESTATION
1
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AND MOTION of Tan, Jr. (Annex I, Petition), the court a
quo presided by the respondent judge, came out with the
first challenged order of June 10, 1996 (Annex N,
Petition), dispositively reading, as follows:
WHEREFORE, x x x the Motion for Consolidation and a Writ
of Possession is hereby DENIED for lack of merit.
The deposit of the amount of P116,032.00 made by plaintiff
with the Office of the Clerk of Court x x x on April 17, 1996 is
hereby considered full payment of the redemption price and
the Clerk of Court is hereby ordered to deliver said amount to
herein defendants.
The Register of Deeds of Davao City x x x is hereby directed
to cancel TCT No. T-134470 in the name of
Jose Magdangal and Estrella Magdangal and, thereafter, to
reinstate TCT No. 72067 in the name of Jaime C. Tan
and Praxedes Valles Tan and to submit her compliance
thereto within ten (10) days from receipt of this Order.
SO ORDERED.
Explaining her action, the respondent judge wrote in
the same order:
Following the ruling of the Supreme Court
in Cueto vs. Collantes, et al., 97 Phil. 325, the 120 days
period for plaintiff to pay the amount of P59,200.00 plus
interest x x x should be reckoned from the date of Entry of
Judgment x x x which was March 13, 1996. The
plaintiff made a deposit on April 17, 1996 well within the
120-day period mandated by the decision of this Court.
In due time, the Magdangals moved for a
reconsideration. However, in her next assailed order of July
24, 1996 (Annex R, Petition), the respondent judge denied
the motion for being pro-forma and fatally defective.
[3]

Petitioner assails the aforequoted Decision as follows:
I. Petitioners right to due process was violated
when the Court of Appeals rendered a
judgment on the merits of private respondents
petition without granting to petitioner the
opportunity to controvert the same.
II. Appeal not certiorari was the appropriate
remedy of private respondents as there was
no grave abuse of discretion as
to amount to lack of or excess of jurisdiction
on the part of the trial judge. Neither is delay
in resolving the main case a ground for giving
due course to the petition.
III. Cueto vs. Collantes, 97 Phil. 325, was
disregarded by the Court of Appeals in
resolving the petition of private
respondents. It is still good case law and was
in effect made a part of section 2 of Rule 68 of
the 1997 Rules of Civil Procedure on
Foreclosure of Mortgage.
IV. The St. Dominic vs. Intermediate Appellate
Court, 138 SCRA 242 case is not applicable to
the case at bar; on the other hand the
ruling in Gutierrez Hermanos vs. de La Riva,
46 Phil. 827, applies.
V. Equity considerations justify giving due course
to this petition.
[4]
(emphasis ours)
We will immediately resolve the key issue of what rule
should govern the finality of judgment favorably obtained in
the trial court by the petitioner.
The operative facts show that in its Decision of June 4,
1991, the trial court held that: (1) the contract between the
parties is not an absolute sale but an equitable mortgage;
and (2) petitioner Tan should pay to the
respondents Magdangal within 120 days after
the finality of this decision P59,200.00 plus interest at the
rate of 12% per annum from May 2, 1988, the date the
complaint was filed, until paid.
[5]

On September 28, 1995 in CA-G.R. CV No.
33657, the Special Third Division of the Court of Appeals
affirmed the decision of the trial court in toto. Both parties
received the decision of the appellate court on October 5,
1995. On March 13, 1996, the clerk of court of the appellate
court entered in the Book of Entries of Judgement the
decision in CA-G.R. CV No. 33657 and issued the
corresponding Entry of Judgment which, on its face, stated
that the said decision has on October 21, 1995 become final
and executory.
[6]

The respondents Magdangal filed in the trial court
a Motion for Consolidation and Writ of Possession.
[7]
They
alleged that the 120-day period of redemption of the
petitioner has expired. They reckoned that the said period
began 15 days after October 5, 1995, the date when the
finality of the judgment of the trial court as affirmed by the
appellate court commenced to run.
On the other hand, petitioner filed on March 27, 1996 a
motion for execution in the appellate court praying that it
direct the court a quo to issue the corresponding writ of
execution in Civil Case No. 19049-88.
[8]
On April 17, 1996,
petitioner deposited with the clerk of court the repurchase
price of the lot plus interest as ordered by the decision.
On June 10, 1996, the trial court allowed the petitioner
to redeem the lot in question. It ruled that the 120-day
redemption period should be reckoned from the date of Entry
of Judgment in the appellate court or from March 13,
1996.
[9]
The redemption price was deposited on April 17,
1996. As aforestated, the Court of Appeals set aside the
ruling of the trial court.
From 1991-1996, the years relevant to the case at bar,
the rule that governs finality of judgment is Rule 51 of the
Revised Rules of Court. Its sections 10 and 11 provide:
1
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SEC. 10. Entry of judgments and final resolutions. If no
appeal or motion for new trial or reconsideration is filed
within the time provided in these Rules, the judgment or final
resolution shall forthwith be entered by the clerk in the book
of entries of judgments. The date when the judgment or final
resolution becomes executory shall be deemed as the date
of its entry. The record shall contain the dispositive part of
the judgment or final resolution and shall be signed by the
clerk, with a certificate that such judgment or final resolution
has become final and executory. (2a, R36)
SEC. 11. Execution of judgment. Except where the
judgment or final order or resolution, or a portion thereof, is
ordered to be immediately executory, the motion for its
execution may only be filed in the proper court after its entry.
In original actions in the Court of Appeals, its writ of
execution shall be accompanied by a certified true copy of
the entry of judgment or final resolution and addressed to
any appropriate officer for its enforcement.
In appealed cases, where the motion for execution
pending appeal is filed in the Court of Appeals at a time that
it is in possession of the original record or the record on
appeal, the resolution granting such motion shall be
transmitted to the lower court from which the case originated,
together with a certified true copy of the judgment or final
order to be executed, with a directive for such court of origin
to issue the proper writ for its enforcement.
This rule has been interpreted by this Court
in Cueto vs. Collantes as follows:
[10]

The only error assigned by appellants refer to the finding of
the lower court that plaintiff can still exercise his right of
redemption notwithstanding the expiration of the 90-day
period fixed in the original decision and, therefore,
defendants should execute the deed
of reconveyance required in said decision. Appellants
contend that, the final judgment of the Court of Appeals
having been entered on July 8, 1953, the 90-day period for
the exercise of the right of redemption has long expired, it
appearing that plaintiff deposited the redemption money with
the clerk of court only on October 17, 1953, or, after the
expiration of 101 days. Appellee brands this computation as
erroneous, or one not in accordance with the procedure
prescribed by the rules of court.
Appellees contention should be sustained. The original
decision provides that appellee may exercise his right of
redemption within the period of 90 days from the date the
judgment has become final. It should be noted
thatappellee had appealed from this decision. This decision
was affirmed by the court of appeals and final judgment was
entered on July 8, 1953. Does this mean that the judgment
became final on that date?
Let us make a little digression for purposes of
clarification. Once a decision is rendered by the Court of
Appeals a party may appeal therefrom by certiorari by filing
with the Supreme Court a petition within 10 days from the
date of entry of such decision (Section 1, Rule 46). The
entry of judgment is made after it has become final, i.e., upon
the expiration of 15 days after notice thereof to the parties
(Section 8, Rule 53, as modified by a resolution of the
Supreme Court dated October 1, 1945). But, as Chief
Justice Moran has said, such finality *** is subject to the
aggrieved partys right of filing a petition for certiorari under
this section, which means that the Court of Appeals shall
remand the case to the lower court for the execution of its
judgment, only after the expiration of ten (10) days from the
date of such judgment, if no petition for certiorari is filed
within that period. (1 Moran, Comments on the Rules of
Court, 1952 ed., p. 950) It would therefore appear that
the date of entry of judgment of the Court of Appeals is
suspended when a petition for review is filed to await the
final entry of the resolution or decision of the Supreme Court.
Since in the present case appellee has filed a petition for
review within the reglementary period, which was dismissed
by resolution of July 6, 1953, and for lack of a motion for
reconsideration the entry of final judgmentwas made on
August 7, 1953, it follows that the 90-day period within
which appellee may exercise his right of redemption should
be counted from said date, August 7,
1953. And appellee having exercised such right on October
17, 1953 by depositing the redemption money with the clerk
of court, it is likewise clear that the motion be filed for the
exercise of such right is well taken and is within the purview
of the decision of the lower court.
[11]

On April 18, 1994, this Court issued Circular No. 24-
94, viz:
TO: COURT OF APPEALS,
SANDIGANBAYAN, COURT OF TAX
APPEALS, REGIONAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS,
MUNICIPAL TRIAL COURTS, MUNICIPAL
CIRCUIT TRIAL COURTS, AND ALL
MEMBERS OF THE INTEGRATED BAR OF
THE PHILIPPINES
SUBJECT: RESOLUTION OF THE
COURT EN BANC APPROVING AND
PROMULGATING THE REVISED
PROVISION ON EXECUTION OF
JUDGMENTS, SPECIFICALLY IN APPEALED
CASES, AND AMENDING SECTION 1, RULE
39 OF THE RULES OF COURT
It appears that in a number of instances, the execution of
judgments in appealed cases cannot be promptly enforced
because of undue administrative delay in the remand of the
records to the court of origin, aggravated at times by
misplacement or misdelivery of said records. The Supreme
Court Committee on the Revision of the Rules of Court has
drafted proposals including a provision which can remedy the
procedural impasse created by said contingencies.
Accordingly, pending approval by the Court of the revised
rules on Civil Procedure, and to provide a solution to
1
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the aforestated problems, the Court Resolved to approve
and promulgate the following section thereof on execution of
judgments, amending Section 1, Rule 39 of the Rules of
Court:
Section 1. Execution upon judgments or final orders.
Execution shall issue as a matter of right, on motion, upon a
judgment or order that disposes of the action or proceeding
upon expiration of the period to appealtherefrom if no appeal
has been duly perfected.
If the appeal has been duly perfected and finally resolved,
such execution may forthwith be applied for in the lower
court from which the action originated, on motion of the
judgment obligee, submitting therewith certified true copies
of the judgment or judgments or the final order or orders
sought to be enforced and of the entry thereof, with notice to
the adverse party.
The appellate court may, on motion in the same case, when
the interest of justice so requires, direct the court of origin to
issue the writ of execution.
This resolution shall be published in two (2) newspapers of
general circulation and shall take effect on June 1, 1994.
April 18, 1994.
(Sgd.) ANDRES R. NARVASA
Chief Justice
The Circular took effect on June 1, 1994.
The 1997 Revised Rules of Civil Procedure, however,
amended the rule on finality of judgment by providing in
section 1, Rule 39 as follows:
Section 1. Execution upon judgments or final orders.
Execution shall issue as a matter of right, on motion, upon a
judgment or order that disposes of the action or proceeding
upon the expiration of the period to appeal therefrom if no
appeal has been duly perfected. (1a)
If the appeal has been duly perfected and finally resolved,
the execution may forthwith be applied for in the court of
origin, on motion of the judgment obligee, submitting
therewith certified true copies of the judgment or judgments
or final order or orders sought to be enforced and of the entry
thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when
the interest of justice so requires, direct the court of origin to
issue the writ of execution.
The rationale of the new rule is explained by retired
Justice F.D. Regalado as follows:
[12]

1. The term final order is used in two senses depending
on whether it is used on the issue of appealability or on the
issue of binding effect. For purposes of appeal, an order is
final if it disposes of the action, as distinguished from an
interlocutory order which leaves something to be done in the
trial court with respect to the merits of the case (De la Cruz,
et al. vs. Paras, et al., L-41053, Feb. 27, 1976). For
purposes of binding effect or whether it can be subject of
execution, an order is final or executory after the lapse of
the reglementary period to appeal and no appeal has been
perfected (see Perez, et al. vs. Zulueta, L-10374, Sept. 30,
1959; cf. Denso [Phil.], Inc. vs. IAC, et al., G.R. No. 75000,
Feb. 27, 1987; Montilla vs. CA, et al., L-47968, May 9, 1988).
2. On the aspect of appealability, these revised Rules
use the adjective final with respect to orders and
resolutions, since to terminate a case the trial courts issue
orders while the appellate courts and most of the quasi-
judicial agencies issue resolutions. Judgments are not so
qualified since the use of the so-called interlocutory
judgments is not favored in this jurisdiction, while the
categorization of an order or a resolution for purposes of
denoting that it is appealable is to distinguish them from
interlocutory orders or resolutions. However, by force of
extended usage the phrase final and executory judgment is
sometimes used and tolerated, although the use of
executory alone would suffice. These observations also
apply to the several and separate judgments contemplated in
Rule 36, or partial judgments which totally dispose of a
particular claim or severable part of the case, subject to the
power of the court to suspend or defer action on an appeal
from or further proceedings in such special judgment, or as
provided by Rule 35 on the matter of partial summary
judgments which are not considered as appealable (see Sec.
4, Rule 35 and the explanation therein).
The second paragraph of this section is an innovation in
response to complaints over the delay caused by the former
procedure in obtaining a writ of execution of a judgment,
which has already been affirmed on appeal, with notice to
the parties. As things then stood, after the entry of judgment
in the appellate court, the prevailing party had to wait for the
records of the case to be remanded to the court of origin
when and where he could then move for the issuance of a
writ of execution. The intervening time could sometimes be
substantial, especially if the court a quo is in a remote
province, and could also be availed of by the losing party to
delay or thwart actual execution.
On these considerations, the Supreme Court issued Circular
No. 24-94, dated April 18, 1994, approving and
promulgating in advance this amended Section 1 of Rule 39
and declaring the same effective as of June 1, 1994.
Under the present procedure, the prevailing party can secure
certified true copies of the judgment or final order of the
appellate court and the entry thereof, and submit the same to
the court of origin with and to justify his motion for a writ of
execution, without waiting for its receipt of the records from
the appellate court. That motion must be with notice to the
1
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adverse party, with a hearing when the circumstances so
require, to enable him to file any objection thereto or bring to
the attention of said court matters which may have transpired
during the pendency of the appeal and which may have a
bearing on the execution sought to enforce the judgment.
The third paragraph of this section, likewise a new provision,
is due to the experience of the appellate courts wherein the
trial court, for reasons of its own or other unjustifiable
circumstances, unduly delays or unreasonably refuses to act
on the motion for execution or issue the writ therefor. On
motion in the same case while the records are still with the
appellate court, or even after the same have been remanded
to the lower court, the appellate court can direct the issuance
of the writ of execution since such act is merely in the
enforcement of its judgment and which it has the power to
require.
It is evident that if we apply the old rule on finality of
judgment, petitioner redeemed the subject property
within the 120-day period of redemption reckoned from the
appellate courts entry of judgment. The appellate court,
however, did not apply the old rule but the 1997 Revised
Rules of Civil Procedure. In fine, it applied the new rule
retroactively and we hold that given the facts of the case at
bar this is an error.
There is no dispute that rules of procedure can be
given retroactive effect. This general rule, however, has
well-delineated exceptions. We quote author Agpalo:
[13]

9.17. Procedural laws.
Procedural laws are adjective laws which prescribe rules and
forms of procedure of enforcing rights or obtaining redress
for their invasion; they refer to rules of procedure by which
courts applying laws of all kinds can properly administer
justice. They include rules of pleadings, practice and
evidence. As applied to criminal law, they provide or
regulate the steps by which one who commits a crime is to
be punished.
The general rule that statutes are prospective and not
retroactive does not ordinarily apply to procedural laws. It
has been held that a retroactive law, in a legal sense, is one
which takes away or impairs vested rights acquired under
laws, or creates a new obligation and imposes a new duty, or
attaches a new disability, in respect of transactions or
considerations already past. Hence, remedial statutes or
operate in furtherance of the remedy or confirmation of rights
already existing, do not come within the legal conception of a
retroactive law, or the general rule against the retroactive
operation of statutes. The general rule against giving
statutes retroactive operation whose effect is to impair the
obligations of contract or to disturb vested rights does not
prevent the application of statutes to proceedings pending at
the time of their enactment where they neither create new
nor take away vested rights. A new statute which deals with
procedure only is presumptively applicable to all actions
those which have accrued or are pending.
Statutes regulating the procedure of the courts will be
construed as applicable to actions pending and
undetermined at the time of their passage. Procedural laws
are retroactive in that sense and to that extent. The fact that
procedural statutes may somehow affect the litigants rights
may not preclude their retroactive application to pending
actions. The retroactive application of procedural laws is
not violative of any right of a person who may feel that he is
adversely affected. Nor is the retroactive application of
procedural statutes constitutionally objectionable. The
reason is that as a general rule no vested right may attach
to, nor arise from, procedural laws. It has been held that a
person has no vested right in any particular remedy, and a
litigant cannot insist on the application to the trial of his case,
whether civil or criminal, of any other than the existing rules
of procedure.
Thus, the provision of Batas Bilang 129 in Section 39 thereof
prescribing that no record on appeal shall be required to
take an appeal is procedural in nature and should therefore
be applied retroactively to pending actions. Hence, the
question as to whether an appeal from an adverse judgment
should be dismissed for failure of appellant to file a record on
appeal within thirty days as required under the old rules,
which question is pending resolution at the time
Batas Bilang 129 took effect, became academic upon
the effectivity of said law because the law no longer requires
the filing of a record on appeal and its retroactive application
removed the legal obstacle to giving due course to the
appeal. A statute which transfers the jurisdiction to try
certain cases from a court to a quasi-judicial tribunal is a
remedial statute that is applicable to claims that accrued
before its enactment but formulated and filed after it took
effect, for it does not create new nor take away vested
rights. The court that has jurisdiction over a claim at the time
it accrued cannot validly try the claim where at the time the
claim is formulated and filed the jurisdiction to try it has been
transferred by law to a quasi-judicial tribunal, for even
actions pending in one court may be validly taken away and
transferred to another and no litigant can acquire a vested
right to be heard by one particular court.
9.18. Exceptions to the rule.
The rule that procedural laws are applicable to pending
actions or proceedings admits certain exceptions. The rule
does not apply where the statute itself expressly or by
necessary implication provides that pending actions are
excepted from its operation, or where to apply it to pending
proceedings would impair vested rights. Under appropriate
circumstances, courts may deny the retroactive application of
procedural laws in the event that to do so would not be
feasible or would work injustice. Nor may procedural laws be
applied retroactively to pending actions if to do so would
involve intricate problems of due process or impair the
independence of the courts.
1
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We hold that section 1, Rule 39 of the 1997 Revised
Rules of Procedure should not be given retroactive effect in
this case as it would result in great injustice to the
petitioner. Undoubtedly, petitioner has the right to redeem
the subject lot and this right is a substantive right. Petitioner
followed the procedural rule then existing as well as the
decisions of this Court governing the reckoning date of the
period of redemption when he redeemed the subject
lot. Unfortunately for petitioner, the rule was changed by the
1997 Revised Rules of Procedure which if applied
retroactively would result in his losing the right to redeem the
subject lot. It is difficult to reconcile the retroactive
application of this procedural rule with the rule of
fairness. Petitioner cannot be penalized with the loss of the
subject lot when he faithfully followed the laws and the rule
on the period of redemption when he made the
redemption. The subject lot may only be 34,829 square
meters but as petitioner claims, it is the only property left
behind by their father, a private law practitioner who was
felled by an assassins bullet.
[14]

Petitioner fought to recover this lot from 1988. To lose
it because of a change of procedure on the date of reckoning
of the period of redemption is inequitous. The manner of
exercising the right cannot be changed and the change
applied retroactively if to do so will defeat the right of
redemption of the petitioner which is already vested.
IN VIEW WHEREOF, the decision of the Court of
Appeals dated July 15, 1998 and
its Resolution dated November 9, 1998 in CA-G.R. SP-
41738 are annulled and set aside. The Orders dated June
10, 1996 and July 24, 1996 of the RTC of Davao City,
11
th
Judicial Region, Branch 11, in Civil Case No. 19049-88
are reinstated. No costs.
SO ORDERED.

PEOPLE v MORILLA
G.R. No. 189833, February 5, 2014
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 189833 February 5, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
JAVIER MORILLA Y AVELLANO, Accused-Appellant.
R E S O L U T I O N
PEREZ, J .:
Before us is an appeal filed by accused-appellant Javier
Morilla y Avellano (Morilla) from the Decision
1
of the Court of
Appeals which affirmed his conviction and that of his co-
accused Ronnie Mitra y Tena (Mayor Mitra) by the trial court,
sentencing them
2
to suffer the penalty of life imprisonment
and to pay a fine of P10,000,000.00 each.
The Regional Trial Court Judgment
On 15 October 2001, Morilla, Mayor Mitra, Willie Yang y Yao
(Yang) and Ruel Dequilla y Regodan (Dequilla) were
charged in a criminal information as follows:
That on or about October 13, 2001, in Barangay Kiloloran,
Municipality of Real, Province of Quezon, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, one of them an incumbent mayor of the
Municipality of Panukulan, Quezon Province, who all belong
to an organized/syndicate crime group as they all help one
another, for purposes of gain in the transport of illegal drugs,
and in fact, conspiring and confederating together and
mutually aiding and abetting one another, did then and there
wilfully, unlawfully, and feloniously transport by means of two
(2) motor vehicles, namely a Starex van bearing plate
number RWT-888 with commemorative plate to read "Mayor"
and a municipal ambulance of Panukulan, Quezon Province,
methamphetamine hydrochloride, a regulated drug which is
commonly known as shabu, and with an approximate weight
of five hundred three point sixty eight (503.68) kilos, without
authority whatsoever.
3

After trial, the Regional Trial Court of Quezon City
4
on 1
August 2007 convicted Morilla and his co-accused Mayor
Mitra, then incumbent Mayor of Panukulan, Quezon, of illegal
transport
5
of methamphetamine hydrochloride, commonly
known as shabu, with an approximate weight of five hundred
three point sixty eight (503.68) kilos. However, it absolved
Dequilla and Yang due to the prosecutions failure to present
sufficient evidence to convict them of the offense charged.
The dispositive of the decision reads:
WHEREFORE, premises considered, judgment is hereby
rendered finding accused Ronnie Mitra y Tena and Javier
Morilla y Avellana GUILTY beyond reasonable doubt of the
offense charged. Accordingly, both accused are hereby
sentenced to suffer the penalty of life imprisonment and to
pay a fine of P10,000,000.00 each. Accused Willie Yang y
Yao and Ruel Dequilla y Regodan are hereby ACQUITTED
for failure of the prosecution to prove their guilt beyond
reasonable doubt and are ordered immediately released
from custody unless held for some other lawful cause.
The methamphetamine hydrochloride ordered retained by
the Court as representative sample which is still in the
custody of the PNP Crime Laboratory is ordered turned over
to the Philippine Drug Enforcement Agency for proper
disposition.
6

The trial court found valid the search conducted by police
officers on the vehicles driven by Mayor Mitra and Morilla,
one with control number 888 and the other an ambulance
with plate number SFK-372, as the police officers have
1
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already acquired prior knowledge that the said vehicles were
suspected to be used for transportation of dangerous drugs.
During the checkpoint in Real, Quezon, the information
turned out to be accurate and indeed, the two accused had
in their motor vehicles more than five hundred kilos of
methamphetamine hydrochloride.
7

The trial court dismissed the arguments of Mayor Mitra that
he was without any knowledge of the contents of the sacks
and that he was merely requested to transport them to
Manila on board his Starex van. He explained that he only
accommodated the request of a certain Ben Tan because
the latter bought his fishing boat. It likewise dismissed the
defense of ambulance driver Morilla of lack of knowledge of
the illegality of the contents. Morilla insisted that he thought
that he was just transporting wooden tiles and electronic
spare parts together with Dequilla. The other passenger of
the ambulance, Yang, in his defense, did not bother to
inquire about the contents of the vehicle as he was merely
an accommodated passenger of the ambulance.
The court rejected the defenses presented by Morilla and
Mayor Mitra as they were caught in flagrante delicto of
transporting dangerous drugs in two vehicles driven by each
of them. Absent any convincing circumstance to corroborate
their explanations, the validity of their apprehension was
sustained.
8

The ruling of conspiracy between Mayor Mitra and Morilla
was based on the testimonies of the four accused
themselves. It was found by the trial court that the two
vehicles, the Starex van driven by Mayor Mitra and the
ambulance van driven by Morilla, left Infanta, Quezon en
route to Manila. The Starex van which was ahead of the
ambulance was able to pass the checkpoint set up by the
police officers. However, the ambulance driven by Morilla
was stopped by police officers. Through the untinted window,
one of the police officers noticed several sacks inside the
van. Upon inquiry of the contents, Morilla replied that the
sacks contained narra wooden tiles.
Unconvinced, the police officers requested Morilla to open
the rear door of the car for further inspection. When it was
opened, the operatives noticed that white crystalline
granules were scattered on the floor, prompting them to
request Morilla to open the sacks. At this moment, Morilla
told the police officers that he was with Mayor Mitra in an
attempt to persuade them to let him pass.
9
His request was
rejected by the police officers and upon inspection, the
contents of the sacks turned out to be sacks of
methamphetamine hydrochloride.
10
This discovery prompted
the operatives to chase the Starex van of Mayor Mitra. The
police officers were able to overtake the van and Mayor Mitra
was asked to stop. They then inquired if the mayor knew
Morilla. On plain view, the operatives noticed that his van
was also loaded with sacks like the ones found in the
ambulance. Thus, Mayor Mitra was also requested to open
the door of the vehicle for inspection. At this instance, Mayor
Mitra offered to settle the matter but the same was rejected.
Upon examination, the contents of the sacks were likewise
found to contain sacks of methamphetamine hydrochloride.
11

The two other accused in this case, Dequilla and Yang, were
acquitted by the trial court for failure on the part of the
prosecution to establish their guilt beyond reasonable doubt.
The court ruled that Dequillas and Yangs mere presence
inside the vehicle as passengers was inadequate to prove
that they were also conspirators of Mayor Mitra and Morilla.
12

The Court of Appeals Decision
On 13 July 2009, the appellate court affirmed the ruling of
the trial court. It upheld the finding of conspiracy between
Mayor Mitra and Morilla in their common intent to transport
several sacks containing methamphetamine hydrochloride
on board their respective vehicles. The singularity of their
intent to illegally transport methamphetamine hydrochloride
was readily shown when Morilla agreed to drive the
ambulance van from Infanta, Quezon to Manila together with
Mayor Mitra, who drove the lead vehicle, the Starex van.
13

The appellate court likewise dismissed the argument of lack
of knowledge of the illegal contents of the sacks. The claim
that the sacks were loaded with wooden tiles was
implausible due to the obvious disparity of texture and
volume.
14

Courts Ruling
We affirm the ruling but modify the penalty imposed.
In his supplemental brief, Morilla raised the issues: (1)
whether he may be convicted for conspiracy to commit the
offense charged sans allegation of conspiracy in the
Information, and (2) whether the prosecution was able to
prove his culpability as alleged in the Information.
15

We dismiss his arguments.
Morilla primarily cites the provision on Sec. 1(b), Rule 115 of
the Rules on Criminal Procedure
16
to substantiate his
argument that he should have been informed first of the
nature and cause of the accusation against him. He pointed
out that the Information itself failed to state the word
conspiracy but instead, the statement "the above-named
accused, one of them an incumbent mayor of the
Municipality of Panukulan, Quezon Province, who all belong
to an organized/syndicated crime group as they all help one
another, did then and there wilfully, unlawfully and
feloniously transport x x x." He argued that conspiracy was
only inferred from the words used in the Information.
17

Even assuming that his assertion is correct, the issue of
defect in the information, at this point, is deemed to have
been waived due to Morillas failure to assert it as a ground
in a motion to quash before entering his plea.
18

1
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Further, it must be noted that accused Morilla participated
and presented his defenses to contradict the allegation of
conspiracy before the trial and appellate courts. His failure or
neglect to assert a right within a reasonable time warrants a
presumption that the party entitled to assert it either has
abandoned it or declined to assert it.
19

The finding of conspiracy by both courts is correct.
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and
decide to commit it.
20
To determine conspiracy, there must
be a common design to commit a felony.
21

Morilla argues that the mere act of driving the ambulance on
the date he was apprehended is not sufficient to prove that
he was part of a syndicated group involved in the illegal
transportation of dangerous drugs.
This argument is misplaced.
In conspiracy, it need not be shown that the parties actually
came together and agreed in express terms to enter into and
pursue a common design. The assent of the minds may be
and, from the secrecy of the crime, usually inferred from
proof of facts and circumstances which, taken together,
indicate that they are parts of some complete whole.
22
In this
case, the totality of the factual circumstances leads to a
conclusion that Morilla conspired with Mayor Mitra in a
common desire to transport the dangerous drugs. Both
vehicles loaded with several sacks of dangerous drugs, were
on convoy from Quezon to Manila. Mayor Mitra was able to
drive through the checkpoint set up by the police operatives.
When it was Morillas turn to pass through the checkpoint, he
was requested to open the rear door for a routinary check.
Noticing white granules scattered on the floor, the police
officers requested Morilla to open the sacks. If indeed he
was not involved in conspiracy with Mayor Mitra, he would
not have told the police officers that he was with the mayor.
His insistence that he was without any knowledge of the
contents of the sacks and he just obeyed the instruction of
his immediate superior Mayor Mitra in driving the said vehicle
likewise bears no merit.
Here, Morilla and Mayor Mitra were caught in flagrante
delicto in the act of transporting the dangerous drugs on
board their vehicles. "Transport" as used under the
Dangerous Drugs Act means "to carry or convey from one
place to another."
23
It was well established during trial that
Morilla was driving the ambulance following the lead of
Mayor Mitra, who was driving a Starex van going to Manila.
The very act of transporting methamphetamine hydrochloride
is malum prohibitum since it is punished as an offense under
a special law. The fact of transportation of the sacks
containing dangerous drugs need not be accompanied by
proof of criminal intent, motive or knowledge.
24

In a similar case of People v. Libnao,
25
this Court upheld the
conviction for illegal transportation of marijuana of Libnao
and Nunga, who were caught carrying a bag full of marijuana
leaves when they were flagged down on board a passing
tricycle at a checkpoint.
However, we modify the penalty imposed by the trial court as
affirmed by the Court of Appeals.
Originally, under Section 15 of Republic Act No. 6425,
26
the
penalty for illegal transportation of methamphetamine
hydrochloride was imprisonment ranging from six years and
one day to twelve years and a fine ranging from six thousand
to twelve thousand pesos. Pursuant to Presidential Decree
No. 1683,
27
the penalty was amended to life imprisonment to
death and a fine ranging from twenty to thirty thousand
pesos. The penalty was further amended in Republic Act No.
7659,
28
where the penalty was changed to reclusion
perpetua to death and a fine ranging from five hundred
thousand pesos to ten million pesos.
From the foregoing, we sustain the imposed penalty of fine
of P10,000,00.00 to be paid by each of the accused but
amend the penalty to reclusion perpetua following the
provisions of Republic Act No. 7659 and the principle of
retroactive application of lighter penalty. Reclusion perpetua
entails imprisonment for at least thirty (30) years after which
the convict becomes eligible for pardon. It also carries with it
accessory penalties, namely: perpetual special
disqualification, etc. Life imprisonment, on the other hand,
does not appear to have any definite extent or duration and
carries no accessory penalties.
29

The full particulars are in Ho Wai Pang v. People,
30
thus:
As to the penalties imposed by the trial court and as affirmed
by the appellate court, we find the same in accord with law
and jurisprudence. It should be recalled that at the time of
the commission of the crime on September 6, 1991, Section
15 of R.A. No. 6425 was already amended by Presidential
Decree No. 1683. The decree provided that for violation of
said Section 15, the penalty of life imprisonment to death
and a fine ranging from P20,000.00 to P30,000.00 shall be
imposed. Subsequently, however, R.A. No. 7659 further
introduced new amendments to Section 15, Article III and
Section 20, Article IV of R.A. No. 6425, as amended. Under
the new amendments, the penalty prescribed in Section 15
was changed from "life imprisonment to death and a fine
ranging fromP20,000.00 to P30,000.00" to "reclusion
perpetua to death and a fine ranging from P500,000.00
to P10 million." On the other hand, Section 17 of R.A. No.
7659 amended Section 20, Article IV of R.A. No. 6425 in that
the new penalty provided by the amendatory law shall be
applied depending on the quantity of the dangerous drugs
involved.
The trial court, in this case, imposed on petitioner the penalty
of reclusion perpetua under R.A. No. 7659 rather than life
imprisonment ratiocinating that R.A. No. 7659 could be given
retroactive application, it being more favorable to the
petitioner in view of its having a less stricter
punishment.1wphi1
1
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We agree. In People v. Doroja, we held:
"In People v. Martin Simon (G.R. No. 93028, 29 July 1994)
this Court ruled (a) that the amendatory law, being more
lenient and favorable to the accused than the original
provisions of the Dangerous Drugs Act, should be accorded
retroactive application, x x x."
And, since "reclusion perpetua is a lighter penalty than life
imprisonment, and considering the rule that criminal statutes
with a favorable effect to the accused, have, as to him, a
retroactive effect," the penalty imposed by the trial court
upon petitioner is proper. Consequently, the Court sustains
the penalty of imprisonment, which is reclusion perpetua, as
well as the amount of fine imposed by the trial court upon
petitioner, the same being more favorable to him.
31

WHEREFORE, premises considered, the petition is DENIED
and the assailed 13 July 2009 Decision of the Court of
Appeals in CA-G.R. CR-H.C. 02967 is AFFIRMED WITH
MODIFICATION with respect to the penalty to be imposed as
Reclusion Perpetua instead of Life Imprisonment and
payment of fine of P10,000,000.00 by each of the accused.
SO ORDERED.
ORTEGA v PEOPLE
G.R. No. 151085, August 20, 2008
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 151085 August 20, 2008
JOEMAR ORTEGA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
D E C I S I O N
NACHURA, J .:
Before this Court is a Petition
1
for Review on Certiorari under
Rule 45 of the Rules of Civil Procedure seeking the reversal
of the Court of Appeals (CA) Decision
2
dated October 26,
2000 which affirmed in toto the Decision
3
of the Regional
Trial Court (RTC) of Bacolod City, Branch 50, dated May 13,
1999, convicting petitioner Joemar Ortega
4
(petitioner) of the
crime of Rape.
The Facts
Petitioner, then about 14 years old,
5
was charged with the
crime of Rape in two separate informations both dated April
20, 1998, for allegedly raping AAA,
6
then about eight (8)
years of age. The accusatory portions thereof respectively
state:
Criminal Case No. 98-19083
That sometime in August, 1996, in the Municipality
of XXX, Province of YYY, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, by means of force, violence and
intimidation, did then and there, (sic) willfully,
unlawfully and feloniously (sic) had carnal
knowledge of and/or sexual intercourse with the
said AAA, a minor, then about 6 years old, against
her will.
CONTRARY TO LAW.
7

Criminal Case No. 98-19084
That on or about the 1st day of December, 1996, in
the Municipality of XXX, Province of YYY,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, by
means of force, violence and intimidation, did then
and there, (sic) willfully, unlawfully and feloniously
(sic) had carnal knowledge of and/or sexual
intercourse with the said AAA, a minor, then about 6
years old, against her will.
CONTRARY TO LAW.
8

Upon arraignment on September 10, 1998, petitioner
pleaded not guilty to the offense charged.
9
Thus, trial on the
merits ensued. In the course of the trial, two varying versions
arose.
Version of the Prosecution
On February 27, 1990, AAA was born to spouses FFF and
MMM.
10
Among her siblings CCC, BBB, DDD, EEE and
GGG, AAA is the only girl in the family. Before these
disturbing events, AAA's family members were close friends
of petitioner's family, aside from the fact that they were good
neighbors. However, BBB caught petitioner raping his
younger sister AAA inside their own home. BBB then
informed their mother MMM who in turn asked AAA.
11
There,
AAA confessed that petitioner raped her three (3) times on
three (3) different occasions.
The first occasion happened sometime in August 1996.
MMM left her daughter AAA, then 6 years old and son BBB,
then 10 years old, in the care of Luzviminda
Ortega
12
(Luzviminda), mother of petitioner, for two (2) nights
because MMM had to stay in a hospital to attend to her other
son who was sick.
13
During the first night at petitioner's
residence, petitioner entered the room where AAA slept
together with Luzviminda and her daughter. Petitioner woke
AAA up and led her to the sala. There petitioner raped AAA.
The second occasion occurred the following day, again at
1
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the petitioner's residence. Observing that nobody was
around, petitioner brought AAA to their comfort room and
raped her there. AAA testified that petitioner inserted his
penis into her vagina and she felt pain. In all of these
instances, petitioner warned AAA not to tell her parents,
otherwise, he would spank her.
14
AAA did not tell her parents
about her ordeal.
The third and last occasion happened in the evening of
December 1, 1996. Petitioner went to the house of AAA and
joined her and her siblings in watching a battery-powered
television. At that time, Luzviminda was conversing with
MMM. While AAA's siblings were busy watching, petitioner
called AAA to come to the room of CCC and BBB. AAA
obeyed. While inside the said room which was lighted by a
kerosene lamp, petitioner pulled AAA behind the door,
removed his pants and brief, removed AAA's shorts and
panty, and in a standing position inserted his penis into the
vagina of AAA.
15
AAA described petitioner's penis as about
five (5) inches long and the size of two (2) ballpens. She,
likewise, narrated that she saw pubic hair on the base of his
penis.
16

This last incident was corroborated by BBB in his testimony.
When BBB was about to drink water in their kitchen, as he
was passing by his room, BBB was shocked to see petitioner
and AAA both naked from their waist down in the act of
sexual intercourse. BBB saw petitioner holding AAA and
making a pumping motion. Immediately, BBB told petitioner
to stop; the latter, in turn, hurriedly left. Thereafter, BBB
reported the incident to his mother, MMM.
17

MMM testified that when she asked AAA about what BBB
saw, AAA told her that petitioner inserted his fingers and his
penis into her vagina. MMM learned that this was not the
only incident that petitioner molested AAA as there were two
previous occasions. MMM also learned that AAA did not
report her ordeal to them out of fear that petitioner would
spank her. MMM testified that when BBB reported the matter
to her, petitioner and Luzviminda already left her house. After
waiting for AAA's brothers to go to sleep, MMM, with a heavy
heart, examined AAA's vagina and she noticed that the same
was reddish and a whitish fluid was coming out from it.
Spouses FFF and MMM were not able to sleep that night.
The following morning, at about four o'clock, MMM called
Luzviminda and petitioner to come to their house. MMM
confronted Luzviminda about what petitioner did to her
daughter, and consequently, she demanded that AAA should
be brought to a doctor for examination.
18

MMM, together with Luzviminda, brought AAA to Dr. Lucifree
Katalbas
19
(Dr. Katalbas), the Rural Health Officer of the
locality who examined AAA and found no indication that she
was molested.
20
Refusing to accept such findings, on
December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr.
Jocson), Medical Officer IV of the Bacolod City Health Office.
Dr. Jocson made an unofficial written report
21
showing that
there were "abrasions on both right and left of the labia
minora and a small laceration at the posterior fourchette."
She also found that the minor injuries she saw on AAA's
genitals were relatively fresh; and that such abrasions were
superficial and could disappear after a period of 3 to 4 days.
Dr. Jocson, however, indicated in her certification that her
findings required the confirmation of the Municipal Health
Officer of the locality.
Subsequently, an amicable settlement
22
was reached
between the two families through the DAWN Foundation, an
organization that helps abused women and children. Part of
the settlement required petitioner to depart from their house
to avoid contact with AAA.
23
As such, petitioner stayed with a
certain priest in the locality. However, a few months later,
petitioner went home for brief visits and in order to bring his
dirty clothes for laundry. At the sight of petitioner, AAA's
father FFF was infuriated and confrontations occurred. At
this instance, AAA's parents went to the National Bureau of
Investigation (NBI) which assisted them in filing the three (3)
counts of rape. However, the prosecutor's office only filed the
two (2) instant cases.
Version of the Defense
Petitioner was born on August 8, 1983 to spouses Loreto
(Loreto) and Luzviminda Ortega.
24
He is the second child of
three siblings an elder brother and a younger sister.
Petitioner denied the accusations made against him. He
testified that: his parents and AAA's parents were good
friends; when MMM left AAA and her brothers to the care of
his mother, petitioner slept in a separate room together with
BBB and CCC while AAA slept together with Luzviminda and
his younger sister; he never touched or raped AAA or
showed his private parts to her; petitioner did not threaten
AAA in any instance; he did not rape AAA in the former's
comfort room, but he merely accompanied and helped AAA
clean up as she defecated and feared the toilet bowl; in the
process of washing, he may have accidentally touched
AAA's anus; on December 1, 1996, petitioner together with
his parents, went to AAA's house;
25
they were dancing and
playing together with all the other children at the time; while
they were dancing, petitioner hugged and lifted AAA up in a
playful act, at the instance of which BBB ran and reported
the matter to MMM, who at the time was with Luzviminda,
saying that petitioner and AAA were having sexual
intercourse;
26
petitioner explained to MMM that they were
only playing, and that he could not have done to AAA what
he was accused of doing, as they were together with her
brothers, and he treated AAA like a younger sister;
27
BBB
was lying; AAA's parents and his parents did not get angry at
him nor did they quarrel with each other; petitioner and his
parents peacefully left AAA's house at about nine o'clock in
the evening; however, at about four o'clock in the morning,
petitioner and his parents were summoned by MMM to go to
the latter's house; upon arriving there they saw BBB being
maltreated by his father as AAA pointed to BBB as the one
who molested her; and MMM and Luzviminda agreed to
bring AAA to a doctor for examination
.28

Luzviminda corroborated the testimony of her son. She
testified that: her son was a minor at the time of the incident;
CCC and BBB were the children of MMM in her first
1
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marriage, while AAA and the rest of her siblings were of the
second marriage; CCC and BBB are half-brothers of AAA;
when MMM entrusted AAA and her brothers to her sometime
in August of 1996, she slept with AAA and her youngest
daughter in a separate room from petitioner; on December 1,
1996, she was at AAA's house watching television and
conversing with MMM, while FFF and Loreto were having a
drinking spree in the kitchen; from where they were seated,
she could clearly see all the children, including petitioner and
AAA, playing and dancing in the dining area; she did not
hear any unusual cry or noise at the time; while they were
conversing, BBB came to MMM saying that petitioner and
AAA were having sexual intercourse; upon hearing such
statement, Luzviminda and MMM immediately stood up and
looked for them, but both mothers did not find anything
unusual as all the children were playing and dancing in the
dining area; Luzviminda and MMM just laughed at BBB's
statement; the parents of AAA, at that time, did not examine
her in order to verify BBB's statement nor did they get angry
at petitioner or at them; and they peacefully left AAA's house.
However, the following day, MMM woke Luzviminda up,
saying that FFF was spanking BBB with a belt as AAA was
pointing to BBB nor to petitioner as the one who molested
her. At this instance, Luzviminda intervened, telling FFF not
to spank BBB but instead, to bring AAA to a doctor for
examination. Luzviminda accompanied MMM to Dr. Katalbas
who found no indication that AAA was molested. She also
accompanied her to Dr. Jocson. After getting the results of
the examination conducted by Dr. Jocson, they went to the
police and at this instance only did Luzviminda learn that
MMM accused petitioner of raping AAA. Petitioner
vehemently denied to Luzviminda that he raped AAA.
Thereafter, MMM and Luzviminda went to their employer
who recommended that they should seek advice from the
Women's Center. At the said Center, both agreed on an
amicable settlement wherein petitioner would stay away from
AAA. Thus, petitioner stayed with a certain priest in the
locality for almost two (2) years. But almost every Saturday,
petitioner would come home to visit his parents and to bring
his dirty clothes for laundry. Every time petitioner came
home, FFF bad-mouthed petitioner, calling him a rapist.
Confrontations occurred until an altercation erupted wherein
FFF allegedly slapped Luzviminda. Subsequently, AAA's
parents filed the instant cases.
29

The RTC's Ruling
On May 13, 1999, the RTC held that petitioner's defenses of
denial cannot prevail over the positive identification of
petitioner as the perpetrator of the crime by AAA and BBB,
who testified with honesty and credibility. Moreover, the RTC
opined that it could not perceive any motive for AAA's family
to impute a serious crime of Rape to petitioner, considering
the close relations of both families. Thus, the RTC disposed
of this case in this wise:
FOR ALL THE FOREGOING, the Court finds the
accused Joemar Ortega Y Felisario GUILTY
beyond reasonable doubt as Principal by Direct
Participation of the crime of RAPE as charged in
Criminal Cases Nos. 98-19083 and 98-19084 and
there being no aggravating or mitigating
circumstance, he is sentenced to suffer the penalty
of Two (2) Reclusion Temporal in its medium
period. Applying the Indeterminate Sentence Law,
the accused shall be imprisoned for each case for a
period of Six (6) years and One (1) day of Prision
Mayor, as minimum, to Fifteen (15) years of
Reclusion Temporal, as maximum. The accused is
condemned to pay the offended party AAA, the sum
of P100,000.00 as indemnification for the two (2)
rapes (sic).
Aggrieved, petitioner appealed the RTC Decision to the
CA.
30

Taking into consideration the age of petitioner and upon
posting of the corresponding bail bond for his provisional
liberty in the amount of P40,000.00, the RTC ordered the
petitioner's release pending appeal.
31

The CA's Ruling
On October 26, 2000, the CA affirmed in toto the ruling of the
RTC, holding that the petitioner's defense of denial could not
prevail over the positive identification of the petitioner by the
victim AAA and her brother BBB, which were categorical,
consistent and without any showing of ill motive. The CA also
held that the respective medical examinations conducted by
the two doctors were irrelevant, as it is established that the
slightest penetration of the lips of the female organ
consummates rape; thus, hymenal laceration is not an
element of rape. Moreover, the CA opined that petitioner
acted with discernment as shown by his covert acts. Finally,
the CA accorded great weight and respect to the factual
findings of the RTC, particularly in the evaluation of the
testimonies of witnesses.
Petitioner filed his Motion for Reconsideration
32
of the
assailed Decision which the CA denied in its
Resolution
33
dated November 7, 2001.
Hence, this Petition based on the following grounds:
I.
THE HONORABLE COURT OF APPEALS HAS
OVERLOOKED CERTAIN FACTS OF
SUBSTANCE AND VALUE WHICH IF
CONSIDERED MIGHT AFFECT THE RESULT OF
THE CASE.
II.
THE HONORABLE COURT OF APPEALS
COMMITTED GRAVE ERROR WHEN IT FAILED
TO APPRECIATE THE MEDICAL FINDINGS OF
DR. LUCIFREE KATALBAS.
1
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III.
THE FINDINGS OF THE LOWER COURT,
AFFIRMED BY THE APPELLATE COURT, THAT
PETITIONER-APPELLANT IN FACT COMMITTED
AND IS CAPABLE OF COMMITTING THE
ALLEGED RAPE WITHIN THE RESIDENCE OF
THE VICTIM WHERE SEVERAL OF THE
ALLEGED VICTIM'S FAMILY MEMBERS AND
THEIR RESPECTIVE MOTHERS WERE
PRESENT IS IMPROBABLE AND CONTRARY TO
HUMAN EXPERIENCE.
IV.
THE HONORABLE APPELLATE COURT ERRED
IN UPHOLDING THE FACTS SET FORTH BY THE
ALLEGED VICTIM REGARDING THE
CIRCUMSTANCES ATTENDING THE
COMMISSION OF RAPE SOMETIME IN AUGUST
1996.
34

Petitioner argues that, while it is true that the factual findings
of the CA are conclusive on this Court, we are not prevented
from overturning such findings if the CA had manifestly
overlooked certain facts of substance and value which if
considered might affect the result of the case. Petitioner
stresses that from the testimonies of AAA and BBB, it can be
deduced that penetration was achieved; thus, AAA felt pain.
Petitioner contends that assuming the allegations of AAA are
true that petitioner inserted his fingers and his penis into her
vagina, certainly such acts would leave certain abrasions,
wounds and/or lacerations on the genitalia of AAA, taking
into consideration her age at the time and the alleged size of
petitioner's penis. However, such allegation is completely
belied by the medical report of Dr. Katalbas who, one day
after the alleged rape, conducted a medical examination on
AAA and found that there were no signs or indications that
AAA was raped or molested. Petitioner submits that the CA
committed a grave error when it disregarded such medical
report since it disproves the allegation of the existence of
rape and, consequently, the prosecution failed to prove its
case; thus, the presumption of innocence in favor of the
petitioner subsists. Moreover, petitioner opines that like AAA,
petitioner is also a child of the barrio who is innocent,
unsophisticated and lacks sexual experience. As such, it is
incredible and contrary to human reason that a 13- year-old
boy would commit such act in the very dwelling of AAA,
whose reaction to pain, at the age of six, could not be
controlled or subdued. Petitioner claims that poverty was
MMM's motive in filing the instant case, as she wanted to
extort money from the parents of the petitioner. Petitioner
points out that the medical report of Dr. Jocson indicated that
the abrasions that were inflicted on the genitalia of AAA were
relatively fresh and the same could disappear within a period
of 3 to 4 days. Considering that Dr. Jocson conducted the
medical examination on December 12, 1996, or after the
lapse of eleven (11) days after the alleged incident of rape,
and that AAA's parents only filed the instant case after
almost a year, in order to deter Luzviminda from filing a case
of slander by deed against FFF, it is not inconceivable that
MMM inflicted said abrasions on AAA to prove their case and
to depart from the initial confession of AAA that it was
actually BBB who raped her. Finally, petitioner submits that
AAA and BBB were merely coached by MMM to fabricate
these stories.
35

On the other hand, respondent People of the Philippines
through the Office of the Solicitor General (OSG) contends
that: the arguments raised by the petitioner are mere
reiterations of his disquisitions before the CA; the RTC, as
affirmed by the CA, did not rely on the testimonies of both
doctors since despite the absence of abrasions, rape is
consummated even with the slightest penetration of the lips
of the female organ; what is relevant in this case is the
reliable testimony of AAA that petitioner raped her in August
and December of 1996; even in the absence of force, rape
was committed considering AAA's age at that time; as such,
AAA did not have any ill motive in accusing petitioner; and it
is established that the crime of rape could be committed
even in the presence of other people nearby. Moreover, the
OSG relies on the doctrine that the evaluation made by a trial
court is accorded the highest respect as it had the
opportunity to observe directly the demeanor of a witness
and to determine whether said witness was telling the truth
or not. Lastly, the OSG claims that petitioner acted with
discernment when he committed the said crime, as
manifested in his covert acts.
36

However, Republic Act (R.A.) No. 9344,
37
or the Juvenile
Justice and Welfare Act of 2006, was enacted into law on
April 28, 2006 and it took effect on May 20, 2006.
38
The law
establishes a comprehensive system to manage children in
conflict with the law
39
(CICL) and children at risk
40
with child-
appropriate procedures and comprehensive programs and
services such as prevention, intervention, diversion,
rehabilitation, re-integration and after-care programs geared
towards their development. In order to ensure its
implementation, the law, particularly Section 8
41
thereof, has
created the Juvenile Justice and Welfare Council (JJWC)
and vested it with certain duties and functions
42
such as the
formulation of policies and strategies to prevent juvenile
delinquency and to enhance the administration of juvenile
justice as well as the treatment and rehabilitation of the
CICL. The law also
provides for the immediate dismissal of cases of CICL,
specifically Sections 64, 65, 66, 67 and 68 of R.A. No. 9344's
Transitory Provisions.
43

The said Transitory Provisions expressly provide:
Title VIII
Transitory Provisions
SECTION 64. Children in Conflict with the Law
Fifteen (15) Years Old and Below. Upon
effectivity of this Act, cases of children fifteen (15)
years old and below at the time of the commission
of the crime shall immediately be dismissed and the
1
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child shall be referred to the appropriate local social
welfare and development officer. Such officer, upon
thorough assessment of the child, shall determine
whether to release the child to the custody of
his/her parents, or refer the child to prevention
programs, as provided under this Act. Those with
suspended sentences and undergoing rehabilitation
at the youth rehabilitation center shall likewise be
released, unless it is contrary to the best interest of
the child.
SECTION 65. Children Detained Pending Trial. If
the child is detained pending trial, the Family Court
shall also determine whether or not continued
detention is necessary and, if not, determine
appropriate alternatives for detention. If detention is
necessary and he/she is detained with adults, the
court shall immediately order the transfer of the
child to a youth detention home.
SECTION 66. Inventory of "Locked-up" and
Detained Children in Conflict with the Law. The
PNP, the BJMP and the BUCOR are hereby
directed to submit to the JJWC, within ninety (90)
days from the effectivity of this Act, an inventory of
all children in conflict with the law under their
custody.
SECTION 67. Children Who Reach the Age of
Eighteen (18) Years Pending Diversion and Court
Proceedings. If a child reaches the age of
eighteen (18) years pending diversion and court
proceedings, the appropriate diversion authority in
consultation with the local social welfare and
development officer or the Family Court in
consultation with the Social Services and
Counseling Division (SSCD) of the Supreme Court,
as the case may be, shall determine the appropriate
disposition. In case the appropriate court executes
the judgment of conviction, and unless the child in
conflict with the law has already availed of probation
under Presidential Decree No. 603 or other similar
laws, the child may apply for probation if qualified
under the provisions of the Probation Law.
SECTION 68. Children Who Have Been Convicted
and are Serving Sentences. Persons who have
been convicted and are serving sentence at the
time of the effectivity of this Act, and who were
below the age of eighteen (18) years at the time of
the commission of the offense for which they were
convicted and are serving sentence, shall likewise
benefit from the retroactive application of this Act.
They shall be entitled to appropriate dispositions
provided under this Act and their sentences shall be
adjusted accordingly. They shall be immediately
released if they are so qualified under this Act or
other applicable laws.
Ostensibly, the only issue that requires resolution in this case
is whether or not petitioner is guilty beyond reasonable doubt
of the crime of rape as found by both the RTC and the CA.
However, with the advent of R.A. No. 9344 while petitioner's
case is pending before this Court, a new issue arises,
namely, whether the pertinent provisions of R.A. No. 9344
apply to petitioner's case, considering that at the time he
committed the alleged rape, he was merely 13 years old.
In sum, we are convinced that petitioner committed the crime
of rape against AAA. In a prosecution for rape, the
complainant's candor is the single most important factor. If
the complainant's testimony meets the test of credibility, the
accused can be convicted solely on that basis.
44
The RTC,
as affirmed by the CA, did not doubt AAA's credibility, and
found no ill motive for her to charge petitioner of the heinous
crime of rape and to positively identify him as the malefactor.
Both courts also accorded respect to BBB's testimony that
he saw petitioner having sexual intercourse with his younger
sister. While petitioner asserts that AAA's poverty is enough
motive for the imputation of the crime, we discard such
assertion for no mother or father like MMM and FFF would
stoop so low as to subject their daughter to the tribulations
and the embarrassment of a public trial knowing that such a
traumatic experience would damage their daughter's psyche
and mar her life if the charge is not true.
45
We find
petitioner's claim that MMM inflicted the abrasions found by
Dr. Jocson in the genitalia of AAA, in order to extort money
from petitioners parents, highly incredible. Lastly, it must be
noted that in most cases of rape committed against young
girls like AAA who was only 6 years old then, total
penetration of the victim's organ is improbable due to the
small vaginal opening. Thus, it has been held that actual
penetration of the victim's organ or rupture of the hymen is
not required.
46
Therefore, it is not necessary for conviction
that the petitioner succeeded in having full penetration,
because the slightest touching of the lips of the female organ
or of the labia of the pudendum constitutes rape.
47

However, for one who acts by virtue of any of the exempting
circumstances, although he commits a crime, by the
complete absence of any of the conditions which constitute
free will or voluntariness of the act, no criminal liability
arises.
48
Therefore, while there is a crime committed, no
criminal liability attaches. Thus, in Guevarra v.
Almodovar,
49
we held:
[I]t is worthy to note the basic reason behind the
enactment of the exempting circumstances
embodied in Article 12 of the RPC; the complete
absence of intelligence, freedom of action, or
intent, or on the absence of negligence on the
part of the accused. In expounding on intelligence
as the second element of dolus, Albert has stated:
"The second element of dolus is
intelligence; without this power, necessary
to determine the morality of human acts to
distinguish a licit from an illicit act, no
crime can exist, and because . . . the infant
1
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(has) no intelligence, the law exempts
(him) from criminal liability."
It is for this reason, therefore, why minors nine
years of age and below are not capable of
performing a criminal act.
In its Comment
50
dated April 24, 2008, the OSG posited that
petitioner is no longer covered by the provisions of Section
64 of R.A. No. 9344 since as early as 1999, petitioner was
convicted by the RTC and the conviction was affirmed by the
CA in 2001. R.A. No. 9344 was passed into law in 2006, and
with the petitioner now approximately 25 years old, he no
longer qualifies as a child as defined by R.A. No. 9344.
Moreover, the OSG claimed that the retroactive effect of
Section 64 of R.A. No. 9344 is applicable only if the child-
accused is still below 18 years old as explained under
Sections 67 and 68 thereof. The OSG also asserted that
petitioner may avail himself of the provisions of Section
38
51
of R.A. No. 9344 providing for automatic suspension of
sentence if finally found guilty. Lastly, the OSG argued that
while it is a recognized principle that laws favorable to the
accused may be given retroactive application, such principle
does not apply if the law itself provides for conditions for its
application.
We are not persuaded.
Section 6 of R.A. No. 9344 clearly and explicitly provides:
SECTION 6. Minimum Age of Criminal
Responsibility. A child fifteen (15) years of age or
under at the time of the commission of the offense
shall be exempt from criminal liability. However, the
child shall be subjected to an intervention program
pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen
(18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention
program, unless he/she has acted with
discernment, in which case, such child shall be
subjected to the appropriate proceedings in
accordance with this Act.
The exemption from criminal liability herein
established does not include exemption from civil
liability, which shall be enforced in accordance with
existing laws.
Likewise, Section 64 of the law categorically provides that
cases of children 15 years old and below, at the time of the
commission of the crime, shall immediately be dismissed and
the child shall be referred to the appropriate local social
welfare and development officer (LSWDO). What is
controlling, therefore, with respect to the exemption from
criminal liability of the CICL, is not the CICL's age at the time
of the promulgation of judgment but the CICL's age at the
time of the commission of the offense. In short, by virtue of
R.A. No. 9344, the age of criminal irresponsibility has been
raised from 9 to 15 years old.
52

Given this precise statutory declaration, it is imperative that
this Court accord retroactive application to the aforequoted
provisions of R.A. No. 9344 pursuant to the well-entrenched
principle in criminal law -favorabilia sunt amplianda adiosa
restrigenda. Penal laws which are favorable to the accused
are given retroactive effect.
53
This principle is embodied in
Article 22 of the Revised Penal Code, which provides:
Art. 22. Retroactive effect of penal laws. Penal
laws shall have a retroactive effect insofar as they
favor the persons guilty of a felony, who is not a
habitual criminal, as this term is defined in Rule 5 of
Article 62 of this Code, although at the time of the
publication of such laws, a final sentence has been
pronounced and the convict is serving the same.
We also have extant jurisprudence that the principle has
been given expanded application in certain instances
involving special laws.
54
R.A. No. 9344 should be no
exception.
In fact, the legislative intent for R.A. No. 9344's retroactivity
is even patent from the deliberations on the bill in the
Senate, quoted as follows:
Sections 67-69 On Transitory Provisions
Senator Santiago. In Sections 67 to 69 on
Transitory Provisions, pages 34 to 35, may I humbly
propose that we should insert, after Sections 67 to
69, the following provision:
ALL CHILDREN WHO DO NOT HAVE CRIMINAL
LIABILITY UNDER THIS LAW PENDING THE
CREATION OF THE OFFICE OF JUVENILE
WELFARE AND RESTORATION (OJWR) AND
THE LOCAL COUNCIL FOR THE PROTECTION
OF CHILDREN (LCPC) WITHIN A YEAR, SHALL
BE IMMEDIATELY TRANSFERRED TO DSWD
INSTITUTIONS, AND DSWD SHALL UNDERTAKE
DIVERSION PROGRAMS FOR THEM,
PRIORITIZING THE YOUNGER CHILDREN
BELOW 15 YEARS OF AGE AND THE LIGHTER
OFFENSES.
The only question will be: Will the DSWD have
enough facilities for these adult offenders?
Senator Pangilinan, Mr. President, according to the
CWC, the DSWD does not have the capability at
the moment. It will take time to develop the
capacity.
Senator Santiago. Well, we can say that they shall
be transferred whenever the facilities are ready.
1
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Senator Pangilinan. Yes. Mr. President, just a
clarification. When we speak here of children who
do not have criminal liability under this law, we are
referring here to those who currently have criminal
liability, but because of the retroactive effect of
this measure, will now be exempt. It is quite
confusing.
Senator Santiago. That is correct.
Senator Pangilinan. In other words, they should be
released either to their parents or through a
diversion program, Mr. President. That is my
understanding.
Senator Santiago. Yes, that is correct. But there will
have to be a process of sifting before that. That is
why I was proposing that they should be given to
the DSWD, which will conduct the sifting process,
except that apparently, the DSWD does not have
the physical facilities.
Senator Pangilinan. Mr. President, conceptually, we
have no argument. We will now have to just craft it
to ensure that the input raised earlier by the good
Senator is included and the capacity of the DSWD
to be able to absorb these individuals. Likewise, the
issue should also be incorporated in the
amendment.
The President. Just a question from the Chair. The
moment this law becomes effective, all those
children in conflict with the law, who were
convicted in the present Penal Code, for
example, who will now not be subject to
incarceration under this law, will be immediately
released. Is that the understanding?
Senator Pangilinan. Yes, Mr. President.
Senator Santiago. They would immediately fall
under . . . .
Senator Pangilinan. The diversion requirements,
Mr. President.
Senator Santiago. Yes.
The President. But since the facilities are not yet
available, what will happen to them?
Senator Santiago. Well, depending on their age,
which has not yet been settled . . . . . provides, for
example, for conferencing family mediation,
negotiation, apologies, censure, et cetera. These
methodologies will apply. They do not necessarily
have to remain in detention.
Senator Pangilinan. Yes, that is correct, Mr.
President. But it will still require some sort of
infrastructure, meaning, manpower. The personnel
from the DSWD will have to address the counseling.
So, there must be a transition in terms of building
the capacity and absorbing those who will benefit
from this measure.
The President. Therefore, that should be specifically
provided for as an amendment.
Senator Pangilinan. That is correct, Mr. President.
The President. All right. Is there any objection?
[Silence] There being none, the Santiago
amendment is accepted.
55

x x x x
PIMENTEL AMENDMENTS
x x x x
Senator Pimentel.
x x x x
Now, considering that laws are normally
prospective, Mr. President, in their application, I
would liketo suggest to the Sponsor if he could
incorporate some kind of a transitory provision
that would make this law apply also to those
who might already have been convicted but are
awaiting, let us say, execution of their penalties
as adults when, in fact, they are juveniles.
Senator Pangilinan. Yes, Mr. President. We do
have a provision under the Transitory
Provisions wherein we address the issue raised
by the good Senator, specifically, Section
67. For example, "Upon effectivity of this Act,
cases of children fifteen (15) years old and
below at the time of the commission of the
crime shall immediately be dismissed and the
child shall be referred to the appropriate local
social welfare and development officer." So that
would be giving retroactive effect.
Senator Pimentel. Of cases that are still to be
prosecuted.
Senator Pangilinan. Yes.
Senator Pimentel. What about those that have
already been prosecuted? I was trying to cite the
instance of juvenile offenders erroneously convicted
as adults awaiting execution.
1
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Senator Pangilinan. Mr. President, we are willing to
include that as an additional amendment, subject to
style.
Senator Pimentel. I would certainly appreciate that
because that is a reality that we have to address,
otherwise injustice will really be . . .
Senator Pangilinan. Yes, Mr. President, we would
also include that as a separate provision.
The President. In other words, even after final
conviction if, in fact, the offender is able to prove
that at the time of the commission of the offense he
is a minor under this law, he should be given the
benefit of the law.
Senator Pimentel. Yes, Mr. President. That is
correct.
Senator Pangilinan. Yes, Mr. President. We accept
that proposed amendment.
56

The Court is bound to enforce this legislative intent, which is
the dominant factor in interpreting a statute. Significantly, this
Court has declared in a number of cases, that intent is the
soul of the law, viz.:
The intent of a statute is the law. If a statute is valid
it is to have effect according to the purpose and
intent of the lawmaker. The intent is the vital part,
the essence of the law, and the primary rule of
construction is to ascertain and give effect to the
intent. The intention of the legislature in enacting a
law is the law itself, and must be enforced when
ascertained, although it may not be consistent with
the strict letter of the statute. Courts will not follow
the letter of a statute when it leads away from the
true intent and purpose of the legislature and to
conclusions inconsistent with the general purpose
of the act. Intent is the spirit which gives life to
a legislative enactment. In construing statutes the proper
course is to start out and follow the true intent of the
legislature and to adopt that sense which harmonizes best
with the context and promotes in the fullest manner the
apparent policy and objects of the legislature.
57

Moreover, penal laws are construed liberally in favor of the
accused.
58
In this case, the plain meaning of R.A. No. 9344's
unambiguous language, coupled with clear lawmakers'
intent, is most favorable to herein petitioner. No other
interpretation is justified, for the simple language of the new
law itself demonstrates the legislative intent to favor the
CICL.
It bears stressing that the petitioner was only 13 years old at
the time of the commission of the alleged rape. This was duly
proven by the certificate of live birth, by petitioner's own
testimony, and by the testimony of his mother. Furthermore,
petitioners age was never assailed in any of the proceedings
before the RTC and the CA. Indubitably, petitioner, at the
time of the commission of the crime, was below 15 years of
age. Under R.A. No. 9344, he is exempted from criminal
liability.
However, while the law exempts petitioner from criminal
liability for the two (2) counts of rape committed against AAA,
Section 6 thereof expressly provides that there is no
concomitant exemption from civil liability. Accordingly, this
Court sustains the ruling of the RTC, duly affirmed by the
CA, that petitioner and/or his parents are liable to pay AAA
P100,000.00 as civil indemnity. This award is in the nature of
actual or compensatory damages, and is mandatory upon a
conviction for rape.
The RTC, however, erred in not separately awarding moral
damages, distinct from the civil indemnity awarded to the
rape victim. AAA is entitled to moral damages in the amount
of P50,000.00 for each count of rape, pursuant to Article
2219 of the Civil Code, without the necessity of additional
pleading or proof other than the fact of rape. Moral damages
are granted in recognition of the victim's injury necessarily
resulting from the odious crime of rape.
59

A final note. While we regret the delay, we take consolation
in the fact that a law intended to protect our children from the
harshness of life and to alleviate, if not cure, the ills of the
growing number of CICL and children at risk in our country,
has been enacted by Congress. However, it has not escaped
us that major concerns have been raised on the effects of
the law. It is worth mentioning that in the Rationale for the
Proposed Rule on Children Charged under R.A. No. 9165, or
the Comprehensive Dangerous Drugs Act of 2002, it was
found that:
The passage of Republic Act No. 9344 or the
Juvenile Justice and Welfare Act of 2006 raising the
age of criminal irresponsibility from 9 years old to 15
years old has compounded the problem of
employment of children in the drug trade several
times over. Law enforcement authorities,Barangay
Kagawads and the police, most particularly,
complain that drug syndicates have become more
aggressive in using children 15 years old or below
as couriers or foot soldiers in the drug trade. They
claim that Republic Act No. 9344 has rendered
them ineffective in the faithful discharge of their
duties in that they are proscribed from taking into
custody children 15 years old or below who openly
flaunt possession, use and delivery or distribution of
illicit drugs, simply because their age exempts them
from criminal liability under the new law.
60

The Court is fully cognizant that our decision in the instant
case effectively exonerates petitioner of rape, a heinous
crime committed against AAA who was only a child at the
tender age of six (6) when she was raped by the petitioner,
and one who deserves the laws greater protection.
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However, this consequence is inevitable because of the
language of R.A. No. 9344, the wisdom of which is not
subject to review by this Court.
61
Any perception that the
result reached herein appears unjust or unwise should be
addressed to Congress. Indeed, the Court has no discretion
to give statutes a meaning detached from the manifest
intendment and language of the law. Our task is
constitutionally confined only to applying the law and
jurisprudence to the proven facts, and we have done so in
this case.
62

WHEREFORE, in view of the foregoing, Criminal Case Nos.
98-19083 and 98-19084 filed against petitioner Joemar F.
Ortega are hereby DISMISSED. Petitioner is hereby referred
to the local social welfare and development officer of the
locality for the appropriate intervention program.
Nevertheless, the petitioner is hereby ordered to pay private
complainant AAA, civil indemnity in the amount of One
Hundred Thousand Pesos (P100,000.00) and moral
damages in the amount of One Hundred Thousand Pesos
(P100,000.00). No costs.
Let a copy of this Decision be furnished the two Houses of
Congress and the Juvenile Justice and Welfare Council
(JJWC).
SO ORDERED.
ARTICLE 6

CALLANTA v NLRC
G.R. No. 105083, August 30, 1993
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 105083 August 20, 1993
VIRGILIO CALLANTA, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION,
DISTILLERIA LIMTUACO CO., INC. and/or JULIUS T.
LIMPE., as President and General Manager, respondents.
M.P. Gallego, Borja & Co. for petitioner.
Jose T. de Leon for Distilleria Limtuaco & Co., Inc.

BIDIN, J .:
In this petition for certiorari, petitioner Virgilio Callanta seeks
the annulment or setting aside of the decision of public
respondent National Labor Relations Commission (NLRC)
dated September 10, 1991 which reversed the finding of
illegal dismissal and order of reinstatement with backwages
by the Executive Labor Arbiter Zosimo T. Vassalo.
The undisputed fact are as follows:
From June 18, 1986 to December 31, 1986, petitioner was
appointed as sub-agent by respondent company under
supervision of Edgar Rodriguez with specific assignment at
Iligan City and Lanao Province.
In October of 1986, or before the expiration his appointment,
petitioner was promoted to the position of national promoter
salesman of respondent company for Iligan City, Lanao del
Norte and Lanao del Sur (Rollo, p. 29). On 28 April 1987, a
however, a "spot audit" was conducted and petitioner was
found to have a tentative shortage in amount of P49,005.59
(Rollo, p. 30).
On 30 April 1987, petitioner rendered his resignation to
private respondent Julius T. Limpe, effective on the same
date. The petitioner's resignation letter is herein quoted in
toto:
April 30, 1987
MR. JULIUS T. LIMPE
President & Gen. Manager
Destilleria Limtuaco & Co., Inc.
1830 EDSA, Quezon City
Dear Sir:
I have the honor to render (sic) my
resignation as National Promoter
Salesman effective April 30, 1987.
I take this opportunity to thank you for the
invaluable experience I gained during my
stay here. As I leave, I take such
experience as a stepping stone in pursuing
greener pasture with the same honesty
ands integrity I have displayed in the
performance of my duties while on your
employ.
Rest assured that if problem arise (sic) in
the future I shall be happy to assist in any
way I can.
Respectfully yours,
(SGD.) VIRGILIO CALLANTA
Seven months thereafter, petitioner wrote a letter to private
respondent Limpe complaining about his false resignation
1
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and demanding for the refund of the amount of P76,465.81
as well as reinstatement to his former position.
Respondent company ignored above demands and on
March 21, 1988, petitioner filed a complaint against,
respondent company before the NLRC Regional Arbitration
Branch No. X for illegal dismissal, unpaid commission and
receivable and/or claims due, non-payment of vacation
leaves, holiday pays, 13th month pay, COLA and other
company benefits and damages (Rollo, p. 4).
On the basis of the petition papers submitted by the parties,
the Labor Arbiter rendered a decision declaring termination
of petitioner's services illegal. The dispositive portion of the
decision reads:
IN VIEW OF THE FOREGOING, judgment
is hereby entered declaring the termination
of complianant by respondent as illegal
and ordering respondent to immediately
reinstate complainant to his former position
as National Promoter Salesman with
backwages from the time of his dismissal
until actually reinstated plus other benefits
which he is supposed to be entitled to had
he not been unlawfully dismissed.
Ordering respondent to pay and/or refund
to complainant the sum of P76,893.42 as
per audit finding of respondent and to pay
an amount equivalent to 10% of the
aggregate award as attorney's fee, plus
the sum of P10,000.00 as the allowance
still due to complaint as discussed above.
All the other claims are hereby dismissed
for lack of merit.
SO ORDERED. (Rollo, p. 21.)
Aggrieved by the decision, respondent company appealed
the same to the Fifth Division of the NLRC in Cagayan de
Oro City on March 20, 1989. On October 16, 1989
respondent NLRC issued an order requiring private
respondent company as appellant therein, to post a cash or
surety bond in the amount equal to the monetary award in
the Labor Arbiter's judgment. Pursuant to the provisions of
the then newly promulgated Republic Act No. 6715, the
NLRC also ordered immediate reinstatement of petitioner to
his former position either physically or in the payroll, at the
option of respondent company. Two (2) months from the
date of the Order, private respondent filed the required bond
but did not reinstate petitioner.
Meanwhile, petitioner filed with respondent NLRC a Motion
for Writ of Execution pending appeal dated November 12,
1990 praying for the immediate execution of the
reinstatement aspect of the Labor Arbiter's decision in
accordance with the October 16, 1989 Order of the NLRC as
well as Article 223 of the Labor Code as amended by R.A.
6715. The motion for the writ of execution was not acted
upon up to the time where public respondent NRLC decided
the appeal on September 10, 1991, which as aforesaid, set
aside the decision of the Labor Arbiter and dismissed the
complaint of petitioner for lack of merit.
Petitioner now comes to this Court by way of special civil
action of certiorari praying for the nullification of the decision
of public respondent anchored on the following grounds:
I THE HONORABLE NATIONAL LABOR RELATIONS
COMMISSION ACTED WITHOUT JURISDICTION AND
WITH GRAVE ABUSE OF DISCRETION WHEN IT DID NOT
CONSIDER AND GIVE DUE COURSE TO THE MOTION
FOR WRIT OF EXECUTION FOR IMMEDIATE
REINSTATEMENT OF PETITIONER BY RESPONDENT.
II THE HONORABLE NATIONAL LABOR RELATIONS
WITH GRAVE ABUSE OF DISCRETION WHEN IT RULED
THAT THE ALLEGED RESIGNATION LETTER
COMPLAINANT WAS VALID AND EFFECTIVE CONTRARY
TO THE FINDINGS OF THE LABOR ARBITER THAT THE
SAME WAS FORCED UPON COMPLAINANT.
III THE HONORABLE NATIONAL LABOR RELATIONS
WITH GRAVE ABUSE OF DISCRETION WHEN IT FAILED
TO CONSIDER THAT COMPLAINANT IS STILL ENTITLED
TO THE PAYMENT AND/OR REFUND OF P76,893.42 AS
PER AUDIT FINDING OF RESPONDENT COMPANY'S
AUDITOR PLUS THE SUM OF P10,000.00 AS
ALLOWANCE STILL DUE TO COMPLAINANT. (Rollo, p. 6.)
To resolve the first issue raised by petitioner, it is imperative
to note the dates involved in the present case in order to
determine whether petitioner was entitled to the immediate
execution of the reinstatement aspect of the Labor Arbiter's
decision.
As borne by the records, the Labor Arbiter rendered his
decision in favor of petitioner on February 16, 1989. Private
respondent, on the other hand, filed its appeal on March 20,
1989. Ironically, Republic Act No. 6715, which granted the
right to immediate reinstatement under Section 12 thereof
amending Article 223 of the Labor Code, became effective
on March 21, 1989, or the day after the appeal was filed by
private respondent company. Meanwhile, the NLRC Interim
Rules on Appeal under Republic Act No. 6715 became
effective on September 5, 1989.
Given this factual background, it is apparent that when the
Labor Arbiter rendered his decision and even up to the time
when private respondent company filed an appeal therefrom,
Republic Act No. 6715 was not yet in effect. Thus, the most
logical and necessary consequence was that the execution
of the Labor Arbiter's decision as well as the requirements
for the perfection of the appeal would have to be governed
by the rules prevailing prior to the amendment of the Labor
Code by R. A. 6715.
1
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Prior to the amendment of Article 223 of the Labor code by
R. A. 6715, "decisions, awards, orders of the Labor Arbiter
are final and executory unless appealed to the
Commission within ten (10) days from receipt of such
awards, orders, or decisions" (emphasis supplied). There
was then no provision providing for an execution pending
appeal. Hence, under the facts of the present petition,
petitioner had no right to ask for the immediate enforcement
of the reinstatement aspect of the Labor Arbiter's decision,
no such right having been granted to him under the old rules.
Instead, the decision of the Labor Arbiter was stayed by the
timely filing of the appeal by private respondent company.
In the motion for writ of execution filed by petitioner, he
contended that the appeal of private respondent company
was not perfected since there was no bond filed along with
appeal (Rollo, p. 22).
Petitioner erroneously based his argument on premise that
the amended provisions of Article 223 of the Labor Code are
applicable to his case. But as previously emphasized, R.A.
No. 6715 was not yet in force at the time the appeal was
filed. Neither can R.A. No. 6715 be deemed to have
retroactive effect, prospective application of the law being the
rule rather than the exception (Article 4, New Civil Code).
More so in the present case where the law (R.A. No. 6715)
itself did not provide for retroactive application (Inciong vs.
National Labor Relations Commission, 185 SCRA 651
[1990]).
Thus, applying the old rules, where perfection of the appeal
involved only "the payment of the appeal fee and the filing of
the position paper containing among others, the assignment
of error/s, the argument/s in support thereof, and the reliefs
sought within the prescribed period" (Omnibus Rules
Implementing the Labor Code Book V, Rule I Section 1(s),
there is no doubt that private respondent company's appeal
was duly perfected.
It cannot be denied, however, that upon the effectivity of R.A.
No. 6715, public respondent NLRC ordered private
respondent company to post the additional requirement of
cash bond and immediate reinstatement of the petitioner. By
this time, the appeal of private respondent company has
already been perfected in accordance with the old rules.
Consequently, the latter's failure to timely comply with the
bond requirement cannot be deemed in any way to affect the
perfection of the appeal. Besides, considering the factual
peculiarities of the present petition as above-described,
compliance with the bond requirement, although a
jurisdictional requirement, should be liberally construed to
give way to substantial justice. The same sentiment was
expressed by this Court in the 1990 case of YBL (Your Bus
Line) vs. NRLC (190 SCRA 160), where the factual
background of the case likewise played a vital role in
upholding a liberal interpretation of the rules. In the
aforementioned case, We held:
The Court finds that while Article 223 of
the Labor Code, as amended by Republic
Act No. 6715, requiring a cash or surety
bond in the amount equivalent to the
monetary award in the judgment appealed
from for the appeal to be perfected, may
be considered a jurisdictional requirement,
nevertheless, adhering to the principle that
substantial justice is better served by
allowing the appeal on the merits threshed
out by the NLRC, the Court finds and so
holds that the foregoing requirement of law
should be given a liberal interpretation.
In rebuffing the contentions of petitioner involving the issue
of immediate execution, public respondent NLRC correctly
ruled that it had no jurisdiction to act upon the motion for writ
of execution. Since it was the labor arbiter who issued the
decision sought to be executed, the motion for execution
should also be filed with the labor arbiter, as explicitly
provided in the New Rules of Procedure of the National
Labor Relations Commission Rule V Section 16 (3) to wit:
In case the decision includes an order of
reinstatement, the Labor Arbiter shall
direct the employer to immediately
reinstate the dismissed or separated
employee even pending appeal. The order
or reinstatement shall indicate that the
employee shall either be admitted back to
work under the same terms and conditions
prevailing prior to his dismissal or
separation or, at the option of the
employer, merely reinstated in the payroll.
(emphasis supplied)
Coming now to the main issue of the present petition, i.e.,
whether the resignation by petitioner was valid and effective
this Court believes and so holds that the resignation
tendered by petitioner was voluntary, and therefore valid, in
the absence of any evidence of coercion and intimidation on
the part of private respondent company.
Petitioner claims that private respondent company thru
private respondent Julius Limpe showed him am alleged
"spot audit" report wherein petitioner appeared to be short of
P49,005.59. He was then handed a ready made resignation
letter and ordered to sign the same otherwise an estafa case
will be filed against him (Rollo, p. 8). The only evidence
presented by petitioner to support his contention of coercion
was a letter written by himself and addressed to private
respondent Limpe, to wit:
Nov. 17, 1987
Mr. J. T. Limpe
Distilleria Limtuaco & Co. Inc.
1830 Edsa Balintawak
Quezon City
Sir:
1
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The basic inspiration why you dismissed or
forced me to resign was that I was
identified with Mr. R.S. Chua the Sales
Manager for Visayas & Mindanao. Your so
called "post audit" was but a convenient
afterthought and was designed to give
semblance of legality to your otherwise
illegal acts. As a matter of fact and
contrary to the finding of such "post audit",
I had an average or amount refundable to
me to be exact P76,465.81. From March
1986 up to Sept. 30, 1986 I do not have
any accountability with Limtuaco what so
ever as I was sub-agent of E.V. Rodriguez.
The refusal of Mrs. Lourdes Galang to
show me the records/audit of Mr. E. V.
Rodriguez and of L. Pong, Jr. raise doubts
as to what your intentions are.
I therefore demand of you to refund me
such amount and reinstate me from my
position as "National Promoter" otherwise I
will be constrained to file against you a
labor case.
Very truly yours,
V. P. CALLANTA (SGD.) (Rollo, p. 18)
We agree with public respondent NLRC that petitioner "failed
to adduce evidence that may prove that and resignation was
obtained by means of coercion and intimidation" (Rollo, p.
33). The aforequoted letter depicting the coercion allegedly
imposed upon him as well as the reason therefore, was
nothing but a self-serving assertion which has so little or no
value at all as evidence for the petitioner.
Moreover, it is a well-settled principle that for intimidation to
vitiate consent, petitioner must have been compelled by a
reasonable and well-grounded fear of an imminent and grave
evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants (Article
1335, par. 2 New Civil Code). In present case, what allegedly
constituted the "intimidation" was the threat by private
respondent company to file a case for estafa against
petitioner unless the latter resigns.
In asserting that the above-described circumstance
constituted intimidation, petitioner missed altogether the
essential ingredient that would qualify the act complained of
as intimidation, i.e. that the threat must be of anunjust act. In
the present case, the threat to prosecute for estafa not being
an unjust act (P.P. Agustinos vs. Del Rey, 56 Phil. 512
[1932]), but rather a valid and legal act to enforce a claim,
cannot at all be considered as intimidation. A threat to
enforce one's claim through competent authority, if the claim
is just or legal, does not vitiate consent. (Article 1335, par. 4
New Civil Code).
Furthermore, and on top of the absence of evidence
adduced by petitioner to the contrary, the Court also finds it
unbelievable that petitioner was rattled and confused into
signing a resignation letter on account of a mere "spot audit"
report. It is highly unlikely and incredible for man of
petitioner's position and educational attainment to so easily
succumb to private respondent company's alleged pressures
without even defending himself nor demanding a final audit
report before signing any resignation letter. Assuming that
pressure was indeed exerted against him, there was no
urgency for petitioner to sign the resignation letter. He knew
the nature of the letter that he was signing, for as argued by
respondent company, petitioner being "a man of high
educational attainment and qualification, . . . he is expected
to know the import of everything that he executes, whether
written or oral: (Rollo, p. 124). In view of foregoing factual
setting, petitioner cannot now be allowed to withdraw the
resignation which, in the absence of any evidence to the
contrary, the Court believes was tendered voluntarily by him.
Anent the claims for refund, petitioner once against failed to
convincingly prove the authenticity of his claim against
private respondent company. Petitioner claims that the
amounts of P76,893.42 and P10,000.00 allegedly owed to
him by private respondent company were matter proved
during the hearings before the Labor Arbiter (Rollo, p.10).
However, the records show that no hearing for the reception
of evidence was ever conducted by the Labor Arbiter. At
most, what transpired were preliminary hearings which had
to be reset for five (5) times due to the absence of counsel
for private respondent (Rollo, p. 4). In fact, because of the
absence of counsel for respondent company, the Labor
Arbiter just ordered the parties to submit their respective
position papers in lieu of actual hearings. This having been
the case, the Court is not convinced that the money claims of
petitioner have really been proven during the alleged
hearings before the Labor Arbiter, if any, especially in the
present case where the money claims are even refuted by
private respondent.
In support of its claims for refund, petitioner presented a
written summation of accounts reflecting the amounts
allegedly owed by private respondent company to him.
However, the aforestated summation is undated and
unsigned, thus inadmissible and uncertain as to its origin and
authenticity. Further kindling the flame of suspicion as to the
origin of the summation in question is the context of the
November 17, 1987 letter of petitioner to private respondent
Limpe. Quite unusual is the fact that in refuting the findings
of the alleged "post audit" conducted by private respondent
company, petitioner did not even bother to mention the
source of his conclusion that private respondent company
still owes him P76,893.42, while at the same time
complaining that somehow he is being refused access to and
disclosure of some of the company records, particularly the
records/audit of E.V. Rodriguez and J. Pong, Jr. These facts
are inconsistent with petitioner's contention that is was the
auditor of private respondent company itself who made the
written summation.
1
st

Finally, the claim of petitioner for unpaid allowances
amounting to P10,000.00 was satisfactorily refuted by
evidence presented by private respondent company in the
form of vouchers proving payment of the same (Rollo, p. 98).
Thus, petitioner has no more right to demand payment of the
same.
WHEREFORE, the petition is DISMISSED for lack of merit.
Costs against petitioner.
SO ORDERED.
GUY v COURT OF APPEALS
G.R. No. 163707, September 15, 2006
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 163707 September 15, 2006
MICHAEL C. GUY, petitioner,
vs.
HON. COURT OF APPEALS, HON. SIXTO MARELLA, JR.,
Presiding Judge, RTC, Branch 138, Makati City and
minors, KAREN DANES WEI and KAMILLE DANES WEI,
represented by their mother, REMEDIOS
OANES, respondents.
D E C I S I O N
YNARES-SANTIAGO, J .:
This petition for review on certiorari assails the January 22,
2004 Decision
1
of the Court of Appeals in CA-G.R. SP No.
79742, which affirmed the Orders dated July 21, 2000
2
and
July 17, 2003
3
of the Regional Trial Court of Makati City,
Branch 138 in SP Proc. Case No. 4549 denying petitioner's
motion to dismiss; and its May 25, 2004 Resolution
4
denying
petitioner's motion for reconsideration.
The facts are as follows:
On June 13, 1997, private respondent-minors Karen Oanes
Wei and Kamille Oanes Wei, represented by their mother
Remedios Oanes (Remedios), filed a petition for letters of
administration
5
before the Regional Trial Court of Makati
City, Branch 138. The case was docketed as Sp. Proc. No.
4549 and entitled Intestate Estate of Sima Wei (a.k.a. Rufino
Guy Susim).
Private respondents alleged that they are the duly
acknowledged illegitimate children of Sima Wei, who died
intestate in Makati City on October 29, 1992, leaving an
estate valued at P10,000,000.00 consisting of real and
personal properties. His known heirs are his surviving
spouse Shirley Guy and children, Emy, Jeanne, Cristina,
George and Michael, all surnamed Guy. Private respondents
prayed for the appointment of a regular administrator for the
orderly settlement of Sima Wei's estate. They likewise
prayed that, in the meantime, petitioner Michael C. Guy, son
of the decedent, be appointed as Special Administrator of
the estate. Attached to private respondents' petition was a
Certification Against Forum Shopping
6
signed by their
counsel, Atty. Sedfrey A. Ordoez.
In his Comment/Opposition,
7
petitioner prayed for the
dismissal of the petition. He asserted that his deceased
father left no debts and that his estate can be settled without
securing letters of administration pursuant to Section 1, Rule
74 of the Rules of Court. He further argued that private
respondents should have established their status as
illegitimate children during the lifetime of Sima Wei pursuant
to Article 175 of the Family Code.
The other heirs of Sima Wei filed a Joint Motion to
Dismiss
8
on the ground that the certification against forum
shopping should have been signed by private respondents
and not their counsel. They contended that Remedios should
have executed the certification on behalf of her minor
daughters as mandated by Section 5, Rule 7 of the Rules of
Court.
In a Manifestation/Motion as Supplement to the Joint Motion
to Dismiss,
9
petitioner and his co-heirs alleged that private
respondents' claim had been paid, waived, abandoned or
otherwise extinguished by reason of Remedios' June 7, 1993
Release and Waiver of Claim stating that in exchange for the
financial and educational assistance received from petitioner,
Remedios and her minor children discharge the estate of
Sima Wei from any and all liabilities.
The Regional Trial Court denied the Joint Motion to Dismiss
as well as the Supplemental Motion to Dismiss. It ruled that
while the Release and Waiver of Claim was signed by
Remedios, it had not been established that she was the duly
constituted guardian of her minor daughters. Thus, no
renunciation of right occurred. Applying a liberal application
of the rules, the trial court also rejected petitioner's
objections on the certification against forum shopping.
Petitioner moved for reconsideration but was denied. He filed
a petition for certiorari before the Court of Appeals which
affirmed the orders of the Regional Trial Court in its assailed
Decision dated January 22, 2004, the dispositive portion of
which states:
WHEREFORE, premises considered, the present
petition is hereby DENIED DUE COURSE and
accordingly DISMISSED, for lack of merit.
Consequently, the assailed Orders dated July 21,
2000 and July 17, 2003 are hereby both
AFFIRMED. Respondent Judge is hereby
DIRECTED to resolve the controversy over the
illegitimate filiation of the private respondents (sic)
minors [-] Karen Oanes Wei and Kamille Oanes Wei
who are claiming successional rights in the intestate
estate of the deceased Sima Wei, a.k.a. Rufino Guy
Susim.
SO ORDERED.
10

The Court of Appeals denied petitioner's motion for
reconsideration, hence, this petition.
Petitioner argues that the Court of Appeals disregarded
existing rules on certification against forum shopping; that
the Release and Waiver of Claim executed by Remedios
released and discharged the Guy family and the estate of
1
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Sima Wei from any claims or liabilities; and that private
respondents do not have the legal personality to institute the
petition for letters of administration as they failed to prove
their filiation during the lifetime of Sima Wei in accordance
with Article 175 of the Family Code.
Private respondents contend that their counsel's certification
can be considered substantial compliance with the rules on
certification of non-forum shopping, and that the petition
raises no new issues to warrant the reversal of the decisions
of the Regional Trial Court and the Court of Appeals.
The issues for resolution are: 1) whether private
respondents' petition should be dismissed for failure to
comply with the rules on certification of non-forum shopping;
2) whether the Release and Waiver of Claim precludes
private respondents from claiming their successional rights;
and 3) whether private respondents are barred by
prescription from proving their filiation.
The petition lacks merit.
Rule 7, Section 5 of the Rules of Court provides that the
certification of non-forum shopping should be executed by
the plaintiff or the principal party. Failure to comply with the
requirement shall be cause for dismissal of the case.
However, a liberal application of the rules is proper where
the higher interest of justice would be served. InSy Chin v.
Court of Appeals,
11
we ruled that while a petition may have
been flawed where the certificate of non-forum shopping was
signed only by counsel and not by the party, this procedural
lapse may be overlooked in the interest of substantial
justice.
12
So it is in the present controversy where the
merits
13
of the case and the absence of an intention to
violate the rules with impunity should be considered as
compelling reasons to temper the strict application of the
rules.
As regards Remedios' Release and Waiver of Claim, the
same does not bar private respondents from claiming
successional rights. To be valid and effective, a waiver must
be couched in clear and unequivocal terms which leave no
doubt as to the intention of a party to give up a right or
benefit which legally pertains to him. A waiver may not be
attributed to a person when its terms do not explicitly and
clearly evince an intent to abandon a right.
14

In this case, we find that there was no waiver of hereditary
rights. The Release and Waiver of Claim does not state with
clarity the purpose of its execution. It merely states that
Remedios received P300,000.00 and an educational plan for
her minor daughters "by way of financial assistance and in
full settlement of any and all claims of whatsoever nature and
kind x x x against the estate of the late Rufino Guy
Susim."
15
Considering that the document did not specifically
mention private respondents' hereditary share in the estate
of Sima Wei, it cannot be construed as a waiver of
successional rights.
Moreover, even assuming that Remedios truly waived the
hereditary rights of private respondents, such waiver will not
bar the latter's claim. Article 1044 of the Civil Code, provides:
ART. 1044. Any person having the free disposal of
his property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated
persons may be accepted by their parents or
guardians. Parents or guardians may repudiate
the inheritance left to their wards only by
judicial authorization.
The right to accept an inheritance left to the poor
shall belong to the persons designated by the
testator to determine the beneficiaries and distribute
the property, or in their default, to those mentioned
in Article 1030. (Emphasis supplied)
Parents and guardians may not therefore repudiate the
inheritance of their wards without judicial approval. This is
because repudiation amounts to an alienation of
property
16
which must pass the court's scrutiny in order to
protect the interest of the ward. Not having been judicially
authorized, the Release and Waiver of Claim in the instant
case is void and will not bar private respondents from
asserting their rights as heirs of the deceased.
Furthermore, it must be emphasized that waiver is the
intentional relinquishment of a known right. Where one lacks
knowledge of a right, there is no basis upon which waiver of
it can rest. Ignorance of a material fact negates waiver, and
waiver cannot be established by a consent given under a
mistake or misapprehension of fact.
17

In the present case, private respondents could not have
possibly waived their successional rights because they are
yet to prove their status as acknowledged illegitimate
children of the deceased. Petitioner himself has consistently
denied that private respondents are his co-heirs. It would
thus be inconsistent to rule that they waived their hereditary
rights when petitioner claims that they do not have such
right. Hence, petitioner's invocation of waiver on the part of
private respondents must fail.
Anent the issue on private respondents' filiation, we agree
with the Court of Appeals that a ruling on the same would be
premature considering that private respondents have yet to
present evidence. Before the Family Code took effect, the
governing law on actions for recognition of illegitimate
children was Article 285 of the Civil Code, to wit:
ART. 285. The action for the recognition of natural
children may be brought only during the lifetime of
the presumed parents, except in the following
cases:
(1) If the father or mother died during the
minority of the child, in which case the latter
may file the action before the expiration of four
years from the attainment of his majority;
(2) If after the death of the father or of the mother a
document should appear of which nothing had been
heard and in which either or both parents recognize
the child.
In this case, the action must be commenced within
four years from the finding of the document.
(Emphasis supplied)
We ruled in Bernabe v. Alejo
18
that illegitimate children who
were still minors at the time the Family Code took effect and
1
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whose putative parent died during their minority are given the
right to seek recognition for a period of up to four years from
attaining majority age. This vested right was not impaired or
taken away by the passage of the Family Code.
19

On the other hand, Articles 172, 173 and 175 of the Family
Code, which superseded Article 285 of the Civil Code,
provide:
ART. 172. The filiation of legitimate children is
established by any of the following:
(1) The record of birth appearing in the civil register
or a final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
(1) The open and continuous possession of the
status of a legitimate child; or
(2) Any other means allowed by the Rules of Court
and special laws.
ART. 173. The action to claim legitimacy may be
brought by the child during his or her lifetime and
shall be transmitted to the heirs should the child die
during minority or in a state of insanity. In these
cases, the heirs shall have a period of five years
within which to institute the action.
The action already commenced by the child shall
survive notwithstanding the death of either or both
of the parties.
ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the
same, evidence as legitimate children.
The action must be brought within the same period
specified in Article 173, except when the action is
based on the second paragraph of Article 172, in
which case the action may be brought during the
lifetime of the alleged parent.
Under the Family Code, when filiation of an illegitimate child
is established by a record of birth appearing in the civil
register or a final judgment, or an admission of filiation in a
public document or a private handwritten instrument signed
by the parent concerned, the action for recognition may be
brought by the child during his or her lifetime. However, if the
action is based upon open and continuous possession of the
status of an illegitimate child, or any other means allowed by
the rules or special laws, it may only be brought during the
lifetime of the alleged parent.
It is clear therefore that the resolution of the issue of
prescription depends on the type of evidence to be adduced
by private respondents in proving their filiation. However, it
would be impossible to determine the same in this case as
there has been no reception of evidence yet. This Court is
not a trier of facts. Such matters may be resolved only by the
Regional Trial Court after a full-blown trial.
While the original action filed by private respondents was a
petition for letters of administration, the trial court is not
precluded from receiving evidence on private respondents'
filiation. Its jurisdiction extends to matters incidental and
collateral to the exercise of its recognized powers in handling
the settlement of the estate, including the determination of
the status of each heir.
20
That the two causes of action, one
to compel recognition and the other to claim inheritance, may
be joined in one complaint is not new in our
jurisprudence.
21
As held in Briz v. Briz:
22

The question whether a person in the position of the
present plaintiff can in any event maintain a
complex action to compel recognition as a natural
child and at the same time to obtain ulterior relief in
the character of heir, is one which in the opinion of
this court must be answered in the affirmative,
provided always that the conditions justifying the
joinder of the two distinct causes of action are
present in the particular case. In other words, there
is no absolute necessity requiring that the action to
compel acknowledgment should have been
instituted and prosecuted to a successful conclusion
prior to the action in which that same plaintiff seeks
additional relief in the character of heir. Certainly,
there is nothing so peculiar to the action to compel
acknowledgment as to require that a rule should be
here applied different from that generally applicable
in other cases. x x x
The conclusion above stated, though not heretofore
explicitly formulated by this court, is undoubtedly to
some extent supported by our prior decisions. Thus,
we have held in numerous cases, and the doctrine
must be considered well settled, that a natural child
having a right to compel acknowledgment, but who
has not been in fact acknowledged, may maintain
partition proceedings for the division of the
inheritance against his coheirs (Siguiong vs.
Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil.,
62); and the same person may intervene in
proceedings for the distribution of the estate of his
deceased natural father, or mother (Capistrano vs.
Fabella, 8 Phil., 135; Conde vs. Abaya, 13 Phil.,
249; Ramirez vs. Gmur, 42 Phil., 855). In neither of
these situations has it been thought necessary for
the plaintiff to show a prior decree compelling
acknowledgment. The obvious reason is that in
partition suits and distribution proceedings the other
persons who might take by inheritance are before
the court; and the declaration of heirship is
appropriate to such proceedings.
WHEREFORE, the instant petition is DENIED. The Decision
dated January 22, 2004 of the Court of Appeals in CA-G.R.
SP No. 79742 affirming the denial of petitioner's motion to
dismiss; and its Resolution dated May 25, 2004 denying
petitioner's motion for reconsideration, are AFFIRMED. Let
the records be REMANDED to the Regional Trial Court of
Makati City, Branch 138 for further proceedings.
SO ORDERED.

ARTICLE 7
1
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GARCIA v SANDIGANBAYAN
G.R. No. 165835, June 22, 2005
SUPREME COURT
Manila
EN BANC
G.R. No. 165835 June 22, 2005
MAJOR GENERAL CARLOS F. GARCIA, Petitioner,
vs.
SANDIGANBAYAN and the OFFICE OF THE
OMBUDSMAN, Respondents.
D E C I S I O N
Tinga, J .:
Petitioner Major General Carlos F. Garcia was the Deputy
Chief of Staff for Comptrollership, J6, of the Armed Forces of
the Philippines. Petitioner filed this Petition for certiorari and
prohibition under Rule 65 to annul and set aside public
respondent Sandiganbayans Resolution
1
dated 29 October
2004 and Writ of Preliminary Attachment
2
dated 2 November
2004, and to enjoin public respondents Sandiganbayan and
Office of the Ombudsman from further proceeding with any
action relating to the enforcement of the assailed issuances.
On 27 September 2004, Atty. Maria Olivia Elena A. Roxas,
Graft Investigation and Prosecution Officer II of the Field
Investigation Office of the Office of the Ombudsman, after
due investigation, filed a complaint against petitioner with
public respondent Office of the Ombudsman, for violation of
Sec. 8, in relation to Sec. 11 of Republic Act (R.A.) No.
6713,
3
violation of Art. 183 of the Revised Penal Code, and
violation of Section 52 (A)(1), (3) and (20) of the Civil Service
Law. Based on this complaint, a case for Violations of R.A.
No. 1379,
4
Art. 183 of the Revised Penal Code, and Sec. 8 in
relation to Sec. 11 of R.A. No. 6713, docketed as Case
No. OMB-P-C-04-1132-I, was filed against
petitioner.
5
Petitioners wife Clarita Depakakibo Garcia, and
their three sons, Ian Carl, Juan Paolo and Timothy Mark, all
surnamed Garcia, were impleaded in the complaint for
violation of R.A. No. 1379 insofar as they acted as
conspirators, conduits, dummies and fronts of petitioner in
receiving, accumulating, using and disposing of his ill-gotten
wealth.
On the same day, 27 October 2004, the Republic of the
Philippines, acting through public respondent Office of the
Ombudsman, filed before the Sandiganbayan, a Petition with
Verified Urgent Ex Parte Application for the Issuance of a
Writ of Preliminary Attachment
6
against petitioner, his wife,
and three sons, seeking the forfeiture of unlawfully acquired
properties under Sec. 2 of R.A. No. 1379, as amended. The
petition was docketed as Civil Case No. 0193, entitled
"Republic of the Philippines vs. Maj. Gen. Carlos F.
Garcia, et al." It was alleged that the Office of the
Ombudsman, after conducting an inquiry similar to a
preliminary investigation in criminal cases, has determined
that a prima facie case exists against Maj. Gen. Garcia and
the other respondents therein who hold such properties for,
with, or on behalf of, Maj. Gen. Garcia, since during his
incumbency as a soldier and public officer he acquired huge
amounts of money and properties manifestly out of
proportion to his salary as such public officer and his other
lawful income, if any.
7

Acting on the Republics prayer for issuance of a writ of
preliminary attachment, the Sandiganbayan issued the
questioned Resolution granting the relief prayed for. The
corresponding writ of preliminary attachment was
subsequently issued on 2 November 2004 upon the filing of
a bond by the Republic. On 17 November 2004, petitioner
(as respondent a quo) filed a Motion to Dismiss
8
in Civil
Case No. 0193 on the ground of lack of jurisdiction of the
Sandiganbayan over forfeiture proceedings under R.A. No.
1379. On even date, petitioner filed the present Petition,
raising the same issue of lack jurisdiction on the part of the
Sandiganbayan.
Petitioner argues in this Petition that the Sandiganbayan is
without jurisdiction over the "civil action" for forfeiture of
unlawfully acquired properties under R.A. No. 1379,
maintaining that such jurisdiction actually resides in the
Regional Trial Courts as provided under Sec. 2
9
of the law,
and that the jurisdiction of the Sandiganbayan in civil actions
pertains only to separate actions for recovery of unlawfully
acquired property against President Marcos, his family, and
cronies as can be gleaned from Sec. 4 of Presidential
Decree (P.D.) No. 1606,
10
as amended, and Executive
Orders (E.O.) Nos. 14
11
and 14-A.
12

Theorizing that the Sandiganbayan, under P.D. No. 1606 or
the law creating it, was intended principally as a criminal
court, with no jurisdiction over separate civil actions,
petitioner points to President Corazon C. Aquinos issuances
after the EDSA Revolution, namely: (1) E.O. No. 1 creating
the Presidential Commission on Good Government (PCGG)
for the recovery of ill-gotten wealth amassed by President
Ferdinand E. Marcos, his family and cronies, (2) E.O. No. 14
which amended P.D. No. 1606 and R.A. No. 1379 by
transferring to the Sandiganbayan jurisdiction over civil
actions filed against President Marcos, his family and cronies
based on R.A. No. 1379, the Civil Code and other existing
laws, and (3) E.O. No. 14-A whch further amended E.O. No.
14, P.D. No. 1606 and R.A. No. 1379 by providing that the
civil action under R.A. No. 1379 which may be filed against
President Marcos, his family and cronies, may proceed
independently of the criminal action.
Petitioner gathers from the presidential issuances that the
Sandiganbayan has been granted jurisdiction only over the
separate civil actions filed against President Marcos, his
family and cronies, regardless of whether these civil actions
1
st

were for recovery of unlawfully acquired property under R.A.
No. 1379 or for restitution, reparation of damages or
indemnification for consequential damages or other civil
actions under the Civil Code or other existing laws.
According to petitioner, nowhere in the amendments to P.D.
No. 1606 and R.A. No. 1379 does it provide that the
Sandiganbayan has been vested jurisdiction over separate
civil actions other than those filed against President Marcos,
his family and cronies.
13
Hence, the Sandiganbayan has no
jurisdiction over any separate civil action against him, even if
such separate civil action is for recovery of unlawfully
acquired property under R.A. No. 1379.
Petitioner further contends that in any event, the petition for
forfeiture filed against him is fatally defective for failing to
comply with the jurisdictional requirements under Sec. 2,
R.A. No. 1379,
14
namely: (a) an inquiry similar to a
preliminary investigation conducted by the prosecution arm
of the government; (b) a certification to the Solicitor General
that there is reasonable ground to believe that there has
been violation of the said law and that respondent is guilty
thereof; and (c) an action filed by the Solicitor General on
behalf of the Republic of the Philippines.
15
He argues that
only informations for perjury were filed and there has been
no information filed against him for violation of R.A. No.
1379. Consequently, he maintains, it is impossible for the
Office of the Ombudsman to certify that there is reasonable
ground to believe that a violation of the said law had been
committed and that he is guilty thereof. The petition is also
supposedly bereft of the required certification which should
be made by the investigating City or Provincial Fiscal (now
Prosecutor) to the Solicitor General. Furthermore, he opines
that it should have been the Office of the Solicitor General
which filed the petition and not the Office of the Ombudsman
as in this case. The petition being fatally defective, the same
should have been dismissed, petitioner concludes.
In their Comment,
16
respondents submit the contrary, noting
that the issues raised by petitioner are not novel as these
have been settled in Republic vs. Sandiganbayan
17
which
categorically ruled that "there is no issue that jurisdiction
over violations of [R.A.] Nos. 3019 and 1379 now rests with
the Sandiganbayan."
18
Respondents argue that under the
Constitution
19
and prevailing statutes, the Sandiganbayan is
vested with authority and jurisdiction over the petition for
forfeiture under R.A. No. 1379 filed against petitioner.
Respondents point to Sec. 4.a (1) (d) of P.D. 1606, as
amended, as the prevailing law on the jurisdiction of
the Sandiganbayan, thus:
Sec. 4. Jurisdiction.The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII,
Book II of the Revised Penal Code, where one or more of the
accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions
of regional director and higher, otherwise classified as Grade
27 and higher of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758),
specifically including:
.
(d) Philippine army and air force colonels, naval captains,
and all officers of higher ranks;
.
As petitioner falls squarely under the category of public
positions covered by the aforestated law, the petition for
forfeiture should be within the jurisdiction of the
Sandiganbayan.
Respondents also brush off as inconsequential petitioners
argument that the petition for forfeiture is "civil" in nature and
the Sandiganbayan, having allegedly no jurisdiction over civil
actions, therefore has no jurisdiction over the petition, since
the same P.D. No. 1606 encompasses all cases involving
violations of R.A. No. 3019, irrespective of whether these
cases are civil or criminal in nature. The petition for forfeiture
should not be confused with the cases initiated and
prosecuted by the PCGG pursuant to E.O. Nos. 14 and 14-A,
as these are dealt with under a separate subparagraph of
P.D. No. 1606, as amended, in particular Sec. 4.c
thereof.
20
Further, respondents stress that E.O. Nos. 14 and
14-A exclusively apply to actions for recovery of unlawfully
acquired property against President Marcos, his family, and
cronies. It would also not be accurate to refer to a petition for
forfeiture as a "civil case," since it has been held that
petitions for forfeiture are deemed criminal or penal and that
it is only the proceeding for its prosecution which is civil in
nature.
21

The Office of the Ombudsman filed a
separate Comment,
22
likewise relying on Republic v.
Sandiganbayan to argue that the Sandiganbayan has
jurisdiction over the petition for forfeiture filed against
petitioner. The Ombudsman explains that the grant to the
Sandiganbayan of jurisdiction over violations of R.A. No.
1379 did not change even under the amendments of
R.A. No. 7975
23
and R.A. No. 8294
24
, although it came to be
limited to cases involving high-ranking public officials as
enumerated therein, including Philippine army and air force
colonels, naval captains, and all other officers of higher rank,
to which petitioner belongs.
25

In arguing that it has authority to investigate and initiate
forfeiture proceedings against petitioner, the Office of the
Ombudsman refers to both the Constitution
26
and R.A. No.
6770.
27
The constitutional power of investigation of the Office
of the Ombudsman is plenary and unqualified; its power to
investigate any act of a public official or employee which
appears to be "illegal, unjust, improper or inefficient" covers
the unlawful acquisition of wealth by public officials as
1
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defined under R.A. No. 1379. Furthermore, Sec. 15 (11)
28
of
R.A. No. 6770 expressly empowers the Ombudsman to
investigate and prosecute such cases of unlawful acquisition
of wealth. This authority of the Ombudsman has been
affirmed also in Republic vs. Sandiganbayan.
29

The Office of the Ombudsman then refutes petitioners
allegation that the petition for forfeiture filed against him
failed to comply with the procedural and formal requirements
under the law. It asserts that all the requirements of R.A. No.
1379 have been strictly complied with. An inquiry similar to a
preliminary investigation was conducted by a Prosecution
Officer of the Office of the Ombudsman. The participation of
the Office of the Solicitor General, claimed by petitioner to be
necessary, is actually no longer required since the Office of
the Ombudsman is endowed with the authority to investigate
and prosecute the case as discussed above.
30

In addition, the Office of the Ombudsman alleges that the
present Petition should be dismissed for blatant forum-
shopping. Even as petitioner had filed a Motion to Dismiss as
regards the petition for forfeiture (docketed as Civil Case No.
0193) before the Sandiganbayan on the ground of the
Sandiganbayans alleged lack of jurisdiction, he filed the
instant Petition raising exactly the same issue, even though
the Motion to Dismiss in Civil Case No. 0193 is still pending
resolution.1avvphi1 Worse, it appears that the Motion to
Dismiss and the instant Petition were filed on the same day,
17 November 2004.
Petitioner refutes these arguments in his Reply
31
and
enunciates that the Sandiganbayans criminal jurisdiction is
separate and distinct from its civil jurisdiction, and that the
Sandiganbayans jurisdiction over forfeiture cases had been
removed without subsequent amendments expressly
restoring such civil jurisdiction. His thesis is that R.A. No.
1379 is a special law which is primarily civil and remedial in
nature, the clear intent of which is to separate theprima
facie determination in forfeiture proceedings from the
litigation of the civil action. This intent is further demonstrated
by Sec. 2 of R.A. No. 1379 which grants the authority to
make an inquiry similar to a preliminary investigation being
done by the City or Provincial Fiscal, and the authority to file
a petition for forfeiture to the Solicitor General.
Petitioner also points out in his Reply
32
to the Comment of
the Office of the Ombudsman, that the use of the phrase
"violations of [R.A.] Nos. 3019 and 1379" in P.D. No. 1606,
as amended, implies jurisdiction over cases which are
principally criminal or penal in nature because the concept of
"violation" of certain laws necessarily carries with it the
concept of imposition of penalties for such violation. Hence,
when reference was made to "violations of [R.A.] Nos. 3019
and 1379," the only jurisdiction that can supposedly be
implied is criminal jurisdiction, not civil jurisdiction, thereby
highlighting respondent Sandiganbayans lack of jurisdiction
over the "civil case" for forfeiture of ill-gotten wealth. Of
course, petitioner does not rule out cases where the crime
carries with it the corresponding civil liability such that when
the criminal action is instituted, the civil action for
enforcement of the civil liability is impliedly instituted with it,
and the court having jurisdiction over the criminal action also
acquires jurisdiction over the ancillary civil action. However,
petitioner argues that the action for forfeiture subject of this
case is not the ancillary civil action impliedly instituted with
the criminal action. Rather, the petition for forfeiture is an
independent civil action over which the Sandiganbayan has
no jurisdiction. Petitioner points to P.D. No. 1606, as
amended, which treats of independent civil actions only in
the last paragraph of Sec. 4 thereof:
Any provisions of law or Rules of Court to the contrary
notwithstanding, the criminal action and the corresponding
civil action for the recovery of civil liability shall at all times be
simultaneously instituted with, and jointly determined in, the
same proceeding by the Sandiganbayan or the appropriate
courts, the filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, and no
right to reserve the filing of such civil action separately from
the criminal action shall be recognized: Provided, however,
That where the civil action had heretofore been filed
separately but judgment therein has not yet been rendered,
and the criminal case is hereafter filed with the
Sandiganbayan or the appropriate court, said civil action
shall be transferred to the Sandiganbayan or the appropriate
court, as the case may be, for consolidation and joint
determination with the criminal action, otherwise the
separate civil action shall be deemed abandoned.
Petitioner however did not raise any argument to refute the
charge of forum-shopping.
The issues for resolution are: (a) whether the
Sandiganbayan has jurisdiction over petitions for forfeiture
under R.A. No. 1379; (b) whether the Office of the
Ombudsman has the authority to investigate, initiate and
prosecute such petitions for forfeiture; and (c) whether
petitioner is guilty of forum-shopping.
The petition is patently without merit. It should be dismissed.
The seminal decision of Republic v.
Sandiganbayan
33
squarely rules on the issues raised by
petitioner concerning the jurisdiction of the Sandiganbayan
and the authority of the Office of the Ombudsman. After
reviewing the legislative history of the Sandiganbayan and
the Office of the Ombudsman, the Court therein resolved the
question of jurisdiction by the Sandiganbayan over violations
of R.A. No. 3019 and R.A. No. 1379. Originally, it was the
Solicitor General who was authorized to initiate forfeiture
proceedings before the then Court of First Instance of the
city or province where the public officer or employee resides
or holds office, pursuant to Sec. 2 of R.A. No. 1379. Upon
the creation of the Sandiganbayan pursuant to P.D. No.
1486,
34
original and exclusive jurisdiction over such
violations was vested in the said court.
35
P.D. No.
1606
36
was later issued expressly repealing P.D. No. 1486,
as well as modifying the jurisdiction of the Sandiganbayan by
removing its jurisdiction over civil actions brought in
connection with crimes within the exclusive jurisdiction of
1
st

said court.
37
Such civil actions removed from the jurisdiction
of the Sandigabayan include those for restitution or
reparation of damages, recovery of instruments and effects
of the crime, civil actions under Articles 32 and 34 of the Civil
Code, and forfeiture proceedings provided for under R.A. No.
1379.
38

Subsequently, Batas Pambansa Blg. 129
39
abolished the
concurrent jurisdiction of the Sandiganbayan and the regular
courts and expanded the exclusive original jurisdiction of the
Sandiganbayan over the offenses enumerated in Sec. 4 of
P.D. No. 1606 to embrace all such offenses irrespective of
the imposable penalty. Since this change resulted in the
proliferation of the filing of cases before the Sandiganbayan
where the offense charged is punishable by a penalty not
higher than prision correccional or its equivalent, and such
cases not being of a serious nature, P.D. No. 1606 was
again amended by P.D. No. 1860
40
and eventually by P.D.
No. 1861.
41

On the foregoing premises alone, the Court in Republic v.
Sandiganbayan, deduced that jurisdiction over violations of
R.A. No. 3019 and 1379 is lodged with the
Sandiganbayan.
42
It could not have taken into consideration
R.A. No. 7975
43
and R.A. No. 8249
44
since both statutes
which also amended the jurisdiction of the Sandiganbayan
were not yet enacted at the time. The subsequent
enactments only serve to buttress the conclusion that the
Sandiganbayan indeed has jurisdiction over violations of
R.A. No. 1379.
Under R.A. No. 8249, the Sandiganbayan is vested with
exclusive original jurisdiction in all cases involving violations
of R.A. No. 3019, R.A. No. 1379, and Chapter II, Sec. 2, Title
VII, Book II of the Revised Penal Code, where one or more
of the accused are officials occupying the following positions
whether in a permanent, acting or interim capacity, at the
time of the commission of the offense: (1) Officials of the
executive branch occupying the positions of regional director
and higher, otherwise classified as Grade '27' and higher, of
the Compensation and Position Classification Act of 989
(R.A. No. 6758), specifically including: (a) Provincial
governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors,
engineers, and other city department heads; (b) City mayor,
vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department
heads; (c) Officials of the diplomatic service occupying the
position of consul and higher; (d) Philippine army and air
force colonels, naval captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while occupying
the position of provincial director and those holding the rank
of senior superintended or higher; (f) City and provincial
prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special
prosecutor; (g) Presidents, directors or trustees, or managers
of government-owned or controlled corporations, state
universities or educational institutions or foundations; (2)
Members of Congress and officials thereof classified as
Grade '27' and up under the Compensation and Position
Classification Act of 1989; (3) Members of the judiciary
without prejudice to the provisions of the Constitution; (4)
Chairmen and members of Constitutional Commission,
without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade
'27' and higher under the Compensation and Position
Classification Act of 1989.
45

In the face of the prevailing jurisprudence and the present
state of statutory law on the jurisdiction of the
Sandiganbayan, petitioners argumentthat the
Sandiganbayan has no jurisdiction over the petition for
forfeiture it being "civil" in nature and the Sandiganbayan
allegedly having no jurisdiction over civil actionscollapses
completely.
The civil nature of an action for forfeiture was first recognized
in Republic v. Sandiganbayan, thus: "[T]he rule is settled that
forfeiture proceedings are actions in rem and, therefore, civil
in nature."
46
Then, Almeda, Sr.
v. Perez,
47
followed, holding that the proceedings under R.A.
No. 1379 do not terminate in the imposition of a penalty but
merely in the forfeiture of the properties illegally acquired in
favor of the State. It noted that the
procedure outlined in the law leading to forfeiture is that
provided for in a civil action.
48

However, the Court has had occasion to rule that forfeiture of
illegally acquired property partakes the nature of a penalty.
In Cabal v. Kapunan, Jr.,
49
the Court cited voluminous
authorities in support of its declaration of the criminal or
penal nature of forfeiture proceedings, viz:
In a strict signification, a forfeiture is a divestiture of property
without compensation, in consequence of a default or an
offense, and the term is used in such a sense in this article.
A forfeiture, as thus defined, is imposed by way of
punishment not by the mere convention of the parties, but by
the lawmaking power, to insure a prescribed course of
conduct. It is a method deemed necessary by the legislature
to restrain the commission of an offense and to aid in the
prevention of such an offense. The effect of such a forfeiture
is to transfer the title to the specific thing from the owner to
the sovereign power. (23 Am. Jur. 599)
"In Black's Law Dictionary a 'forfeiture' is defined to be 'the
incurring of a liability to pay a definite sum of money as the
consequence of violating the provisions of some statute or
refusal to comply with some requirement of law.' It may be
said to be a penalty imposed for misconduct or breach of
duty.'" (Com. vs. French, 114 S.W. 255.)
.
"Generally speaking, informations for the forfeiture of goods
that seek no judgment of fine or imprisonment against any
person are deemed to be civil proceedings in rem. Such
1
st

proceedings are criminal in nature to the extent that where
the person using the res illegally is the owner of rightful
possessor of it the forfeiture proceeding is in the nature of a
punishment. They have been held to be so far in the nature
of
criminal proceedings that a general verdict on several counts
in an information is upheld if one count is good. According to
the authorities such proceedings, where the owner of the
property appears, are so far considered as quasicriminal
proceedings as to relieve the owner from being a witness
against himself and to prevent the compulsory production of
his books and papers. . . ." (23 Am. Jur. 612)
.
"Proceedings for forfeitures are generally considered to be
civil and in the nature of proceedings in rem. The statute
providing that no judgment or other proceedings in civil
causes shall be arrested or reversed for any defect or want
of form is applicable to them. In some aspects, however,
suits for penalties and forfeitures are of quasi-criminal nature
and within the reason of criminal proceedings for all the
purposes of . . . that portion of the Fifth Amendment which
declares that no person shall be compelled in any criminal
case to be a witness against himself. The proceeding is one
against the owner, as well as against the goods; for it is his
breach of the laws which has to be proved to establish the
forfeiture and his property is sought to be forfeited." (15 Am.
Jur., Sec. 104, p. 368)
50

Cabal v. Kapunan modified the earlier ruling in Almeda, Sr. v.
Perez.
51
The Court in Cabal held that the doctrine laid down
in Almeda refers to the purely procedural aspect of the
forfeiture proceedings and has no bearing on the substantial
rights of respondents, particularly their constitutional right
against self-incrimination.
52
This was reaffirmed and
reiterated in
Republic v. Agoncillo
53
and Katigbak v. Solicitor General.
54

The Sandiganbayan is vested with jurisdiction over violations
of R.A. No. 1379, entitled "An Act Declaring Forfeiture In
Favor of the State Any Property Found to Have Been
Unlawfully Acquired By Any Public Officer or Employee and
Providing For the Proceedings Therefor." What acts would
constitute a violation of such a law? A reading of R.A. No.
1379 establishes that it does not enumerate any prohibited
acts the commission of which would necessitate the
imposition of a penalty. Instead, it provides the procedure for
forfeiture to be followed in case a public officer or employee
has acquired during his incumbency an amount of property
manifestly out of proportion to his salary as such public
officer or employee and to his lawful income and income
from legitimately acquired property.
55
Section 12
56
of the law
provides a penalty but it is only imposed upon the public
officer or employee who transfers or conveys the unlawfully
acquired property; it does not penalize the officer or
employee for making the unlawful acquisition. In effect, as
observed in Almeda, Sr. v. Perez, it imposes the penalty of
forfeiture of the properties unlawfully acquired upon the
respondent public officer or employee.
57

It is logically congruent, therefore, that violations of R.A. No.
1379 are placed under the jurisdiction of the Sandiganbayan,
even though the proceeding is civil in nature, since the
forfeiture of the illegally acquired property amounts to a
penalty. The soundness of this reasoning becomes even
more obvious when we consider that the respondent in such
forfeiture proceedings is a public officer or employee and the
violation of R.A. No. 1379 was committed during the
respondent officer or employees incumbency and in relation
to his office. This is in line with the purpose behind the
creation of the Sandiganbayan as an anti-graft courtto
address the urgent problem of dishonesty in public service.
58

Following the same analysis, petitioner should therefore
abandon his erroneous belief that the Sandiganbayan has
jurisdiction only over petitions for forfeiture filed against
President Marcos, his family and cronies.
We come then to the question of authority of the Office of the
Ombudsman to investigate, file and
prosecute petitions for forfeiture under R.A. No. 1379. This
was the main issue resolved in Republic v.
Sandiganbayan.
59

Under Sec. 2 of R.A. No. 1379, it was the Solicitor General
who was authorized to initiate forfeiture proceedings before
the then Courts of First Instance. P.D. No. Decree No. 1486
was later issued on 11 June 1978 vesting the
Sandiganbayan with jurisdiction over R.A. No. 1379 forfeiture
proceedings. Sec. 12 of P.D. No. 1486 gave the Chief
Special Prosecutor the authority to file and prosecute
forfeiture cases. This may be taken as an implied repeal by
P.D. No. 1486 of the jurisdiction of the former Courts of First
Instance and the authority of the Solicitor General to file a
petition for forfeiture under Sec. 2 of R.A. No. 1379 by
transferring said jurisdiction and authority to the
Sandiganbayan and the Chief Special Prosecutor,
respectively.
60
An implied repeal is one which takes place
when a new law contains some provisions which are contrary
to, but do not expressly repeal those of a former law.
61
As a
rule, repeals by implication are not favored and will not be so
declared unless it be manifest that the legislature so
intended. Before such repeal is deemed to exist, it must be
shown that the statutes or statutory provisions deal with the
same subject matter and that the latter be inconsistent with
the former. The language used in the latter statute must be
such as to render it irreconcilable with what had been
formerly enacted. An inconsistency that falls short of that
standard does not suffice. What is needed is a manifest
indication of the legislative purpose to repeal.
62

P.D. No. 1486 contains a repealing clause which provides
that "[A]ny provision of law, order, rule or regulation
inconsistent with the provisions of this Decree is hereby
repealed or modified accordingly."
63
This is not an express
repealing clause because it fails to identify or designate the
1
st

statutes that are intended to be repealed. Rather, it is a
clause which predicates the intended repeal upon the
condition that a substantial conflict must be found in existing
and prior laws.
64

The conflict between P.D. No. 1486 and R.A. No. 1379 refers
to the jurisdiction over the forfeiture proceeding and the
authority to file the petition for forfeiture. As P.D. No. 1486
grants exclusive jurisdiction and authority to the
Sandiganbayan and the Chief Special Prosecutor, the then
Courts of First Instance and Solicitor General cannot
exercise concurrent jurisdiction or authority over such cases.
Hence, P.D. No. 1486 and Sec. 2, R.A. No. 1379 are
inconsistent with each other and the former should be
deemed to have repealed the latter.lawphil.net
On 11 June 1978, the same day that P.D. No. 1486 was
enacted, P.D. No. 1487
65
creating the Office of the
Ombudsman (then known as the Tanodbayan) was passed.
The Tanodbayan initially had no authority to prosecute cases
falling within the jurisdiction of the Sandiganbayan as
provided in Sec. 4 of P.D. No. 1486, such jurisdiction being
vested in the Chief Special Prosecutor as earlier mentioned.
On 10 December 1978, P.D. No. 1606 was enacted
expressly repealing P.D. No. 1486. Issued on the same date
was P.D. No. 1607
66
which amended the powers of the
Tanodbayan to investigate administrative complaints
67
and
created the Office of the Chief Special Prosecutor.
68
P.D. No.
1607 provided said Office of the Chief Special Prosecutor
with exclusive authority to conduct preliminary investigation
of all cases cognizable by the Sandiganbayan, file
informations therefor, and direct and control the prosecution
of said cases.
69
P.D. No. 1607 also removed from the Chief
Special Prosecutor the authority to file actions for forfeiture
under R.A. No. 1379.
70

The rule is that when a law which expressly repeals a prior
law is itself repealed, the law first repealed shall not be
thereby revived unless expressly so provided. From this it
may fairly be inferred that the old rule continues in force
where a law which repeals a prior law, not expressly but by
implication, is itself repealed; and that in such cases the
repeal of the repealing law revives the prior law, unless the
language of the repealing statute provides
otherwise.
71
Hence, the repeal of P.D. No. 1486 by P.D. No.
1606 necessarily revived the authority of the Solicitor
General to file a petition for forfeiture under R.A. No. 1379,
but not the jurisdiction of the Courts of First Instance over the
case nor the authority of the Provincial or City Fiscals (now
Prosecutors) to conduct the preliminary investigation
therefore, since said powers at that time remained in the
Sandiganbayan and the Chief Special Prosecutor.
72

The Tanodbayans authority was further expanded by P.D.
No. 1630
73
issued on 18 July 1990. Among other things, the
Tanodbayan was given the exclusive authority to conduct
preliminary investigation of all cases cognizable by the
Sandiganbayan, to file informations therefore and to direct
and control the prosecution of said cases.
74
The power to
conduct the necessary investigation and to file and
prosecute the corresponding criminal and administrative
cases before the Sandiganbayan or the proper court or
administrative agency against any public personnel who has
acted in a manner warranting criminal and disciplinary action
or proceedings was also transferred from the Chief Special
Prosecutor to the Tanodbayan.
75

Thereafter, P.D. No. 1606 was amended by P.D. Nos. 1860
and 1861
76
which granted the Tanodbayan the same
authority. The present Constitution was subsequently ratified
and then the Tanodbayan became known as the Office of
the Special Prosecutor which continued to exercise its
powers except those conferred on the Office of the
Ombudsman created under the Constitution.
77
The Office of
the Ombudsman was officially created under R.A. No.
6770.
78

At present, the powers of the Ombudsman, as defined by
R.A. No. 6770, corollary to Sec. 13, Art. XI of the
Constitution, include the authority, among others, to:
(1) Investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary
jurisdiction, may take over, at any stage, from any
investigatory agency of Government, the investigation of
such cases;
79

(11) Investigate and initiate the proper action for the recovery
of ill-gotten and/or unexplained wealth amassed after 25
February 1986 and the prosecution of the parties involved
therein.
80

Ostensibly, it is the Ombudsman who should file the petition
for forfeiture under R.A. No. 1379. However, the
Ombudsmans exercise of the correlative powers to
investigate and initiate the proper action for recovery of ill-
gotten and/or unexplained wealth is restricted only to cases
for the recovery of ill-gotten and/or unexplained wealth
amassed after 25 February 1986.
81
As regards such wealth
accumulated on or before said date, the Ombudsman is
without authority to commence before the Sandiganbayan
such forfeiture actionsince the authority to file forfeiture
proceedings on or before 25 February 1986 belongs to the
Solicitor Generalalthough he has the authority to
investigate such cases for forfeiture even before 25 February
1986, pursuant to the Ombudsmans
general investigatory power under Sec. 15 (1) of R.A. No.
6770.
82

It is obvious then that respondent Office of the Ombudsman
acted well within its authority in conducting the investigation
of petitioners illegally acquired assets and in filing the
petition for forfeiture against him. The contention that the
1
st

procedural requirements under Sec. 2 of R.A. No. 1379 were
not complied with no longer deserve consideration in view of
the foregoing discussion.
Now to the charge that petitioner is guilty of forum-shopping.
Forum-shopping is manifest whenever a party "repetitively
avail[s] of several judicial remedies in different courts,
simultaneously or successively, all substantially founded on
the same transactions and the same essential facts and
circumstances, and all raising substantially the same issues
either pending in, or already resolved adversely by, some
other court."
83
It has also been defined as "an act of a party
against whom an adverse judgment has been rendered in
one forum of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or the special
civil action of certiorari, or the institution of two or more
actions or proceedings grounded on the same cause on the
supposition that one or the other court would make a
favorable disposition."
84
Considered a pernicious evil, it
adversely affects the efficient administration of justice since it
clogs the court dockets, unduly burdens the financial and
human resources of the judiciary, and trifles with and mocks
judicial processes.
85
Willful and deliberate forum-shopping is
a ground for summary dismissal of the complaint or initiatory
pleading with prejudice and constitutes direct contempt of
court, as well as a cause for administrative sanctions, which
may both be resolved and imposed in the same case where
the forum-shopping is found.
86

There is ample reason to hold that petitioner is guilty of
forum-shopping. The present petition was filed accompanied
by the requisite Verification and Certification Against Forum
Shopping
87
in which petitioner made the following
representation:
.
3.] As Petitioner, I have not heretofore commenced any other
action or proceeding in the Supreme Court, the Court of
Appeals, or any other tribunal or agency, involving the same
issues as that in the above-captioned case.
4.] To the best of my knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of
Appeals, or any other tribunal or agency.
5.] If I should hereafter learn that such proceeding has been
commenced or is pending before the Supreme Court, the
Court of Appeals, or any other tribunal or agency, I
undertake to report that fact to this Honorable Court within
five (5) days from knowledge thereof.
However, petitioner failed to inform the Court that he had
filed a Motion to Dismiss
88
in relation to the petition for
forfeiture before the Sandiganbayan. The existence of this
motion was only brought to the attention of this Court by
respondent Office of the Ombudsman in its Comment. A
scrutiny of the Motion to Dismiss reveals that petitioner
raised substantially the same issues and prayed for the
same reliefs therein as it has in the instant petition. In fact,
the Arguments and Discussion
89
in the Petition of petitioners
thesis that the Sandiganbayan has no jurisdiction over
separate civil actions for forfeiture of unlawfully acquired
properties appears to be wholly lifted from theMotion to
Dismiss. The only difference between the two is that in
the Petition, petitioner raises the ground of failure of the
petition for forfeiture to comply with the procedural
requirements of R.A. No. 1379, and petitioner prays for the
annulment of the Sandiganbayans Resolution dated 29
October 2004 and Writ of Preliminary Attachmentdated 2
November 2004. Nevertheless, these differences are only
superficial. Both Petition and Motion to Dismisshave the
same intent of dismissing the case for forfeiture filed against
petitioner, his wife and their sons. It is undeniable that
petitioner had failed to fulfill his undertaking. This is
incontestably forum-shopping which is reason enough to
dismiss the petition outright, without prejudice to the taking of
appropriate action against the counsel and party
concerned.
90
The brazenness of this attempt at forum-
shopping is even demonstrated by the fact that both
the Petition and Motion to Dismiss were filed on the same
day, 17 November 2004. Petitioner should have waited for
the resolution of his Motion to Dismiss before resorting to the
petition at hand.
Petitioners counsel of record, Atty. Constantino B. De Jesus,
needs to be reminded that his primary duty is to assist the
courts in the administration of justice. As an officer of the
court, his duties to the court are more significant and
important than his obligations to his clients. Any conduct
which tends to delay, impede or obstruct the administration
thereof contravenes his oath of office.
91
Atty. De Jesus failed
to accord due regard, as he must, the tenets of the legal
profession and the mission of our courts of justice. For this,
he should be penalized. Penalties imposed upon lawyers
who engaged in forum-shopping range from severe censure
to suspension from the practice of law.
92
In the instant case,
we deem the imposition of a fine in the amount
of P20,000.00 to be sufficient to make Atty. De Jesus realize
the seriousness of his naked abuse of the judicial process.
WHEREFORE, in view of the foregoing, the Petition is
DISMISSED. Atty. Constantino B. De Jesus is DECLARED
in CONTEMPT of this Court and meted a fine of Twenty
Thousand Pesos (P20,000.00) to be paid within ten (10)
days from the finality of this D E C I S I O N. Costs against
petitioner.
SO ORDERED.
ARTICLE 8

CALTEX v PALOMAR
G.R. No. L-19650, September 29, 1966
SUPREME COURT
Manila
EN BANC
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G.R. No. L-19650 September 29, 1966
CALTEX (PHILIPPINES), INC., petitioner-appellee,
vs.
ENRICO PALOMAR, in his capacity as THE
POSTMASTER GENERAL, respondent-appellant.
Office of the Solicitor General for respondent and appellant.
Ross, Selph and Carrascoso for petitioner and appellee.

CASTRO, J .:
In the year 1960 the Caltex (Philippines) Inc. (hereinafter
referred to as Caltex) conceived and laid the groundwork for
a promotional scheme calculated to drum up patronage for
its oil products. Denominated "Caltex Hooded Pump
Contest", it calls for participants therein to estimate the
actual number of liters a hooded gas pump at each Caltex
station will dispense during a specified period. Employees of
the Caltex (Philippines) Inc., its dealers and its advertising
agency, and their immediate families excepted, participation
is to be open indiscriminately to all "motor vehicle owners
and/or licensed drivers". For the privilege to participate, no
fee or consideration is required to be paid, no purchase of
Caltex products required to be made. Entry forms are to be
made available upon request at each Caltex station where a
sealed can will be provided for the deposit of accomplished
entry stubs.
A three-staged winner selection system is envisioned. At the
station level, called "Dealer Contest", the contestant whose
estimate is closest to the actual number of liters dispensed
by the hooded pump thereat is to be awarded the first prize;
the next closest, the second; and the next, the third. Prizes at
this level consist of a 3-burner kerosene stove for first; a
thermos bottle and a Ray-O-Vac hunter lantern for second;
and an Everready Magnet-lite flashlight with batteries and a
screwdriver set for third. The first-prize winner in each station
will then be qualified to join in the "Regional Contest" in
seven different regions. The winning stubs of the qualified
contestants in each region will be deposited in a sealed can
from which the first-prize, second-prize and third-prize
winners of that region will be drawn. The regional first-prize
winners will be entitled to make a three-day all-expenses-
paid round trip to Manila, accompanied by their respective
Caltex dealers, in order to take part in the "National Contest".
The regional second-prize and third-prize winners will
receive cash prizes of P500 and P300, respectively. At the
national level, the stubs of the seven regional first-prize
winners will be placed inside a sealed can from which the
drawing for the final first-prize, second-prize and third-prize
winners will be made. Cash prizes in store for winners at this
final stage are: P3,000 for first; P2,000 for second; Pl,500 for
third; and P650 as consolation prize for each of the
remaining four participants.
Foreseeing the extensive use of the mails not only as
amongst the media for publicizing the contest but also for the
transmission of communications relative thereto,
representations were made by Caltex with the postal
authorities for the contest to be cleared in advance for
mailing, having in view sections 1954(a), 1982 and 1983 of
the Revised Administrative Code, the pertinent provisions of
which read as follows:
SECTION 1954. Absolutely non-mailable matter.
No matter belonging to any of the following classes,
whether sealed as first-class matter or not, shall be
imported into the Philippines through the mails, or to
be deposited in or carried by the mails of the
Philippines, or be delivered to its addressee by any
officer or employee of the Bureau of Posts:
Written or printed matter in any form advertising,
describing, or in any manner pertaining to, or
conveying or purporting to convey any information
concerning any lottery, gift enterprise, or similar
scheme depending in whole or in part upon lot or
chance, or any scheme, device, or enterprise for
obtaining any money or property of any kind by
means of false or fraudulent pretenses,
representations, or promises.
"SECTION 1982. Fraud orders.Upon satisfactory
evidence that any person or company is engaged in
conducting any lottery, gift enterprise, or scheme for
the distribution of money, or of any real or personal
property by lot, chance, or drawing of any kind, or
that any person or company is conducting any
scheme, device, or enterprise for obtaining money
or property of any kind through the mails by means
of false or fraudulent pretenses, representations, or
promises, the Director of Posts may instruct any
postmaster or other officer or employee of the
Bureau to return to the person, depositing the same
in the mails, with the word "fraudulent" plainly
written or stamped upon the outside cover thereof,
any mail matter of whatever class mailed by or
addressed to such person or company or the
representative or agent of such person or company.
SECTION 1983. Deprivation of use of money order
system and telegraphic transfer service.The
Director of Posts may, upon evidence satisfactory to
him that any person or company is engaged in
conducting any lottery, gift enterprise or scheme for
the distribution of money, or of any real or personal
property by lot, chance, or drawing of any kind, or
that any person or company is conducting any
scheme, device, or enterprise for obtaining money
or property of any kind through the mails by means
of false or fraudulent pretenses, representations, or
promise, forbid the issue or payment by any
postmaster of any postal money order or
telegraphic transfer to said person or company or to
the agent of any such person or company, whether
such agent is acting as an individual or as a firm,
bank, corporation, or association of any kind, and
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may provide by regulation for the return to the
remitters of the sums named in money orders or
telegraphic transfers drawn in favor of such person
or company or its agent.
The overtures were later formalized in a letter to the
Postmaster General, dated October 31, 1960, in which the
Caltex, thru counsel, enclosed a copy of the contest rules
and endeavored to justify its position that the contest does
not violate the anti-lottery provisions of the Postal Law.
Unimpressed, the then Acting Postmaster General opined
that the scheme falls within the purview of the provisions
aforesaid and declined to grant the requested clearance. In
its counsel's letter of December 7, 1960, Caltex sought a
reconsideration of the foregoing stand, stressing that there
being involved no consideration in the part of any contestant,
the contest was not, under controlling authorities,
condemnable as a lottery. Relying, however, on an opinion
rendered by the Secretary of Justice on an unrelated case
seven years before (Opinion 217, Series of 1953), the
Postmaster General maintained his view that the contest
involves consideration, or that, if it does not, it is
nevertheless a "gift enterprise" which is equally banned by
the Postal Law, and in his letter of December 10, 1960 not
only denied the use of the mails for purposes of the
proposed contest but as well threatened that if the contest
was conducted, "a fraud order will have to be issued against
it (Caltex) and all its representatives".
Caltex thereupon invoked judicial intervention by filing the
present petition for declaratory relief against Postmaster
General Enrico Palomar, praying "that judgment be rendered
declaring its 'Caltex Hooded Pump Contest' not to be
violative of the Postal Law, and ordering respondent to allow
petitioner the use of the mails to bring the contest to the
attention of the public". After issues were joined and upon
the respective memoranda of the parties, the trial court
rendered judgment as follows:
In view of the foregoing considerations, the Court
holds that the proposed 'Caltex Hooded Pump
Contest' announced to be conducted by the
petitioner under the rules marked as Annex B of the
petitioner does not violate the Postal Law and the
respondent has no right to bar the public distribution
of said rules by the mails.
The respondent appealed.
The parties are now before us, arrayed against each other
upon two basic issues: first, whether the petition states a
sufficient cause of action for declaratory relief; and second,
whether the proposed "Caltex Hooded Pump Contest"
violates the Postal Law. We shall take these up in seriatim.
1. By express mandate of section 1 of Rule 66 of the old
Rules of Court, which was the applicable legal basis for the
remedy at the time it was invoked, declaratory relief is
available to any person "whose rights are affected by a
statute . . . to determine any question of construction or
validity arising under the . . . statute and for a declaration of
his rights thereunder" (now section 1, Rule 64, Revised
Rules of Court). In amplification, this Court, conformably to
established jurisprudence on the matter, laid down certain
conditions sine qua non therefor, to wit: (1) there must be a
justiciable controversy; (2) the controversy must be between
persons whose interests are adverse; (3) the party seeking
declaratory relief must have a legal interest in the
controversy; and (4) the issue involved must be ripe for
judicial determination (Tolentino vs. The Board of
Accountancy, et al., G.R. No. L-3062, September 28, 1951;
Delumen, et al. vs. Republic of the Philippines, 50 O.G., No.
2, pp. 576, 578-579; Edades vs. Edades, et al., G.R. No. L-
8964, July 31, 1956). The gravamen of the appellant's stand
being that the petition herein states no sufficient cause of
action for declaratory relief, our duty is to assay the factual
bases thereof upon the foregoing crucible.
As we look in retrospect at the incidents that generated the
present controversy, a number of significant points stand out
in bold relief. The appellee (Caltex), as a business enterprise
of some consequence, concededly has the unquestioned
right to exploit every legitimate means, and to avail of all
appropriate media to advertise and stimulate increased
patronage for its products. In contrast, the appellant, as the
authority charged with the enforcement of the Postal Law,
admittedly has the power and the duty to suppress
transgressions thereof particularly thru the issuance of
fraud orders, under Sections 1982 and 1983 of the Revised
Administrative Code, against legally non-mailable schemes.
Obviously pursuing its right aforesaid, the appellee laid out
plans for the sales promotion scheme hereinbefore detailed.
To forestall possible difficulties in the dissemination of
information thereon thru the mails, amongst other media, it
was found expedient to request the appellant for an advance
clearance therefor. However, likewise by virtue of his
jurisdiction in the premises and construing the pertinent
provisions of the Postal Law, the appellant saw a violation
thereof in the proposed scheme and accordingly declined the
request. A point of difference as to the correct construction to
be given to the applicable statute was thus reached.
Communications in which the parties expounded on their
respective theories were exchanged. The confidence with
which the appellee insisted upon its position was matched
only by the obstinacy with which the appellant stood his
ground. And this impasse was climaxed by the appellant's
open warning to the appellee that if the proposed contest
was "conducted, a fraud order will have to be issued against
it and all its representatives."
Against this backdrop, the stage was indeed set for the
remedy prayed for. The appellee's insistent assertion of its
claim to the use of the mails for its proposed contest, and the
challenge thereto and consequent denial by the appellant of
the privilege demanded, undoubtedly spawned a live
controversy. The justiciability of the dispute cannot be
gainsaid. There is an active antagonistic assertion of a legal
right on one side and a denial thereof on the other,
concerning a real not a mere theoretical question or
issue. The contenders are as real as their interests are
substantial. To the appellee, the uncertainty occasioned by
1
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the divergence of views on the issue of construction hampers
or disturbs its freedom to enhance its business. To the
appellant, the suppression of the appellee's proposed
contest believed to transgress a law he has sworn to uphold
and enforce is an unavoidable duty. With the appellee's bent
to hold the contest and the appellant's threat to issue a fraud
order therefor if carried out, the contenders are confronted by
the ominous shadow of an imminent and inevitable litigation
unless their differences are settled and stabilized by a
tranquilizing declaration (Pablo y Sen, et al. vs. Republic of
the Philippines, G.R. No. L-6868, April 30, 1955). And,
contrary to the insinuation of the appellant, the time is long
past when it can rightly be said that merely the appellee's
"desires are thwarted by its own doubts, or by the fears of
others" which admittedly does not confer a cause of
action. Doubt, if any there was, has ripened into a justiciable
controversy when, as in the case at bar, it was translated into
a positive claim of right which is actually contested (III
Moran, Comments on the Rules of Court, 1963 ed., pp. 132-
133, citing: Woodward vs. Fox West Coast Theaters, 36
Ariz., 251, 284 Pac. 350).
We cannot hospitably entertain the appellant's pretense that
there is here no question of construction because the said
appellant "simply applied the clear provisions of the law to a
given set of facts as embodied in the rules of the contest",
hence, there is no room for declaratory relief. The infirmity of
this pose lies in the fact that it proceeds from the assumption
that, if the circumstances here presented, the construction of
the legal provisions can be divorced from the matter of their
application to the appellee's contest. This is not feasible.
Construction, verily, is the art or process of discovering and
expounding the meaning and intention of the authors of the
law with respect to its application to a given case, where that
intention is rendered doubtful, amongst others, by reason of
the fact that the given case is not explicitly provided for in the
law (Black, Interpretation of Laws, p. 1). This is precisely the
case here. Whether or not the scheme proposed by the
appellee is within the coverage of the prohibitive provisions
of the Postal Law inescapably requires an inquiry into the
intended meaning of the words used therein. To our mind,
this is as much a question of construction or interpretation as
any other.
Nor is it accurate to say, as the appellant intimates, that a
pronouncement on the matter at hand can amount to nothing
more than an advisory opinion the handing down of which is
anathema to a declaratory relief action. Of course, no breach
of the Postal Law has as yet been committed. Yet, the
disagreement over the construction thereof is no longer
nebulous or contingent. It has taken a fixed and final shape,
presenting clearly defined legal issues susceptible of
immediate resolution. With the battle lines drawn, in a
manner of speaking, the propriety nay, the necessity of
setting the dispute at rest before it accumulates the asperity
distemper, animosity, passion and violence of a full-blown
battle which looms ahead (III Moran, Comments on the
Rules of Court, 1963 ed., p. 132 and cases cited), cannot but
be conceded. Paraphrasing the language in Zeitlin vs.
Arnebergh 59 Cal., 2d., 901, 31 Cal. Rptr., 800, 383 P. 2d.,
152, cited in 22 Am. Jur., 2d., p. 869, to deny declaratory
relief to the appellee in the situation into which it has been
cast, would be to force it to choose between undesirable
alternatives. If it cannot obtain a final and definitive
pronouncement as to whether the anti-lottery provisions of
the Postal Law apply to its proposed contest, it would be
faced with these choices: If it launches the contest and uses
the mails for purposes thereof, it not only incurs the risk, but
is also actually threatened with the certain imposition, of a
fraud order with its concomitant stigma which may attach
even if the appellee will eventually be vindicated; if it
abandons the contest, it becomes a self-appointed censor,
or permits the appellant to put into effect a virtual fiat of
previous censorship which is constitutionally unwarranted.
As we weigh these considerations in one equation and in the
spirit of liberality with which the Rules of Court are to be
interpreted in order to promote their object (section 1, Rule 1,
Revised Rules of Court) which, in the instant case, is to
settle, and afford relief from uncertainty and insecurity with
respect to, rights and duties under a law we can see in the
present case any imposition upon our jurisdiction or any
futility or prematurity in our intervention.
The appellant, we apprehend, underrates the force and
binding effect of the ruling we hand down in this case if he
believes that it will not have the final and pacifying function
that a declaratory judgment is calculated to subserve. At the
very least, the appellant will be bound. But more than this, he
obviously overlooks that in this jurisdiction, "Judicial
decisions applying or interpreting the law shall form a part of
the legal system" (Article 8, Civil Code of the Philippines). In
effect, judicial decisions assume the same authority as the
statute itself and, until authoritatively abandoned, necessarily
become, to the extent that they are applicable, the criteria
which must control the actuations not only of those called
upon to abide thereby but also of those in duty bound to
enforce obedience thereto. Accordingly, we entertain no
misgivings that our resolution of this case will terminate the
controversy at hand.
It is not amiss to point out at this juncture that the conclusion
we have herein just reached is not without precedent.
In Liberty Calendar Co. vs. Cohen, 19 N.J., 399, 117 A. 2d.,
487, where a corporation engaged in promotional advertising
was advised by the county prosecutor that its proposed sales
promotion plan had the characteristics of a lottery, and that if
such sales promotion were conducted, the corporation would
be subject to criminal prosecution, it was held that the
corporation was entitled to maintain a declaratory relief
action against the county prosecutor to determine the legality
of its sales promotion plan. In pari materia, see also: Bunis
vs. Conway, 17 App. Div. 2d., 207, 234 N.Y.S. 2d.,
435; Zeitlin vs. Arnebergh, supra; Thrillo, Inc. vs. Scott, 15
N.J. Super. 124, 82 A. 2d., 903.
In fine, we hold that the appellee has made out a case for
declaratory relief.
2. The Postal Law, chapter 52 of the Revised Administrative
Code, using almost identical terminology in sections 1954(a),
1982 and 1983 thereof, supra, condemns as absolutely non-
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mailable, and empowers the Postmaster General to issue
fraud orders against, or otherwise deny the use of the
facilities of the postal service to, any information concerning
"any lottery, gift enterprise, or scheme for the distribution of
money, or of any real or personal property by lot, chance, or
drawing of any kind". Upon these words hinges the
resolution of the second issue posed in this appeal.
Happily, this is not an altogether untrodden judicial path. As
early as in 1922, in "El Debate", Inc. vs. Topacio, 44 Phil.,
278, 283-284, which significantly dwelt on the power of the
postal authorities under the abovementioned provisions of
the Postal Law, this Court declared that
While countless definitions of lottery have been
attempted, the authoritative one for this jurisdiction
is that of the United States Supreme Court, in
analogous cases having to do with the power of the
United States Postmaster General, viz.: The term
"lottery" extends to all schemes for the distribution
of prizes by chance, such as policy playing, gift
exhibitions, prize concerts, raffles at fairs, etc., and
various forms of gambling. The three essential
elements of a lottery are: First, consideration;
second, prize; and third, chance. (Horner vs. States
[1892], 147 U.S. 449; Public Clearing House vs.
Coyne [1903], 194 U.S., 497; U.S. vs. Filart and
Singson [1915], 30 Phil., 80; U.S. vs. Olsen and
Marker [1917], 36 Phil., 395; U.S. vs. Baguio [1919],
39 Phil., 962; Valhalla Hotel Construction Company
vs. Carmona, p. 233, ante.)
Unanimity there is in all quarters, and we agree, that the
elements of prize and chance are too obvious in the disputed
scheme to be the subject of contention. Consequently as the
appellant himself concedes, the field of inquiry is narrowed
down to the existence of the element of consideration
therein. Respecting this matter, our task is considerably
lightened inasmuch as in the same case just cited, this Court
has laid down a definitive yard-stick in the following terms
In respect to the last element of consideration, the
law does not condemn the gratuitous distribution of
property by chance, if no consideration is derived
directly or indirectly from the party receiving the
chance, but does condemn as criminal schemes in
which a valuable consideration of some kind is paid
directly or indirectly for the chance to draw a prize.
Reverting to the rules of the proposed contest, we are struck
by the clarity of the language in which the invitation to
participate therein is couched. Thus
No puzzles, no rhymes? You don't need wrappers,
labels or boxtops? You don't have to buy anything?
Simply estimate the actual number of liter the
Caltex gas pump with the hood at your favorite
Caltex dealer will dispense from to , and win
valuable prizes . . . ." .
Nowhere in the said rules is any requirement that any fee be
paid, any merchandise be bought, any service be rendered,
or any value whatsoever be given for the privilege to
participate. A prospective contestant has but to go to a
Caltex station, request for the entry form which is available
on demand, and accomplish and submit the same for the
drawing of the winner. Viewed from all angles or turned
inside out, the contest fails to exhibit any discernible
consideration which would brand it as a lottery. Indeed, even
as we head the stern injunction, "look beyond the fair
exterior, to the substance, in order to unmask the real
element and pernicious tendencies which the law is seeking
to prevent" ("El Debate", Inc. vs. Topacio, supra, p. 291), we
find none. In our appraisal, the scheme does not only appear
to be, but actually is, a gratuitous distribution of property by
chance.
There is no point to the appellant's insistence that non-Caltex
customers who may buy Caltex products simply to win a
prize would actually be indirectly paying a consideration for
the privilege to join the contest. Perhaps this would be
tenable if the purchase of any Caltex product or the use of
any Caltex service were a pre-requisite to participation. But it
is not. A contestant, it hardly needs reiterating, does not
have to buy anything or to give anything of value.1awphl.nt
Off-tangent, too, is the suggestion that the scheme, being
admittedly for sales promotion, would naturally benefit the
sponsor in the way of increased patronage by those who will
be encouraged to prefer Caltex products "if only to get the
chance to draw a prize by securing entry blanks". The
required element of consideration does not consist of the
benefit derived by the proponent of the contest. The true
test, as laid down in People vs. Cardas, 28 P. 2d., 99, 137
Cal. App. (Supp.) 788, is whether the participant pays a
valuable consideration for the chance, and not whether those
conducting the enterprise receive something of value in
return for the distribution of the prize. Perspective properly
oriented, the standpoint of the contestant is all that matters,
not that of the sponsor. The following, culled from Corpus
Juris Secundum, should set the matter at rest:
The fact that the holder of the drawing expects
thereby to receive, or in fact does receive, some
benefit in the way of patronage or otherwise, as a
result of the drawing; does not supply the element
of consideration.Griffith Amusement Co. vs.
Morgan, Tex. Civ. App., 98 S.W., 2d., 844" (54
C.J.S., p. 849).
Thus enlightened, we join the trial court in declaring that the
"Caltex Hooded Pump Contest" proposed by the appellee is
not a lottery that may be administratively and adversely dealt
with under the Postal Law.
But it may be asked: Is it not at least a "gift enterprise, or
scheme for the distribution of money, or of any real or
personal property by lot, chance, or drawing of any kind",
which is equally prescribed? Incidentally, while the
appellant's brief appears to have concentrated on the issue
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of consideration, this aspect of the case cannot be avoided if
the remedy here invoked is to achieve its tranquilizing effect
as an instrument of both curative and preventive justice.
Recalling that the appellant's action was predicated,
amongst other bases, upon Opinion 217, Series 1953, of the
Secretary of Justice, which opined in effect that a scheme,
though not a lottery for want of consideration, may
nevertheless be a gift enterprise in which that element is not
essential, the determination of whether or not the proposed
contest wanting in consideration as we have found it to be
is a prohibited gift enterprise, cannot be passed over sub
silencio.
While an all-embracing concept of the term "gift enterprise" is
yet to be spelled out in explicit words, there appears to be a
consensus among lexicographers and standard authorities
that the term is commonly applied to a sporting artifice of
under which goods are sold for their market value but by way
of inducement each purchaser is given a chance to win a
prize (54 C.J.S., 850; 34 Am. Jur., 654; Black, Law
Dictionary, 4th ed., p. 817; Ballantine, Law Dictionary with
Pronunciations, 2nd ed., p. 55; Retail Section of Chamber of
Commerce of Plattsmouth vs. Kieck, 257 N.W., 493, 128
Neb. 13; Barker vs. State, 193 S.E., 605, 56 Ga. App., 705;
Bell vs. State, 37 Tenn. 507, 509, 5 Sneed, 507, 509). As
thus conceived, the term clearly cannot embrace the scheme
at bar. As already noted, there is no sale of anything to which
the chance offered is attached as an inducement to the
purchaser. The contest is open to all qualified contestants
irrespective of whether or not they buy the appellee's
products.
Going a step farther, however, and assuming that the
appellee's contest can be encompassed within the broadest
sweep that the term "gift enterprise" is capable of being
extended, we think that the appellant's pose will gain no
added comfort. As stated in the opinion relied upon, rulings
there are indeed holding that a gift enterprise involving an
award by chance, even in default of the element of
consideration necessary to constitute a lottery, is prohibited
(E.g.: Crimes vs. States, 235 Ala 192, 178 So. 73; Russell
vs. Equitable Loan & Sec. Co., 129 Ga. 154, 58 S.E., 88;
State ex rel. Stafford vs. Fox-Great Falls Theater
Corporation, 132 P. 2d., 689, 694, 698, 114 Mont. 52). But
this is only one side of the coin. Equally impressive
authorities declare that, like a lottery, a gift enterprise comes
within the prohibitive statutes only if it exhibits the tripartite
elements of prize, chance and consideration (E.g.: Bills vs.
People, 157 P. 2d., 139, 142, 113 Colo., 326; D'Orio vs.
Jacobs, 275 P. 563, 565, 151 Wash., 297; People vs. Psallis,
12 N.Y.S., 2d., 796; City and County of Denver vs. Frueauff,
88 P., 389, 394, 39 Colo., 20, 7 L.R.A., N.S., 1131, 12 Ann.
Cas., 521; 54 C.J.S., 851, citing: Barker vs. State, 193 S.E.,
605, 607, 56 Ga. App., 705; 18 Words and Phrases, perm.
ed., pp. 590-594). The apparent conflict of opinions is
explained by the fact that the specific statutory provisions
relied upon are not identical. In some cases, as pointed out
in 54 C.J.S., 851, the terms "lottery" and "gift enterprise" are
used interchangeably (Bills vs. People, supra); in others, the
necessity for the element of consideration or chance has
been specifically eliminated by statute. (54 C.J.S., 351-352,
citing Barker vs. State, supra; State ex rel. Stafford vs. Fox-
Great Falls Theater Corporation, supra). The lesson that we
derive from this state of the pertinent jurisprudence is,
therefore, that every case must be resolved upon the
particular phraseology of the applicable statutory provision.
Taking this cue, we note that in the Postal Law, the term in
question is used in association with the word "lottery". With
the meaning of lottery settled, and consonant to the well-
known principle of legal hermeneutics noscitur a sociis
which Opinion 217 aforesaid also relied upon although only
insofar as the element of chance is concerned it is only
logical that the term under a construction should be accorded
no other meaning than that which is consistent with the
nature of the word associated therewith. Hence, if lottery is
prohibited only if it involves a consideration, so also must the
term "gift enterprise" be so construed. Significantly, there is
not in the law the slightest indicium of any intent to eliminate
that element of consideration from the "gift enterprise"
therein included.
This conclusion firms up in the light of the mischief sought to
be remedied by the law, resort to the determination thereof
being an accepted extrinsic aid in statutory construction. Mail
fraud orders, it is axiomatic, are designed to prevent the use
of the mails as a medium for disseminating printed matters
which on grounds of public policy are declared non-mailable.
As applied to lotteries, gift enterprises and similar schemes,
justification lies in the recognized necessity to suppress their
tendency to inflame the gambling spirit and to corrupt public
morals (Com. vs. Lund, 15 A. 2d., 839, 143 Pa. Super. 208).
Since in gambling it is inherent that something of value be
hazarded for a chance to gain a larger amount, it follows
ineluctably that where no consideration is paid by the
contestant to participate, the reason behind the law can
hardly be said to obtain. If, as it has been held
Gratuitous distribution of property by lot or chance
does not constitute "lottery", if it is not resorted to as
a device to evade the law and no consideration is
derived, directly or indirectly, from the party
receiving the chance, gambling spirit not being
cultivated or stimulated thereby. City of Roswell vs.
Jones, 67 P. 2d., 286, 41 N.M., 258." (25 Words
and Phrases, perm. ed., p. 695, emphasis
supplied).
we find no obstacle in saying the same respecting a gift
enterprise. In the end, we are persuaded to hold that, under
the prohibitive provisions of the Postal Law which we have
heretofore examined, gift enterprises and similar schemes
therein contemplated are condemnable only if, like lotteries,
they involve the element of consideration. Finding none in
the contest here in question, we rule that the appellee may
not be denied the use of the mails for purposes thereof.
Recapitulating, we hold that the petition herein states a
sufficient cause of action for declaratory relief, and that the
"Caltex Hooded Pump Contest" as described in the rules
1
st

submitted by the appellee does not transgress the provisions
of the Postal Law.
ACCORDINGLY, the judgment appealed from is affirmed. No
costs.
GSIS v CADIZ
G.R. No. 154093, July 8, 2003
SUPREME COURT
Manila
EN BANC
G.R. No. 154093 July 8, 2003
GOVERNMENT SERVICE INSURANCE
SYSTEM, petitioner,
vs.
LEO L. CADIZ, respondent.
YNARES-SANTIAGO, J .:
Permanent total disability does not mean a state of absolute
helplessness, but means disablement of an employee to
earn wages in the same kind of work, or work of similar
nature, that he was trained for, or any work which a person
of similar mentality and attainment could do.
1

Assailed in this petition for review is the decision
2
of the
Court of Appeals in CA-G.R. SP No. 63521, which set aside
the decision of the Employees Compensation Commission
and granted respondents claim for permanent total disability
compensation benefits.
The undisputed facts are as follows: respondent Leo L.
Cadiz was appointed as a Provincial Guard of Negros
Oriental on July 1, 1968. On March 16, 1974, he entered the
police service and was promoted to several ranks until he
became a Police Major. In 1991, he was absorbed by the
Philippine National Police (PNP), with a rank of Police Chief
Inspector. On July 17, 1992, respondents rank was adjusted
to Police Chief Superintendent, the position he held until his
retirement on March 19, 1999 at the age of 55.
3

The medical records of respondent revealed that on October
11, 1996, he suffered a heart attack and was hospitalized at
the San Carlos Planters Hospital, San Carlos City. He was
transferred to the Siliman University Medical Center where
he was diagnosed to be suffering from "AF with CHF Class
1-E T/A Sec. to Cardio embolic Sec. to AF, Chronic CAD,"
4
a
heart ailment. Thereafter, respondent was also admitted at
the Negros Oriental Provincial Hospital for chest pain,
palpitation and abnormal beats "HP..., AF, CHF Class I;
Hypercholesterolemia."
5
Consequently, he applied for early
retirement due to "an ailment causing [paralysis of the] left
hand and [slurred] speechrendering him unfit to discharge
further his duties and responsibilities as a police officer."
6
Dr.
Silahis Rosario, a cardiologist and attending physician of
respondent, testified before the National Police Commission
that the latters ailment is unstable angina and chronic atriol
fibrillation, which means a chronic irregularity of the heart
causing a congestive heart failure.
7
After its own examination
of respondent, the Medical and Dental Service, PNP,
declared him "UNFIT FOR POLICE SERVICE".
8
Hence, on
March 19, 1999, he was retired from service and granted
permanent total disability benefits.
9

Subsequently, respondent filed a disability claim with the
GSIS, attaching to his application his service record and
PNP General Order No. 641, stating that respondent retired
from the PNP due to a permanent total disability.
10
On
November 25, 1999, Dr. Gervillana B. Estrada, Medical
Officer of GSIS, Dumaguete City, approved the claim and
granted respondent permanent total disability benefits
starting March 19, 1999, and temporary total disability
benefits from October 12, 1996 to November 22, 1996.
11

The Medical Service Group of GSIS, Pasay City, however,
directed Dr. Estrada to revise her recommendation, thus
"[k]indly revise your medical recommendation based on our
criteria for granting of disability. Based on your physical
examination (8/23/99) done the degree of claimants
disability, does not satisfy the criteria for PTD. We are
returning these claim for re-evaluation under PD 626."
12

On January 29, 2000, Dr. Estrada modified her
recommendation by retaining respondents temporary total
disability benefits from October 12, 1996 to November 22,
1996, but downgrading the permanent total disability benefits
to compensation equivalent to 8 months permanent partial
disability benefits from March 19, 1999.
13
Respondent moved
for reconsideration of the evaluation but the same was
denied.
On appeal by respondent, the Employees Compensation
Commission (ECC) affirmed the findings of the GSIS. Hence,
respondent filed a petition with the Court of Appeals which,
on June 21, 2002, rendered a decision setting aside the
decision of the ECC and granting respondents claim for
permanent total disability. The dispositive portion thereof
reads:
WHEREFORE, the petition for review is GRANTED.
The challenged decisions of the ECC and the GSIS
are ANNULLED and SET ASIDE, and another [one
is] entered declaring the petitioner to be suffering
from permanent total disability. Respondent ECC is
accordingly ordered to award the petitioner the full
benefits corresponding to his permanent total
disability. Without costs.
SO ORDERED.
14

On September 3, 2002, GSIS, as the agency charged with
the management and administration of the trust fund of the
ECC, filed the instant petition.
1
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Is respondent entitled to permanent total disability benefits?
We rule in the affirmative. In denying respondents claim for
permanent total disability benefits, the ECC held:
Based on the ECC Schedule of Compensation,
appellant was already awarded the maximum
benefits commensurate to the degree of his
disability. Moreover, the primary criterion set for
permanent total disability in this case was not met,
that is: permanent paralysis of two limbs; complete
loss of sight of both eyes; brain injury resulting in
incurable imbecility; and loss of two limbs at or
above the ankle or wrist.
Since appellant was already awarded the maximum
benefits prevailing at the time of his compulsory
retirement, he is no longer entitled to additional
benefits under PD 626, as amended.
15

Clearly, the ECC did not state its reason for declaring that
the benefits awarded by the GSIS to respondent are those
that are commensurate to the degree of his disability. The
fact that the latter did not lose the use of any part of his body
does not justify the denial of his claim for permanent total
disability. In Government Service Insurance System v. Court
of Appeals,
16
it was held that while permanent total disability
invariably results in an employees loss of work or inability to
perform his usual work, permanent partial disability occurs
when an employee loses the use of any particular anatomical
part of his body which disables him to continue with his
former work. Stated otherwise, the test of whether or not an
employee suffers from permanent total disability is the
capacity of the employee to continue performing his work
notwithstanding the disability he incurred. If by reason of the
injury or sickness he sustained, the employee is unable to
perform his customary job for more than 120 days and he
does not come within the coverage of Rule X of the
Amended Rules on Employees Compensability (which, in a
more detailed manner, describes what constitutes temporary
total disability), then the said employee undoubtedly suffers
from a permanent total disability regardless of whether or not
he loses the use of any part of his body. Permanent total
disability does not mean a state of absolute helplessness,
but means disablement of an employee to earn wages in the
same kind of work, or work of similar nature, that he was
trained for, or any work which a person of similar mentality
and attainment could do.
17

In the case at bar, respondents entitlement to permanent
total disability was established by his medical records and by
the investigation of the very agency he worked for, the PNP,
which found him "UNFIT FOR POLICE SERVICE".
18
Even
the initial findings of Dr. Gervillana B. Estrada, Medical
Officer of the GSIS, Dumaguete City evinced that respondent
is really qualified for permanent total disability benefits. Most
of all, the decision of the PNP to retire him at the age of 55
for being unfit for police service is a clear indication that his
heart ailment rendered him incapable of effectively and
competently performing his job as a Police Chief
Superintendent without serious discomfort or pain and
without material injury or danger to his life.
19
In a number of
cases,
20
it was ruled that the early retirement of an
employee due to a work-related ailment, as in the case at
bar, proves that he was really disabled totally to further
perform his assigned task, and to deny permanent total
disability benefits when he was forced to retire would render
inutile and meaningless the social justice precept guaranteed
by the Constitution.
The case of Tria v. Employees Compensation
Commission,
21
where we denied a claim for conversion of
disability benefits, is not applicable to the instant case. The
claim therein, which was filed 4 years after the employees
retirement, refers to a claim for conversion of a previously
granted disability benefit from permanent partial to
permanent total on the ground of an alleged recurring illness.
The case at bar, however, neither concerns a recurring
illness previously compensated, nor a claim for
additional/conversion of disability benefits, but involves a
review of the ECC decision which classified respondents
early-retirement-causing disability as permanent partial
instead of permanent total. As to the decisions
22
of the Court
of Appeals cited by petitioner as authorities, it must be
stressed that judicial decisions which form part of our legal
system are only the decisions of the Supreme Court. While
rulings of the Court of Appeals may serve as precedents for
lower courts, they only apply to points of law not covered by
any Supreme Court decision.
23
This is not, however, the
case here, considering that the legal issue presented is
already laid to rest by settled jurisprudence. Significantly,
one of the Court of Appeals cases cited by petitioner Ijares
v. Employees Compensation Commission (CA-G.R. SP No.
26910, April 13, 1992) was reversed by this Court on August
26, 1999, in G.R. No. 105854. There, we held that the early
retirement of an employee at the age of 60 by reason of a
work-related illness justifies the award of permanent total
disability benefits.
WHEREFORE, in view of all the foregoing, the Decision of
the Court of Appeals in CA-G.R. SP No. 63521, declaring
respondent Leo L. Cadiz to be suffering from a permanent
total disability and ordering the Employees Compensation
Commission to award him the full benefits corresponding to
his disability, is AFFIRMED in toto.
SO ORDERED.
CHINESE YOUNG MENS CHRISTIAN ASSOCIATION OF
THE PHILIPPINE ISLADS v REMINGTON STEEL CORP.
G.R. No. 159422, March 28, 2008
SUPREME COURT
Manila
THIRD DIVISION
G.R. NO. 159422 March 28, 2008
1
st

CHINESE YOUNG MEN'S CHRISTIAN ASSOCIATION OF
THE PHILIPPINE ISLANDS, doing business under the
name of MANILA DOWNTOWN YMCA, Petitioner,
vs.
REMINGTON STEEL CORPORATION, Respondent.
D E C I S I O N
AUSTRIA-MARTINEZ, J .:
Before the Court is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court assailing the Resolution
1
dated
January 16, 2003 of the Court of Appeals (CA) in CA-G.R.
SP No. 74292 which dismissed outright petitioner's Petition
for Review for failure to show proof of authority of the
signatory to the Verification and Certification of Non-Forum
Shopping, and
the CA Resolution
2
dated July 29, 2003 which denied
petitioner's Motion for Reconsideration thereof.
The antecedent facts of the petition are as follows:
Remington Steel Corporation
3
(Remington) leased ground
floor units 964 and 966 and second floor unit 963 of a
building owned by the Manila Downtown YMCA (YMCA) in
Benavidez St., Binondo, Manila. Remington used the
combined areas of ground floor units 964 and 966 as
hardware store, offices, and display shops for its steel
products, as well as a passageway to second floor unit 963
which was used as staff room for its Manila sales force.
On February 27, 1997, YMCA formally terminated the lease
over second floor unit 963 and gave Remington until March
31, 1997 to vacate the premises. On March 24, 1997,
Remington filed with the Metropolitan Trial Court (MeTC) ,
Manila a case for the Fixing of Lease Period over unit 963,
docketed as Civil Case No. 154969-CV. On April 8, 1997,
YMCA filed in the same court an action for Unlawful Detainer
involving the same unit 963 against Remington, docketed as
Civil Case No. 155083-CV. The two cases were consolidated
before Branch 26 of MeTC-Manila (MeTC-Branch 26).
During the pendency of Civil Case Nos. 154969-CV and
155083-CV, Remington filed a Petition for Consignation of
Rentals on the ground that YMCA refused to receive rentals
for ground floor units 964 and 966, docketed as Civil Case
No. 155897 and assigned to Branch 24 of MeTC-Manila
(MeTC-Branch 24). On June 23, 1998, Remington filed a
Formal Surrender of the Leased Premises,
4
opting to
surrender possession of units 964 and 966 effective July 1,
1998 and tendering two checks to cover all past rentals due
on the two units. On June 25, 1998, YMCA filed a No
Objection to the Turn Over of the Leased Premises at #964
and 966 Benavidez St., Binondo, Manila.
5
On July 9, 1998,
MeTC- Branch 24 issued an Order
6
declaring the
consignation case closed.
Remington, however, continued to use ground floor units 964
and 966 as passageway to second floor unit 963. It kept the
premises padlocked and failed to give YMCA the keys to the
premises.
On August 11, 1998, MeTC-Branch 26 rendered a Decision
in Civil Case Nos. 154969-CV and 155083-CV extending for
three years from finality of the decision the lease period on
second floor unit 963 and dismissed YMCA's complaint for
ejectment.
On August 21, 1998, Remington filed in MeTC-Branch 26 a
Motion to Constitute Passageway alleging that it had no
means of ingress or egress to second floor unit 963. MeTC-
Branch 26 assigned a Commissioner to conduct an ocular
inspection. He reported that Remington was still in
possession of the keys to ground floor units 964 and 966
because YMCA failed to provide an adequate passageway
to second floor unit 963. The issue on the passageway,
however, was not resolved by MeTC-Branch 26, for it had to
forward the records of the case to Branch 30, Regional Trial
Court, Manila (RTC-Branch 30) in connection with the
appeals taken by the parties from its decision, docketed as
Civil Case Nos. 99-93836 and 99-93837.
On March 15, 2000, RTC-Branch 30, acting as an appellate
court, rendered a Decision
7
in Civil Case Nos. 99-93836 and
99-93837 granting Remington a longer extension period of
five years for second floor unit 963 and ordering YMCA to
provide a two-meter passageway between units 964 and
966.
Dissatisfied, YMCA filed an appeal with the CA, docketed as
CA-G.R. SP No. 58957. On September 19, 2003, the CA
held that the lower courts had authority to fix an extension of
the lease period. It found that although the lease contract
had expired, Remington's continued occupation of unit 963
resulted in a new lease on a month-to-month basis, which
subsisted for over a year; thus, while YMCA had the right to
seek its termination, Remington was entitled to a judicial
lengthening of its period based on equity. Nonetheless, the
CA ordered Remington to vacate the premises, as the
continuation of the lease was no longer tenable after the
lapse of six years, since the parties' formal contract had
expired. It also noted that since Remington had already
transferred to its own building, there was no more reason to
continue the lease. Remington filed a Motion for
Reconsideration, which the CA considered as moot, for
Remington had vacated the premises.
In the meantime that CA-G.R. SP No. 58957 was pending,
YMCA filed in MeTC-Manila two separate complaints for
unlawful detainer to evict Remington from ground floor units
964 and 966,
8
docketed as Civil Case Nos. 168629-CV and
168628-CV, respectively. Civil Case No. 168629-CV was
raffled to Branch 20, while Civil Case No. 168628-CV was
raffled to Branch 17. Upon Remington's motion, the two
cases were consolidated. However, when YMCA filed a
motion for reconsideration, the consolidation of cases was
1
st

reversed and canceled. Thus, the cases were tried
separately.
YMCA contended in both cases that Remington did not
surrender the ground floor units but padlocked the doors,
refused to surrender the keys, and failed to pay rent therefor
demand.
Remington countered that it vacated and surrendered
ground floor units 964 and 966 on July 1, 1998; that although
it had the doors of the units locked, it did so only as an act of
self-preservation, since it had a valid lease on second floor
unit 963, and YMCA refused to heed the order of the court to
provide a passageway to the second floor; that, if it were true
that no turnover of ground floor units 964 and 966 was
made, YMCA had the remedy of filing the appropriate motion
in the consignation case, where the parties agreed on such
turnover; and that the fact that it did not complain shows
completion of such turnover.
9

Both branches of MeTC-Manila separately ordered
Remington to vacate the premises and to pay reasonable
rent and attorney's fees to YMCA.
10

Remington separately appealed both decisions to the
Regional Trial Court, Manila (RTC-Manila). Its appeal from
MeTC-Manila, Branch 20 was docketed as Civil Case No.
01-102435 and assigned to Branch 40, while the appeal from
MeTC-Manila Branch 17 was docketed as Civil Case No. 03-
107655 and assigned to Branch 25. Branches 40 and 25 of
RTC-Manila separately reversed the respective decisions of
MeTC-Manila and dismissed the two complaints for unlawful
detainer.
11
YMCA filed separate motions for
reconsideration
12
which were denied.
13

YMCA then filed separate petitions for review
14
in the CA,
docketed as CA-G.R SP Nos. 74292 and 88599.
On January 16, 2003, the CA issued a
Resolution
15
dismissing outright the petition for review in CA-
G.R. SP No. 74292 involving unit 964 on the ground that
William Golangco, the signatory to the Verification and
Certification on Non-Forum Shopping, failed to show his
proof of authority to file the petition for review.
On February 10, 2003, YMCA filed a Motion for
Reconsideration
16
therein, appending thereto a Secretary's
Certificate
17
dated December 26, 2002 executed by YMCA's
Corporate Secretary attesting to a December 13, 2002
Resolution of the Board of Directors authorizing William
Golangco to prepare and file the petition for review.
On July 29, 2003, the CA issued a Resolution
18
denying
YMCA's motion for reconsideration. Citing Spouses Melo v.
Court of Appeals,
19
the CA underscored the mandatory
nature of the requirement that the Certification of Non-Forum
Shopping should be annexed to, or simultaneously filed with
the petition and that subsequent compliance therewith
cannot excuse a party's failure to comply in the first instance.
Hence, the present petition involving only unit 964 anchored
on the following ground:
THE HONORABLE COURT OF APPEALS ERRED IN
DISMISSING THE PETITION RAISED BEFORE IT WHEN
IT FOUND THAT THE PETITIONER FAILED TO SUBMIT
THE AUTHORITY OF THE AFFIANT WHO SIGNED FOR
THE PETITIONER CORPORATION AND THE
SUBSEQUENT SUBMISSION OF THE SECRETARY'S
CERTIFICATE DID NOT CURE SAID DEFECT IN THE
CERTIFICATION AGAINST FORUM SHOPPING.
20

YMCA argues that the rules do not require that the filing of
the Verification and Certification of Non-Forum Shopping
should include therewith the authorization of the person
signing the same; that Melo does not apply, since it involves
the total failure to append to the petition a Verification and
Certification of Non-Forum Shopping; that recent cases of
this Court, while upholding the need to present the authority
of the person signing the Verification and Certification of
Non-Forum Shopping in case the party litigant is not a
natural person, emphasize that its late submission is not
fatal.
Remington, on the other hand, contends that YMCA is
required at the time of the filing of its petition to show that the
person signing the Verification and Certification of Non-
Forum Shopping on its behalf had proper authority to do so;
that subsequent compliance would encourage parties to
make light of the requirements of petitions for review.
Sections 1 and 2, Rule 42 of the Rules of Court require that a
petition for review filed with the CA should be verified and
should contain a certificate of non-forum shopping, to wit:
SEC. 1. How appeal taken; time for filing. - A party desiring
to appeal from a decision of the Regional Trial Court
rendered in the exercise of its appellate jurisdiction may file
a verified petition for review with the Court of Appeals x x x.
SEC. 2. Form and contents. - The petition shall be filed in
seven (7) legible copies, with the original copy intended for
the court being indicated as such by the petitioner, x x x.
The petitioner shall also submit together with the petition
a certification under oath that he has not theretofore
commenced any other action involving the same issues in
the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of
the same; and if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom. (Emphasis
supplied)
1
st

These requirements are mandatory, and failure to comply
therewith is sufficient ground for the dismissal of the
petition.
21
The requirement that the petitioner should sign the
Verification and Certification of Non-Forum Shopping applies
even to corporations, considering that the mandatory
directives of the Rules of Court make no distinction between
natural and juridical persons.
22

Except for the powers which are expressly conferred on it by
the Corporation Code and those that are implied by or are
incidental to its existence, a corporation has no powers. It
exercises its powers through its board of directors and/or its
duly authorized officers and agents.
23
Thus, its power to sue
and be sued in any court is lodged with the board of directors
that exercises its corporate powers.
24
Physical acts, like the
signing of documents, can be performed only by natural
persons duly authorized for the purpose by corporate by-
laws or by a specific act of the board of directors.
25

The purpose of requiring a verification is to secure an
assurance that the allegations of the petition have been
made in good faith, or are true and correct, not merely
speculative.
26
On the other hand, the rule against forum
shopping is rooted in the principle that a party-litigant shall
not be allowed to pursue simultaneous remedies in different
fora, as this practice is detrimental to orderly judicial
procedure.
27

A distinction must be made between non-compliance with
the requirements for Verification and Certification of Non-
Forum Shopping. As to Verification, non-compliance
therewith does not necessarily render the pleading fatally
defective; hence, the court may order its correction if
verification is lacking, or act on the pleading although it is not
verified, if the attending circumstances are such that strict
compliance with the Rules may be dispensed with in order
that the ends of justice may thereby be served.
28
On the
other hand, the lack of certification of non-forum shopping is
generally not curable by the submission thereof after the
filing of the petition.
29
The submission of a certificate against
forum shopping is thus deemed obligatory, albeit not
jurisdictional.
30
However, jurisprudence instructs that the rule
on certification against forum shopping may be relaxed on
grounds of "substantial compliance" or "special circumstance
or compelling reasons."
31

In Shipside Incorporated v. Court of Appeals,
32
the petitioner
had not attached any proof that its resident manager was
authorized to sign the Verification and Certification of Non-
Forum Shopping, as a consequence of which, the petition
was dismissed by the CA. Subsequent to the dismissal,
however, the petitioner filed a motion for reconsideration, to
which was attached a Certificate issued by its board
secretary who stated that, prior to the filing of the petition, the
resident manager had been authorized by the board of
directors to file the petition. The Court recognized therein the
abundance of cases excusing non-compliance with the
requirement of a certification of non-forum shopping and held
that with more reason should a petition be given due course
when it incorporates a certification of non-forum shopping
without evidence that the person signing the certification was
an authorized signatory and the petitioner subsequently
submits a secretarys certificate attesting to the signatorys
authority in its motion for reconsideration.
Similarly, in Havtor Management Philippines Inc. v. National
Labor Relations Commission,
33
the Court acknowledged
substantial compliance when the lacking secretarys
certificate was submitted by the petitioners as an attachment
to the motion for reconsideration seeking reversal of the
original decision dismissing the petition for its earlier failure
to submit such requirement.
Likewise, in General Milling Corporation v. National Labor
Relations Commission,
34
the CA dismissed the petition,
which was not accompanied by any board resolution or
certification by the corporate secretary that the person who
signed the Certification of Non-Forum Shopping was duly
authorized to represent the petitioner corporation. In the
Motion for Reconsideration, however, the petitioner attached
a board resolution stating that the signatory of the
Certification had been duly authorized to do so. The Court
deemed as substantial compliance the belated attachment to
the motion for reconsideration the board resolution or the
secretarys certificate, stating that there was no attempt on
the part of the petitioner to ignore the prescribed procedural
requirements.
The ruling in these cases has been repeatedly reiterated in
subsequent cases: Pascual and Santos, Inc. v. The
Members of the Tramo Wakas Neighborhood
Association,
35
Wack Wack Golf and Country Club v. National
Labor Relations Commission,
36
Vicar International
Construction, Inc. v. FEB Leasing and Finance
Corporation,
37
Ateneo De Naga University v.
Manalo,
38
China Banking Corporation v. Mondragon
International Philippines, Inc.,
39
LDP Marketing, Inc. v.
Monter,
40
Varorient Shipping Co., Inc. v. National Labor
Relations Commission,
41
and most recently in Cana v.
Evangelical Free Church of the Philippines,
42
and continues
to be the controlling doctrine.
As in the aforementioned cases, YMCA rectified its failure to
submit proof of Golangco's authority to sign the Verification
and Certification on Non-Forum Shopping on its behalf when
it attached in its Motion for Reconsideration a Secretary's
Certificate issued by its Corporate Secretary stating that on
December 13, 2002, or prior to the filing of the petition on
December 27, 2002, Golangco had been authorized by
YMCA's Board of Directors to file the petition before the CA.
Thus, the CA's reliance on Melo was misplaced. That case
involved a total failure to append to the petition a verification
and certification of non-forum shopping, unlike the present
case in which YMCA timely filed a Verification and
Certification of Non-Forum Shopping, but merely failed to
submit proof of authority of the signatory to sign the same.
While the requirement of the certificate of non-forum
shopping is mandatory, nonetheless the requirement must
1
st

not be interpreted too literally as to defeat the objective of
preventing the undesirable practice of forum shopping.
43

Accordingly, the CA committed an error in dismissing outright
YMCA's petition for review for failure to attach a proof of
authority of the signatory to the Verification and Certification
of Non-Forum Shopping.
Ordinarily, the Court would remand the case to the CA for
proper disposition of the petition on the merits.
44
The
particular surrounding facts and circumstances in the present
case, however, prevent the Court from doing so. In the
meantime that the present petition was pending, the CA
rendered a Decision dated October 17, 2005 in CA-G.R SP
No. 88599, involving ground floor unit 966 reversing the
Decision of RTC-Branch 25 and reinstating the Decision of
MeTC-Branch 17 on YMCA's complaint for unlawful detainer.
When Remington's motion for reconsideration was denied, it
filed a petition for review on certiorari with this Court, entitiled
"Remington IndustrialSales Corporation v. Chinese Young
Mens Christian Association of the Philippine Islands, doing
business under the name Manila Downtown
YMCA," docketed as G.R. No. 171858.
45
On January 22,
2007, the Court rendered a Decision
46
granting the petition
and dismissing the unlawful detainer case involving ground
floor unit 966. However, upon YMCA's motion for
reconsideration, the Court issued a Resolution dated August
31, 2007 setting aside its January 22, 2007 Decision and
reinstating the Decision of MeTC-Branch 17 with the
modification that Remington was ordered to pay
YMCA P11,000.00 a month from July 1, 1998 until March 12,
2004 as reasonable compensation for the use of the
premises.
47
The Court held therein:
The filing of the Formal Surrender of Leased Premises and
the actual emptying of the premises constitute constructive
delivery of possession. Hence, the contract of lease was
terminated on July 1, 1998 and it is incumbent upon
petitioner, as lessee, to comply with its obligation to return
the thing leased to the lessor and vacate the premises.
However, [Remington] failed to comply with its obligation
to return the premises to [YMCA]. In order to return the
thing leased to the lessor, it is not enough that the lessee
vacates it. It is necessary that he places the thing at the
disposal of the lessor, so that the latter can receive it without
any obstacle. He must return the keys and leave no sub-
lessees or other persons in the property; otherwise he shall
continue to be liable for rents.
[Remingtons] constructive delivery of the premises did
not produce the effect of actual delivery to the [YMCA].
To be effective, it is necessary that the person to whom the
delivery is made must be able to take control of it without
impediment especially from the person who supposedly
made such delivery. In the case at bar, records show that
despite the termination of the lease, [YMCA] was never in
possession of the premises because it was padlocked.
[YMCA] was not given the key to the premises hence it was
deprived to use the same as it pleases.
Although the use of the premises as passageway was
justified, [Remington] cannot deprive [YMCA] the use of
the said premises by having it padlocked. Other than
simply repudiating the demand for back rentals, [Remington]
should have given [YMCA] a set of keys so it can enter the
premises without exposing the property to security risks.
Prudence dictates the delivery of the keys to [YMCA] to
dispel any doubt that [Remington] is using the premises
other than as a mere passageway and that it has never
withheld possession of the same to the [YMCA]. [Remington]
had several opportunities to give [YMCA] access to the
premises starting from the time it sent its first demand to pay
back rentals until the complaint for ejectment was filed but it
never availed of these opportunities.1avvphi1
From the foregoing, it is apparent that [Remingtons]
constructive delivery did not effectively transfer
possession of the leased premises to [YMCA]. From the
time the lease was terminated, [Remington] unlawfully
withheld possession of the leased premises from
[YMCA]. However, it appears that [Remington] had moved
out from [YMCAs] building on March 12, 2004, as stated in
its Manifestation before Branch 25 of the RTC-Manila.
[YMCA] is entitled to a reasonable compensation for
[Remingtons] continued occupancy of the premises despite
termination of the lease from July 1, 1998 to March 12, 2004.
Under Section 17, Rule 70 of the Rules of Court, the trial
court may award reasonable compensation for the use and
occupation of the leased premises after the same is duly
proved. In Asian Transmission Corporation v. Canlubang
Sugar Estates, the Court ruled that the reasonable
compensation contemplated under said Rule partakes of the
nature of actual damages based on the evidence adduced
by the parties. The Court also ruled that "fair rental value is
defined as the amount at which a willing lessee would pay
and a willing lessor would receive for the use of a certain
property, neither being under compulsion and both parties
having a reasonable knowledge of all facts, such as the
extent, character and utility of the property, sales and holding
prices of similar land and the highest and best use of the
property."
The reasonable compensation for the leased premises fixed
by the trial court based on the stipulated rent under the lease
contract which is P22,531.00, must be equitably reduced in
view of the circumstances attendant in the case at bar. First,
it should be noted that the premises was used only as a
means of passageway caused by [YMCAs] failure to provide
sufficient passageway towards the second floor unit it also
occupies. Second, [YMCA] was negligent because it waited
for more than a year before it actually demanded payment
for back rentals as reflected in its Statement of Accounts
dated September 7, 1999. When both parties to a
transaction are mutually negligent in the performance of their
obligations, the fault of one cancels the negligence of the
other and, as in this case, their rights and obligations may be
determined equitably under the law proscribing unjust
enrichment. From the foregoing, we find the amount
of P11,000.00 a month equitable and reasonable
1
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compensation for petitioners continued use of the
premises.
48
(Emphasis supplied)
Remington filed a Motion for Reconsideration therein but it
was denied with finality in a Resolution dated November 12,
2007. Remington subsequently filed a Motion for Leave to
File Second Motion for Reconsideration but it was denied for
lack of merit in a Resolution dated February 6, 2008,
ordering entry of judgment. Thus, the resolution in that case
has become final and executory.
The final Resolution dated August 31, 2007 in G.R. No.
171858 is binding and applicable to the present case
following the salutary doctrine of stare decisis et non quieta
movere which means "to adhere to precedents, and not to
unsettle things which are established."
49
Under the doctrine,
when the Supreme Court has once laid down a principle of
law as applicable to a certain state of facts, it will adhere to
that principle, and apply it to all future cases, where facts are
substantially the same.
50
The doctrine of stare decisis is
based upon the legal principle or rule involved and not upon
judgment which results therefrom. In this particular
sense stare decisis differs from res judicata which is based
upon the judgment.
51

The doctrine of stare decisis is one of policy grounded on the
necessity for securing certainty and stability of judicial
decisions, thus:
Time and again, the court has held that it is a very desirable
and necessary judicial practice that when a court has laid
down a principle of law as applicable to a certain state of
facts, it will adhere to that principle and apply it to all future
cases in which the facts are substantially the same. Stare
decisis et non quieta movere. Stand by the decisions and
disturb not what is settled. Stare decisis simply means that
for the sake of certainty, a conclusion reached in one case
should be applied to those that follow if the facts are
substantially the same, even though the parties may be
different. It proceeds from the first principle of justice that,
absent any powerful countervailing considerations, like cases
ought to be decided alike. Thus, where the same questions
relating to the same event have been put forward by the
parties similarly situated as in a previous case litigated and
decided by a competent court, the rule of stare decisis is a
bar to any attempt to relitigate the same issue.
52

It bears stressing that the facts of the present case and those
of G.R. No. 171858 are substantially the same. The only
difference is the unit involved; G.R. No. 171858 involves unit
966 while the present case involves unit 964. The opposing
parties are likewise the same. Clearly, in the light of the final
Resolution dated August 31, 2007 in G.R. No. 171858, which
the Court follows as precedent, Remington unlawfully
withheld possession of the leased premises because its
constructive delivery did not amount to an effective transfer
of possession to YMCA. It is the Courts duty to apply the
previous ruling in the final Resolution dated August 31, 2007
in G.R. No. 171858 to the instant case. Once a case has
been decided one way, any other case involving exactly the
same point at issue, as in the present case, should be
decided in the same manner.
53

WHEREFORE, the Court GRANTS herein petition insofar as
the outright dismissal of CA-G.R. SP No. 74292 is
concerned. The Resolutions dated January 16, 2003 and
July 29, 2003 of the Court of Appeals
are REVERSEDand SET ASIDE. The final Resolution dated
August 31, 2007 of the Court in G.R. No. 171858 shall
likewise govern the rights of the parties insofar as unit 964 is
concerned.
SO ORDERED.
LAZATIN v DESIERTO
G.R. No. 147097, June 5, 2009
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 147097 June 5, 2009
CARMELO F. LAZATIN, MARINO A. MORALES,
TEODORO L. DAVID and ANGELITO A.
PELAYO, Petitioner,
vs.
HON. ANIANO A. DESIERTO as OMBUDSMAN, and
SANDIGANBAYAN, THIRD DIVISION, Respondents.
D E C I S I O N
PERALTA, J .:
This resolves the petition for certiorari under Rule 65 of the
Rules of Court, praying that the Ombudsman's disapproval of
the Office of the Special Prosecutor's (OSP)
Resolution
1
dated September 18, 2000, recommending
dismissal of the criminal cases filed against herein
petitioners, be reversed and set aside.
The antecedent facts are as follows.
On July 22, 1998, the Fact-Finding and Intelligence Bureau
of the Office of the Ombudsman filed a Complaint-Affidavit
docketed as OMB-0-98-1500, charging herein petitioners
with Illegal Use of Public Funds as defined and penalized
under Article 220 of the Revised Penal Code and violation of
Section 3, paragraphs (a) and (e) of Republic Act (R.A.) No.
3019, as amended.
The complaint alleged that there were irregularities in the use
by then Congressman Carmello F. Lazatin of his
Countrywide Development Fund (CDF) for the calendar year
1996, i.e., he was both proponent and implementer of the
projects funded from his CDF; he signed vouchers and
1
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supporting papers pertinent to the disbursement as
Disbursing Officer; and he received, as claimant, eighteen
(18) checks amounting to P4,868,277.08. Thus, petitioner
Lazatin, with the help of petitioners Marino A. Morales,
Angelito A. Pelayo and Teodoro L. David, was allegedly able
to convert his CDF into cash.
A preliminary investigation was conducted and, thereafter,
the Evaluation and Preliminary Investigation Bureau (EPIB)
issued a Resolution
2
dated May 29, 2000 recommending the
filing against herein petitioners of fourteen (14) counts each
of Malversation of Public Funds and violation of Section 3 (e)
of R.A. No. 3019. Said Resolution was approved by the
Ombudsman; hence, twenty-eight (28) Informations
docketed as Criminal Case Nos. 26087 to 26114 were filed
against herein petitioners before the Sandiganbayan.
Petitioner Lazatin and his co-petitioners then filed their
respective Motions for Reconsideration/Reinvestigation,
which motions were granted by the Sandiganbayan (Third
Division). The Sandiganbayan also ordered the prosecution
to re-evaluate the cases against petitioners.
Subsequently, the OSP submitted to the Ombudsman its
Resolution
3
dated September 18, 2000. It recommended the
dismissal of the cases against petitioners for lack or
insufficiency of evidence.
The Ombudsman, however, ordered the Office of the Legal
Affairs (OLA) to review the OSP Resolution. In a
Memorandum
4
dated October 24, 2000, the OLA
recommended that the OSP Resolution be disapproved and
the OSP be directed to proceed with the trial of the cases
against petitioners. On October 27, 2000, the Ombudsman
adopted the OLA Memorandum, thereby disapproving the
OSP Resolution dated September 18, 2000 and ordering the
aggressive prosecution of the subject cases. The cases were
then returned to the Sandiganbayan for continuation of
criminal proceedings.
Thus, petitioners filed the instant petition.
Petitioners allege that:
I.
THE OMBUDSMAN ACTED WITH GRAVE ABUSE OF
DISCRETION OR ACTED WITHOUT OR IN EXCESS OF
HIS JURISDICTION.
II.
THE QUESTIONED RESOLUTION WAS BASED ON
MISAPPREHENSION OF FACTS, SPECULATIONS,
SURMISES AND CONJECTURES.
5

Amplifying their arguments, petitioners asseverate that the
Ombudsman had no authority to overturn the OSP's
Resolution dismissing the cases against petitioners because,
under Section 13, Article XI of the 1987 Constitution, the
Ombudsman is clothed only with the power to watch,
investigate and recommend the filing of proper cases against
erring officials, but it was not granted the power to prosecute.
They point out that under the Constitution, the power to
prosecute belongs to the OSP (formerly the Tanodbayan),
which was intended by the framers to be a separate and
distinct entity from the Office of the Ombudsman. Petitioners
conclude that, as provided by the Constitution, the OSP
being a separate and distinct entity, the Ombudsman should
have no power and authority over the OSP. Thus, petitioners
maintain that R.A. No. 6770 (The Ombudsman Act of 1989),
which made the OSP an organic component of the Office of
the Ombudsman, should be struck down for being
unconstitutional.
Next, petitioners insist that they should be absolved from any
liability because the checks were issued to petitioner Lazatin
allegedly as reimbursement for the advances he made from
his personal funds for expenses incurred to ensure the
immediate implementation of projects that are badly needed
by the Pinatubo victims.
The Court finds the petition unmeritorious.
Petitioners' attack against the constitutionality of R.A. No.
6770 is stale. It has long been settled that the provisions of
R.A. No. 6770 granting the Office of the Ombudsman
prosecutorial powers and placing the OSP under said office
have no constitutional infirmity. The issue of whether said
provisions of R.A. No. 6770 violated the Constitution had
been fully dissected as far back as 1995 in Acop v. Office of
the Ombudsman.
6

Therein, the Court held that giving prosecutorial powers to
the Ombudsman is in accordance with the Constitution as
paragraph 8, Section 13, Article XI provides that the
Ombudsman shall "exercise such other functions or duties
as may be provided by law." Elucidating on this matter, the
Court stated:
x x x While the intention to withhold prosecutorial powers
from the Ombudsman was indeed present, the Commission
[referring to the Constitutional Commission of 1986] did not
hesitate to recommend that the Legislature could, through
statute, prescribe such other powers, functions, and duties to
the Ombudsman. x x x As finally approved by the
Commission after several amendments, this is now
embodied in paragraph 8, Section 13, Article XI
(Accountability of Public Officers) of the Constitution, which
provides:
Sec.13. The Office of the Ombudsman shall have the
following powers, functions, and duties:
x x x x
Promulgate its rules and procedure and exercise such other
functions or duties as may be provided by law.
1
st

Expounding on this power of Congress to prescribe other
powers, functions, and duties to the Ombudsman, we quote
Commissioners Colayco and Monsod during interpellation by
Commissioner Rodrigo:
x x x x
MR. RODRIGO:
Precisely, I am coming to that. The last of the
enumerated functions of the Ombudsman is: "to
exercise such powers or perform such functions or
duties as may be provided by law." So, the
legislature may vest him with powers taken away
from the Tanodbayan, may it not?
MR. COLAYCO:
Yes.
MR. MONSOD:
Yes.
x x x x
MR. RODRIGO:
Madam President. Section 5 reads: "The
Tanodbayan shall continue to function and exercise
its powers as provided by law."
MR. COLAYCO:
That is correct, because it is under P.D. No. 1630.
MR. RODRIGO:
So, if it is provided by law, it can be taken away by
law, I suppose.
MR. COLAYCO:
That is correct.
MR. RODRIGO:
And precisely, Section 12(6) says that among the
functions that can be performed by the Ombudsman
are "such functions or duties as may be provided by
law." The sponsors admitted that the legislature
later on might remove some powers from the
Tanodbayan and transfer these to the Ombudsman.
MR. COLAYCO:
Madam President, that is correct.
x x x x
MR. RODRIGO:
Madam President, what I am worried about is, if we
create a constitutional body which has neither
punitive nor prosecutory powers but only persuasive
powers, we might be raising the hopes of our
people too much and then disappoint them.
MR. MONSOD:
I agree with the Commissioner.
MR. RODRIGO:
Anyway, since we state that the powers of the
Ombudsman can later on be implemented by the
legislature, why not leave this to the legislature?
x x x x
MR. MONSOD: (reacting to statements of
Commissioner Blas Ople):
x x x x
With respect to the argument that he is a toothless animal,
we would like to say that we are promoting the concept in its
form at the present, but we are also saying that he can
exercise such powers and functions as may be provided by
law in accordance with the direction of the thinking of
Commissioner Rodrigo. We do not think that at this time we
should prescribe this, but we leave it up to Congress at some
future time if it feels that it may need to designate what
powers the Ombudsman need in order that he be more
effective.1awphi1 This is not foreclosed.
So, this is a reversible disability, unlike that of a eunuch; it is
not an irreversible disability.
7

The constitutionality of Section 3 of R.A. No. 6770, which
subsumed the OSP under the Office of the Ombudsman,
was likewise upheld by the Court in Acop. It was explained,
thus:
x x x the petitioners conclude that the inclusion of the Office
of the Special Prosecutor as among the offices under the
Office of the Ombudsman in Section 3 of R.A. No. 6770 ("An
Act Providing for the Functional and Structural Organization
of the Office of the Ombudsman and for Other Purposes") is
unconstitutional and void.
The contention is not impressed with merit. x x x
x x x x
1
st

x x x Section 7 of Article XI expressly provides that the then
existing Tanodbayan, to be henceforth known as the Office
of the Special Prosecutor, "shall continue to function and
exercise its powers as now or hereafter may be provided by
law, except those conferred on the Office of the Ombudsman
created under this Constitution." The underscored phrase
evidently refers to the Tanodbayan's powers under P.D. No.
1630 or subsequent amendatory legislation. It follows then
that Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. No. 1630 or grant it other
powers, except those powers conferred by the Constitution
on the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers
that by express mandate of paragraph 8, Section 13, Article
XI of the Constitution, the Ombudsman may "exercise such
other powers or perform functions or duties as may be
provided by law," it is indubitable then that Congress has the
power to place the Office of the Special Prosecutor under the
Office of the Ombudsman. In the same vein, Congress may
remove some of the powers granted to the Tanodbayan by
P.D. No. 1630 and transfer them to the Ombudsman; or
grant the Office of the Special Prosecutor such other powers
and functions and duties as Congress may deem fit and
wise. This Congress did through the passage of R.A. No.
6770.
8

The foregoing ruling of the Court has been reiterated
in Camanag v. Guerrero.
9
More recently, in Office of the
Ombudsman v. Valera,
10
the Court, basing its ratio
decidendi on its ruling in Acop and Camanag, declared that
the OSP is "merely a component of the Office of the
Ombudsman and may only act under the supervision and
control, and upon authority of the Ombudsman" and ruled
that under R.A. No. 6770, the power to preventively suspend
is lodged only with the Ombudsman and Deputy
Ombudsman.
11
The Court's ruling in Acop that the authority
of the Ombudsman to prosecute based on R.A. No. 6770
was authorized by the Constitution was also made the
foundation for the decision in Perez v.
Sandiganbayan,
12
where it was held that the power to
prosecute carries with it the power to authorize the filing of
informations, which power had not been delegated to the
OSP. It is, therefore, beyond cavil that under the
Constitution, Congress was not proscribed from legislating
the grant of additional powers to the Ombudsman or placing
the OSP under the Office of the Ombudsman.
Petitioners now assert that the Court's ruling on the
constitutionality of the provisions of R.A. No. 6770 should be
revisited and the principle of stare decisis set aside. Again,
this contention deserves scant consideration.
The doctrine of stare decisis et non quieta movere (to adhere
to precedents and not to unsettle things which are
established) is embodied in Article 8 of the Civil Code of the
Philippines which provides, thus:
ART. 8. Judicial decisions applying or interpreting the laws or
the Constitution shall form a part of the legal system of the
Philippines.
It was further explained in Fermin v. People
13
as follows:
The doctrine of stare decisis enjoins adherence to judicial
precedents. It requires courts in a country to follow the
rule established in a decision of the Supreme Court
thereof. That decision becomes a judicial precedent to be
followed in subsequent cases by all courts in the land. The
doctrine of stare decisis is based on the principle that once a
question of law has been examined and decided, it should
be deemed settled and closed to further
argument.
14
1avvphi1
In Chinese Young Men's Christian Association of the
Philippine Islands v. Remington Steel Corporation,
15
the
Court expounded on the importance of the foregoing
doctrine, stating that:
The doctrine of stare decisis is one of policy grounded on the
necessity for securing certainty and stability of judicial
decisions, thus:
Time and again, the court has held that it is a very
desirable and necessary judicial practice that when a
court has laid down a principle of law as applicable to a
certain state of facts, it will adhere to that principle and apply
it to all future cases in which the facts are substantially the
same. Stare decisis et non quieta movere. Stand by the
decisions and disturb not what is settled. Stare decisis simply
means that for the sake of certainty, a conclusion
reached in one case should be applied to those that
follow if the facts are substantially the same, even though
the parties may be different. It proceeds from the first
principle of justice that, absent any powerful
countervailing considerations, like cases ought to be
decided alike. Thus, where the same questions relating to
the same event have been put forward by the parties
similarly situated as in a previous case litigated and decided
by a competent court, the rule of stare decisis is a bar to
any attempt to relitigate the same issue.
16

The doctrine has assumed such value in our judicial system
that the Court has ruled that "[a]bandonment thereof must
be based only on strong and compelling reasons,
otherwise, the becoming virtue of predictability which is
expected from this Court would be immeasurably affected
and the public's confidence in the stability of the solemn
pronouncements diminished."
17
Verily, only upon showing
that circumstances attendant in a particular case override the
great benefits derived by our judicial system from the
doctrine of stare decisis, can the courts be justified in setting
aside the same.
In this case, petitioners have not shown any strong,
compelling reason to convince the Court that the doctrine
ofstare decisis should not be applied to this case. They have
not successfully demonstrated how or why it would be grave
1
st

abuse of discretion for the Ombudsman, who has been
validly conferred by law with the power of control and
supervision over the OSP, to disapprove or overturn any
resolution issued by the latter.
The second issue advanced by petitioners is that the
Ombudsman's disapproval of the OSP Resolution
recommending dismissal of the cases is based on
misapprehension of facts, speculations, surmises and
conjectures. The question is really whether the Ombudsman
correctly ruled that there was enough evidence to support a
finding of probable cause. That issue, however, pertains to a
mere error of judgment. It must be stressed that certiorari is
a remedy meant to correct only errors of jurisdiction, not
errors of judgment. This has been emphasized in First
Corporation v. Former Sixth Division of the Court of
Appeals,
18
to wit:
It is a fundamental aphorism in law that a review of facts and
evidence is not the province of the extraordinary remedy of
certiorari, which is extra ordinem - beyond the ambit of
appeal. In certiorari proceedings, judicial review does
not go as far as to examine and assess the evidence of
the parties and to weigh the probative value thereof. It
does not include an inquiry as to the correctness of the
evaluation of evidence. Any error committed in the
evaluation of evidence is merely an error of judgment
that cannot be remedied by certiorari. An error of
judgment is one which the court may commit in the exercise
of its jurisdiction. An error of jurisdiction is one where the act
complained of was issued by the court without or in excess
of jurisdiction, or with grave abuse of discretion, which is
tantamount to lack or in excess of jurisdiction and which error
is correctible only by the extraordinary writ of
certiorari. Certiorari will not be issued to cure errors of
the trial court in its appreciation of the evidence of the
parties, or its conclusions anchored on the said findings
and its conclusions of law. It is not for this Court to re-
examine conflicting evidence, re-evaluate the credibility
of the witnesses or substitute the findings of fact of the
court a quo.
19

Evidently, the issue of whether the evidence indeed supports
a finding of probable cause would necessitate an
examination and re-evaluation of the evidence upon which
the Ombudsman based its disapproval of the OSP
Resolution. Hence, the Petition for Certiorari should not be
given due course.
Likewise noteworthy is the holding of the Court
in Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Desierto,
20
imparting the value of the Ombudsman's
independence, stating thus:
Under Sections 12 and 13, Article XI of the 1987 Constitution
and RA 6770 (The Ombudsman Act of 1989), the
Ombudsman has the power to investigate and prosecute any
act or omission of a public officer or employee when such act
or omission appears to be illegal, unjust, improper or
inefficient. It has been the consistent ruling of the Court
not to interfere with the Ombudsman's exercise of his
investigatory and prosecutory powers as long as his
rulings are supported by substantial
evidence. Envisioned as the champion of the people and
preserver of the integrity of public service, he has wide
latitude in exercising his powers and is free from
intervention from the three branches of government.
This is to ensure that his Office is insulated from any
outside pressure and improper influence.
21

Indeed, for the Court to overturn the Ombudsman's finding of
probable cause, it is imperative for petitioners to clearly
prove that said public official acted with grave abuse of
discretion. In Presidential Commission on Good Government
v. Desierto,
22
the Court elaborated on what constitutes such
abuse, to wit:
Grave abuse of discretion implies a capricious and whimsical
exercise of judgment tantamount to lack of jurisdiction. The
Ombudsman's exercise of power must have been done in an
arbitrary or despotic manner which must be so patent and
gross as to amount to an evasion of a positive duty or a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law. x x x
23

In this case, petitioners failed to demonstrate that the
Ombudsman acted in a manner described above. Clearly,
the Ombudsman was acting in accordance with R.A. No.
6770 and properly exercised its power of control and
supervision over the OSP when it disapproved the
Resolution dated September 18, 2000.
It should also be noted that the petition does not question
any order or action of the Sandiganbayan Third Division;
hence, it should not have been included as a respondent in
this petition.
IN VIEW OF THE FOREGOING, the petition
is DISMISSED for lack of merit. No costs.
SO ORDERED.
ARTICLE 9

SILVERIO v REPUBLIC
G.R. No. 174689, October 22, 2007

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
1
st

D E C I S I O N
CORONA, J .:
When God created man, He made him in the
likeness of God; He created them male and female.
(Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by
Bathala and she heard voices coming from inside
the bamboo. "Oh North Wind! North Wind! Please
let us out!," the voices said. She pecked the reed
once, then twice. All of a sudden, the bamboo
cracked and slit open. Out came two human beings;
one was a male and the other was a female.
Amihan named the man "Malakas" (Strong) and the
woman "Maganda" (Beautiful). (The Legend of
Malakas and Maganda)
When is a man a man and when is a woman a woman? In
particular, does the law recognize the changes made by a
physician using scalpel, drugs and counseling with regard to
a persons sex? May a person successfully petition for a
change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes
Silverio filed a petition for the change of his first name and
sex in his birth certificate in the Regional Trial Court of
Manila, Branch 8. The petition, docketed as SP Case No. 02-
105207, impleaded the civil registrar of Manila as
respondent.
Petitioner alleged in his petition that he was born in the City
of Manila to the spouses Melecio Petines Silverio and Anita
Aquino Dantes on April 4, 1962. His name was registered as
"Rommel Jacinto Dantes Silverio" in his certificate of live
birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is,
"anatomically male but feels, thinks and acts as a female"
and that he had always identified himself with girls since
childhood.
1
Feeling trapped in a mans body, he consulted
several doctors in the United States. He underwent
psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a
"woman" culminated on January 27, 2001 when he
underwent sex reassignment surgery
2
in Bangkok, Thailand.
He was thereafter examined by Dr. Marcelino Reysio-Cruz,
Jr., a plastic and reconstruction surgeon in the Philippines,
who issued a medical certificate attesting that he (petitioner)
had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact
engaged to be married. He then sought to have his name in
his birth certificate changed from "Rommel Jacinto" to
"Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in
the Peoples Journal Tonight, a newspaper of general
circulation in Metro Manila, for three consecutive
weeks.
3
Copies of the order were sent to the Office of the
Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements
were established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented
Dr. Reysio-Cruz, Jr. and his American fianc, Richard P.
Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision
4
in favor
of petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any
law or judgment or any infraction thereof or for any
unlawful motive but solely for the purpose of making
his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is
entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the
petition would be more in consonance with the
principles of justice and equity. With his sexual [re-
assignment], petitioner, who has always felt,
thought and acted like a woman, now possesses
the physique of a female. Petitioners misfortune to
be trapped in a mans body is not his own doing and
should not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury
[or] prejudice will be caused to anybody or the
community in granting the petition. On the contrary,
granting the petition would bring the much-awaited
happiness on the part of the petitioner and her
[fianc] and the realization of their dreams.
Finally, no evidence was presented to show any
cause or ground to deny the present petition despite
due notice and publication thereof. Even the State,
through the [OSG] has not seen fit to interpose any
[o]pposition.
WHEREFORE, judgment is hereby rendered
GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing
in the Certificate of Birth of [p]etitioner, specifically
for petitioners first name from "Rommel Jacinto"
to MELY and petitioners gender from "Male"
to FEMALE.
5

On August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for certiorari in the
Court of Appeals.
6
It alleged that there is no law allowing the
change of entries in the birth certificate by reason of sex
alteration.
On February 23, 2006, the Court of Appeals
7
rendered a
decision
8
in favor of the Republic. It ruled that the trial courts
decision lacked legal basis. There is no law allowing the
change of either name or sex in the certificate of birth on the
ground of sex reassignment through surgery. Thus, the Court
of Appeals granted the Republics petition, set aside the
decision of the trial court and ordered the dismissal of SP
Case No. 02-105207. Petitioner moved for reconsideration
but it was denied.
9
Hence, this petition.
Petitioner essentially claims that the change of his name and
sex in his birth certificate is allowed under Articles 407 to 413
1
st

of the Civil Code, Rules 103 and 108 of the Rules of Court
and RA 9048.
10

The petition lacks merit.
A Persons First Name Cannot Be Changed On the
Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his
petition for change of name and sex. As found by the trial
court:
Petitioner filed the present petition not to evade any
law or judgment or any infraction thereof or for any
unlawful motive but solely for the purpose of
making his birth records compatible with his
present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical
features of a female, he became entitled to the civil registry
changes sought. We disagree.
The State has an interest in the names borne by individuals
and entities for purposes of identification.
11
A change of
name is a privilege, not a right.
12
Petitions for change of
name are controlled by statutes.
13
In this connection, Article
376 of the Civil Code provides:
ART. 376. No person can change his name or
surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical
Error Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name or
Nickname. No entry in a civil register shall be
changed or corrected without a judicial order,
except for clerical or typographical errors and
change of first name or nickname which can be
corrected or changed by the concerned city or
municipal civil registrar or consul general in
accordance with the provisions of this Act and its
implementing rules and regulations.
RA 9048 now governs the change of first name.
14
It vests the
power and authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged
with the aforementioned administrative officers. The intent
and effect of the law is to exclude the change of first name
from the coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry) of
the Rules of Court, until and unless an administrative petition
for change of name is first filed and subsequently denied.
15
It
likewise lays down the corresponding venue,
16
form
17
and
procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in
nature, not judicial.
RA 9048 likewise provides the grounds for which change of
first name may be allowed:
SECTION 4. Grounds for Change of First Name or
Nickname. The petition for change of first name or
nickname may be allowed in any of the following
cases:
(1) The petitioner finds the first name or nickname
to be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
(2) The new first name or nickname has been
habitually and continuously used by the petitioner
and he has been publicly known by that first name
or nickname in the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first name
was his sex reassignment. He intended to make his first
name compatible with the sex he thought he transformed
himself into through surgery. However, a change of name
does not alter ones legal capacity or civil status.
18
RA 9048
does not sanction a change of first name on the ground of
sex reassignment. Rather than avoiding confusion, changing
petitioners first name for his declared purpose may only
create grave complications in the civil registry and the public
interest.
Before a person can legally change his given name, he must
present proper or reasonable cause or any compelling
reason justifying such change.
19
In addition, he must show
that he will be prejudiced by the use of his true and official
name.
20
In this case, he failed to show, or even allege, any
prejudice that he might suffer as a result of using his true and
official name.
In sum, the petition in the trial court in so far as it prayed for
the change of petitioners first name was not within that
courts primary jurisdiction as the petition should have been
filed with the local civil registrar concerned, assuming it could
be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided
under RA 9048. It was also filed in the wrong venue as the
proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. More importantly, it
had no merit since the use of his true and official name does
not prejudice him at all. For all these reasons, the Court of
Appeals correctly dismissed petitioners petition in so far as
the change of his first name was concerned.
No Law Allows The Change of Entry In The Birth
Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a persons sex appearing in his birth
certificate is a legal issue and the court must look to the
statutes.
21
In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in the civil register shall be
changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision
was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change
of such matters can now be made through administrative
proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the
Rules of Court the correction of such errors.
22
Rule 108 now
1
st

applies only to substantial changes and corrections in entries
in the civil register.
23

Section 2(c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. As used in this
Act, the following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers
to a mistake committed in the performance
of clerical work in writing, copying,
transcribing or typing an entry in the civil
register that is harmless and innocuous,
such as misspelled name or misspelled
place of birth or the like, which is visible to
the eyes or obvious to the understanding,
and can be corrected or changed only by
reference to other existing record or
records: Provided, however, That
no correction must involve the change
of nationality, age, status or sex of the
petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It
is a substantial change for which the applicable procedure is
Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code:
24

ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under Article
407 of the Civil Code include even those that occur after
birth.
25
However, no reasonable interpretation of the
provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove
the faults or error from" while to change means "to replace
something with something else of the same kind or with
something that serves as a substitute."
26
The birth certificate
of petitioner contained no error. All entries therein, including
those corresponding to his first name and sex, were all
correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil
registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and
naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as
legal separations, annulments of marriage, declarations of
nullity of marriages, adoptions, naturalization, loss or
recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These acts,
events and judicial decrees produce legal consequences that
touch upon the legal capacity, status and nationality of a
person. Their effects are expressly sanctioned by the laws.
In contrast, sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it recognized nor
even mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and incapacities)
of a person in view of his age, nationality and his family
membership.
27

The status of a person in law includes all his
personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at
his own will, such as his being legitimate or
illegitimate, or his being married or not. The
comprehensive term status include such matters
as the beginning and end of legal personality,
capacity to have rights in general, family relations,
and its various aspects, such as birth, legitimation,
adoption, emancipation, marriage, divorce, and
sometimes even succession.
28
(emphasis supplied)
A persons sex is an essential factor in marriage and family
relations. It is a part of a persons legal capacity and civil
status. In this connection, Article 413 of the Civil Code
provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed by
special laws.
But there is no such special law in the Philippines governing
sex reassignment and its effects. This is fatal to petitioners
cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law)
provides:
SEC. 5. Registration and certification of births.
The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child,
shall be sufficient for the registration of a birth in the
civil register. Such declaration shall be exempt from
documentary stamp tax and shall be sent to the
local civil registrar not later than thirty days after the
birth, by the physician or midwife in attendance at
the birth or by either parent of the newborn child.
In such declaration, the person above mentioned
shall certify to the following facts: (a) date and hour
of birth; (b) sex and nationality of infant; (c) names,
citizenship and religion of parents or, in case the
father is not known, of the mother alone; (d) civil
status of parents; (e) place where the infant was
1
st

born; and (f) such other data as may be required in
the regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical
record of the facts as they existed at the time of
birth.
29
Thus, the sex of a person is determined at
birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering
that there is no law legally recognizing sex reassignment, the
determination of a persons sex made at the time of his or
her birth, if not attended by error,
30
is immutable.
31

When words are not defined in a statute they are to be given
their common and ordinary meaning in the absence of a
contrary legislative intent. The words "sex," "male" and
"female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should
therefore be understood in their common and ordinary
usage, there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities of
structure and function that distinguish a male from a
female"
32
or "the distinction between male and
female."
33
Female is "the sex that produces ova or bears
young"
34
and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."
35
Thus, the words "male"
and "female" in everyday understanding do not include
persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which
had at the time a well-known meaning are presumed to have
been used in that sense unless the context compels to the
contrary."
36
Since the statutory language of the Civil Register
Law was enacted in the early 1900s and remains
unchanged, it cannot be argued that the term "sex" as used
then is something alterable through surgery or something
that allows a post-operative male-to-female transsexual to be
included in the category "female."
For these reasons, while petitioner may have succeeded in
altering his body and appearance through the intervention of
modern surgery, no law authorizes the change of entry as to
sex in the civil registry for that reason. Thus, there is no legal
basis for his petition for the correction or change of the
entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First
Name or Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It
believed that allowing the petition would cause no harm,
injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-
ranging legal and public policy consequences. First, even the
trial court itself found that the petition was but petitioners first
step towards his eventual marriage to his male fianc.
However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between
a man and a woman.
37
One of its essential requisites is
the legal capacity of the contracting parties who must be a
male and a female.
38
To grant the changes sought by
petitioner will substantially reconfigure and greatly alter the
laws on marriage and family relations. It will allow the union
of a man with another man who has undergone sex
reassignment (a male-to-female post-operative transsexual).
Second, there are various laws which apply particularly to
women such as the provisions of the Labor Code on
employment of women,
39
certain felonies under the Revised
Penal Code
40
and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court,
41
among
others. These laws underscore the public policy in relation to
women which could be substantially affected if petitioners
petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o
judge or court shall decline to render judgment by reason of
the silence, obscurity or insufficiency of the law." However, it
is not a license for courts to engage in judicial legislation.
The duty of the courts is to apply or interpret the law, not to
make or amend it.
In our system of government, it is for the legislature, should it
choose to do so, to determine what guidelines should govern
the recognition of the effects of sex reassignment. The need
for legislative guidelines becomes particularly important in
this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for
change of first name and for correction or change of entries
in the civil registry, where they may be filed, what grounds
may be invoked, what proof must be presented and what
procedures shall be observed. If the legislature intends to
confer on a person who has undergone sex reassignment
the privilege to change his name and sex to conform with his
reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a
protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no
authority to fashion a law on that matter, or on anything else.
The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch
of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to
a life of happiness, contentment and [the] realization of their
dreams." No argument about that. The Court recognizes that
there are people whose preferences and orientation do not fit
neatly into the commonly recognized parameters of social
convention and that, at least for them, life is indeed an
ordeal. However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the
legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.

PAGASIAN v AZURA
1
st

A.M. No. RTJ-89-425, April 17, 1990
SUPREME COURT
Manila
EN BANC
A.M. No. RTJ-89-425 April 17, 1990
OSCAR PALMA PAGASIAN, complainant,
vs.
JUDGE CESAR P. AZURA, respondent.

NARVASA, J .:
In the administrative proceedings at bar, Judge Cesar P.
Azura is charged with having knowingly rendered an unjust
judgment against Oscar Palma Pagasian. The latter's sworn
complaint draws attention to a decision rendered on
September 21, 1989 by His Honor in a criminal prosecution
for theft of large cattle (Crim. Case No. 922-M [87]) entitled
"People v. Vicente Dumo Sr. and Vicente Dumo Jr.," in which
the complainant, the barangay captain in the locality, was
one of the witnesses for the prosecution. The complaint
alleges that although the complainant, Pagasian, was "not in
any manner, shape or form an accused in said . . case,"
respondent Judge in his decision acquitting both accused
"for utter lack of evidence" nevertheless declared him
guilty of "clear violations of the provisions of the fundamental
law of the land and against human rights," and sentenced
him to pay a fine of P200.00.
The decision in question recites inter alia the acts supposed
to have been done by Barangay Captain Pagasian after
receiving a report from Luciana Degala that she had lost a
male carabao, to wit: he and his "vigilante" had found the
bull, dead, early in the morning of July 20, 1986, near the
house of the accused Vicente Dumo Sr. accompanied by a
policeman, he had later gone to see Dumo Sr.; and asked
him "if the cart under his house was his," and on receiving an
affirmative answer, "he borrowed the cart and issued a
receipt therefor (Exh. "E");" he used the cart to haul the bull
away and then deposited the cart at the municipal building of
Talisayan "for safe-keeping." After pronouncing the
government evidence insufficient to prove the defendants'
guilt, the decision went on to characterize the taking of the
cart as a "confiscation," as "a seizure . . made without any
search or seizure warrant issued by any judge," and its use
in evidence as violative of the Constitution. The decision
ended with the following disposition:
WHEREFORE, for utter lack of evidence,
the accused Vicente Dumo Sr. and Vicente
Dumo Jr., are hereby acquitted.
xxx xxx xxx
For clear violation of the provision of the
fundamental law of the land and against
human rights so sacred in a democracy,
Barangay Captain Oscar Pagasian is
hereby fined in the sum of TWO
HUNDRED PESOS (P200.00) payable in a
period of fifteen (15) days from the date of
the promulgation of this judgment and
failure to pay within the said period, he
shall be imprisoned for a period of two (2)
days.
Respondent Judge, in his comment dated January 18, 1990,
concedes that Pagasian was not an accused in the case, but
insists that his search of the house of Vicente Dumo, Sr., his
seizure of the latter's cart and deposit thereof in the
municipal building, "without being armed with any warrant
issued by any judge," was a "violation of Sec. 2 of Art. III of
the Constitution." He asserts that while there was no "law in
implementation of any violation of the provisions of the
constitution," he felt it to be "his solemn duty to defend and
protect the constitution," and not to "decline to render
judgment by reason of the silence, obscurity or insufficiency
of the laws" (Art. 9, Civil Code), and adopt "any suitable
process or mode of proceeding . . which appears most
conformable to the spirit" of the Rules of Court (Sec. 6, Rule
135, Rules of Court). He finally declares that as a judge, he
"cannot be held to account or answer, criminally, civilly, or
administratively for an erroneous decision rendered by him in
good faith." (In Re Judge Baltazar R. Dizon, Adm. Case No.
3086, promulgated 31 May 89)."
Respondent Judge appears to have regrettably lost sight of
an even more fundamental and familiar constitutional
precept: "No person shall be deprived of life, liberty or
property without due process of law" (Sec. 1, Art. III,
Constitution). This safeguard, the first listed in the Bill of
Rights, includes what is known as procedural due process
that guarantees a procedure which, according to Daniel
Webster, "hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial." It is made more
particular in a subsequent section: "No person shall be held
to answer for a criminal offense without due process of law"
(Sec. 14 [a]). In said Criminal Case No. 922-M (87), the
complaining witness had absolutely no Idea that he himself
was on trial, like the very persons he was accusing, for the
commission of some offense (or perhaps for constructive
contempt); he consequently had no opportunity whatsoever
to present any evidence in his behalf to exculpate him from
the offense which was known to nobody except the Judge.
What is worse, the complainant was punished for acts not
declared by any law to constitute a penal offense and
prescribing a specific penalty therefor, in violation of another
equally familiar precept, which also appears to have escaped
respondent Judge's attention, that no act may be deemed to
be, and punished as, a crime unless so declared by law.
Under the circumstances, the Court must hold that the
complainant was clearly denied due process by respondent
Judge. He was subjected to no small injustice. He was, by a
process of specious, sophistical reasoning on the part of the
respondent Judge, sentenced to a penalty without
1
st

justification whatever, in infringement of basic principles of
which all judges are charged with knowledge.
WHEREFORE, the Court finds respondent Judge guilty of
gross ignorance and hereby sentences him to pay a fine of
Two Thousand Pesos (P2,000.00). The Court further directs
that a copy of this judgment be entered in the Judge's
record.
SO ORDERED.

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