Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18566

September 30, 1963

IN THE MATTER OF THE ADOPTION OF ELIZABETH MIRA, GILBERT R.

BREHM and ESTER MIRA BREHM,petitioners-appellees,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
Pitt Vasquez for petitioners-appellees.
Office of the Solicitor General for oppositor-appellant.
PAREDES, J.:
Finding that only legal issues are involved in the instant case, the
Court of Appeals certified the same to this Court for disposition.
Gilbert R. Brehm is an American citizen, serving the U.S. Navy with
temporary assignment at Subic Bay. On October 9, 1958, he married Ester
Mira, a Filipino citizen, who had a daughter Elizabeth, by another man, also
of the American Navy, who left the country in 1952, and never heard from
since then. After the marriage, the couple established residence at
Intramuros, Manila, and the minor Elizabeth had always been under their
care and support of Brehm.
On January 28, 1959, the spouses filed a Joint Petition with the
Juvenile and Domestic Relations Court for the adoption of the minor
Elizabeth, claiming that they have mutually given their consent to the
adoption, not only to promote her best interest and well-being, but also to
give her a legitimate status. They prayed that after the proper proceedings,
judgment be entered, freeing the child Elizabeth Mira from all legal
obligations of obedience and maintenance with respect to her natural father,
and be, for all legal intents and purposes, the child of the petitioners, with all
the rights pertinent thereto.

An opposition to the petition with respect to Gilbert Brehm was

registered by the Republic of the Philippines, it appearing that Brehm
testified that his residence in Philippines was merely temporary, same being
effective only for purposes of his tour of duty with the Navy, thus
disqualifying him from making an adoption (Art. 335 [4], New Civil Code;
Sec. 2, Rule 100, Rules of Court), and that being a non-resident alien, the
Court has no jurisdiction over him.
A reply to the opposition was presented by petitioners. They claim that
Art. 335 does not apply in the case, reasoning out that it covers only
adoptions for the purpose establishing a relationship of paternity and
filiation, where none existed, but not where the adopting parents are not total
strangers to said child; that there is already a relation between the child and
Brehm, created by affinity that Art. 338 of the New Civil code, expressly
authorizes the adoption of a step-child by a step-father, in which category
petitioner Brehm falls. Petitioners contend that the records show their
residence is Manila, for while Brehm works at Subic, he always goes home
to Manila, during week-ends and manifested that he intends to reside in the
Philippines permanently, after his tour of duty with the U.S. Naval Forces.
The Juvenile & Domestic Relations Court rendered judgment, the
Pertinent portions of which read
... Since residence is principally a matter of intention, the
Court is of the opinion that notwithstanding the nature of Petitioner
Gilbert R. Brehm's coming to the Philippines, his subsequent acts,
coupled with his declared intention of permanently residing herein,
have cured the legal defect on the point of residence.
Finally, we must consider the status of the minor Elizabeth
Mira whose welfare deserves paramount consideration. Being a
natural child of the petitioning wife, it cannot be in conscience be
expected that when petitioners married, the mother would reduce
her responsibility and her affection toward her child....
WHEREFORE, finding that the principal allegations of the
petitioners are true, it is hereby adjudged that henceforth the minor
Elizabeth is freed from all obligations of obedience and maintenance
with respect to her natural father, and is, to all legal intents and
purposes, the child of the petitioners Gilbert R. Brehm and Ester

Mira Brehm, said minor's surname being change from "Mira" to

"Mira Brehm".1awphl.nt
The Solicitor General took exception from the judgment, claiming that
it was error for the Court in adjudging the minor Elizabeth Mira the adopted
child of petitioner Gilbert R. Brehm. The appeal, however, did not assail the
right of petitioner Ester Mira Brehm, the natural mother of the minor, to adopt
her.
There is no question that petitioner Gilbert R. Brehm is a non-resident
alien. By his own testimony, he supplied the conclusive proof of his status
here, and no amount of reasoning will overcome the same. For this reason,
he is not qualified to adopt. On this very point, We have recently declared:
The only issue in this appeal is whether, not being permanent
residents in the Philippines, petitioners are qualified to adopt Baby
Rose. Article 335 of the Civil Code of the Philippines, Provides that

... Looking after the welfare of a minor to be adopted the law

has surrounded him with safeguards to achieve and insure such
welfare. It cannot be gain said that an adopted minor may be
removed from the country by the adopter, who is not a resident of
the Philippines, and placed beyond the reach and protection of the
country of his birth. (See also S/Sgt. Katancik, v. Republic, G.R. No.
L-15472, June 20, 1962).
This notwithstanding, petitioners press the argument that Brehm being
now the step-father of the minor, he is qualified to adopt, in view of the
provisions of par. 3, Art. 338, Civil Code, which states
The following may be adopted:
(1) The natural child by the natural father
(2) Other legitimate children, by the father or mother
(3) A step-child, by the step-father or step-mother.

The following cannot adopt

xxx

xxx

xxx

xxx

xxx

(4) Non-resident aliens;

xxx

This legal provision is too clear to require interpretation. No

matter how much we may sympathize with the plight of Baby Rose
and with the good intentions of petitioners herein, the law leaves us
no choice but to apply its explicit terms, which unqualifiedly deny to
petitioners the power to adopt anybody in the Philippines (Ellis &
Ellis v. Republic, L-16922, Apr. 30, 1963).
Prior to the above decision, We have also denied petitions to adopt by
persons similarly situated as petitioner Brehm. Thus, in the case of
Caraballo v. Republic, G.R. No. L-15080, April 25, 1962, giving some reason
why non-resident aliens are disqualified to adopt, We said

We should construe, however, Article 338 in connection with article

335. Art. 335 clearly states that "The followingcannot adopt: ... (4). Nonresident aliens". It is therefore, mandatory, because it contains words of
positive prohibition and is couched in the negative terms importing that the
act required shall not be done otherwise than designated (50 Am. Jur. 51).
On the other hand, Art. 338, Provides "the following may be adopted: (3) a
step-child, by the step-father or step-mother", which is merely directory, and
which can only be given operation if the same does not conflict with the
mandatory provisions of Art. 335. Moreover, as heretofore been shown, it is
article 335 that confers jurisdiction to the court over the case, and before
Article; 338 may or can be availed of, such jurisdiction must first be
established. We ruled out the adoption of a step-child by a step-father, when
the latter has a legitimate child of his own (Ball v. Rep., 50 O.G. 145; and
McGee v. Rep., L-5387, April 29, 1959).
IN VIEW HEREOF, the decision appealed from, in so far as it affects
the petitioner Gilbert R. Brehm, is hereby reversed, and his Petition to adopt
the child EIizabeth Mira, denied. Without costs.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Dizon,

Regala and Makalintal, JJ., concur.
Labrador and Reyes, J.B.L., JJ., took no part.

Republic of the Philippines

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.

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 terselystated 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 onSeptember 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 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 alsoBonifacio 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, 7reversing 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 and Macarandang 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) andDevelopment 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 maximlex 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.
A compelling rationalization of the prospectivity principle of judicial decisions
is well set forth in the oft-cited case of Chicot 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
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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32485 October 22, 1970

IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE

PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8 OF R.A. No. 6132.
KAY VILLEGAS KAMI, INC., petitioner.

MAKASIAR, J.:.
This petition for declaratory relief was filed by Kay Villegas Kami, Inc.,
claiming to be a duly recognized and existing non-stock and non-profit
corporation created under the laws of the land, and praying for a
determination of the validity of Sec. 8 of R.A. No. 6132 and a declaration of
petitioner's rights and duties thereunder. In paragraph 7 of its petition,
petitioner avers that it has printed materials designed to propagate its
ideology and program of government, which materials include Annex B; and
that in paragraph 11 of said petition, petitioner intends to pursue its purposes
by supporting delegates to the Constitutional Convention who will propagate
its ideology.
Petitioner, in paragraph 7 of its petition, actually impugns because it quoted,
only the first paragraph of Sec. 8(a) on the ground that it violates the due
process clause, right of association, and freedom of expression and that it is
an ex post facto law.
The first three grounds were overruled by this Court when it held that the
questioned provision is a valid limitation on the due process, freedom of
expression, freedom of association, freedom of assembly and equal
protection clauses; for the same is designed to prevent the clear and present
danger of the twin substantive evils, namely, the prostitution of electoral
process and denial of the equal protection of the laws. Moreover, under the
balancing-of-interests test, the cleansing of the electoral process, the
guarantee of equal change for all candidates, and the independence of the
delegates who must be "beholden to no one but to God, country and
conscience," are interests that should be accorded primacy.1
The petitioner should therefore be accordingly guided by the
pronouncements in the cases of Imbong and Gonzales. 2

The claim of petitioner that the challenged provision constitutes an ex post

facto law is likewise untenable.

WHEREFORE, the prayer of the petition is hereby denied and paragraph 1

of Sec. 8(a) of R.A. No. 6132 is not unconstitutional. Without costs.

An ex post facto law is one which:.

Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.

(1) makes criminal an act done before the passage of the

law and which was innocent when done, and punishes such
an act;

Zaldivar, J., reserves his vote.

Concepcion, C.J., is on leave.

(2) aggravates a crime, or makes it greater than it was,

when committed;
(3) changes the punishment and inflicts a greater
punishment than the law annexed to the crime when
committed;
Separate Opinions
(4) alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law
required at the time of the commission of the offense;
(5) assuming to regulate civil rights and remedies only, in
effect imposes penalty or deprivation of a right for
something which when done was lawful; and
(6) deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a
proclamation of amnesty.3
From the aforesaid definition as well as classification of ex post facto laws,
the constitutional inhibition refers only to criminal laws which are given
retroactive effect.4
While it is true that Sec. 18 penalizes a violation of any provision of R.A. No.
6132 including Sec. 8(a) thereof, the penalty is imposed only for acts
committed after the approval of the law and not those perpetrated prior
thereto. There is nothing in the law that remotely insinuates that Secs. 8(a)
and 18, or any other provision thereof, shall apply to acts carried out prior to
its approval. On the contrary, See. 23 directs that the entire law shall be
effective upon its approval. It was approved on August 24, 1970.

FERNANDO, J., concurring and dissenting:

Concurs and dissents in accordance with his separate opinion in Imbong v.
Comelec, L-32432 and Gonzales v. Comelec, L-32443.
BARREDO, J., dissenting:
Reiterates his views in Gonzales and Imbong insofar as they are relevant to
the issues in this case, dissents, even as agrees that Republic Act 6132 is
not ex post facto.
VILLAMOR, J., concurring:
Concurs in the sense that the law is declared not ex post facto law and
dissents as to the rest.
TEEHANKEE, J., dissenting:
The Court's decision reaffirms its split-vote ruling last September 11, 1970
in Imbong vs. Ferrer and Gonzales vs. Comelec1 upholding the
constitutionality of the first paragraph of section 8(a) of Republic Act 6132.

Inasmuch as I was unable to participate in the said cases, 2 I have

expressed my contrary view in my separate dissenting opinion in Badoy, Jr.
vs. Ferrer 3 that the challenged provision, together with the Act's other
restrictions and strictures enumerated therein, "oppressively and
unreasonably straitjacket the candidates as well as the electorate and
gravely violate the constitutional guaranties of freedom of expression,
freedom of the press and freedom of association, and, deny due process
and the equal protection of the laws."

the question. Obviously, the word "law" in the qualifying clause "for purposes
not contrary to law" does not mean that an enactment of the legislature
forecloses the question with finality and sounds the death-knell. Laws that
would regulate the purposes for which associations and societies may be
formed or would declare their purposes mala prohibita must pass the usual
constitutional test of reasonableness and furthermore, must not abridge
freedom of speech and press.5

I therefore dissent from the Court's decision at bar for the same reason and
considerations stated in my separate dissenting opinion in the case
of Badoy.
# Separate Opinions
I only wish to add a few words on the statements in the main opinion
in Imbong-Gonzales that "(W)hile it may be true that a party's support of a
candidate is not wrong per se, it is equally true that Congress in the exercise
of the broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One such act is the
party or organization support prescribed in Sec. 8(a), which ban is a valid
limitation on the freedom of association as well as expression, for the
reasons aforestated. Senator Tolentino emphasized that 'equality of chances
may be better attained by banning all organization support.' "
I trust that said statements were not intended, and should not be construed,
as endorsing the contention of Senator Tolentino, the Act's sponsor, that
"(T)he protection of the Constitution cannot be invoked for the right of
association when the purpose is a malum prohibitum because such purpose
would be "contrary to law" " and "(O)nce the ban (on party and organization
support) is approved into law, the freedom of association cannot be invoked
against it" since the Constitution decrees only that "(T)he right to form
associations or societies for purposes not contrary to law shall not be
abridged."4
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee
of freedom of association which has its root in the Malolos Constitution
would render sterile and meaningless the Constitutional safeguard, should
Congress be conceded, in the exercise of its broad law-making authority, the
power to strike down at any time associations and societies by the simple
expedient of declaring their purposes or certain activities, not wrong per
se as "contrary to law" ormala prohibita. I believe that such a concept begs

FERNANDO, J., concurring and dissenting:

Concurs and dissents in accordance with his separate opinion in Imbong v.
Comelec, L-32432 and Gonzales v. Comelec, L-32443.
BARREDO, J., dissenting:
Reiterates his views in Gonzales and Imbong insofar as they are relevant to
the issues in this case, dissents, even as agrees that Republic Act 6132 is
not ex post facto.
VILLAMOR, J., concurring:
Concurs in the sense that the law is declared not ex post facto law and
dissents as to the rest.
TEEHANKEE, J., dissenting:.
The Court's decision reaffirms its split-vote ruling last September 11, 1970
in Imbong vs. Ferrer and Gonzales vs. Comelec1 upholding the
constitutionality of the first paragraph of section 8(a) of Republic Act 6132.
Inasmuch as I was unable to participate in the said cases, 2 I have
expressed my contrary view in my separate dissenting opinion in Badoy, Jr.
vs. Ferrer 3 that the challenged provision, together with the Act's other
restrictions and strictures enumerated therein, "oppressively and
unreasonably straitjacket the candidates as well as the electorate and

gravely violate the constitutional guaranties of freedom of expression,

freedom of the press and freedom of association, and, deny due process
and the equal protection of the laws."

constitutional test of reasonableness and furthermore, must not abridge

freedom of speech and press.5

I therefore dissent from the Court's decision at bar for the same reason and
considerations stated in my separate dissenting opinion in the case
of Badoy.
I only wish to add a few words on the statements in the main opinion
in Imbong-Gonzales that "(W)hile it may be true that a party's support of a
candidate is not wrong per se, it is equally true that Congress in the exercise
of the broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One such act is the
party or organization support prescribed in Sec. 8(a), which ban is a valid
limitation on the freedom of association as well as expression, for the
reasons aforestated. Senator Tolentino emphasized that 'equality of chances
may be better attained by banning all organization support.' "
I trust that said statements were not intended, and should not be construed,
as endorsing the contention of Senator Tolentino, the Act's sponsor, that
"(T)he protection of the Constitution cannot be invoked for the right of
association when the purpose is a malum prohibitum because such purpose
would be "contrary to law" " and "(O)nce the ban (on party and organization
support) is approved into law, the freedom of association cannot be invoked
against it" since the Constitution decrees only that "(T)he right to form
associations or societies for purposes not contrary to law shall not be
abridged."4
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee
of freedom of association which has its root in the Malolos Constitution
would render sterile and meaningless the Constitutional safeguard, should
Congress be conceded, in the exercise of its broad law-making authority, the
power to strike down at any time associations and societies by the simple
expedient of declaring their purposes or certain activities, not wrong per
se as "contrary to law" ormala prohibita. I believe that such a concept begs
the question. Obviously, the word "law" in the qualifying clause "for purposes
not contrary to law" does not mean that an enactment of the legislature
forecloses the question with finality and sounds the death-knell. Laws that
would regulate the purposes for which associations and societies may be
formed or would declare their purposes mala prohibita must pass the usual

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2581

December 2, 1948

FIDEL C. QUERUBIN, petitioner,

vs.
THE COURT OF APPEALS (Fourth Division) and FELIPE S.
MAMURI, respondents.
Gregorio P. Formoso for petitioner.

PERFECTO, J.:
Petitioner challenges the jurisdiction of the Court of Appeals to continue
taking cognizance of the appeal in the election case of Fidel C. Querubin vs.
Felipe S. Mamuri, CA2843-R, concerning the mayoralty of Ilagan, Isabela,
because of the expiration of the three-month period provided for in section
178 of the Revised Election Code, which reads as follows:
Sec. 178. Appeal from the decision in election contests. From
any final decision rendered by the Court of First Instance in protest
against the eligibility or the election of provincial governors,
members of the provincial board, city councilors, and mayors, the
aggrieved party may appeal to the Court of Appeals or to the
Supreme Court, as the case may be, within five days after being
notified of the decision, for its revision, correction, annulment or
confirmation, and the appeal shall proceed as in a criminal case.
Such appeal shall be decided within three months after the filing of

the case in the office of the clerk of the court to which the appeal
has been taken. (C. A. 357-172.)
The record of the appealed case was received by the Court of Appeals on
May 22, 1948. On August 23, 1948, petitioner filed a motion to dismiss the
appeal on the ground that the three-month period provided for by section
178 of the Revised Election Code expired on August 22, 1948, and that,
consequently, the Court of Appeals had lost its jurisdiction over the case,
invoking to the effect the doctrine in Portillo vs. Salvani (54 Phil., 543)
holding mandatory a former legal provision that "all proceedings in electoral
contest shall be terminated within one year."
The motion to dismiss was denied on September 15, 1948, upon the ground
that the period within which appellant had to file his brief had not as yet
expired.
The provision of section 178 of the Revised Election Code, that the appeal in
election contents be decided "within three months after the filing of the case
in the office of the clerk of the court to which the appeal has been taken", the
same as the provision in section 177 of the same code requiring that the trial
court shall decide a protest within six months or one year from its filing when
contesting a municipal or a provincial office, is directory in nature. The
purpose of the law in sections 177 and 178 of the Revised Election Code is
to impress the need of speedy disposal of election contests, as imperatively
demanded by public interest. The terms of office of elective positions are
short. Any cloud as to the true result of an election should be dispelled as
soon as possible.
Public faith, confidence and cooperation, essential to the success of
government, are jeopardized by controversies as to who have been actually
chosen by the electorate. These controversies should be settled as soon as
possible. Doubts as to the true expression of the will of the people in polls
should be cleared out without delay. The legislative policy, as embodied in
sections 177 and 178 of the Revised Election Code, of hastening the
administration of justice in election contests, is aimed at making more
effective the constitutional principle that sovereignty resides in the people.
The lapse of the period of time provided for in said sections should not have
the effect of defeating the purposes of the system of judicial settlement of
protests.lawphil.net

To dismiss an election contest or the appeal taken therein because the

respective courts, regardless of cause or reason, have failed to render final
decisions within the time limits of said sections, is to defeat the
administration of justice upon factors beyond the control of the parties. That
would defeat the purposes of the process of law and would make of the
administration of justice in election contests an aleatory process where the
litigants, irrespective of the merits of their respective claims, will be gambling
for a deadline. The dismissal in such case will constitute a miscarriage of
justice. The speedy trial required by the law would be turned into a denial of
justice.
The doctrine in the case of Portillo vs. Salvani (54 Phil., 543) should be
abandoned, even as modified in the case of Cacho vs. Abad (61 Phil., 606),
where it was stated that the Supreme Court "has assumed jurisdiction over a
considerable number of election cases which arrived here after the
expiration of the year period without any protest being made against this
practice."
The petition is dismissed.
Moran, C.J., Paras, Feria, Pablo, Briones, Tuazon and Montemayor, JJ.,
concur.
Feria and Bengzon, JJ., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 97351 February 4, 1992

RAMON A. GONZALES, petitioner,
vs.
HON. FRANCISCO I. CHAVEZ, in his capacity as Solicitor General,

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and

COMMISSION ON AUDIT, respondents.

Honorable Court, if called for by circumstances in the

interest of the government or if he is so required by the
court.
Makati, Metro Manila, December 3, 1990.

ROMERO, J.:
In the instant petition for mandamus and prohibition with prayer for the
issuance of a temporary restraining order, petitioner submits for the Court's
adjudication the twin issues of whether or not the Solicitor General neglected
his public duty by withdrawing as counsel for the Republic of the Philippines
and the Presidential Commission on Good Government (PCGG) in cases he
had filed in court and whether or not the PCGG acted without or in excess of
jurisdiction in hiring private lawyers as a result of such withdrawal of
appearance.
Petitioner Ramon A. Gonzales, as a citizen taxpayer, filed the petition as a
class suit under Section 12, Rule 3 of the Rules of Court on the ground that
the subject matters involved are of common and general interest to all
Filipino citizens and taxpayers as they pertain to the enforcement of a public
duty and the prevention of unlawful expenditure of public funds.
According to the petitioner, the Solicitor General is the counsel for the
Republic and the PCGG in thirty-three (33) cases before this Court, one
hundred nine (109) cases in the Sandiganbayan, one (1) case in the
National Labor Relations Commission and another case in the Municipal
Trial Court or a total of one hundred forty-four (144) cases. 1 In December
1990, the Solicitor General withdrew as counsel in said cases through a
pleading entitled "Withdrawal of Appearance with Reservation." 2 The
pleading states:
The SOLICITOR GENERAL, to this Honorable Court,
hereby respectfully withdraws as counsel for plaintiff
Presidential Commission on Good Government (PCGG) in
the above-captioned case, with the reservation, however,
conformably with Presidential Decree No. 478, the
provisions of Executive Order No. 292 as well as the
decisional law of "Orbos v. Civil Service Commission, et al.,"
(G.R. No. 92561, September 12, 1990), to submit his
comment/observation on incidents/matters pending with this

(Sgd.) FR
I. CHAVEZ
IBP O.R. N
289417-2.
The Solicitor General filed a substantially similar pleading in the
cases where the Republic is a party.
As a result of such withdrawal of appearance, the PCGG hired forty (40)
private lawyers, nineteen (19) of whom are trial lawyers. They would receive
a monthly compensation of at least P10,000.00 plus appearance fee of
P1,700.00 in actual trial and/or P500.00 if trial is postponed. 3
Petitioner contends that since the Solicitor General's withdrawal of
appearance was made without any reason, it implied that it was "within the
absolute discretion" of said public official. Section 1 of Presidential Decree
No. 478 and Section 35 of the Administrative Code of 1987, however,
mandatorily require the Solicitor General to stand in the place of, and act for
the Republic and the PCGG in court. Therefore, the Solicitor General has
"no discretion to reject by withdrawing" as counsel for said entities.
Applying the ruling of this Court with respect to a fiscal in Sta. Rosa Mining
Co. v. Zabala, 4 the petitioner further states that: "Similarly, it is the duty of
the Solicitor General to appear for the Republic and the PCGG, hence
regardless of his personal convictions or opinions, he must proceed to
discharge his duty (not withdraw, which is equivalent to refusal to
prosecute), and let the court decide the merits of the case." 5
Moreover, petitioner avers that the Solicitor General cannot withdraw his
appearance "with reservation" nor can he file his "comment/observation on
the incident/matters" after such withdrawal because by ceasing to appear as
counsel, he loses his standing in court. Unless a case involves the
constitutionality of a treaty, law, ordinance or executive order for which Rule
3 Section 23 of the Rules of Court 6 mandates his appearance, the Solicitor

General is not authorized to appear therein after his withdrawal as counsel

inasmuch as he himself is not a party-litigant.
Furthermore, under Section 26, of Rule 138, 7 the Solicitor General may not
unilaterally withdraw his appearance without the consent of the Republic or
the PCGG unless the court authorizes his withdrawal. Since there was no
such court authority, the Solicitor General's withdrawal of appearance in said
several cases is null and void, as it constitutes an act against a mandatory
law and hence, it may be attacked collaterally. Neither may the Solicitor
General withdraw on the authority of Orbos v. Civil Service
Commission 8 wherein this Court held:
In the discharge of this task the Solicitor General must see
to it that the best interest of the government is upheld within
the limits set by law. . .
xxx xxx xxx
There are cases where a government agency declines the
services of the Solicitor General or otherwise fails or refuses
to forward the papers of the case to him for appropriate
action. . .
The Court finds and so holds that this practice should be
stopped. To repeat, the Solicitor General is the lawyer of the
government, any of its agents and officials in any litigation,
proceeding, investigation or matter requiring the services of
a lawyer. The exception is when such officials or agents are
being charged criminally or are being civilly sued for
damages arising from a felony. His services cannot be
lightly rejected,much less ignored by the officer or officials
concerned.
Indeed, the assistance of the Solicitor General should be
welcomed by the parties. He should be given full support
and cooperation by any agency or official involved in
litigation. He should be enabled to faithfully discharge his
duties and responsibilities as the government advocate.
And he should do no less for his clients. His burden of
assisting in the fair and just administration of justice is clear.

This Court does not expect the Solicitor General to waver in

the performance of his duty. As a matter of fact, the Court
appreciates the participation of the Solicitor General in
many proceedings and his continued fealty to his assigned
task. He should not therefore desist from appearing before
this Court even in those cases he finds his opinion
inconsistent with the government or any of its agents he is
expected to represent. The Court must be advised of his
position just as well. (Emphasis supplied)
The petitioner adds the following observations:

Therefore, this case militates more against the Solicitor

General than in his favor. For if the government and its
officials cannot reject the services of the Solicitor General,
neither may the latter select the case he would represent by
withdrawing in some and retaining others. For unlike private
lawyers who are bound to their clients by contract and,
therefore, can reject cases offered to them, the Solicitor
General and PCGG are wedded to each other by statute for
better and for worse. And only a divorce, through the
abolition of PCGG or resignation of the Solicitor General,
can untie the marital knot. Otherwise, the relationship
should continue sans PCGG demurring, and the Solicitor
General withdrawing. Absent such resignation or abolition,
the Solicitor General has to prosecute or defend the said
cases to the best of his ability.
Hence, petitioner contends, the PCGG acted without or in excess of
jurisdiction in hiring private lawyers as substitutes for the Solicitor General.
Nowhere in Executive Order Nos. 1, 2 and 14 does it appear that the PCGG
is authorized to hire said lawyers. Since the Solicitor General is named by
law as the lawyer for all government agencies, the hiring of private lawyers
by such agencies is impliedly excluded. Thus, by employing private lawyers,
the PCGG is creating a public office and naming a public officer. However, in
the absence of a law providing for the creation of the office of PCGG
counsel, said hired lawyers are usurpers or intruders whose acts may be
challenged in a collateral proceeding such as an action for prohibition.

Similarly, petitioner asserts, prohibition will lie against the Commission on

Audit considering that any payment for the services of the PCGG-hired
lawyers would result in an unlawful expenditure of public funds. Stressing
the need to preserve the status quo until the determination of his rights as a
citizen and taxpayer, petitioner prays for the issuance of temporary
restraining order.
Acting on the petition, however, the Court required the respondent to file
their respective comments on the petition without granting the prayer for a
temporary restraining order. 10
In its comment, the Commission on Audit (COA) alleges that it has not
allowed the disbursement of funds to pay for the services of PCGG-hired
private lawyers. It points out the fact that under COA Circular No. 89-299
dated March 21, 1989, the COA has withdrawn the pre-audit of transactions
entered into by national government agencies pursuant to the constitutional
provision that the COA has the exclusive authority to "define the scope of its
audit and examination, to establish the techniques and methods required
therefor." 11 Neither has the COA allowed in post-audit the disbursements of
funds in payment of the services of the hired private lawyers. Moreover,
under COA Circular No. 86-255 dated April 2, 1986, the hiring of private
lawyers by government agencies and instrumentalities is prohibited unless
there is prior written conformity of the Solicitor General or the Government
Corporate Counsel, as the case may be, as well as the written concurrence
of COA.
For its part, the PCGG, through Commissioner Maximo A. Maceren and
lawyer Eliseo B. Alampay, asserts in its comment that the scope of its
authority under Executive Orders Nos. 1, 2 and 14 is broad enough to
include the authority to engage the services of private lawyers, if necessary,
for the fulfillment of its mandate. While such authority is not expressly stated
in said executive orders, "it must be deemed necessarily implied in and
subsumed under the expressly enumerated powers of the Commission." 12
The PCGG contends that its power under Section 1 of Executive Order No.
14 to "file and prosecute all cases investigated by it" includes "the grant of
discretion to the Commission in determining the manner of filing and
prosecuting its cases including the matter of who, in particular, will control
and supervise the prosecution of said cases." The phrase "with the
assistance of the Office of the Solicitor General and other government

agencies" simply means that the Solicitor General is called upon to render
assistance to the PCGG and whether or not such discretion is required by
the Commission is a matter of discretion on its part. Such provision does not
preclude the PCGG from engaging the services of private lawyers in the
same way that it is "clearly authorized to hire accountants, appraisers,
researchers and other professionals as it performs its functions." Since,
upon the dictates of legal and practical necessity, it has hired lawyers in the
United States and in Switzerland, "it may similarly hire Filipino lawyers in
prosecuting its Philippine cases." 13
The PCGG further asserts that the hiring of private lawyers is "not an ultra
vires" act but a "means by which (it) can effectively exercise its powers." It
emphasizes the fact that it hired private lawyers "only after the Officer of the
Solicitor General had unilaterally withdrawn its appearance" for the PCGG in
the various pending PCGG-instituted cases. Its own Litigation Division,
which was constituted after the Solicitor General's withdrawal, is "sorely
undermanned" but it has to contend with "affluent and influential individuals
and entities" who can "afford to hire skilled lawyers and organize vast
litigation networks." The PCGG tried to seek the assistance of the
Department of Justice and the Office of the Government Corporate Counsel
but only the former sent two additional prosecutors to handle its cases. 14
The PCGG clarifies that its powers are circumscribed not only by the
executive orders aforementioned but also by the inherent police power of the
State. By hiring private lawyers, it was merely trying to assist the President
of the Philippines in protecting the interest of the State. As such, it was
acting as an alter ego of the President and therefore, it was the Executive
which determined the necessity of engaging the services of private
prosecutors. Contending that "overwhelming necessity" impelled it to hire
private lawyers, the PCGG avers that inasmuch as the Central Bank of the
Philippines or the Philippine National Bank may engage the services of
private lawyers, with more reason may it be allowed to hire private
prosecutors after it was abandoned by the Solicitor General in the
prosecution of the ill-gotten wealth cases. Consequently, "the Solicitor
General's withdrawal of assistance is tantamount to his tacit approval of the
PCGG's hiring of private prosecutors in replacement of the solicitors
handling the said civil cases." 15
The PCGG concludes that the reasonableness of the compensation for its
hired lawyers can hardly be questioned considering the expertise of said

lawyers and the complexity of the cases they would be handling for the
PCGG. Thus, the prayer for a preliminary injunction must be denied
otherwise "the harm that would be done would be far greater than the
perceived mischief petitioner seeks to prevent." 16
Solicitor General Francisco I. Chavez inhibits himself from appearing in this
case "considering that as far as the Office of the Solicitor General (OSG for
brevity) is concerned, the subject is a closed matter among the OSG, the
PCGG and the Courts." 17 In the comment filed by Assistant Solicitor General
Edgardo L. Kilayko and Solicitor Iderlina P. Pagunuran, the OSG sets out at
length the history of the PCGG from its creation until the filing in the
Sandiganbayan of thirty-nine (39) "prima facie cases" for ill-gotten wealth
against former President Marcos and his cronies. As suits and countersuits
stemmed from the original thirty-nine (39) civil cases, "the OSG had been
put to a tremendous task and thus invariably in urgent need of being
consulted or informed by the PCGG of the facts and circumstances material
to the prosecution and progress not only of the original 39 civil cases, but
also of all kinds of "incidents."
Nonetheless, the OSG lawyers faced the challenge and the odds if only to
live up to their task as "the best lawyers there are in the country." The OSG
further explains: 18
On many a time, however a time, however, the lack of the
above-mentioned consultation or information resulted in
situations that rendered the OSG unavoidably incapable of
performing its functions and duties as Lawyer of the
Government, not only as mandated upon it by law and as
spelled out in Orbos v. CSC, G.R. No. 92561, September
12, 1990, but also in consonance with its office motto:
"Integrity In Advocacy."
Once the OSG argued before the Sandiganbayan that an
asset was under sequestration, only to be informedby the
adverse party waving a document before the
Sandiganbayan Justices that the sequestration had earlier
been lifted, with a PCGG resolution, the document, to boot
(Razon case). Then, again, OSG argued, even before this
Honorable Court, that an ill-gotten asset had "mysteriously"
disappeared, only to be informed by the Honorable Court,

that a PCGG Commissioner had earlier by resolution

authorized the disposition of the asset (COCOFED case).
All the instances need not be enumerated here, as they are
not meat and substance, even as OSG is rendered thereby
a laughing stock in its professionalism.
As to matters that are of great pith and moment, suffice it to
say that the recent Benedicto "compromise" agreement, not
to mention the SMC-UCPB Compromise settlement, is sub
judice or under advisement not only of the Sandiganbayan
but also of this Honorable Court in separate "incidents," and
suffice it to state that the relationship, obtaining between the
Government offices/agencies and the Office of the Solicitor
General as counsel, is not at all like one that simply would
obtain between private client and private lawyer in private
practice, although constant consultation and advice are sine
qua non in both types of relationship. The relationship is
rather one, created as it is by law, where imposed upon
OSG is the responsibility to present to the courts the
position that will uphold the best interests of the People, the
Government and the State, albeitthe same may run counter
to its client's position or route of action. At any rate, the
PCGG through nationwide TV broadcast and print media,
publicly announced that PCGG had disposed with or
otherwise did not need the legal services of the Lawyer of
the Government, and thus OSG descended, not the
unmerited remark of having "abandoned" the ill-gotten
wealth cases, but the time-honored principle
of impossibilium nulla obligatio est, i.e., there is no
obligation to do impossible things (Lim Co Chui v. Paredes,
47 Phil. 463), without in any way casting any aspersion on
the moral integrity of any Commissioner or PCGG official, as
made clear by the Solicitor General to the President in a
meeting with PCGG.
Hence, in the light of all the foregoing circumstances, at
rock-bottom precisely so as not to prejudice "the interest of
the Government" (Orbos), the Solicitor General withdrew as
counsel for PCGG in all said cases by filing a notice of
"Withdrawal of Appearance with Reservation."

In arguing that the instant petition should be dismissed, the OSG contends
that this case has become moot and academic as this very Court had
resolved to allow the withdrawal of appearance of the Solicitor General in all
the cases pending before it "with reservation, conformably with PD No. 478,
Executive Order No. 292, as well as the doctrine laid down in 'Orbos v. Civil
Service Commission, et al.,' G.R. No. 92561, September 12,
1990, . . ." 19 For its part, the Sandiganbayan had also resolved that "the
appearance of the Solicitor General is deemed withdrawn to be substituted
by the PCGG's legal panel." 20

that since P.D. No. 478 mandates that "the Solicitor General as law office of
the government with the duty to appear for the PCGG," no implication from
the express powers of (the) PCGG can stand against the language of P.D.
No. 478. On the other hand, the law regarding the PCGG and that regarding
the Solicitor General should be harmonized. 25

The OSG maintains further that the instant petition does not present a case
and controversy as the petitioner himself does not even have a "court
standing" and a "litigable interest." All the petitioner seeks is an "advisory
opinion." The OSG asserts that the "incident" (referring to the Solicitor
General's withdrawal of appearance) should be distinguished from that
in JPC Enterprise, Inc. v. Court of Appeals, et al., 21 wherein the Assets
Privatization Trust (APT) decided to appear for itself because the law names
the Minister of Justice only as its ex oficio legal adviser while by itself it can
file suits and institute proceedings and engage external expertise in the
fulfillment of its tasks. However, since the APT has no personality of its own,
it should have appeared through the Solicitor General. The OSG argues that
said "adversarial incident" is not present in this case.

We shall, first of all, confront a preliminary issue interposed by the OSG

whether or not this case has been rendered moot and academic by this
Court's resolution granting the Solicitor General's motion to withdraw
appearance as counsel in the several cases pending herein. It should be
clarified that the resolution had to be issued with the national interest in
mind. Time was of the essence and any hedging on the part of the PCGG
and/or its counsel could, not merely set back but prejudice, the
government's all-out efforts to recover ill-gotten wealth.

In his reply to the comments of the PCGG and the OSG, the petitioner
insists that although as between the Solicitor General and the PCGG, this
case may have been rendered moot and academic, as between him on the
one hand and the Solicitor General and the PCGG on the other hand, a "real
controversy" still exists and the issues raised herein have not ceased to
exist either. Moreover, a judgment of prohibition and mandamus would have
a "practical legal effect and can be enforced." 22
Citing Miguel v. Zulueta, 23 and Taada v. Tuvera, 24 petitioner asserts that
he has a standing in court because where a question of public right is
involved and the object of the mandamus is the enforcement of a public
duty, the relator need not show any legal or special interest in the result of
the proceeding. It is sufficient that, as a citizen, he is interested in having the
laws executed and the duty in question enforced.
The petitioner rebuts the PCGG's contention that its power to hire private
lawyers may be implied from its expressly enumerated powers. He asserts

The Court considers these pleadings sufficient bases for resolving this
petition and, on account of the importance and imperativeness of the issues
raised herein, the filing of memoranda by the parties is dispensed with.

Notwithstanding the ostensible mootness of the issues raised in a case, this

Court has never shirked from its symbolic function of educating bench and
bar by formulating guiding and controlling principles, precepts, doctrines and
rules. 26More so, if the case is of such magnitude that certain legal
ambiguities must be unravelled for the protection of the national interest. 27
To allow the transcendental issue of whether the OSG may withdraw its
appearance in a cluster of cases of national import to pass into legal limbo
simply because it has been "mooted" would be a clear case of misguided
judicial self-restraint. This Court has assiduously taken every opportunity to
lay down brick by brick the doctrinal infrastructure of our legal system.
Certainly, this is no time for a display of judicial timorousness of the kind
which the Solicitor General is untimely exhibiting now.
Accordingly, we confront the issue conscious of their far-reaching
implications, not alone on the instant case but on future ones as well, which
the OSG will surely be called upon to handle again and again.
The resolution of the first issue laid down at the beginning of
this ponencia hinges on whether or not the Solicitor General may be
compelled by mandamus to appear for the Republic and the PCGG. This

issue is best resolved by a close scrutiny of the nature and extent of the
power and authority lodged by law on the Solicitor General.
At this juncture, a flashback on the statutory origins of the Office of the
Solicitor General is in order. Incorporated in Act No. 136 dated June 11,
1901 28 providing for the organization of courts in the Philippine Islands was
Chapter III entitled "The Attorney General." Section 40 states:
There shall be an Attorney-General for the Philippine
Islands, to be appointed by the Philippine Commission . . .
The catalog of his duties includes the following:
He shall prosecute or defend therein all causes, civil and
criminal, to which the Government of the Philippine Islands,
or any officer thereof, in his official capacity, is a party . . . 29
Section 41 further provides:
There shall be an officer learned in the law to assist the
Attorney-General in the performance of all his duties, called
the Solicitor-General who shall be appointed by the
Commission . . . In case of a vacancy in the office of
Attorney-General, or of his absence or disability, the
Solicitor-General shall have power to exercise the duties of
that office. Under the supervision of the Attorney-General, it
shall be the especial duty of the Solicitor-General to conduct
and argue suits and appeals in the Supreme Court, in which
the Philippine Government is interested, and the AttorneyGeneral may, whenever he deems it for the interest of the
Philippine Government, either in person conduct and argue
any case in any court of the Philippine Islands in which the
Philippine Government is interested or may direct the
Solicitor General to do so. (Emphasis supplied)
Six months later, a law was passed reorganizing the Office of the AttorneyGeneral and providing for the appointment of the said official and the
Solicitor General by the Civil Governor and for an increase in their salaries.
Their duties remained basically the same. 30

In the meantime, Act No. 222 was passed on September 5, 1901 providing
for the organization of, among others, the Department of Finance and
Justice which embraced within its executive control the Bureau of Justice. 31
Under Act No. 2711, otherwise known as the Administrative Code of 1917,
the Bureau of Justice is specifically constituted "the law office of the
Government of the Philippine Islands and by it shall be performed duties
requiring the services of a law officer." 32 Its chief officials are the AttorneyGeneral and his assistant, the Solicitor General. 33
As principal law officer of the Government, the AttorneyGeneral shall have authority to act for and represent the
Government of the Philippine Islands, its officers, and
agents in any official investigation, proceeding, or matter
requiring the services of a lawyer. 34
In 1932, the office of the Attorney-General was phased out and his functions
were assumed by the Secretary of Justice. 35Subsequently, the Bureau of
Justice came to be known as the Office of the Solicitor General, 36 headed
by the Solicitor General. 37
Parenthetically, these institutions were patterned after the Office of AttorneyGeneral, created by the First U.S. Congress in the Judiciary Act of 1789
which called for a "meet person, learned in the law, to act as AttorneyGeneral for the U.S." 38When the Department of Justice was established in
1870, the position of Solicitor-General was created as an assistant to the
Attorney-General. 39 Over a century later, their respective positions and
functions remain the same. The Attorney-General of the United States,
appointed by the President with the advice and consent of the Senate, is
now the head of the Department of Justice. 40 In the same manner, a
Solicitor General, learned in the law, is appointed to assist the AttorneyGeneral in the performance of his duties. 41
In contrast, the Solicitor-General of the Philippines, emerging from the
shadow of the Attorney-General and later, of the Secretary of Justice, has
come to his own. On July 20, 1948, Republic Act. No. 335, amending
Section 1659 of the Administrative Code, bestowed on him the rank of
Undersecretary of a Department. Subsequently, a series of amendatory laws
designed to enlarge the complement of the Office of the Solicitor General
was enacted 42 until on June 4, 1974, by virtue of Presidential Decree No.

478, its pivotal role in the government became clearly defined and
delineated.
During the martial law years, President Ferdinand E. Marcos leaned heavily
on his Solicitor General to provide legal underpinnings of his official acts.
Reflective of the tremendously enhanced power of the official and the
position was Executive Order No. 454 enacted on September 23, 1975,
conferring upon the Solicitor General the rank of a member of the
Cabinet "with all the rights, honors and privileges pertaining to the position."
Said executive order was superseded by Executive Order No. 473 dated
August 12, 1976 "making the Solicitor General a member of the
Cabinet." These executive orders were capped by Executive Order No. 552
dated August 14, 1979 elevating the OSG into a Ministry with the same
powers and functions defined in P.D. Nos. 478 and 1347.
P.D. 478 became, as it were, the Magna Carta of the Office of the Solicitor
General. After the change of administration, or on July 25, 1987, President
Corazon C. Aquino signed into law Executive Order No. 292 instituting the
Administrative Code of 1987. Under Book IV, Title III, Chapter 12 thereof, the
Office of the Solicitor General is described as an "independent and
autonomous office attached to the Department of Justice." Headed by the
Solicitor General, "who is the principal law officer and legal defender of the
Government," the Office shall have a Legal Staff composed of fifteen (15)
Assistant Solicitors General and such number of Solicitors and Trial
Attorneys "as may be necessary to operate the Office which shall divided
into fifteen (15) divisions. 43 Among its powers and functions are the
following which are relevant to the issues:
Sec. 35. Powers and Functions. The office of the
Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, proceeding,
investigation or matter requiring the services of a lawyer.
When authorized by the President or head of the office
concerned, it shall also represent government owned or
controlled corporations. The Office of the Solicitor General
shall constitute the law office of the Government, and, as
such, shall discharge duties requiring the services of a
lawyer. (Emphasis supplied.) It shall have the following
specific powers and functions:

(1) Represent the Government in the

Supreme Court and the Court of Appeals in
all criminal proceedings; represent the
Government and its officers in the Supreme
Court, the Court of Appeals, and all other
courts or tribunals in all civil actions and
special proceedings in which the
Government or any officer thereof in his
official capacity is a party.
(2) Investigate, initiate court action, or in
any manner proceed against any person,
corporation or firm for the enforcement of
any contract, bond, guarantee, mortgage,
pledge or other collateral executed in favor
of the Government. Where proceedings are
to be conducted outside of the Philippines,
the Solicitor General may employ counsel
to assist in the discharge of the
aforementioned responsibilities.
xxx xxx xxx
(8) Deputize legal officers of government
departments, bureaus, agencies and offices
to assist the Solicitor General and appear or
represent the Government in cases
involving their respective offices, brought
before the courts and exercise supervision
and control over such legal Officers with
respect to such cases.
(9) Call on any department, bureau, office,
agency or instrumentality of the
Government for such service, assistance
and cooperation as may be necessary in
fulfilling its function and responsibilities and
for this purpose enlist the services of any
government official or employees in the
pursuit of his tasks.

Departments, bureaus, agencies, offices,

instrumentalities and corporations to whom
the Office of the Solicitor General renders
legal services are authorized to disburse
funds from their sundry operating and other
funds for the latter Office. For this purpose,
the Solicitor General and his staff are
specifically authorized to receive
allowances as may be provided by the
Government offices, instrumentalities and
corporations concerned, in addition to their
regular compensation.
(10) Represent, upon the instructions of the
President of the Republic of the Philippines
in international litigations, negotiations or
conferences where the legal position of the
Republic must be defended or presented.
(11) Act for the Republic and/or the people
before any court, tribunal, body or
commission in any matter, action or
proceeding which, in his opinion , affects
the welfare of the people as the ends of
justice may require; and
(12) Perform such other functions as may
be provided by law. 44
In thus tracing the origins of the Office of the Solicitor General to gain a clear
understanding of the nature of the functions and extent of the powers of the
Solicitor General himself, it is evident that a policy decision was made in the
early beginnings to consolidate in one official the discharge of legal functions
and services in the government. These took the form mostly of representing
the Government in various legal proceedings.
The rationale behind this step is not difficult to comprehend. Sound
government operations require consistency in legal policies and practices
among the instrumentalities of the State. Moreover, an official learned in the
law and skilled in advocacy could best plan and coordinate the strategies

and moves of the legal battles of the different arms of the government.
Surely, the economy factor, too, must have weighed heavily in arriving at
such a decision.
It is patent that the intent of the lawmaker was to give the designated official,
the Solicitor General, in this case, the unequivocal mandate to appear for
the government in legal proceedings. Spread out in the laws creating the
office is the discernible intent which may be gathered from the term "shall,"
which is invariably employed, from Act No. 136 (1901) to the more recent
Executive Order No. 292 (1987).
Under the principles of statutory construction, so familiar even to law
students, the term "shall" is nothing if not mandatory.
In common or ordinary parlance and in its ordinary
significance, the term "shall" is a word of command, and one
which has always and which must be given a compulsory
meaning, and it is generally imperative or mandatory. It has
the invariable significance of operating to impose a duty
which may be enforced, particularly if public policy is in
favor of this meaning or when public interest is involved, or
where the public or persons have rights which ought to be
exercised or enforced, unless a contrary intent appears. 45
The presumption is that the word "shall" in a statute is used
in an imperative, and not in a directory, sense. If a different
interpretations if sought, it must rest upon something in the
character of the legislation or in the context which will justify
a different meaning. 46
Exactly what is the signification of the mandate for the OSG
"to represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding,
investigations or matter requiring the services of the lawyer?"
To "represent" is standing in place, supplying the place, or
performing the duties or exercising the rights, of the party
represented; to speak or act with authority on behalf of
another; to conduct and control proceedings in court on
behalf of another. 47

The decision of this Court as early as 1910 with respect to the duties of
Attorney-General well applies to the Solicitor General under the facts of the
present case. The Court then declared:
In this jurisdiction, it is the duty of the Attorney General "to
perform the duties imposed upon him by law" and "he shall
prosecute all causes, civil and criminal, to which the
Government of the Philippines Islands, or any officer
thereof, in his official capacity, is a party . . ." 48
Being a public officer, the Solicitor General is "invested with some portion of
the sovereign functions of the government, to be exercised by him for the
benefit of the public." 49 Another role of the Solicitor General is an officer of
the Court, in which case he is called upon "to share in the task and
responsibility of dispensing justice and resolving disputes;" therefore, he
may be enjoined in the same manner that a special prosecutor was sought
enjoined by this Court from committing any act which may tend to "obstruct,
pervert or impede and degrade the administration of justice." 50
In one case where a fiscal manifested before the trial court that he would not
prosecute the case in court for insufficiency of evidence after his motion to
dismiss had been denied, this Court granted a petition for mandamus to
compel him to prosecute the case. We declared:
Notwithstanding his personal convictions or opinions, the
fiscal must proceed with his duty of presenting evidence to
the Court to enable the court to arrive at its own
independent judgment as to the culpability of the accused.
The fiscal should not shirk from his responsibility much less
leave the prosecution of the case at the hands of a private
prosecutor . . . In the trial of criminal cases, it is the duty of
the public prosecutor to appear for the government since an
offense is an outrage to the sovereignty of the State . . . This
is so because "the prosecuting officer is the representative
not of an ordinary party to a controversy but of a sovereignty
where obligation to govern impartially is as compelling as its
obligations to govern at all; and whose interest, therefore, in
criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very

definite sense the servant of the law, the two-fold aim of

which is that guilt shall not escape or innocence suffer. 51
Undoubtedly, the above arguments apply equally well to the Solicitor
General who is sought to be compelled to appear before the different courts
to ensure that the case of the Republic of the Philippines against those who
illegally amassed wealth at the expense the people maybe made to account
for their misdeeds and return said wealth.
Like the Attorney-General of the United States who has absolute discretion
in choosing whether to prosecute or not to prosecute or to abandon a
prosecution already started, 52 our own Solicitor General may even dismiss,
abandon, discontinue or compromise suit either with or without stipulations
with other party. 53 Abandonment of a case, however, does not mean that the
Solicitor General may just drop it without any legal and valid reason for the
discretion given him is not unlimited. 54 Its exercise must be, not only within
the parameters set by law but with the best interest of the State as the
ultimate goal. Such are reflected in its policies, thus:
The discretionary power of the attorney for the United
States in determining whether a prosecution shall be
commenced or maintained may well depend upon matters
of policy wholly apart from any question of probable cause.
Although as member of the bar, the Attorney for the United
States is an officer of the court, he is nevertheless an
executive official of the Government, and it is as an officer of
the executive department that he exercises a discretion as
to whether or not there shall be a prosecution in a particular
case. . . . 55
The first executive order ever issued by President Aquino on February 28,
1986, created the PCGG. It announced the government's policy of
recovering all ill-gotten wealth amassed by former President Marcos, his
immediate family, relatives and close associates. It charged the PCGG with
the "task of assisting the President" in regard to the recovery of all ill-gotten
wealth, investigation of "such cases of graft and corruption as the President
may assign" to it, and the adoption of safeguards to ensure that corruption
may not be again committed with impunity.

This issuance was followed by Executive Order No. 2 dated March 12, 1986
freezing all assets and properties of Marcos, his family and cronies;
prohibiting their transfer, conveyance, encumbrance or concealment, and
requiring all persons in and outside of the Philippines who are in possession
of said properties to make full disclosure of the same to the PCGG.
On April 11, 1986, the PCGG promulgated its Rules and Regulations. A
pertinent provision states:
Sec. 10. Findings of the Commission. Based on the
evidence adduced, the Commission shall determine
whether there is reasonable ground to believe that the
asset, property or business enterprise in question constitute
ill-gotten wealth as described in Executive Orders Nos. 1
and 2. In the event of an affirmative finding, the
Commission shall certify the case to the Solicitor General
for appropriate action in accordance with law. Business,
properties, funds, and other assets found to be lawfully
acquired shall be immediately released and the writ of
sequestration, hold or freeze orders lifted accordingly.
(Emphasis supplied)
Thereafter, or on May 7, 1986, Executive Order No. 14 defining the
jurisdiction over cases involving such ill-gotten wealth was issued, it contains
the following provisions:
Sec. 1. Any provision of law to the contrary notwithstanding,
the Presidential Commission on Good Government, with the
assistance of the Solicitor General and other government
agencies, is hereby empowered to file and prosecute all
cases investigated by it under Executive Order No. 1, dated
February 28, 1986, and Executive Order No. 2, dated March
12, 1986, as may be warranted by its finding.
Sec. 2. The Presidential Commission on Good Government
shall file all such cases, whether civil or criminal, with the
Sandiganbayan, which shall have exclusive and original
jurisdiction thereof.

Sec. 3. Civil suits for restitution, reparation of damages, or

indemnification for consequential damages, forfeiture
proceedings provided for under Republic Act No. 1379, or
any other civil actions under the Civil Code or other existing
laws, in connection with Executive Order No. 2 dated March
12, 1986, may be filed separately from and proceed
independently of any criminal proceedings and may be
proved by a preponderance of evidence. (Emphasis
supplied).
All these legal provisions ineluctably lead to no other conclusion but that
under the law of its creation and the complementary Rules, the law office of
the PCGG, as it is for the rest of the Government, is the Office of the
Solicitor General. Although the PCGG is "empowered to file and prosecute
all cases investigated by it" under Executive Orders No. 1 and 2, it does not
thereby oust the Office of the Solicitor General from its lawful mandate to
represent the Government and its agencies in any litigation, proceeding,
investigation or matter requiring the services of a lawyer. Moreover, such
express grant of power to PCGG does not imply that it may abdicate such
power and turn over the prosecution of the cases to private lawyers whom it
may decide to employ. In those instances where proceedings are to be
conducted outside of the Philippines, the Solicitor General, continuing to
discharge his duties, may employ counsel to assist him, 56particularly
because he may not be licensed to appear before the courts in a foreign
jurisdiction.
Under its own Rules and Regulations, specifically the provision aforequoted,
the PCGG certifies to the Solicitor General the cases for which it had found
reasonable ground to believe that certain assets and properties are ill-gotten
under Executive Order Nos. 1 and 2. The Solicitor General shall then
proceed "in accordance with law."
Upon receipt of a case certified to him, the Solicitor General exercises his
discretion in the management of the case. He may start the prosecution of
the case by filing the appropriate action in court or he may opt not to file the
case at all. He may do everything within his legal authority but always
conformably with the national interest and the policy of the government on
the matter at hand.

After filing a case, he may even move for its dismissal in the event that,
along the way, he realizes that prosecuting the case would not serve the
government's purposes. In other words, because he was appointed to the
position on account of his qualification as a man "learned in the law," the
Solicitor General is obligated to perform his functions and to perform them
well. He may not, however, abdicate his function through an arbitrary
exercise of his discretion. We find that a withdrawal of appearance on flimsy
or petty grounds is tantamount to withdrawing on no grounds at all and to a
dereliction of duty.
The Office of the Solicitor General repeatedly invoked the ruling in Orbos
v. Civil Service Commission, 57 which hardly constitutes authority to uphold
its position with respect to the withdrawal of the Solicitor General in the
instant case. On the contrary, in said case, this Court struck down private
respondent's motion to disqualify the OSG from appearing for petitioner
Department of Transportation and Communications Secretary Orbos. At the
risk of being repetitious, the parties were reminded that under Section 1 of
Presidential Decree No. 478
The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation,
proceeding, investigation, or matter requiring the services of
a lawyer. (Emphasis supplied)
This Court clarified that even when "confronted with a situation where one
government office takes an adverse position against another government
agency, as in this case, the Solicitor General should not refrain from
performing his duty as the lawyer of the government. It is incumbent upon
him to present to the court what he considers would legally uphold the best
interest of the government although it may run counter to a client's position.
In such an instance, the government office adversely affected by the position
taken by the Solicitor General, if it still believes in the merit of its case may
appear in its own behalf through its legal personnel or representative."
The Court further pointed out that it is not entirely impossible that the Office
of the Solicitor General may take a position adverse to his clients like the
Civil Service Commission and the National Labor Relations Commission,
among others, and even the People of the Philippines. In such instances,
however, it is not proper for the Solicitor General to simply decline to handle

the case or arbitrarily withdraw therefrom. The Court enjoins him to

"nevertheless manifest his opinion and recommendations to the Court which
is an invaluable aid in the disposition of the case." 58
However, in those cases where a government agency declines the services
of the Solicitor General or otherwise fails or refuses to forward the papers of
the case to him for appropriate action, the Court categorically held that ". . .
this practice should be estopped." 59 By the same token, the Solicitor
General should not decline to appear in court to represent a government
agency without just and valid reason, especially the PCGG which is under
the Office of the President, he being a part of the Executive Department.
In the case at bar, the reason advanced by the Solicitor General for his
motion to withdraw his appearance as lawyer for the PCGG is that he has
been, more than once embarrassed in court and thereby made "a laughing
stock in its (his) professionalism." Examples are when the OSG lawyers
betrayed ignorance in open court of certain moves taken by the PCGG, such
as the lifting of a sequestration of an asset or when it was under the
impression that an asset had mysteriously disappeared only to be informed
that "a PCGG Commissioner had earlier by resolution authorized the
disposition of said asset."
The last straw, as it were, was the public announcement through media
made by the PCGG that it had "dispensed with or otherwise did not need the
legal services of the lawyer of the government." 60 It is evident that the
withdrawal of the Solicitor General was precipitated by institutional pique,
the lawyers concerned having allowed their collective pride to prevail over
their sense of duty in protecting and upholding the public interest.
One wistfully wishes that the OSG could have been as zealous in
representing the PCGG as it was in appearing for the head of their office,
the Solicitor General, in a civil suit for damages filed against him in a
Regional Trial Court arising from allegedly defamatory remarks uttered by
him.
Such enthusiasm, according to this Court, was misplaced. For Section 1 of
Presidential Decree No. 478 which authorizes the OSG to represent the
Government of the Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, admits of an exception, and that it is, it

stops short of representing "a public official at any stage of a criminal case
or in a civil suit for damages arising from a felony." 61
In instances such as the above, the OSG can, with reason, withdraw its
representation even if it has already entered its appearance. But the Solicitor
General, as the officially-mandated lawyer of the government, is not
empowered to take a similar step on the basis of a petty reason like
embarrassment, as that to which the individual lawyers assigned to appear
for their office were subjected. Had they not been too preoccupied with their
personal feelings, they could have checked themselves in time. For a sense
of professional responsibility and proper decorum would dictate that they
distinguish between the institution which, from the very beginning, had been
constituted as the law office of the Government and theindividuals through
whom its powers and duties are exercised. No emotions, of whatever kind
and degree, should be allowed to becloud their high sense of duty and
commitment to country and people.
The OSG itself admitted refraining from citing other incidents as additional
bases for the Solicitor General's withdrawal "as they are not of meat and
substance" but apparently, their overwhelming sense of shame overcame
them as the OSG was "rendered thereby a laughing stock in its
professionalism." 62
Now a word on the incidents that allegedly caused humiliation to the OSG
lawyers, thus provoking the Solicitor General into withdrawing his
appearance as counsel for the PCGG. No litigation can be assured of
success if counsel does not enjoy the confidence of his client. This is
manifested by, among other things, holding regular, constant and
untrammeled consultation with each other. Who can say but that if the
communication lines had been kept open between the OSG and PCGG, no
surprises would have been sprung on the former by the latter in open court?
Petitioner's claim that the Solicitor General could not withdraw his
appearance as lawyer of PCGG inasmuch as he had neither the consent of
his client nor the authority from the court, applying the pertinent provision of
the Rules of Court, is not well-taken. Here is no ordinary lawyer-client
relationship. Let it be remembered that the client is no less than the Republic
of the Philippines in whom the plenum of sovereignty resides. Whether
regarded as an abstract entity or an ideal person, it is to state the obvious
that it can only act through the instrumentality of the government which,

according to the Administrative Code of 1987, refers to the "corporate

governmental entity through which the functions of government are
exercised throughout the Philippines . . ." 63 And the OSG is, by law,
constituted the law office of the Government whose specific powers and
functions include that of representing the Republic and/or the people before
any court in any action which affects the welfare of the people as the ends of
justice may require.
Indeed, in the final analysis, it is the Filipino people as a collectivity that
constitutes the Republic of the Philippines. Thus, the distinguished client of
the OSG is the people themselves of which the individual lawyers in said
office are a part.
In order to cushion the impact of his untimely withdrawal of appearance
which might adversely affect the case, the Solicitor General has offered "to
submit his comment/observation on incidents/matters pending with this
Honorable Court, if called for by circumstances in the interest of the
government or if he is so required by the court." However, as correctly
pointed out by the petitioner, while the Solicitor General may be free to
express his views and comments before the Court in connection with a case
he is handling, he may not do so anymore after he has formally expressed
his refusal to appear therein. For by then, he has lost his standing in court.
Unless his views are sought by the court, the Solicitor General may not
voluntarily appear in behalf of his client after his withdrawal from the case;
otherwise, such reappearance would constitute a blatant disregard for court
rules and procedure, and that, on the part of one who is presumed to be
"learned in the law."
In the face of such express refusal on the part of the Solicitor General to
continue his appearance as counsel of the PCGG in the cases to recover
the ill-gotten wealth of the Filipino people from the Marcoses and their
cronies, the PCGG has had to employ the service of a group of private
attorneys lest the national interest be prejudiced. Were this Court to allow
such action to remain unchallenged, this could well signal the laying down of
the novel and unprecedented doctrine that the representation by the Solicitor
General of the Government enunciated by law is, after all, not mandatory but
merely directory. Worse, that this option may be exercised on less than
meritorious grounds; not on substance but on whimsy, depending on the all
too human frailties of the lawyers in the OSG assigned to a particular case.
Under such circumstances, it were better to repeal the law than leave the

various government agencies, all dependent on the OSG for legal

representation, in a condition of suspenseful uncertainty. With every looming
legal battle, they will be speculating whether they can rely on the Solicitor
General to defend the Government's interest or whether they shall have to
depend on their own "in-house" resources for legal assistance.
The Court is firmly convinced that, considering the spirit and the letter of the
law, there can be no other logical interpretation of Sec. 35 of the
Administrative Code than that it is, indeed, mandatory upon the OSG to
"represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of a lawyer."
Sound management policies require that the government's approach to legal
problems and policies formulated on legal issues be harmonized and
coordinated by a specific agency. The government owes it to its officials and
their respective offices, the political units at different levels, the public and
the various sectors, local and international, that have dealings with it, to
assure them of a degree of certitude and predictability in matters of legal
import.
From the historical and statutory perspectives detailed earlier in
this ponencia, it is beyond cavil that it is the Solicitor General who has been
conferred the singular honor and privilege of being the "principal law officer
and legal defender of the Government." One would be hard put to name a
single legal group or law firm that can match the expertise, experience,
resources, staff and prestige of the OSG which were painstakingly built up
for almost a century.
Moreover, endowed with a broad perspective that spans the legal interests
of virtually the entire government officialdom, the OSG may be expected to
transcend the parochial concerns of a particular client agency and instead,
promote and protect the public weal. Given such objectivity, it can discern,
metaphorically speaking, the panoply that is the forest and not just the
individual trees. Not merely will it strive for a legal victory circumscribed by
the narrow interests of the client office or official, but as well, the vast
concerns of the sovereign which it is committed to serve.

management of a case. As a public official, it is his sworn duty to provide

legal services to the Government, particularly to represent it in litigations.
And such duty may be enjoined upon him by the writ of mandamus. And
such duty may be enjoined upon him by the writ of mandamus. Such order,
however, should not be construed to mean that his discretion in the handling
of his cases may be interfered with. The Court is not compelling him to act in
a particular way. 64 Rather, the Court is directing him to prevent a failure of
justice 65 resulting from his abandonment in midstream of the cause of the
PCGG and the Republic and ultimately, of the Filipino people.
In view of the foregoing, there need be no proof adduced that the petitioner
has a personal interest in the case, as his petition is anchored on the right of
the people, through the PCGG and the Republic, to be represented in court
by the public officer duly authorized by law. The requirement of personal
interest is satisfied by the mere fact that the petitioner is a citizen and hence,
part of the public which possesses the right. 66
The writ of prohibition, however, may not be similarly treated and granted in
this petition. The said writ, being intended to prevent the doing of some act
that is about to be done, it may not provide a remedy for acts which are
already fait accompli. 67 Having been placed in a situation where it was
constrained to hire private lawyers if the Republic's campaign to legally
recover the wealth amassed by the Marcoses, their friends and relatives was
to prosper, the PCGG's action is justified. However, it was not entirely
blameless. Its failure to coordinate closely with the Solicitor General has
spawned the incidents which culminated in the withdrawal of the latter from
appearing as counsel in its cases.
WHEREFORE, the petition for a writ of mandamus is hereby GRANTED.
The Solicitor General is DIRECTED to immediately re-enter his appearance
in the cases wherein he had filed a motion to withdraw appearance and the
PCGG shall terminate the services of the lawyers it had employed but not
before paying them the reasonable fees due them in accordance with rules
and regulations of the Commission on Audit.
This decision is immediately executory.
SO ORDERED.

In light of the foregoing, the Solicitor General's withdrawal of his appearance

on behalf of the PCGG was beyond the scope of his authority in the

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Padilla, Bidin,

Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Nocon, JJ., concur.

The questioned
Reconsideration.

Resolution

denied

petitioners

Motion

for

Feliciano, J., concurs in the result.

On the other hand, trial courts Decision, which was affirmed by the CA,
had disposed as follows:

FIRST DIVISION
WHEREFORE, judgment is hereby rendered as follows:
[G.R. No. 149927. March 30, 2004]
REPUBLIC OF THE PHILIPPINES, Represented by the Department of
Environment and Natural Resources (DENR) Under then
Minister ERNESTO R. MACEDA; and Former Government
Officials CATALINO MACARAIG, FULGENCIO S. FACTORAN,
ANGEL
C.
ALCALA,
BEN
MALAYANG,
ROBERTO
PAGDANGANAN, MARIANO Z. VALERA and ROMULO SAN
JUAN, petitioners, vs.
ROSEMOOR
MINING
AND
DEVELOPMENT CORPORATION, PEDRO DEL CONCHA,
and ALEJANDRO and RUFO DE GUZMAN, respondents.

1. Declaring that the cancellation of License No. 33 was done

without jurisdiction and in gross violation of the Constitutional right of
the petitioners against deprivation of their property rights without
due process of law and is hereby set aside.
2. Declaring that the petitioners right to continue the exploitation of
the marble deposits in the area covered by License No. 33 is
maintained for the duration of the period of its life of twenty-five (25)
years, less three (3) years of continuous operation before License
No. 33 was cancelled, unless sooner terminated for violation of any
of the conditions specified therein, with due process.

DECISION
3. Making the Writ of preliminary injunction and the Writ of
Preliminary Mandatory Injunction issued as permanent.

PANGANIBAN, J.:
A mining license that contravenes a mandatory provision of the law
under which it is granted is void. Being a mere privilege, a license does not
vest absolute rights in the holder. Thus, without offending the due process
and the non-impairment clauses of the Constitution, it can be revoked by the
State in the public interest.
The Case

4. Ordering the cancellation of the bond filed by the Petitioners in

the sum of 1 Million.
5. Allowing the petitioners to present evidence in support of the
damages they claim to have suffered from, as a consequence of the
summary cancellation of License No. 33 pursuant to the agreement
of the parties on such dates as maybe set by the Court; and

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court,

seeking to nullify the May 29, 2001 Decision [2] and the September 6, 2001
Resolution[3] of the Court of Appeals (CA) in CA-GR SP No. 46878. The CA
disposed as follows:

6. Denying for lack of merit the motions for contempt, it appearing

that actuations of the respondents were not contumacious and
intended to delay the proceedings or undermine the integrity of the
Court.

WHEREFORE, premises considered, the appealed Decision is

hereby AFFIRMED in toto.[4]

No pronouncement yet as to costs.[5]

The Facts

The CA narrated the facts as follows:

The four (4) petitioners, namely, Dr. Lourdes S. Pascual, Dr. Pedro De la
Concha, Alejandro De La Concha, and Rufo De Guzman, after having been
granted permission to prospect for marble deposits in the mountains of Biakna-Bato, San Miguel, Bulacan, succeeded in discovering marble deposits of
high quality and in commercial quantities in Mount Mabio which forms part of
the Biak-na-Bato mountain range.
Having succeeded in discovering said marble deposits, and as a result of
their tedious efforts and substantial expenses, the petitioners applied with
the Bureau of Mines, now Mines and Geosciences Bureau, for the issuance
of the corresponding license to exploit said marble deposits.
xxx

xxx

xxx

After compliance with numerous required conditions, License No. 33 was

issued by the Bureau of Mines in favor of the herein petitioners.
xxx

xxx

xxx

Shortly after Respondent Ernesto R. Maceda was appointed Minister of the

Department of Energy and Natural Resources (DENR), petitioners License
No. 33 was cancelled by him through his letter to ROSEMOOR MINING
AND DEVELOPMENT CORPORATION dated September 6, 1986 for the
reasons stated therein. Because of the aforesaid cancellation, the original
petition was filed and later substituted by the petitioners AMENDED
PETITION dated August 21, 1991 to assail the same.
Also after due hearing, the prayer for injunctive relief was granted in the
Order of this Court dated February 28, 1992. Accordingly, the
corresponding preliminary writs were issued after the petitioners filed their
injunction bond in the amount of ONE MILLION PESOS (P1,000,000.00).
xxx

xxx

xxx

On September 27, 1996, the trial court rendered the herein questioned
decision.[6]

The trial court ruled that the privilege granted under respondents
license had already ripened into a property right, which was protected under
the due process clause of the Constitution. Such right was supposedly
violated when the license was cancelled without notice and hearing. The
cancellation was said to be unjustified, because the area that could be
covered by the four separate applications of respondents was 400
hectares. Finally, according to the RTC, Proclamation No. 84, which
confirmed the cancellation of the license, was an ex post facto law; as such,
it violated Section 3 of Article XVIII of the 1987 Constitution.
On appeal to the Court of Appeals, herein petitioners asked whether PD
463 or the Mineral Resources Development Decree of 1974 had been
violated by the award of the 330.3062 hectares to respondents in
accordance with Proclamation No. 2204. They also questioned the validity
of the cancellation of respondents Quarry License/Permit (QLP) No. 33.
Ruling of the Court of Appeals
Sustaining the trial court in toto, the CA held that the grant of the quarry
license covering 330.3062 hectares to respondents was authorized by law,
because the license was embraced by four (4) separate applications -- each
for an area of 81 hectares. Moreover, it held that the limitation under
Presidential Decree No. 463 -- that a quarry license should cover not more
than 100 hectares in any given province -- was supplanted by Republic Act
No. 7942,[7] which increased the mining areas allowed under PD 463.
It also ruled that the cancellation of respondents license without notice
and hearing was tantamount to a deprivation of property without due
process of law. It added that under the clause in the Constitution dealing
with the non-impairment of obligations and contracts, respondents license
must be respected by the State.
Hence, this Petition.[8]
Issues
Petitioners submit the following issues for the Courts consideration:
(1) [W]hether or not QLP No. 33 was issued in blatant contravention of
Section 69, P.D. No. 463; and (2) whether or not Proclamation No. 84 issued

by then President Corazon Aquino is valid. The corollary issue is whether or

not the Constitutional prohibition against ex post facto law applies to
Proclamation No. 84[9]
The Courts Ruling

the Constitutional Commission[18] emphasized the intent to apply the said

constitutional provision prospectively.
While RA 7942 has expressly repealed provisions of mining laws that
are inconsistent with its own, it nonetheless respects previously issued valid
and existing licenses, as follows:

The Petition has merit.

First Issue:
Validity of License
Respondents contend that the Petition has no legal basis, because PD
463 has already been repealed. [10] In effect, they ask for the dismissal of the
Petition on the ground of mootness.
PD 463, as amended, pertained to the old system of exploration,
development and utilization of natural resources through licenses,
concessions or leases.[11] While these arrangements were provided under
the 1935[12] and the 1973[13] Constitutions, they have been omitted by Section
2 of Article XII of the 1987 Constitution.[14]
With the shift of constitutional policy toward full control and supervision
of the State over natural resources, the Court in Miners Association of the
Philippines v. Factoran Jr. [15] declared the provisions of PD 463 as contrary
to or violative of the express mandate of the 1987 Constitution. The said
provisions dealt with the lease of mining claims; quarry permits or licenses
covering privately owned or public lands; and other related provisions on
lease, licenses and permits.
RA 7942 or the Philippine Mining Act of 1995 embodies the new
constitutional mandate. It has repealed or amended all laws, executive
orders, presidential decrees, rules and regulations -- or parts thereof -- that
are inconsistent with any of its provisions.[16]
It is relevant to state, however, that Section 2 of Article XII of the 1987
Constitution does not apply retroactively to a license, concession or lease
granted by the government under the 1973 Constitution or before the
effectivity of the 1987 Constitution on February 2, 1987. [17] As noted
in Miners Association of the Philippines v. Factoran Jr., the deliberations of

SECTION 5.
Mineral Reservations. When the national interest so
requires, such as when there is a need to preserve strategic raw materials
for industries critical to national development, or certain minerals for
scientific, cultural or ecological value, the President may establish mineral
reservations upon the recommendation of the Director through the
Secretary. Mining operations in existing mineral reservations and such other
reservations as may thereafter be established, shall be undertaken by the
Department or through a contractor: Provided, That a small scale-mining
cooperative covered by Republic Act No. 7076 shall be given preferential
right to apply for a small-scale mining agreement for a maximum aggregate
area of twenty-five percent (25%) of such mineral reservation, subject to
valid existing mining/quarrying rights as provided under Section 112 Chapter
XX hereof. All submerged lands within the contiguous zone and in the
exclusive economic zone of the Philippines are hereby declared to be
mineral reservations.
x x x

xxx

xxx

SECTION 7.
Periodic Review of Existing Mineral Reservations.
The Secretary shall periodically review existing mineral reservations for the
purpose of determining whether their continued existence is consistent with
the national interest, and upon his recommendation, the President may, by
proclamation, alter or modify the boundaries thereof or revert the same to
the public domain without prejudice to prior existing rights.
SECTION 18.
Areas Open to Mining Operations. Subject to any
existing rights or reservations and prior agreements of all parties, all mineral
resources in public or private lands, including timber or forestlands as
defined in existing laws, shall be open to mineral agreements or financial or
technical assistance agreement applications. Any conflict that may arise
under this provision shall be heard and resolved by the panel of arbitrators.

SECTION 19.
Areas Closed to Mining Applications. -- Mineral
agreement or financial or technical assistance agreement applications shall
not be allowed:
(a)
In military and other government reservations, except upon prior
written clearance by the government agency concerned;
(b)
Near or under public or private buildings, cemeteries, archeological
and historic sites, bridges, highways, waterways, railroads, reservoirs, dams
or other infrastructure projects, public or private works including plantations
or valuable crops, except upon written consent of the government agency or
private entity concerned;
(c)

In areas covered by valid and existing mining rights;

(d)

In areas expressly prohibited by law;

(e)
In areas covered by small-scale miners as defined by law unless
with prior consent of the small-scale miners, in which case a royalty payment
upon the utilization of minerals shall be agreed upon by the parties, said
royalty forming a trust fund for the socioeconomic development of the
community concerned; and
(f)
Old growth or virgin forests, proclaimed watershed forest reserves,
wilderness areas, mangrove forests, mossy forests, national parks,
provincial/municipal forests, parks, greenbelts, game refuge and bird
sanctuaries as defined by law and in areas expressly prohibited under the
National Integrated Protected Areas System (NIPAS) under Republic Act No.
7586, Department Administrative Order No. 25, series of 1992 and other
laws.
SECTION 112.
Non-impairment of Existing Mining/ Quarrying Rights.
All valid and existing mining lease contracts, permits/licenses, leases
pending renewal, mineral production-sharing agreements granted under
Executive Order No. 279, at the date of effectivity of this Act, shall remain
valid, shall not be impaired, and shall be recognized by the Government:
Provided, That the provisions of Chapter XIV on government share in
mineral production-sharing agreement and of Chapter XVI on incentives of
this Act shall immediately govern and apply to a mining lessee or contractor
unless the mining lessee or contractor indicates his intention to the

secretary, in writing, not to avail of said provisions: Provided, further, That no

renewal of mining lease contracts shall be made after the expiration of its
term: Provided, finally, That such leases, production-sharing agreements,
financial or technical assistance agreements shall comply with the applicable
provisions of this Act and its implementing rules and regulations.
SECTION 113.
Recognition of Valid and Existing Mining Claims and
Lease/Quarry Application. Holders of valid and existing mining claims,
lease/quarry applications shall be given preferential rights to enter into any
mode of mineral agreement with the government within two (2) years from
the promulgation of the rules and regulations implementing this
Act. (Underscoring supplied)
Section 3(p) of RA 7942 defines an existing mining/quarrying right as a
valid and subsisting mining claim or permit or quarry permit or any mining
lease contract or agreement covering a mineralized area granted/issued
under pertinent mining laws. Consequently, determining whether the
license of respondents falls under this definition would be relevant to fixing
their entitlement to the rights and/or preferences under RA 7942. Hence, the
present Petition has not been mooted.
Petitioners submit that the license clearly contravenes Section 69 of PD
463, because it exceeds the maximum area that may be granted. This
incipient violation, according to them, renders the license void ab initio.
Respondents, on the other hand, argue that the license was validly
granted, because it was covered by four separate applications for areas of
81 hectares each.
The license in question, QLP No. 33, [19] is dated August 3, 1982, and it
was issued in the name of Rosemoor Mining Development Corporation. The
terms of the license allowed the corporation to extract and dispose of
marbleized limestone from a 330.3062-hectare land in San Miguel,
Bulacan. The license is, however, subject to the terms and conditions of PD
463, the governing law at the time it was granted; as well as to the rules and
regulations promulgated thereunder.[20] By the same token, Proclamation
No. 2204 -- which awarded to Rosemoor the right of development,
exploitation, and utilization of the mineral site -- expressly cautioned that the
grant was subject to existing policies, laws, rules and regulations. [21]

The license was thus subject to Section 69 of PD 463, which reads:

Section 69. Maximum Area of Quarry License Notwithstanding the
provisions of Section 14 hereof, a quarry license shall cover an area of not
more than one hundred (100) hectares in any one province and not more
than one thousand (1,000) hectares in the entire Philippines. (Italics
supplied)
The language of PD 463 is clear. It states in categorical and mandatory
terms that a quarry license, like that of respondents, should cover a
maximum of 100 hectares in any given province. This law neither provides
any exception nor makes any reference to the number of applications for a
license. Section 69 of PD 463 must be taken to mean exactly what it
says. Where the law is clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation. [22]
Moreover, the lower courts ruling is evidently inconsistent with the fact
that QLP No. 33 was issued solely in the name of Rosemoor Mining and
Development Corporation, rather than in the names of the four individual
stockholders who are respondents herein. It likewise brushes aside a basic
postulate that a corporation has a separate personality from that of its
stockholders.[23]
The interpretation adopted by the lower courts is contrary to the
purpose of Section 69 of PD 463. Such intent to limit, without qualification,
the area of a quarrylicense strictly to 100 hectares in any one province is
shown by the opening proviso that reads: Notwithstanding the provisions of
Section 14 hereof x x x. The mandatory nature of the provision is also
underscored by the use of the word shall. Hence, in the application of the
100-hectare-per-province limit, no regard is given to the size or the number
of mining claims under Section 14, which we quote:
SECTION 14.
Size of Mining Claim. -- For purposes of registration of
a mining claim under this Decree, the Philippine territory and its shelf are
hereby divided into meridional blocks or quadrangles of one-half minute
(1/2) of latitude and longitude, each block or quadrangle containing area of
eighty-one (81) hectares, more or less.
A mining claim shall cover one such block although a lesser area may be
allowed if warranted by attendant circumstances, such as geographical and

other justifiable considerations as may be determined by the Director:

Provided, That in no case shall the locator be allowed to register twice the
area allowed for lease under Section 43 hereof. (Italics supplied)
Clearly, the intent of the law would be brazenly circumvented by ruling
that a license may cover an area exceeding the maximum by the mere
expediency of filing several applications. Such ruling would indirectly permit
an act that is directly prohibited by the law.
Second Issue:
Validity of Proclamation No. 84
Petitioners also argue that the license was validly declared a nullity and
consequently withdrawn or terminated. In a letter dated September 15,
1986, respondents were informed by then Minister Ernesto M. Maceda that
their license had illegally been issued, because it violated Section 69 of PD
463; and that there was no more public interest served by the continued
existence or renewal of the license. The latter reason, they added, was
confirmed by the language of Proclamation No. 84. According to this law,
public interest would be served by reverting the parcel of land that was
excluded by Proclamation No. 2204 to the former status of that land as part
of the Biak-na-Bato national park.
They also contend that Section 74 of PD 463 would not apply, because
Minister Macedas letter did not cancel or revoke QLP No. 33, but merely
declared the latters nullity. They further argue that respondents waived
notice and hearing in their application for the license.
On the other hand, respondents submit that, as provided for in Section
74 of PD 463, their right to due process was violated when their license was
cancelled without notice and hearing. They likewise contend that
Proclamation No. 84 is not valid for the following reasons: 1) it violates the
clause on the non-impairment of contracts; 2) it is an ex post facto law
and/or a bill of attainder; and 3) it was issued by the President after the
effectivity of the 1987 Constitution.
This Court ruled on the nature of a natural resource exploration permit,
which was akin to the present respondents license, in Southeast Mindanao
Gold Mining Corporation v. Balite Portal Mining Cooperative,[24] which held:

x x x. As correctly held by the Court of Appeals in its challenged decision,

EP No. 133 merely evidences a privilege granted by the State, which may
be amended, modified or rescinded when the national interest so
requires. This is necessarily so since the exploration, development and
utilization of the countrys natural mineral resources are matters impressed
with great public interest. Like timber permits, mining exploration permits do
not vest in the grantee any permanent or irrevocable right within the purview
of the non-impairment of contract and due process clauses of the
Constitution, since the State, under its all-encompassing police power, may
alter, modify or amend the same, in accordance with the demands of the
general welfare.[25]
This same ruling had been made earlier in Tan v. Director of
Forestry[26] with regard to a timber license, a pronouncement that was
reiterated in Ysmael v. Deputy Executive Secretary,[27] the pertinent portion
of which reads:
x x x. Timber licenses, permits and license agreements are the principal
instruments by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. And it can hardly
be gainsaid that they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or irrevocable
right to the particular concession area and the forest products therein. They
may be validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause [See Sections
3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of
Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]. [28] (Italics
supplied)

provisions of Presidential Decree No. 463, as amended, and the rules and
regulations promulgated thereunder, as well as with the terms and
conditions specified herein; Provided, That if a permit/license is cancelled, or
otherwise terminated, the permittee/licensee shall be liable for all unpaid
rentals and royalties due up to the time of the termination or cancellation of
the permit/license[.][30] (Italics supplied)
The determination of what is in the public interest is necessarily vested
in the State as owner of all mineral resources. That determination was
based on policy considerations formally enunciated in the letter dated
September 15, 1986, issued by then Minister Maceda and, subsequently, by
the President through Proclamation No. 84. As to the exercise of
prerogative by Maceda, suffice it to say that while the cancellation or
revocation of the license is vested in the director of mines and geo-sciences,
the latter is subject to the formers control as the department head. We also
stress the clear prerogative of the Executive Department in the evaluation
and the consequent cancellation of licenses in the process of its formulation
of policies with regard to their utilization. Courts will not interfere with the
exercise of that discretion without any clear showing of grave abuse of
discretion.[31]
Moreover, granting that respondents license is valid, it can still be
validly revoked by the State in the exercise of police power.[32] The exercise
of such power through Proclamation No. 84 is clearly in accord with jura
regalia, which reserves to the State ownership of all natural resources.
[33]
This Regalian doctrine is an exercise of its sovereign power as owner of
lands of the public domain and of the patrimony of the nation, the mineral
deposits of which are a valuable asset.[34]

In line with the foregoing jurisprudence, respondents license may be

revoked or rescinded by executive action when the national interest so
requires, because it is not a contract, property or a property right protected
by the due process clause of the Constitution. [29] Respondents themselves
acknowledge this condition of the grant under paragraph 7 of QLP No. 33,
which we quote:

Proclamation No. 84 cannot be stigmatized as a violation of the nonimpairment clause. As pointed out earlier, respondents license is not a
contract to which the protection accorded by the non-impairment clause may
extend.[35] Even if the license were, it is settled that provisions of existing
laws and a reservation of police power are deemed read into it, because it
concerns a subject impressed with public welfare.[36] As it is, the nonimpairment clause must yield to the police power of the state. [37]

7. This permit/license may be revoked or cancelled at any time by the

Director of Mines and Geo-Sciences when, in his opinion public interests so
require or, upon failure of the permittee/licensee to comply with the

We cannot sustain the argument that Proclamation No. 84 is a bill of

attainder; that is, a legislative act which inflicts punishment without judicial
trial.[38] Its declaration that QLP No. 33 is a patent nullity [39] is certainly not a

declaration of guilt. Neither is the cancellation of the license a punishment

within the purview of the constitutional proscription against bills of attainder.
Too, there is no merit in the argument that the proclamation is an ex
post facto law. There are six recognized instances when a law is considered
as such: 1) it criminalizes and punishes an action that was done before the
passing of the law and that was innocent when it was done; 2) it aggravates
a crime or makes it greater than it was when it was committed; 3) it changes
the punishment and inflicts one that is greater than that imposed by the law
annexed to the crime when it was committed; 4) it alters the legal rules of
evidence and authorizes conviction upon a less or different testimony than
that required by the law at the time of the commission of the offense; 5) it
assumes the regulation of civil rights and remedies only, but in effect
imposes a penalty or a deprivation of a right as a consequence of
something that was considered lawful when it was done; and 6)
it deprives a person accused of a crime of some lawful protection to which
he or she become entitled, such as the protection of a former conviction or
an acquittal or the proclamation of an amnesty.[40] Proclamation No. 84 does
not fall under any of the enumerated categories; hence, it is not an ex post
facto law.
It is settled that an ex post facto law is limited in its scope only to
matters criminal in nature.[41] Proclamation 84, which merely restored the
area excluded from the Biak-na-Bato national park by canceling
respondents license, is clearly not penal in character.
Finally, it is stressed that at the time President Aquino issued
Proclamation No. 84 on March 9, 1987, she was still validly exercising
legislative powers under the Provisional Constitution of 1986. [42] Section 1 of
Article II of Proclamation No. 3, which promulgated the Provisional
Constitution, granted her legislative power until a legislature is elected and
convened under a new Constitution. The grant of such power is also
explicitly recognized and provided for in Section 6 of Article XVII of the 1987
Constitution.[43]
WHEREFORE, this Petition is hereby GRANTED and the appealed
Decision of the Court of Appeals SET ASIDE. No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. L-36378 January 27, 1992

PIO BALATBAT, petitioner,
vs.
COURT OF APPEALS and DOMINGO PASION, respondents.
Bureau of Agrarian Legal Assistance for petitioner.
Roberto Y. Miranda for private respondent.

DAVIDE, JR., J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court
filed by an agricultural lessee who was ordered ejected in an action for
ejectment filed by the new owner of the landholding on the basis of the
latter's claim that he will personally cultivate the land pursuant to Section 36
(1) of R.A. No. 3844.
The antecedent facts, as gathered from the pleadings, are not controverted.
Petitioner is the agricultural lessee of a parcel of land located at Santiago,
Sta. Ana, Pampanga containing an area of 18,490 square meters, more or
less, which is owned by Daniel Garcia. The latter sold the land to private
respondent Domingo Pasion and had declared for taxation purposes under
Tax Declaration No. 126. Sometime after the sale, Domingo Pasion, on a
claim that he will personally cultivate the land, filed on 15 June 1970 with the
Court of Agrarian Relations, Fifth Regional District, Branch II at San
Fernando, Pampanga, a complaint to eject petitioner alleging therein that he

had notified petitioner of his intention to personally cultivate the landholding,

but despite the lapse of one (1) agricultural year from receipt of the notice
thereof, petitioner refused to vacate the land.

The counterclaim of the defendants is hereby DISMISSED

for lack of merit.
No pronouncement as to costs.

In his amended answer with counterclaim, petitioner denied having received

any notice from the private respondent and by way of special and affirmative
defenses, he alleged that: (a) the jurisdictional requirements of the law have
not been complied with by private respondent; (b) the latter has another
palay landholding situated at Santiago, Sta. Ana, Pampanga with an area of
2 1/2 hectares which is being worked by a hired helper; (c) private
respondent is physically unfit to perform the different phases of farm work;
and (d) that private respondent filed the case merely to harass petitioner
because of the latter's adoption of the agricultural leasehold system and
refusal to shift back to the 50-50 sharing arrangement with the former. In his
counterclaim, petitioner sought to exercise his right of redemption over the
subject landholding pursuant to the provisions of R.A. No. 3844 in view of
the failure of the former owner, Daniel Garcia, to notify him beforehand of
the intended sale of the landholding. Private respondent filed his Answer to
the Counterclaim.
At the pre-trial conference of the case, the parties could only stipulate on
their being of legal age, their residences and on the fact that private
respondent is the owner of the landholding in question, which is cultivated by
petitioner under the leasehold system.
After trial on the merits, the agrarian court rendered a decision against
petitioner, the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING, judgment is hereby
rendered granting authority to plaintiff Domingo Pasion to
eject defendant Pio Balatbat from the landholding in
question described in the complaint and to personally
cultivate his landholding, and ordering said defendant to
vacate the said premises and to deliver the possession
thereof to the said plaintiff, subject, however, to the second
proviso contained in Section 36(1) and to the provisions of
Section 25 of Republic Act No. 3844.
The claim for damages of plaintiff is DENIED for lack of
basis.

SO ORDERED. 1
Petitioner appealed the decision to the Court of Appeals which docketed it
as C.A.-G.R. No. 00479-R; he urged said court to reverse it because the
agrarian court gravely erred in: (a) ordering his ejectment, completely
denying the fact that private respondent, due to his sickness, is physically
incapable of personally cultivating the subject landholding and that private
respondent filed the complaint out of vindictiveness, and (b) in dismissing
the counterclaim for redemption, contrary to the facts and law. 2
On 16 December 1972, the Court of Appeals promulgated its decision 3 in
C.A.-G.R. No. 00479-R affirming the decision of the agrarian court. In
disposing of the assigned errors, said Court ruled that private respondent
complied with the requirement of notice of at least one (1) agricultural year.
And although private respondent was already 69 years old at the time he
testified, there is nothing on record to indicate that he is suffering from any
physical ailment; besides, in this age of advanced technology, most of the
back-breaking processes of farming have been lightened by machinery. As
regards the asserted right of redemption pursuant to Section 11 of R.A. No.
3844, the Court held that the petitioner "failed to comply with the
requirements" and took note of petitioner's petition before the lower court to
litigate as pauper as "a circumstance that is highly indicative of lack of funds
on his part." 4 His motion to reconsider 5 the decision having been denied in
the resolution of 25 January 1973, 6 petitioner took the instant recourse to
present the following legal issues for this Court's resolution:
1. What is the effect of Section 7 of R.A. No. 6389,
abolishing personal cultivation by landowners as a ground
for dispossession of tenants from their landholdings, on
pending appealed cases?
2. Should pending appealed cases on personal cultivation
be decided in the light of Section 7 of R.A. No. 6389?

Expectedly, petitioner maintains that this case should have been decided in
the light of Section 7 of R.A. No. 6389 since, in view of the appeal, the
private respondent did not yet acquire a vested right to personally cultivate
the landholding. In short, the application of the repealing law warrants the
dismissal of the action for ejectment.
Republic Act No. 6389 took effect on 10 September 1971, during the
pendency of this case before the Court of Appeals.
After private respondent filed his comment 7 in compliance with the
resolution of 13 March 1973, this Court resolved to give due course to the
petition 8 and thereafter required the petitioner to file his Brief, 9 which he
complied with on 22 June 1973;10 he makes the following assignment of
errors:
I
The Court a quo gravely erred in ordering the ejectment of
herein petitioner on the ground of personal cultivation.
II
The Honorable Court of Appeals erred in not dismissing
private respondent's complaint for cultivation in view of the
repeal of Section 36(1) Rep. Act 3844 by Section 7 of Rep.
Act 6389.
Private respondent filed his Brief on 25 September 1973.
In support of the first assigned error, petitioner asserts that during the
pendency of the appeal in the Court of Appeals, Congress passed Republic
Act No. 6389, Section 7 of which amended Section 36(1) of R.A. No. 3844.
As amended, personal cultivation is no longer a ground to dispossess an
agricultural lessee of his landholding. Section 36(1) of R.A. No. 3844
originally read as follows:
Sec. 36. Possession of Landholding; Exceptions.
Notwithstanding any agreement as to the period or future
surrender of the land, an agricultural lessee shall continue in
the enjoyment and possession of his landholding except

when his dispossession has been authorized by the Court in

a judgment that is final and executory if after due hearing it
is shown that:
(1) The agricultural lessorowner or a
member of his immediate family will
personally cultivate the landholding or will
convert the landholding, if suitably located,
into residential, factory, hospital or school
site or other useful non-agricultural
purposes: Provided, That the agricultural
lessee shall be entitled to disturbance
compensation equivalent to five years rental
on his landholding in addition to his rights
under Sections twenty-five and thirty-four,
except when the land owned and leased by
the agricultural lessor, is not more than five
hectares, in which case instead of
disturbance compensation the lessee may
be entitled to an advance notice of at least
one agricultural year before ejectment
proceedings are filed against
him: Provided, further, That should the
landholder not cultivate the land himself for
three years or fail to substantially carry out
such conversion within one year after the
dispossession of the tenant, it shall be
presumed that he acted in bad faith and the
tenant shall have the right to demand
possession of the land and recover
damages for any loss incurred by him
because of said dispossession.
xxx xxx xxx
Section 7 of R.A. No. 6389 reads as follows:
Sec. 7. Section 36(1) of the same Code is hereby amended
to read as follows:

(1) The landholding is declared by the

department head upon recommendation of
the National Planning Commission to be
suited for residential, commercial, industrial
or some other urban purposes: Provided,
That the agricultural lessee shall be entitled
to disturbance compensation equivalent to
five times the average of the gross harvest
on his landholding during the last five
preceding calendar years;
Since under the original provision of Section 36(1) of R.A. No. 3844, the
dispossession of the agricultural lessee on the ground of personal cultivation
by the agricultural lessor-owner can only take place when "authorized by the
Court in a judgment that is final and executory," it follows then that since the
repeal of the provision took effect before the judgment in this case became
final and executory, private respondent may no longer dispossess petitioner
on that ground because it had been removed from the statute books.
Counsel for petitioner, Atty. Greta-Diosa Quitorio, Trial Attorney of the
Bureau of Agrarian Legal Assistance, made a thorough study of the history
of R.A. No. 6389 and came up with the conclusion that, as gathered from the
questions and answers of Senators Diokno and Laurel, the legislative intent
to give retroactive effect to said law or to make it applicable to pending
cases of ejectment on ground of personal cultivation, appeared clear. She
further summoned to the aid of petitioner an arsenal of impressive doctrines
in statutory construction to protect the cause and strengthen the case of the
petitioner. All of her efforts, which are undoubtedly commendable, are futile.
As early as 1984, in Nilo vs. Court of Appeals, et al., and Castro
vs. Castro, 11 this Court, per Justice Hugo E. Gutierrez, Jr., ruled that Section
7 of R.A. No. 6389 cannot be given retroactive effect because, while during
the debates on the bill which was eventually enacted into Republic Act No.
6389, there were statements made on the floor that "the owner will lose the
right to eject after the enactment of this measure" even in cases where the
owner has not really succeeded in ejecting the
tenants, 12 Congress failed to express an intention to make Republic Act No.
6389 retroactive and to cover ejectment cases on the ground of personal
cultivation then pending adjudication by the courts. This Court thus stated:
xxx xxx xxx

Article 3 of the old Civil Code (now Article 4 of the New Civil
Code) provides that: "Laws shall not have a retroactive
effect unless therein otherwise provided." According to this
provision of law, in order that a law may have retroactive
effect it is necessary that an express provision to this effect
be made in the law, otherwise nothing should be understood
which is not embodied in the law. Furthermore, it must be
borne in mind that a law is a rule established to guide our
actions with no binding effect until it is enacted, wherefore, it
has no application to past times but only to future time, and
that is why it is said that the law looks to the future only and
has no retroactive effect unless the legislator may have
formally given that effect to some legal provisions (Lopez
and Lopez v. Crow, 40 Phil. 997).
As early as 1913, this Court with Justice Moreland
as ponente announced:
The Act contains, as is seen, no express
words giving it a retrospective or retroactive
effect, nor is there anything found therein
which indicates an intention to give it such
an effect. Its effect is, rather, by clear
intendment, prospective.
It is a rule of statutory construction that all
statutes are to construed as having only a
prospective operation unless the purpose
and intention of the Legislature to give them
a retrospective effect is expressly declared
or is necessarily implied from the language
used. In every case of doubt, the doubt
must be solved against the retrospective
effect. The cases supporting this rule are
almost without number. . . .
xxx xxx xxx
The doctrine of non-retroactivity was reiterated in the case
of Segovia v. Noel (47 Phil. 543.). Thus

A sound canon of statutory construction is

that a statute operates prospectively only
and never retroactively, unless the
legislative intent to the contrary is made
manifest either by the express terms of the
statute or by necessary implication.
Following the lead of the United States
Supreme Court and putting the rule more
strongly, a statute ought not to receive a
construction making it act retroactively,
unless the words used are so clear, strong,
and imperative that no other meaning can
annexed to them, or unless the intention of
the legislature cannot be otherwise
satisfied. No court will hold a statute to be
retroactive when the legislature has not said
so. . . . (Farrel v. Pingree (1888), 5 Utah,
443; 16 Pac., 843; Greer v. City of Asheville
[1894], 114 N.C., 495; United States Fidelity
& Guaranty Co. v. Struthers Wells Co.
[1907], 209 U.S., 306)
xxx xxx xxx
Our decision to deny retroactive effect to the amendatory
provision gains added strength from later developments.
Under the 1973 Constitution, it is even more emphasized
that property ownership is impressed with a social function.
This means that the owner has the obligation to use his
property not only to benefit himself but society as well.
Hence, the Constitution provides under Section 6 of Article II
that in the promotion of social justice, the State "shall
regulate the acquisition, ownership, use, enjoyment, and
disposition of private property, and equitably diffuse property
ownership and profits." The Constitution also ensures that
the worker shall have a just and living wage which should
assure for himself and his family an existence worthy of
human dignity and give him opportunities for a better life

(Sections 7 and 9, Article II) (Alfanta vs. Noe, 53 SCRA 76;

Almeda vs. Court of Appeals, 78 SCRA 194).
In line with the above mandates, this Court upheld the
constitutionality of Presidential Decree No. 27, which
decrees the emancipation of tenants from the bondage of
the soil and transferred to them the ownership of the land
they till, in Gonzales v. Estrella (91 SCRA 294). We noted
the imperative need for such a decree inChavez
v. Zobel (55 SCRA 26). We held in the latter case that "on
this vital policy question, one of the utmost concern, the
need for what for some is a radical solution in its pristine
sense, one that goes at the root, was apparent. Presidential
Decree No. 27 was thus conceived. . . . There is no doubt
then, as set forth expressly therein, that the goal is
emancipation. What is more, the decree is now part and
parcel of the law of the land according to the present
Constitution.
Significantly, P.D. No. 27, which decrees the emancipation
of the tenant from the bondage of the soil, transfers to him
the ownership of the land he tills, and provides instruments
and mechanisms therefor, has (sic) recognized personal
cultivation as a ground for retention and, therefore,
exemption from the land transfer decree. Personal
cultivation cannot be effected unless the tenant gives up the
land to the owner.
Presidential Decree No. 27 provides:
In all cases, the landowner may retain an
area of not more than seven (7) hectares if
such landowner is cultivating such area or
will now cultivate it.
The redistribution of land, restructuring of property
ownership, democratization of political power, and
implementation of social justice do not require that a
landowner should be deprived of everything he owns and
that even small parcels as in these two cases now before us

may not be worked by the owner himself. The evil sought to

be remedied by agrarian reform is the ancient anachronism
where one person owns the land while another works on it.
The evil is not present in cases of personal cultivation by the
owner.

EMDEN
ENCARNACION
AYCARDO, respondents.

and

HORATIO

DECISION
ROMERO, J.:

Taking over by the landowner is subject to strict

requirements. In addition to proof of ownership and the
required notices to the tenant, the bona-fide intention to
cultivate must be proved to the satisfaction of the court. And
as earlier stated, the tenant is protected in case the owner
fails to cultivate the land within one year or to work the land
himself for three years.
The seven hectares retention under P.D. No. 27 is
applicable only to landowners who do not own other
agricultural lands containing an aggregate of more than
seven hectares or lands used for residential, commercial,
industrial, or other urban purposes where they derive
adequate income to support themselves and their families.
(Letter of Instruction No. 472 dated October 21, 1976).
The subsequent cases of Diga vs. Adriano, et al. 13 and Gallardo
vs. Borromeo 14 reiterated the rule We laid in the Niloand Castro cases.
WHEREFORE, for want of merit, the instant petition is hereby DISMISSED.
No pronouncement as to costs.
IT IS SO ORDERED.

SECOND DIVISION
[G.R. No. 117188. August 7, 1997]
LOYOLA GRAND VILLAS HOMEOWNERS (SOUTH) ASSOCIATION,
INC., petitioner,
vs. HON.
COURT
OF
APPEALS,
HOME INSURANCE AND
GUARANTY
CORPORATION,

May the failure of a corporation to file its by-laws within one month from
the date of its incorporation, as mandated by Section 46 of the Corporation
Code, result in its automatic dissolution?
This is the issue raised in this petition for review on certiorari of the
Decision[1] of the Court of Appeals affirming the decision of the Home
Insurance and Guaranty Corporation (HIGC). This quasi-judicial body
recognized Loyola Grand Villas Homeowners Association (LGVHA) as the
sole homeowners association in Loyola Grand Villas, a duly registered
subdivision in Quezon City and Marikina City that was owned and developed
by Solid Homes, Inc. It revoked the certificates of registration issued to
Loyola Grand Villas Homeowners (North) Association Incorporated (the
North Association for brevity) and Loyola Grand Villas Homeowners (South)
Association Incorporated (the South Association).
LGVHAI was organized on February 8, 1983 as the association of
homeowners and residents of the Loyola Grand Villas. It was registered
with the Home Financing Corporation, the predecessor of herein respondent
HIGC, as the sole homeowners organization in the said subdivision under
Certificate of Registration No. 04-197. It was organized by the developer of
the subdivision and its first president was Victorio V. Soliven, himself the
owner of the developer. For unknown reasons, however, LGVHAI did not
file its corporate by-laws.
Sometime in 1988, the officers of the LGVHAI tried to register its bylaws. They failed to do so.[2] To the officers consternation, they discovered
that there were two other organizations within the subdivision the North
Association and the South Association. According to private respondents, a
non-resident and Soliven himself, respectively headed these
associations. They also discovered that these associations had five (5)
registered homeowners each who were also the incorporators, directors and
officers thereof. None of the members of the LGVHAI was listed as member
of the North Association while three (3) members of LGVHAI were listed as

members of the South Association. [3] The North Association was registered
with the HIGC on February 13, 1989 under Certificate of Registration No.
04-1160 covering Phases West II, East III, West III and East IV. It submitted
its by-laws on December 20, 1988.
In July, 1989, when Soliven inquired about the status of LGVHAI, Atty.
Joaquin A. Bautista, the head of the legal department of the HIGC, informed
him that LGVHAI had been automatically dissolved for two reasons. First, it
did not submit its by-laws within the period required by the Corporation Code
and, second, there was non-user of corporate charter because HIGC had
not received any report on the associations activities. Apparently, this
information resulted in the registration of the South Association with the
HIGC on July 27, 1989 covering Phases West I, East I and East 11. It filed
its by-laws on July 26, 1989.
These developments prompted the officers of the LGVHAI to lodge a
complaint with the HIGC. They questioned the revocation of LGVHAIs
certificate of registration without due notice and hearing and concomitantly
prayed for the cancellation of the certificates of registration of the North and
South Associations by reason of the earlier issuance of a certificate of
registration in favor of LGVHAI.
On January 26, 1993, after due notice and hearing, private respondents
obtained a favorable ruling from HIGC Hearing Officer Danilo C. Javier who
disposed of HIGC Case No. RRM-5-89 as follows:
WHEREFORE, judgment is hereby rendered recognizing the Loyola Grand
Villas Homeowners Association, Inc., under Certificate of Registration No.
04-197 as the duly registered and existing homeowners association for
Loyola Grand Villas homeowners, and declaring the Certificates of
Registration of Loyola Grand Villas Homeowners (North) Association, Inc.
and Loyola Grand Villas Homeowners (South) Association, Inc. as hereby
revoked or cancelled; that the receivership be terminated and the Receiver
is hereby ordered to render an accounting and turn-over to Loyola Grand
Villas Homeowners Association, Inc., all assets and records of the
Association now under his custody and possession.
The South Association appealed to the Appeals Board of the HIGC. In
its Resolution of September 8, 1993, the Board [4] dismissed the appeal for
lack of merit.

Rebuffed, the South Association in turn appealed to the Court of

Appeals, raising two issues. First, whether or not LGVHAIs failure to file its
by-laws within the period prescribed by Section 46 of the Corporation Code
resulted in the automatic dissolution of LGVHAI. Second, whether or not two
homeowners associations may be authorized by the HIGC in one sprawling
subdivision. However, in the Decision of August 23, 1994 being assailed
here, the Court of Appeals affirmed the Resolution of the HIGC Appeals
Board.
In resolving the first issue, the Court of Appeals held that under the
Corporation Code, a private corporation commences to have corporate
existence and juridical personality from the date the Securities and
Exchange Commission (SEC) issues a certificate of incorporation under its
official seal. The requirement for the filing of by-laws under Section 46 of
the Corporation Code within one month from official notice of the issuance of
the certificate of incorporation presupposes that it is already incorporated,
although it may file its by-laws with its articles of incorporation. Elucidating
on the effect of a delayed filing of by-laws, the Court of Appeals said:
We also find nothing in the provisions cited by the petitioner, i.e., Sections
46 and 22, Corporation Code, or in any other provision of the Code and
other laws which provide or at least imply that failure to file the by-laws
results in an automatic dissolution of the corporation. While Section 46, in
prescribing that by-laws must be adopted within the period prescribed
therein, may be interpreted as a mandatory provision, particularly because
of the use of the word must, its meaning cannot be stretched to support the
argument that automatic dissolution results from non-compliance.
We realize that Section 46 or other provisions of the Corporation Code are
silent on the result of the failure to adopt and file the by-laws within the
required period. Thus, Section 46 and other related provisions of the
Corporation Code are to be construed with Section 6 (1) of P.D. 902-A. This
section empowers the SEC to suspend or revoke certificates of registration
on the grounds listed therein. Among the grounds stated is the failure to file
by-laws (see also II Campos: The Corporation Code, 1990 ed., pp. 124125). Such suspension or revocation, the same section provides, should be
made upon proper notice and hearing. Although P.D. 902-A refers to the
SEC, the same principles and procedures apply to the public respondent
HIGC as it exercises its power to revoke or suspend the certificates of
registration or homeowners associations. (Section 2 [a], E.O. 535, series

1979, transferred the powers and authorities of the SEC over homeowners
associations to the HIGC.)

corporation commences operations but becomes continuously inoperative

for five years, then it may be suspended or its corporate franchise revoked.

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

Petitioner concedes that Section 46 and the other provisions of the

Corporation Code do not provide for sanctions for non-filing of the by-laws.
However, it insists that no sanction need be provided because the
mandatory nature of the provision is so clear that there can be no doubt
about its being an essential attribute of corporate birth. To petitioner, its
submission is buttressed by the facts that the period for compliance is
spelled out distinctly; that the certification of the SEC/HIGC must show that
the by-laws are not inconsistent with the Code, and that a copy of the bylaws has to be attached to the articles of incorporation. Moreover, no
sanction is provided for because in the first place, no corporate identity has
been completed. Petitioner asserts that non-provision for remedy or
sanction is itself the tacit proclamation that non-compliance is fatal and no
corporate existence had yet evolved, and therefore, there was no need to
proclaim its demise.[6] In a bid to convince the Court of its arguments,
petitioner stresses that:

The Court of Appeals added that, as there was no showing that the
registration of LGVHAI had been validly revoked, it continued to be the duly
registered homeowners association in the Loyola Grand Villas. More
importantly, the South Association did not dispute the fact that LGVHAI had
been organized and that, thereafter, it transacted business within the period
prescribed by law.
On the second issue, the Court of Appeals reiterated its previous
ruling[5] that the HIGC has the authority to order the holding of a referendum
to determine which of two contending associations should represent the
entire community, village or subdivision.
Undaunted, the South Association filed the instant petition for review
on certiorari. It elevates as sole issue for resolution the first issue it had
raised before the Court of Appeals, i.e., whether or not the LGVHAIs failure
to file its by-laws within the period prescribed by Section 46 of the
Corporation Code had the effect of automatically dissolving the said
corporation.
Petitioner contends that, since Section 46 uses the word must with
respect to the filing of by-laws, noncompliance therewith would result in
self-extinction either due to non-occurrence of a suspensive condition or
the occurrence of a resolutory condition under the hypothesis that (by) the
issuance of the certificate of registration alone the corporate personality is
deemed already formed. It asserts that the Corporation Code provides for a
gradation of violations of requirements. Hence, Section 22 mandates that
the corporation must be formally organized and should commence
transactions within two years from date of incorporation. Otherwise, the
corporation would be deemed dissolved. On the other hand, if the

x x x the word MUST is used in Sec. 46 in its universal literal meaning and
corollary human implication its compulsion is integrated in its very essence
MUST is always enforceable by the inevitable consequence that is, OR
ELSE. The use of the word MUST in Sec. 46 is no exception it means file
the by-laws within one month after notice of issuance of certificate of
registration OR ELSE. The OR ELSE, though not specified, is inextricably a
part of MUST. Do this or if you do not you are Kaput. The importance of
the by-laws to corporate existence compels such meaning for as decreed
the by-laws is `the government of the corporation. Indeed, how can the
corporation do any lawful act as such without by-laws. Surely, no law is
intended to create chaos.[7]
Petitioner asserts that P.D. No. 902-A cannot exceed the scope and
power of the Corporation Code which itself does not provide sanctions for
non-filing of by-laws. For the petitioner, it is not proper to assess the true
meaning of Sec. 46 x x x on an unauthorized provision on such matter
contained in the said decree.
In their comment on the petition, private respondents counter that the
requirement of adoption of by-laws is not mandatory. They point to P.D. No.
902-A as having resolved the issue of whether said requirement is

mandatory or merely directory. Citing Chung Ka Bio v. Intermediate

Appellate Court,[8] private respondents contend that Section 6(I) of that
decree provides that non-filing of by-laws is only a ground for suspension or
revocation of the certificate of registration of corporations and, therefore, it
may not result in automatic dissolution of the corporation. Moreover, the
adoption and filing of by-laws is a condition subsequent which does not
affect the corporate personality of a corporation like the LGVHAI. This is so
because Section 9 of the Corporation Code provides that the corporate
existence and juridical personality of a corporation begins from the date the
SEC issues a certificate of incorporation under its official seal.
Consequently, even if the by-laws have not yet been filed, a corporation may
be considered a de facto corporation. To emphasize the fact the LGVHAI
was registered as the sole homeowners association in the Loyola Grand
Villas, private respondents point out that membership in the LGVHAI was an
unconditional restriction in the deeds of sale signed by lot buyers.
In its reply to private respondents comment on the petition, petitioner
reiterates its argument that the word must in Section 46 of the Corporation
Code is mandatory. It adds that, before the ruling in Chung Ka Bio v.
Intermediate Appellate Court could be applied to this case, this Court must
first resolve the issue of whether or not the provisions of P.D. No. 902-A
prescribing the rules and regulations to implement the Corporation Code can
rise above and change the substantive provisions of the Code.
The pertinent provision of the Corporation Code that is the focal point of
controversy in this case states:
Sec. 46. Adoption of by-laws. Every corporation formed under this
Code, must within one (1) month after receipt of official notice of the
issuance of its certificate of incorporation by the Securities and Exchange
Commission, adopt a code of by-laws for its government not inconsistent
with this Code. For the adoption of by-laws by the corporation, the
affirmative vote of the stockholders representing at least a majority of the
outstanding capital stock, or of at least a majority of the members, in the
case of non-stock corporations, shall be necessary. The by-laws shall be
signed by the stockholders or members voting for them and shall be kept in
the principal office of the corporation, subject to the stockholders or
members voting for them and shall be kept in the principal office of the
corporation, subject to inspection of the stockholders or members during
office hours; and a copy thereof, shall be filed with the Securities and

Exchange Commission which shall be attached to the original articles of

incorporation.
Notwithstanding the provisions of the preceding paragraph, by-laws may be
adopted and filed prior to incorporation; in such case, such by-laws shall be
approved and signed by all the incorporators and submitted to the Securities
and Exchange Commission, together with the articles of incorporation.
In all cases, by-laws shall be effective only upon the issuance by the
Securities and Exchange Commission of a certification that the by-laws are
not inconsistent with this Code.
The Securities and Exchange Commission shall not accept for filing the bylaws or any amendment thereto of any bank, banking institution, building
and loan association, trust company, insurance company, public utility,
educational institution or other special corporations governed by special
laws, unless accompanied by a certificate of the appropriate government
agency to the effect that such by-laws or amendments are in accordance
with law.
As correctly postulated by the petitioner, interpretation of this provision
of law begins with the determination of the meaning and import of the word
must in this section. Ordinarily, the word must connotes an imperative
act or operates to impose a duty which may be enforced. [9] It is synonymous
with ought which connotes compulsion or mandatoriness. [10] However, the
word must in a statute, like shall, is not always imperative. It may be
consistent with an exercise of discretion. In this jurisdiction, the tendency
has been to interpret shall as the context or a reasonable construction of
the statute in which it is used demands or requires. [11] This is equally true as
regards the word must. Thus, if the language of a statute considered as a
whole and with due regard to its nature and object reveals that the
legislature intended to use the words shall and must to be directory, they
should be given that meaning.[12]
In this respect, the following portions of the deliberations of the
Batasang Pambansa No. 68 are illuminating:
MR. FUENTEBELLA. Thank you, Mr. Speaker.

On page 34, referring to the adoption of by-laws, are we

made to understand here, Mr. Speaker, that by-laws must
immediately be filed within one month after the issuance? In
other words, would this be mandatory or directory in
character?
MR. MENDOZA. This is mandatory.
MR. FUENTEBELLA. It being mandatory, Mr. Speaker,
what would be the effect of the failure of the corporation to file
these by-laws within one month?
MR. MENDOZA. There is a provision in the latter part of
the Code which identifies and describes the consequences of
violations of any provision of this Code. One such
consequence is the dissolution of the corporation for its
inability, or perhaps, incurring certain penalties.
MR. FUENTEBELLA. But it will not automatically amount
to a dissolution of the corporation by merely failing to file the
by-laws within one month. Supposing the corporation was
late, say, five days, what would be the mandatory penalty?
MR. MENDOZA. I do not think it will necessarily result in
the automatic or ipso facto dissolution of the corporation.
Perhaps, as in the case, as you suggested, in the case of El
Hogar Filipino where a quo warranto action is brought, one
takes into account the gravity of the violation committed. If the
by-laws were late the filing of the by-laws were late by,
perhaps, a day or two, I would suppose that might be a
tolerable delay, but if they are delayed over a period of
months as is happening now because of the absence of a
clear requirement that by-laws must be completed within a
specified period of time, the corporation must suffer certain
consequences.[13]
This exchange of views demonstrates clearly that automatic corporate
dissolution for failure to file the by-laws on time was never the intention of
the legislature. Moreover, even without resorting to the records of

deliberations of the Batasang Pambansa, the law itself provides the answer
to the issue propounded by petitioner.
Taken as a whole and under the principle that the best interpreter of a
statute is the statute itself (optima statuli interpretatix est ipsum
statutum),[14] Section 46 aforequoted reveals the legislative intent to attach
a directory, and not mandatory, meaning for the word must in the first
sentence thereof. Note should be taken of the second paragraph of the law
which allows the filing of the by-laws even prior to incorporation. This
provision in the same section of the Code rules out mandatory compliance
with the requirement of filing the by-laws within one (1) month after receipt
of official notice of the issuance of its certificate of incorporation by the
Securities and Exchange Commission. It necessarily follows that failure to
file the by-laws within that period does not imply the demise of the
corporation. By-laws may be necessary for the government of the
corporation but these are subordinate to the articles of incorporation as well
as to the Corporation Code and related statutes. [15] There are in fact cases
where by-laws are unnecessary to corporate existence or to the valid
exercise of corporate powers, thus:
In the absence of charter or statutory provisions to the contrary, by-laws
are not necessary either to the existence of a corporation or to the valid
exercise of the powers conferred upon it, certainly in all cases where the
charter sufficiently provides for the government of the body; and even where
the governing statute in express terms confers upon the corporation the
power to adopt by-laws, the failure to exercise the power will be
ascribed to mere nonaction which will not render void any acts of the
corporation which would otherwise be valid.[16] (Italics supplied.)
As Fletcher aptly puts it:
It has been said that the by-laws of a corporation are the rule of its life, and
that until by-laws have been adopted the corporation may not be able to act
for the purposes of its creation, and that the first and most important duty of
the members is to adopt them. This would seem to follow as a matter of
principle from the office and functions of by-laws. Viewed in this light, the
adoption of by-laws is a matter of practical, if not one of legal, necessity.
Moreover, the peculiar circumstances attending the formation of a
corporation may impose the obligation to adopt certain by-laws, as in the
case of a close corporation organized for specific purposes. And the statute

or general laws from which the corporation derives its corporate existence
may expressly require it to make and adopt by-laws and specify to some
extent what they shall contain and the manner of their adoption. The mere
fact, however, of the existence of power in the corporation to adopt bylaws does not ordinarily and of necessity make the exercise of such
power essential to its corporate life, or to the validity of any of its
acts.[17]
Although the Corporation Code requires the filing of by-laws, it does not
expressly provide for the consequences of the non-filing of the same within
the period provided for in Section 46. However, such omission has been
rectified by Presidential Decree No. 902-A, the pertinent provisions on the
jurisdiction of the SEC of which state:
SEC. 6. In order to effectively exercise such jurisdiction, the Commission
shall possess the following powers:
xxx xxx

xxx

xxx

(l) To suspend, or revoke, after proper notice and hearing, the

franchise or certificate of registration of corporations, partnerships or
associations, upon any of the grounds provided by law, including the
following:
xxx xxx

xxx

xxx

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

xxx xxx

xxx

xxx

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

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

The aggrieved party may appeal the order, decision or ruling of the
Commission sitting en banc to the Supreme Court by petition for review in
accordance with the pertinent provisions of the Rules of Court.
Even under the foregoing express grant of power and authority, there
can be no automatic corporate dissolution simply because the incorporators
failed to abide by the required filing of by-laws embodied in Section 46 of the
Corporation Code. There is no outright demise of corporate
existence. Proper notice and hearing are cardinal components of due
process in any democratic institution, agency or society. In other words, the
incorporators must be given the chance to explain their neglect or omission
and remedy the same.
That the failure to file by-laws is not provided for by the Corporation
Code but in another law is of no moment. P.D. No. 902-A, which took effect
immediately after its promulgation on March 11, 1976, is very much apposite
to the Code. Accordingly, the provisions abovequoted supply the law
governing the situation in the case at bar, inasmuch as the Corporation
Code and P.D. No. 902-A are statutes in pari materia. Interpretare et
concordare legibus est optimus interpretandi. Every statute must be so
construed and harmonized with other statutes as to form a uniform system
of jurisprudence.[18]
As the rules and regulations or private laws enacted by the corporation
to regulate, govern and control its own actions, affairs and concerns and its
stockholders or members and directors and officers with relation thereto and
among themselves in their relation to it, [19] by-laws are indispensable to
corporations in this jurisdiction. These may not be essential to corporate
birth but certainly, these are required by law for an orderly governance and
management of corporations. Nonetheless, failure to file them within the
period required by law by no means tolls the automatic dissolution of a
corporation.
In this regard, private respondents are correct in relying on the
pronouncements of this Court in Chung Ka Bio v. Intermediate Appellate
Court,[20] as follows:
x x x. Moreover, failure to file the by-laws does not automatically operate
to dissolve a corporation but is now considered only a ground for such
dissolution.

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

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

That the corporation involved herein is under the supervision of the

HIGC does not alter the result of this case. The HIGC has taken over the
specialized functions of the former Home Financing Corporation by virtue of
Executive Order No. 90 dated December 17, 1986. [22] With respect to
homeowners associations, the HIGC shall exercise all the powers,
authorities and responsibilities that are vested on the Securities and
Exchange Commission x x x, the provision of Act 1459, as amended by P.D.
902-A, to the contrary notwithstanding.[23]
WHEREFORE, the instant petition for review on certiorari is hereby
DENIED and the questioned Decision of the Court of Appeals
AFFIRMED. This Decision is immediately executory. Costs against
petitioner.
SO ORDERED.

Non-filing of the by-laws will not result in automatic dissolution of the

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

Regalado, (Chairman), Puno, and Mendoza, JJ., concur.

Torres, Jr., J., on leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

It should be stressed in this connection that substantial compliance with

conditions subsequent will suffice to perfect corporate personality.
Organization and commencement of transaction of corporate business are
but conditions subsequent and not prerequisites for acquisition of corporate
personality. The adoption and filing of by-laws is also a condition
subsequent. Under Section 19 of the Corporation Code, a corporation
commences its corporate existence and juridical personality and is deemed
incorporated from the date the Securities and Exchange Commission issues
certificate of incorporation under its official seal. This may be done even
before the filing of the by-laws, which under Section 46 of the Corporation
Code, must be adopted within one month after receipt of official notice of
the issuance of its certificate of incorporation.[21]

G.R. No. L-24583

October 29, 1966

MAGDALENA SIBULO VDA. DE MESA, widow of the late Francisco de

Mesa, JUAN GILBUENA, DR. PEDRO MOLERA, DEMETRIO PRESNEDI
and LUCIO VICTA, as Officers and in representation of the Local
Chapter of the Liberal Party in Muntinlupa, Rizal, and DEMETRIO R.
LORESCA, petitioners,
vs.
HON. EULOGIO MENCIAS and/or Judge of the Court of First Instance
of Rizal, MAXIMINO A. ARGANA, the CHIEF OF POLICE, and the
MUNICIPAL TREASURER, both of Muntinlupa, Rizal, respondents.

Jovito R. Salonga and Neptali A. Gonzales for petitioners.

Jose W. Diokno for respondents.

which they also indicated their belief that, by reason of said death, their
authority as such counsel was terminated.

CASTRO, J.:

In the election case, meanwhile, the protestant Argana moved for the
constitution of committees on revision of ballots. Expressly to hear
protestee's view thereon and to afford him a chance to propose his
commissioners, this motion was set for hearing but, quite understandably, no
appearance was entered for the deceased protestee. Accordingly, on May 6,
1964, the court a quo required the protestee's widow and children to appear
within fifteen days from notice in order to be substituted for said protestee, if
they so desired. They did not, however, comply. Taking no further action in
the premises, the trial court left the matter at that.

In this petition for certiorari with preliminary injunction, the petitioners ask
this Court to review a three-to-two decision rendered by a special division of
the Court of Appeals on March 26, 1965 in C.A. 35019-R, sustaining the
validity of the proceedings had and taken by the Court of First Instance of
Rizal in election case 7924 before it (Maximino A. Argana, protestant vs.
Francisco De Mesa, protestee). The issue of nullity of the judgment
promulgated in the said election case was elevated to the Court of Appeals
on a petition for certiorari and mandamus, upon the contention that the said
court of first instance illegally and incorrectly did not allow the substitution of
the present petitioners as parties for De Mesa, after the latter's death, and
thereafter denied due course to their appeal from the said judgment.
The antecedent facts are not complicated.
Opponents for the mayoralty of Muntinlupa, Rizal in the 1963 elections were
Francisco De Mesa and Maximino A. Argana. The electorate's choice, as
tallied by the local board of canvassers, was De Mesa. Elected vice-mayor
with him was Demetrio R. Loresca. Duly, proclaimed elected, these two
qualified and assumed their respective positions upon the commencement
of their term of office.
Meanwhile and in due season, defeated candidate Argana, charging the
perpetration of frauds, terrorism and other irregularities in certain precincts,
protested the election of De Mesa, which protest was docketed as election
case 7924,supra, in the Court of First Instance of Rizal, the Honorable
Eulogio Mencias presiding. In his return to the protest, De Mesa traversed
the charges, and, in a counter-protest incorporated therein, sought to shift
responsibility for irregularities to the protestant and his followers, impugning
in view thereof the results in some thirteen precincts.
On March 18, 1964, however, an assassin's bullet felled De Mesa, and,
forthwith, vice-mayor Loresca was, by operation of law, duly installed as his
successor. Notice of De Mesa's demise was given on April 22, 1964 to the
court a quo thru a "Constancia" filed by the decedent's counsel of record, in

Then proceeding ex parte, on June 11, 1964, the protestant Argana

reiterated his move for the appointment of commissioners on revision of
ballots, but this time without proposing any provision for representation for
the protestee whose widow and children he sought to be declared "nonsuited." On June 23, 1964, without notice to the protestee and/or his legal
representative as indeed none had thus far been named the trial court
granted the motion aforesaid.
With the constitution of the committee on revision of ballots in which,
incidentally, Ramon Antilon Jr. was motu proprionamed and then served as
commissioner for the deceased protestee, the completion of the proceedings
on revision, and the submission of the report thereon, the trial court, in its
decision of August 10, 1964, adjudged the protestant Maximino A. Argana as
the duly elected mayor of Muntinlupa, Rizal in the 1963 elections, and taxed
the costs and expenses of the protest against the estate of the deceased
protestee Francisco De Mesa.
On August 17, 1964, within the reglementary period for the finality of the
decision aforesaid, a three-pronged move was taken by De Mesa's widow,
Magdalena Sibulo Vda. de De Mesa, and the local chapter of the Liberal
Party of which the deceased protestee was a member, thru its president and
secretary. First, they sought leave to represent the deceased protestee,
invoking specifically said protestee's interest to keep his political opponent
out of the contested office in order to maintain his successor therein, which
interest was not abated by his death; second, they moved for the
reconsideration of the August 10, 1964 decision and/or for new trial
based, inter alia, upon the ground that, for failure to order the protestant to

procure the appointment of a legal representative of the deceased protestee

after his widow and children had failed to appear, pursuant to the applicable
provisions of the Rules of Court, it was legally improper for the trial court to
have proceeded ex parte with the election case; and third, they filed a
"Cautionary Notice of Appeal" in anticipation of the possible denial of their
said motion for reconsideration and new trial.

appeal from the decision in said case. Upon bond duly filed and approved,
the Court of Appeals issued the writ of preliminary injunction prayed for.
However, upon respondents' motion and over the opposition of the
petitioners, the effect of said writ was temporarily suspended until the case
was finally decided by the Court of Appeals.

On September 25, 1964 the court a quo, subscribing to the position taken by
the protestant, denied the movants' petition for leave to represent the
deceased protestee, and order stricken from the record their motion for
reconsideration and new trial and their cautionary notice of appeal.

Appropriate proceedings having been had in the case, the latter court,
besides finding the inapplicability to election cases of the provisions of
Section 17, Rule 3 of the Rules of Court on substitution of parties in case of
death, opined that the petitioners likewise lacked the legal standing and/or
capacity to appear in election case 7924 aforesaid and/or to appeal from the
decision rendered therein, and that furthermore while the petitioner Loresca
may have had such personality he nevertheless failed to timely invoke the
same to protect his interests. Accordingly, it denied the petition
for certiorari andmandamus and consequently permanently dissolved the
writ of preliminary injunction theretofore issued.

On October 6, 1964 Argana qualified as mayor and assumed office.

Hence, the present recourse.

Forthwith, on October 7, 1964 the movants aforesaid gave notice of their

intention to take the matter on appeal to the Court of Appeals. This was met
with the protestant's motion to strike out their notice of appeal, grounded on
the trial court's finding of movants' want of personality to appear in the case,
and consequently to appeal the decision a quo.

The vital issue, to which all other issues appear to be subsidiary, is the
determination of the legal effect of the proceedings taken by the trial court in
the election contest before it subsequent to the demise of the protestee De
Mesa.

Pleading lack of personality both of De Mesa's widow and the local Liberal
Party Chapter to intervene in the case, as well as the absence of any ground
for a new trial, the protestant opposed the foregoing moves. To the
opposition, the movant below filed their reply.

In the meantime, Demetrio R. Loresca made common cause with De Mesa's

widow and the local Liberal Party Chapter, and moved for leave to be added
to and/or substituted as party-protestee, claiming a legal and continuing
interest in the outcome of the election protest as successor to De Mesa.
On November 10, 1964 the trial court dictated twin order (1) granting the
protestant's motion to strike out the notice of appeal heretofore adverted to;
and (2) denying Loresca's motion to be substituted a party-protestee.
This development sent the herein petitioners to the Court of Appeals on a
petition for certiorari and mandamus, with preliminary injunction (CA 35019R), to nullify for lack of jurisdiction the proceedings taken by the trial court in
the election case aforesaid without allowing the intervention and/or the
inclusion of a legal representative of the deceased protestee; or, in the
alternative, to compel the trial court to give due course to the petitioners'

As we approach this question, certain postulates project themselves to the

fore. It is axiomatic that an election contest, involving as it does not only the
adjudication and settlement of the private interests of the rival candidates
but also the paramount need of dispelling once and for all the uncertainty
that beclouds the real choice of the electorate with respect to who shall
discharge the prerogatives of the offices within their gift, is a proceeding
imbued with public interest which raises it onto a plane over and above
ordinary civil actions. For this reason, broad perspectives of public policy
impose upon courts the imperative duty to ascertain by all means within their
command who is the real candidate elected in as expeditious a manner as
possible, without being fettered by technicalities and procedural barriers to
the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et
al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242,
July 31, 1958). So inextricably intertwined are the interests of the
contestants and those of the public that there can be no gainsaying the logic
of the proposition that even the voluntary cessation in office of the protestee

not only does notipso facto divest him of the character of an adversary in the
contest inasmuch as he retains a party interest to keep his political opponent
out of the office and maintain therein his successor, but also does not in any
manner impair or detract from the jurisdiction of the court to pursue the
proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil.
595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba,
G.R. L-13206).

the premises and, instead, at the instance of the protestant, declared said
widow and children non-suited, proceeded with the case ex parte, and
effectively blocked all attempts at intervention and/or substitution in behalf of
the deceased protestee. In these moves, the trial court did not only merit the
unqualified sanction of the Court of Appeals but the latter, taking an even
more radical of the matter, actually held that the rule relied upon has no
application to election cases.

Upon the same principle, the death of the protestee De Mesa did not abate
the proceedings in the election protest filed against him, and it may be
stated as a rule that an election contest survives and must be prosecuted to
final judgment despite the death of the protestee.

We cannot give our imprimatur to the foregoing view. All reasonable

intendments deducible from the law and the essential nature of the case
involved, to our mind, unerringly tend to the contrary. All the very least,
nothing extant in the Revised Election Code either expressly or by
implication renders inappropriate the application of said principle of
substitution in case of death to proceedings thereunder. On the contrary,
because of its clear failure to meet the contingency in question, the need to
supplement the deficiency becomes imperative. Then the exertion of judicial
power to hear and determine a cause implicitly presupposes in the trial
court, amongst other essentials, jurisdiction over the persons of the parties.
That jurisdiction was inevitably impaired upon the death of the protestee
pending the proceedings below such that unless and until a legal
representative is for him duly named and within the jurisdiction of the trial
court, no adjudication in the cause could have been accorded any validity or
binding effect upon any party, in representation of the deceased, without
trenching upon the fundamental right to a day in court which is the very
essence of the constitutionally enshrined guarantee of due process. As
cogently synthesized in Cupples vs. Castro, 137 P. 2d., 755

With the death of De Mesa, however, a contingency not expressly provided

for by the Revised Election Code was ushered in. Nevertheless, the, hiatus
in the special law posed no impediment to the course of the proceedings
because, precisely by express mandate of Rule 134 of the Rules of Court,
said rules, though not generally applicable to election cases, may however
be applied "by analogy or in a suppletory character and whenever
practicable and convenient." For the eventuality here involved, the Rules
specifically plot the course of action to be taken, in the following language:
SEC. 17. Death of party.After a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice, the
legal representative of the deceased to appear and to be substituted
for the deceased, within a period of thirty (30) days, or within such
time as may be granted. If the legal representative fails to appear
within said time, the court may order the opposing party to procure
the appointment of a legal representative of the deceased within a
time to be specified by the court, and the representative shall
immediately appear for and on behalf of the interest of the
deceased. . . . (Rule 3.)
That the applicability of the foregoing precept to the election contest below
was initially conceded is borne out by the proceedings on record. The trial
court, it will be recalled in its order of May 6, 1964, required the widow and
children of the deceased protestee to appear and be substituted for and on
his behalf and to protect his interest in the case. But when they failed to
comply mainly because of the shock and agony that followed in the wake
of the violent death of the protestee the trial court took no further steps in

Where contestant was declared elected and contestee appealed

after which contestant died, rights of parties could not be determined
in absence of contestant and his legal representative and
submission would be set aside and cause taken from calendar to be
heard only after representative for contestant should have been
substituted. (Francisco, The Revised Election Code, 1957 ed., p.
583).
If this be the case with the contestant, a fortiori no less can be said of the
contestee whose rights as well as those of his successor by operation of law
would be at hazard in an ex parte proceeding. Further still, the fundamental
purpose of the Revised Election Code, it has been recognized, is to protect
the integrity of elections and suppress all evils that may vitiate their purity

and defeat the popular will. Judicial experience teaches that more often than
not frauds and irregularities committed during the voting come to light only
when the ballot boxes are opened and their contents examined. At no time
then in the course of an election contest is the need for vigilance more to be
insisted upon than during that critical stage when the ballot boxes are
opened and the ballots themselves are revised. To deny a party to the
contest the representation that the law allows him at this juncture is virtually
to take away one of the most effective measures designed for the
approximation of the primordial objective election laws are intended to
achieve.
In the light of the foregoing, it is our considered view that Section 17, Rule 3
of the Rules of Court applies to election contests to the same extent and
with the same force and effect as it does in ordinary civil actions. And we
declare that unless and until the procedure therein detailed is strictly
adhered to, proceedings taken by a court in the absence of a duly appointed
legal representative of the deceased protestee must be stricken down as
null and void. Considering that, in the case at bar, the trial court failed to
order the protestant to procure the appointment of a legal representative of
the deceased protestee after the latter's widow and children had failed to
comply with the court order requiring their appearance to be substituted in
lieu of their predecessor, but instead in derogation of the precepts of the
Rule in question and in the total absence of a legal representative of the
deceased protestee proceeded ex parte with the election case, said court
not only acted with grave abuse of discretion but actually committed a clear
extra-limitation of its lawful jurisdiction which, perforce, tainted all its
proceedings with the indelible stigma of nullity (Barrameda, et al. vs.
Barbara, 90 Phil. 718, 722, 723; Ferreria vs. Ibarra Vda. de Gonzales, et al.,
55 O.G. No. 8, 1358, 136263; Sarmiento, etc., et al. vs. Ortiz, et al., G.R. L18583, January 31, 1964; Caisip vs. Cabangon, G.R. L-14684-14686,
August 26, 1960).
It is no argument against this conclusion to contend that the requirement for
the procurement of a legal representative of a deceased litigant is couched
in the permissive term "may" instead of the mandatory word "shall." While
the ordinary acceptations of these terms may indeed be resorted to as
guides in the ascertainment of the mandatory or directory character of
statutory provisions, they are in no wise absolute and inflexible criteria in the
vast areas of law and equity. Depending upon a consideration of the entire
provision, its nature, its object and the consequences that would follow from

construing it one way or the other, the convertibility of said terms either as
mandatory or permissive is a standard recourse in statutory construction.
Thus, Black is authority for the rule that "Where the statute provides for the
doing of some act which is required by justice or public duty, or where it
invests a public body, municipality or public officer with power and authority
to take some action which concerns the public interest or rights of
individuals, the permissive language will be construed as mandatory and the
execution of the power may be insisted upon as a duty" (Black,
Interpretation of Laws, pp. 540-543). The matter here involved not only
concerns public interest but also goes into the jurisdiction of the trial court
and is of the essence of the proceedings taken thereon. On this point, there
is authority to the effect that in statutes relating to procedure, as is the one
now under consideration, every act which is jurisdictional, or of the essence
of the proceedings, or is prescribed for the protection or benefit of the party
affected, is mandatory (Gonzaga, Statutes and their Construction, p. 98,
citing: Estate of Naval, G.R. No. L-6736, May 4, 1954). The present case is
well within the purview of this doctrine.
Nor may the motu proprio appointment by the trial court of Ramon Antilon Jr.
as commissioner for the deceased protestee in the revision proceedings be
decreed a substantial compliance with the legal requirement. As aptly
observed in the dissent to the decision under review, said commissioner was
not the legal representative contemplated by the Rules to be substituted for
the deceased protestee. Said commissioner was not supposed to represent
the protestee as a party litigant. His appointment as such was made
exclusively upon the initiative of the trial court and is authorized by the law.
Section 175, Revised Election Code, merely as a time-saving device for the
convenience of the court and the parties in the purely mechanical operation
of opening the ballots and tabulating the count and in the interest of a
speedy and expeditious revision and recount of the contested ballots
(Hontiveros vs. Altavas, 24 Phil. 632, 649-650; Raymundo vs. Gonzales, 80
Phil. 719, 721). For all legal intents and purposes, while said commissioner's
appointment may be proposed by the contestants themselves, he is
nevertheless exclusively an officer or an agent of the court under its direct
control and supervision.
Equally unacceptable is the proposition that, because time is of the essence
in an election contest, recourse to the appointment of a legal representative
of a deceased protestee which can only protract and delay the progress of
the case is but a finical matter of procedure which can justifiably be

dispensed with. The validity of the injunction for the prompt disposal of
election controversies as repeatedly postulated in a consistent array of
jurisprudence is not open to debate. The terms of office of elective officials
are relatively brief. To dissipate within the shortest time possible any aura of
doubt upon the true result of elections is a much sought-after desideratum.
But, salutary though the precept may be, it is no justification for cutting
procedural corners or taking legal short cuts not warranted in a system of
procedure where the rule of law is still held paramount over and above all
considerations of mere convenience and expediency. We would be the last
to advocate a departure from the policy of early settlement of electoral
disputes, but we are not prepared to lend our approval to a course of action
which would tend to achieve one object of desire at the expense of the
orderly administration of justice and with the sacrifice of the fundamental
right of litigants to due process of law. Otherwise, the speedy trial required
by the law would be converted into a denial of justice (Querubin vs. Court of
Appeals, 82 Phil. 226, 230). In law as in any other sphere of human
relations the end very seldom, if at all, justifies the means. And, in the
case at bar, the admittedly imperative demand for a speedy disposition of
the controversy cannot deter our hand from striking down illegality in the
proceedings therein and remanding the case for new trial, despite the
concomitant delay that may be occasioned thereby, since that is the only
course open if the ends of justice are to be subserved (Salcedo vs.
Hernandez, 62 Phil. 584, 587).

by operation of law to the vacated office and, as a matter of right, is entitled

to occupy the same for the unexpired term thereof or until the protest against
his predecessor is decided adversely against the latter. The outcome of that
contest thus bears directly upon his right to his present position and,
amongst all, he is the person most keenly concerned and interested in the
fair and regular conduct thereof in order that the true will of the electorate
will be upheld. His status as a real party in interest in the continuation of the
proceedings a fact conceded by the decision under review itself cannot
thus be disputed.

Consequent to the conclusion we have just reached, we confront the issue

of who is the legal representative of the deceased protestee entitled to be
substituted in his stead.

The same cannot, however, be said of the protestee's widow or of the local
Liberal Party chapter of Muntinlupa. The protestee's claim to the contested
office is not in any sense a right transmissible to this widow or heirs. Said
widow's only remaining interest in the outcome of the case is limited to no
more than the possible award of costs against the deceased protestee.
Besides not being such an interest as would justify her substitution for her
deceased husband as an indispensable legal representative, the right to
such an award if eventually made has already been waived by the protestant
Argana. This effectively withdraws the widow from the picture altogether.
Much less has the local Liberal Party Chapter any claim to substitution. Not
being duly incorporated as a juridical person, it can have no personality to
sue or be sued as such. And while it conceivably may derive some indirect
benefit consequent to the resolution of the contest in favor of the deceased
protestee, neither the chapter itself nor the officers thereof would become
entitled thereby to any right to the contested office in case of a favorable
judgment, nor, for that matter, do they stand to sustain any direct prejudice in

As the record of the case reveals, three different aspirants vied for that legal
representation: Demetrio R. Loresca, the vice-mayor who succeeded to the
position of mayor upon the protestee's demise; Magdalena Sibulo Vda. de
De Mesa, the protestee's widow; and the local chapter of the Liberal Party at
Muntinlupa, Rizal, to which the deceased protestee belonged, as
represented by its officers who are co-petitioners herein. An examination of
the countervailing interests of these parties seems in order.
By virtue of Section 7 of the Local Autonomy Act, Republic Act 2264, the
vice-mayor stands next in line of succession to the mayor in case of a
permanent vacancy in the latter's position. Upon the death of the protestee
mayor in the case at bar, Loresca as then incumbent vice-mayor succeeded

It is not correct to subject Loresca, as the Court of Appeals did, respecting

his interest in the controversy to the operation of the equitable principle of
laches. The initiative to cause his substitution in lieu of the deceased
protestee was not Loresca's. It was the trial court's as well as the
protestant's duty, upon being apprised of the protestee's death, to cause the
appointment of his legal representative according to the procedure
delineated in the Rules. Failing in this duty, it never became the obligation of
Loresca to take it upon himself to be appointed as such legal representative,
as in fact, he was not even duly and seasonably notified, much less ordered,
to appear and be so substituted. In this posture, and particularly because, as
above held, the trial court did not even acquire jurisdiction over him, no room
exists for the operation of the rule on laches against him. His intervention
should not have been denied.

case of an adverse one. No basis therefore exists upon which to predicate

their claim to substitution.
The foregoing views render academic the alternative issue raised by the
petitioners regarding the propriety of their appeal from the trial court's
decision in the main case.

BERNARDINO MARCELINO, petitioner,

vs.
THE HON. FERNANDO CRUZ, JR., as Presiding Judge of Branch XII of
the Court of First Instance of Rizal, PEOPLE OF THE PHILIPPINES, and
THE PROVINCIAL WARDEN OF THE PROVINCIAL JAIL OF
RIZAL,respondents.

ACCORDINGLY, the judgment under review is reversed and in lieu thereof,

another is rendered
ESCOLIN, J.:
(1) Declaring null and void the judgment of the Court of First Instance of
Rizal in election case 7924 thereof, dated August 10, 1964, which
proclaimed the protestant Maximino A. Argana the duly elected mayor of
Muntinlupa, Rizal in the 1963 elections, for having been rendered without
jurisdiction over the person of the legal representative of the deceased
protestee Francisco de Mesa and all other proceedings taken by said court
in said election case subsequent to the death of the said protestee;
(2) Ordering the protestant Maximino A. Argana, without delay, to vacate the
office of the mayor of Muntinlupa, Rizal and to relinquish the same in favor
of Demetrio R. Loresca; and
(3) Ordering the Court of First Instance of Rizal to forthwith appoint the
petitioner Demetrio R. Loresca as the legal representative of the deceased
protestee Francisco de Mesa and allow his appearance as such in
substitution of the said deceased for purposes of said election case 7924 of
said court, to conduct a new trial in said election case, and thereafter to
render judgment therein as the evidence may warrant.
No pronouncement as to costs.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION.
G.R. No. L-42428 March 18, 1983

A petition for prohibition and writ of habeas corpus to enjoin respondent

Judge Fernando Cruz, Jr. from promulgating his decision in Criminal Case
No. C-5910, entitled People of the Philippines versus Bernardino Marcelino,
and for release from detention of petitioner, the accused in said case, on the
ground of loss of jurisdiction of respondent trial court over the case for failure
to decide the same within the period of ninety [90] days from submission
thereof.
Petitioner was charged with the crime of rape before the Court of First
Instance of Rizal, Branch XII. Trial was conducted and the same was
concluded when the accused rested his case on August 4, 1975. On the
same date, however, the attorneys for both parties moved for time within
which to submit their respective memoranda. The trial court granted the
motion as follows:
Upon joint motion, the parties are given thirty [30] days to
submit their respective memoranda, simultaneously, and
thereafter the case shall be deemed submitted for decision
of the Court.
Counsel for petitioner submitted his memorandum in due time, but no
memorandum was filed by the People.
On November 28, 1975, respondent judge filed with the Deputy Clerk of
Court his decision in said case for promulgation. The decision was also
dated November 28, 1975. 1
A certification dated January 26, 1976 was executed by Postmaster Jesse A.
Santos of the Grace Park Post Office 2 to the effect that registered letters

Nos. 011980 and 011981, addressed to Marietta Ferrer of 9-E Mango Road,
Portero, Malabon, Rizal, the complaining witness, and Atty, Angel P.
Purisima of 414 Shurdut Bldg., Intramuros, Manila, counsel for the accused,
respectively, were posted in said office on December 4, 1975. These notices
were received by the respective addressees on December 8 and 9, 1975. 3
Similar notices were sent to the Provincial Fiscal of Pasig and to the
Provincial Warden of Pasig, Rizal, who both received them on December
2,1975, 4
On the date set for promulgation of the decision, counsel for accused moved
for postponement, raising for the first time the alleged loss of jurisdiction of
the trial court for failure to decide the case within 90 days from submission
thereof for decision. Acceding to counsel's request that he be given time to
consider the proper remedial measure to take, the respondent judge reset
the promulgation of the decision to January 19, 1976 at 8:30 A. M.
On January 19, 1976, counsel for petitioner moved anew for the resetting of
the promulgation of decision. Granting the motion, respondent judge
rescheduled the promulgation to January 26, 1976.
Meanwhile, on January 12, 1976, counsel for the accused filed before Us
the present petition. On January 16, 1976, this Court issued an Order
temporarily restraining respondent judge from promulgating the decision in
Criminal Case No, C-5910.
Petitioner espouses the thesis that the three-month period prescribed by
Section 11[l] of Article X of the 1973 Constitution, being a constitutional
directive, is mandatory in character and that non-observance thereof results
in the loss of jurisdiction of the court over the unresolved case.
We disagree. Undisputed is the fact that on November 28, 1975, or eightyfive [851 days from September 4, 1975 the date the case was deemed
submitted for decision, respondent judge filed with the deputy clerk of court
the decision in Criminal Case No. 5910. He had thus veritably rendered his
decision on said case within the three-month period prescribed by the
Constitution.
In Comia v. Nicolas, 5 Ago v. Court of Appeals 6 and Balquidra v. Court of
First Instance 7 this Court ruled that the rendition of the judgment in trial

courts refers to the filing of the signed decision with the clerk of court. There
is no doubt that the constitutional provision cited by petitioner refers to the
rendition of judgment and not to the promulgation thereof. Thus, it is this
date that should be considered in determining whether or not respondent
judge had resolved the case within the allotted period. Indeed, the date of
promulgation of a decision could not serve as the reckoning date because
the same necessarily comes at at a later date, considering that notices have
to be sent to the accused as well as to the other parties involved, an event
which is beyond the control of the judge. As pointed out in People v. Court of
Appeals 8, the promulgation of a judgment in the trial court does not
necessarily coincide with the date of its delivery by the judge of the clerk of
court.
Section 11 [1], Article X of the New Constitution provides in full, to wit:
SEC. 11 [1]. Upon the effectivity of this Constitution, the
maximum period within which a case or matter shall be
decided or resolved from the date of its submission, shall be
eighteen months for the Supreme court, and, unless
reduced by the Supreme Court, twelve months for all inferior
collegiate courts, and three months for all other inferior
courts.
To date, no authoritative interpretation of the above-quoted provision has
been rendered by this Court. Thus, in approaching this novel question, We
now tread upon what Mr. Cooley characterizes as "very dangerous ground
when they [referring to the courts] venture to apply rules which distinguish
directory and mandatory statutes to the provisions of a constitution." 9
The established rule is that "constitutional provisions are to be construed as
mandatory, unless by express provision or by necessary implication, a
different intention is manifest." 10 "The difference between a mandatory and
a directory provision is often determined on grounds of expediency, the
reason being that less injury results to the general public by disregarding
than by enforcing the letter of the law." 11
In Trapp v. McCormick, 12 a case calling for the interpretation of a statute
containing a limitation of thirty [30] days within which a decree may be
entered without the consent of counsel, it was held that "the statutory
provisions which may be thus departed from with impunity, without affecting

the validity of statutory proceedings, are usually those which relate to the
mode or time of doing that which is essential to effect the aim and purpose
of the Legislature or some incident of the essential act. " Thus, in said case,
the statute under examination was construed merely to be directory.
On this view, authorities are one in saying that:
Statutes requiring the rendition of judgment forthwith or
immediately after the trial or verdict have been held by
some courts to be merely directory so that non-compliance
with them does not invalidate the judgment, on the theory
that if the statute had intended such result it would clearly
have indicated it." [American Tupe Founders Co. v. Justice's
Court, 133 Cal. 819, 65 Pac. 742; Heillen v. Phillips, 88 Cal.
557, 26 Pac. 366; Drake v. Bagley, 69 Mo. App. 39, State v.
Davis, 194 Mo. 585, 5 Ann. Cas. 1000, 4 L.R.A. (N.S.) 1023,
92 S.W. 484; Wissman v. Meagher, 115 Mo. App. 82, 91
S.W. 448; Pohle v. Dickmann, 67 Mo. App. 381; Herwick v.
Koken Barber Supply Co., 61 Mo. App. 454].
Such construction applies equally to the constitutional provision under
consideration. In Mikell v. School Dis. of Philadelphia, 13 it was ruled that "the
legal distinction between directory and mandatory laws is applicable to
fundamental as it is to statutory laws."
To Our mind, the phraseology of the provision in question indicates that it
falls within the exception rather than the general rule. By the phrase "unless
reduced by the Supreme Court," it is evident that the period prescribed
therein is subject to modification by this Court in accordance with its
prerogative under Section 5[5] of Article X of the New Constitution to
"promulgate rules concerning pleading, practice and procedure in all
courts ... " And there can be no doubt that said provision, having been
incorporated for reasons of expediency, relates merely to matters of
procedure. Albermarle Oil & Gas Co. v. Morris, 14 declares that constitutional
provisions are directory, and not mandatory, where they refer to matters
merely procedural.
In practice, We have assumed a liberal stand with respect to this provision.
This Court had at various times, upon proper application and for meritorious
reasons, allowed judges of inferior courts additional time beyond the three-

month period within which to decide cases submitted to them. The reason is
that a departure from said provision would result in less injury to the general
public than would its strict application. To hold that non-compliance by the
courts with the aforesaid provision would result in loss of jurisdiction, would
make the courts, through which conflicts are resolved, the very instruments
to foster unresolved causes by reason merely of having failed to render a
decision within the alloted term. Such an absurd situation could not have
been intended by the framers of our fundamental law.
As foreseen by Mr. Henry Campbell Black in his Construction and
Interpretation of the Laws, 15 the constitutional provision in question should
be held merely as directory. "Thus, where the contrary construction) would
lead to absurd, impossible or mischievous consequences, it should not be
followed. "
One last point, Notwithstanding Our conclusion that courts are not divested
of their jurisdiction for failure to decide a case within the ninety-day period,
We here emphasize the rule, for the guidance of the judges manning our
courts, that cases pending before their salas must be decided within the
aforementioned period. Failure to observe said rule constitutes a ground for
administrative sanction against the defaulting judge. In fact a certificate to
this certificate is required before judges are allowed Lo draw their salaries.
WHEREFORE, the petition is hereby dismissed; and the Restraining Order
dated January 16, 1976 issued by this Court is lifted. Since respondent
Judge Fernando Cruz, Jr. is already deceased, his successor is hereby
ordered to decide Criminal Case No. C-5910 on the basis of the record
thereof within ninety [90] days from the time the case is raffled to him.
SO ORDERED.
Makasiar (Chairman), Concepcion Jr., Guerrero and De Castro, JJ., concur.
Aquino, J., is on leave.

Separate Opinions

ABAD SANTOS, J., concurring:

case within 90 days from the date of its submission. Section 11(1), Art. X of
the Constitution is invoked.

I concur and I wish to add the following observations:

The petitioner sinks release from detention on the ground of loss of
jurisdiction of the trial court allegedly because its judge failed to decide his
case within 90 days from the date of its submission. Section 11(1), Art. X of
the Constitution is invoked.
The main opinion states that the 90-day period was not exceeded in this
case and I agree. But exceeded or not, a decision rendered by an inferior
court outside of the 90-day period is not void for loss of jurisdiction. To hold
otherwise is to make the administration of justice depend heavily on the
frailities of a human judge. A decision rendered beyond the 90-day period, I
submit, is valid and the only consequence is to subject the erring judge to
administrative action. "... failure to comply with the injunction for judges to
decide their cases within 90 days from submission merely deprives them of
their right to collect their salaries or to apply for leave (section 5, Judiciary
Act of 1948; section 129, Revised Administrative Code) but does not deprive
them of jurisdiction to act in the causes pending before them." (Dimson vs.
Elepao, 99 Phil. 733, 737 ,1956].)
The judge who wrote the questioned decision has died. It cannot now be
promulgated. "It is well-settled that, to be binding, a judgment must be duly
signed and promulgated during the incumbency of the judge whose
signature appears thereon." (People vs. So, July 30, 1957, No. L-8732,
citing Lino Luna v. Rodriguez, 37 Phil. 186; Garchitorena v. Crescini, 37 Phil.
675; Barredo v. The Commission on Elections, 45 Off. Gaz. 4457; People v.
Court of Appeals, G.R. No. L-9111-9113.) For this reason, petitioner's case
has to be declared by another judge.

The main opinion states that the 90-day period was not exceeded in this
case and I agree. But exceeded or not, a decision rendered by an inferior
court outside of the 90-day period is not void for loss of jurisdiction. To hold
otherwise is to make the administration of justice depend heavily on the
frailities of a human judge. A decision rendered beyond the 90-day period, I
submit, is valid and the only consequence is to subject the erring judge to
administrative action. "... failure to comply with the injunction for judges to
decide their cases within 90 days from submission merely deprives them of
their right to collect their salaries or to apply for leave (section 5, Judiciary
Act of 1948; section 129, Revised Administrative Code) but does not deprive
them of jurisdiction to act in the causes pending before them." (Dimson vs.
Elepao, 99 Phil. 733, 737 ,1956].)
The judge who wrote the questioned decision has died. It cannot now be
promulgated. "It is well-settled that, to be binding, a judgment must be duly
signed and promulgated during the incumbency of the judge whose
signature appears thereon." (People vs. So, July 30, 1957, No. L-8732,
citing Lino Luna v. Rodriguez, 37 Phil. 186; Garchitorena v. Crescini, 37 Phil.
675; Barredo v. The Commission on Elections, 45 Off. Gaz. 4457; People v.
Court of Appeals, G.R. No. L-9111-9113.) For this reason, petitioner's case
has to be declared by another judge.
VOL. 236, SEPTEMBER 1, 1994
197
Centeno vs. Villalon-Pornillos
G.R. No. 113092. September 1, 1994.*

Separate Opinions
ABAD SANTOS, J., concurring:
I concur and I wish to add the following observations:
The petitioner sinks release from detention on the ground of loss of
jurisdiction of the trial court allegedly because its judge failed to decide his

MARTIN CENTENO, petitioner, vs. HON. VICTORIA VILLALONPORNILLOS, Presiding Judge of the Regional Trial Court of Malolos,
Bulacan, Branch 10, and THE PEOPLE OF THE PHILIPPINES,
respondents.
Constitutional Law; Statutory Construction; Solicitation Permit Law; It is an
elementary rule of statutory construction that the express mention of one
person, thing, act, or consequence excludes all others.Indeed, it is an
elementary rule of statutory construction that the express mention of one

person, thing, act, or consequence excludes all others. This rule is

expressed in the familiar maxim expressio unius est exclusio alterius.
Where a statute, by its terms, is expressly limited to certain matters, it may
not, by interpretation or construction, be extended to others. The rule
proceeds from the premise that the legislature would not have made
specified enumerations in a statute had the intention been not to restrict its
meaning and to confine its terms to those expressly mentioned.
Same; Same; Same; Framers of Presidential Decree No. 1564 never
intended to include solicitations for religious purposes within its
_________________

* SECOND DIVISION.
198

198
SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
coverage.That these legislative enactments specifically spelled out
charitable and religious in an enumeration, whereas Presidential Decree
No. 1564 merely stated charitable or public welfare purposes, only goes to
show that the framers of the law in question never intended to include
solicitations for religious purposes within its coverage. Otherwise, there is no
reason why it would not have so stated expressly.
Same; Same; Same; The term charitable should be strictly construed so as
to exclude solicitation for religious purposes.On the other hand, to
subsume the religious purpose of the solicitation within the concept of
charitable purpose which under Presidential Decree No. 1564 requires a
prior permit from the Department of Social Services and Development,
under pain of penal liability in the absence thereof, would be prejudicial to
petitioner. Accordingly, the term charitable should be strictly construed so
as to exclude solicitations for religious purposes. Thereby, we adhere to

the fundamental doctrine underlying virtually all penal legislations that such
interpretation should be adopted as would favor the accused.
Same; Same; Same; It is a well-entrenched rule that penal laws are to be
construed strictly against the State and liberally in favor of the accused.
For, it is a well-entrenched rule that penal laws are to be construed strictly
against the State and liberally in favor of the accused. They are not to be
extended or enlarged by implications, intendments, analogies or equitable
considerations. They are not to be strained by construction to spell out a
new offense, enlarge the field of crime or multiply felonies.
Same; Same; Same; Charitable and religious, which are integral parts of
an enumeration using the disjunctive OR should be given different, distinct,
and disparate meanings.Furthermore, in the provisions of the Constitution
and the statutes mentioned above, the enu-merations therein given which
include the words charitable and reli-gious make use of the disjunctive
or. In its elementary sense, or as used in a statute is a disjunctive article
indicating an alternative. It often connects a series of words or propositions
indicating a choice of either. When or is used, the various members of the
enumeration are to be taken separately. Accordingly, charitable and
religious, which are integral parts of an enumeration using the disjunctive
or should be given different, distinct, and disparate meanings. There is no
compelling consideration why the same treatment or usage of these words
cannot be made applicable to the questioned provisions of Presidential
Decree No. 1564.
199

VOL. 236, SEPTEMBER 1, 1994

199
Centeno vs. Villalon-Pornillos
Same; Freedom of Religion; The constitutional inhibition of legislation on the
subject of religion has a double aspect.The constitutional inhibition of
legislation on the subject of religion has a double aspect. On the one hand, it
forestalls compulsion by law of the acceptance of any creed or the practice
of any form of worship. Freedom of conscience and freedom to adhere to
such religious organization or form of worship as the individual may choose

cannot be restricted by law. On the other hand, it safeguards the free

exercise of the chosen form of religion.
Same; Same; Even the exercise of religion may be regulated, at some slight
inconvenience, in order that the State may protect its citizens from injury.
Whence, even the exercise of religion may be regulated, at some slight
inconvenience, in order that the State may protect its citizens from injury.
Without doubt, a State may protect its citizens from fraudulent solicitation by
requiring a stranger in the community, before permitting him publicly to solicit
funds for any purpose, to establish his identity and his authority to act for the
cause which he purports to represent. The State is likewise free to regulate
the time and manner of solicitation generally, in the interest of public safety,
peace, comfort, or convenience.
Same; Same; Same; It does not follow, therefore, from the constitutional
guaranties of the free exercise of religion that everything which may be so
called can be tolerated.It does not follow, therefore, from the constitutional
guaranties of the free exercise of religion that everything which may be so
called can be tolerated. It has been said that a law advancing a legitimate
governmental interest is not necessarily invalid as one interfering with the
free exercise of religion merely because it also incidentally has a
detrimental effect on the adherents of one or more religion.
Same; Same; Same; Same; The State has authority under the exercise of its
police power to determine whether or not there shall be restrictions on
soliciting by unscrupulous persons or for unworthy causes or for fraudulent
purposes.Even with numerous regulative laws in existence, it is surprising
how many operations are carried on by persons and associations who,
secreting their activities under the guise of benevolent purposes, succeed in
cheating and defrauding a generous public. It is in fact amazing how
profitable the fraudulent schemes and practices are to people who
manipulate them. The State has authority under the exercise of its police
power to determine whether or not there shall be restrictions on soliciting by
unscrupulous persons or for unworthy causes or for fraudulent purposes.

Centeno vs. Villalon-Pornillos

Same; Same; Same; Same; Solicitation for religious purposes may be
subject to proper regulation by the State in the exercise of police power.To
conclude, solicitation for religious purposes may be subject to proper
regulation by the State in the exercise of police power. However, in the case
at bar, considering that solicitations intended for a religious purpose are not
within the coverage of Presidential Decree No. 1564, as earlier
demonstrated, petitioner cannot be held criminally liable therefor.
MENDOZA, J., Concurring Opinion:

Constitutional Law; Statutory Construction; Solicitation of contributions for

the construction of a church is not solicitation for charitable or public welfare
purpose but for a religious purpose, and a religious purpose is not
necessarily a charitable or public welfare purpose.Solicitation of
contributions for the construction of a church is not solicitation for charitable
or public welfare purpose but for a religious purpose, and a religious
purpose is not necessarily a charitable or public welfare purpose. A fund
campaign for the construction or repair of a church is not like fund drives for
needy families or victims of calamity or for the construction of a civic center
and the like.
Same; Same; To require a government permit before solicitation for religious
purpose may be allowed is to lay a prior restraint on the free exercise of
religion.To require a government permit before solicitation for religious
purpose may be allowed is to lay a prior restraint on the free exercise of
religion. Such restraint, if allowed, may well justify requiring a permit before
a church can make Sunday collections or enforce tithing.
PETITION for review of a decision of the Regional Trial Court of Malolos,
Bulacan, Br. 10.

200
The facts are stated in the opinion of the Court.
200
SUPREME COURT REPORTS ANNOTATED

Santiago V. Marcos, Jr. for petitioner.

REGALADO, J.:

It is indeed unfortunate that a group of elderly men, who were moved by

their desire to devote their remaining years to the service of their Creator by
forming their own civic organization for that purpose, should find themselves
enmeshed in a criminal case for making a solicitation from a community
member allegedly
201

On December 29, 1992, the said trial court rendered judgment4 finding
accused Vicente Yco and petitioner Centeno guilty beyond reasonable doubt
and sentencing them to each pay a fine of P200.00. Nevertheless, the trial
court recommended that the accused be pardoned on the basis of its finding
that they acted in good faith, plus the fact that it believed that the latter
should not have been criminally liable were it not for the existence of
Presidential Decree No. 1564 which the court opined it had the duty to apply
in the instant case.
Both accused Centeno and Yco appealed to the Regional Trial Court of
Malolos, Bulacan, Branch 10. However, accused Yco

VOL. 236, SEPTEMBER 1, 1994

__________________

201
Centeno vs. Villalon-Pornillos
without the required permit from the Department of Social Welfare and
Development.
The records of this case reveal that sometime in the last quarter of 1985, the
officers of a civic organization known as the Samahang Katandaan ng
Nayon ng Tikay launched a fund drive for the purpose of renovating the
chapel of Barrio Tikay, Malolos, Bulacan. Petitioner Martin Centeno, the
chairman of the group, together with Vicente Yco, approached Judge
Adoracion G. Angeles, a resident of Tikay, and solicited from her a
contribution of P1,500.00. It is admitted that the solicitation was made
without a permit from the Department of Social Welfare and Development.
As a consequence, based on the complaint of Judge Angeles, an
information1 was filed against petitioner Martin Centeno, together with
Religio Evaristo and Vicente Yco, for violation of Presidential Decree No.
1564, or the Solicitation Permit Law, before the Municipal Trial Court of
Malolos, Bulacan, Branch 2, and docketed as Criminal Case No. 2602.
Petitioner filed a motion to quash the information2 on the ground that the
facts alleged therein do not constitute an offense, claiming that Presidential
Decree No. 1564 only covers solicitations made for charitable or public
welfare purposes, but not those made for a religious purpose such as the
construction of a chapel. This was denied3 by the trial court, and petitioners
motion for reconsideration having met the same fate, trial on the merits
ensued.

1 Annex A, Petition; Rollo, 25.

2 Annex B, id., ibid., 20.
3 Annex D, id., ibid., 34.
4 Annex G, id., ibid., 40.
202

202
SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
subsequently withdrew his appeal, hence the case proceeded only with
respect to petitioner Centeno. On May 21, 1993, respondent Judge VillalonPornillos affirmed the decision of the lower court but modified the penalty,
allegedly because of the perversity of the act committed which caused
damage and prejudice to the complainant, by sentencing petitioner Centeno
to suffer an increased penalty of imprisonment of 6 months and a fine of
P1,000.00, without subsidiary imprisonment in case of insolvency.5 The
motion for reconsideration of the decision was denied by the court.6

Thus it is that a fine of P200.00 imposed as a penalty by the lowest court in

the judicial hierarchy eventually reached this highest tribunal, challenged on
the sole issue of whether solicitations for religious purposes are within the
ambit of Presidential Decree No. 1564. Quantitatively, the financial sanction
is a nominal imposition but, on a question of principle, it is not a trifling
matter. This Court is gratified that it can now grant this case the benefit of a
final adjudication.

Centeno vs. Villalon-Pornillos

Petitioner questions the applicability of Presidential Decree No. 1564 to

solicitations for contributions intended for religious purposes with the
submissions that (1) the term religious purpose is not expressly included in
the provisions of the statute, hence what the law does not include, it
excludes; (2) penal laws are to be construed strictly against the State and
liberally in favor of the accused; and (3) to subject to State regulation
solicitations made for a religious purpose would constitute an abridgment of
the right to freedom of religion guaranteed under the Constitution.

The main issue to be resolved here is whether the phrase charitable

purposes should be construed in its broadest sense so as to include a
religious purpose. We hold in the negative.

Presidential Decree No. 1564 (which amended Act No. 4075, otherwise
known as the Solicitation Permit Law), provides as follows:
Sec. 2. Any person, corporation, organization, or association desiring to
solicit or receive contributions for charitable or public welfare purposes shall
first secure a permit from the Regional Offices of the Department of Social
Services and Development as provided in the Integrated Reorganization
Plan. Upon the filing of a written application for a permit in the form
prescribed by the Regional Offices of the
_______________

5 Annex H, id., ibid., 44.

6 Annex J, id., ibid., 64.
203

VOL. 236, SEPTEMBER 1, 1994

203

Department of Social Services and Development, the Regional Director or

his duly authorized representative may, in his discretion, issue a permanent
or temporary permit or disapprove the application. In the interest of the
public, he may in his discretion renew or revoke any permit issued under Act
4075.

I. Indeed, it is an elementary rule of statutory construction that the express

mention of one person, thing, act, or consequence excludes all others. This
rule is expressed in the familiar maxim expressio unius est exclusio
alterius. Where a statute, by its terms, is expressly limited to certain
matters, it may not, by interpretation or construction, be extended to others.
The rule proceeds from the premise that the legislature would not have
made specified enumerations in a statute had the intention been not to
restrict its meaning and to confine its terms to those expressly mentioned.7
It will be observed that the 1987 Constitution, as well as several other
statutes, treat the words charitable and religious separately and
independently of each other. Thus, the word charitable is only one of three
descriptive words used in Section 28(3), Article VI of the Constitution which
provides that charitable institutions, churches and parsonages x x x, and all
lands, buildings, and improvements, actually, directly, and exclusively used
for religious, charitable, or educational purposes shall be exempt from
taxation. There are certain provisions in statutes wherein these two terms
are likewise dissociated and individually mentioned, as for instance,
Sections 26 (e) (corporations exempt from income tax) and 28 (8) (E)
(exclusions from gross income) of the National Internal Revenue Code;
Section 88 (purposes for the organization of non-stock corporations) of the
Corporation Code; and Section 234 (b) (exemptions from real property tax)
of the Local Government Code.
That these legislative enactments specifically spelled out charitable and
religious in an enumeration, whereas Presi__________________

7 Commissioner of Customs vs. Court of Tax Appeals, et al., G.R. Nos.

48886-88, July 21, 1993, 224 SCRA 665.

deemed to include religious purposes.11 A gift for religious purposes was

considered as a bequest for charitable

204

_______________

204

8 Scobey vs. Beckman, 41 N.E. 2d 84.

SUPREME COURT REPORTS ANNOTATED

9 See Adye vs. Smith, 26 Am. Rep. 424.

Centeno vs. Villalon-Pornillos

10 See Read vs. McLean, 200 So. 109.

dential Decree No. 1564 merely stated charitable or public welfare

purposes, only goes to show that the framers of the law in question never
intended to include solicitations for religious purposes within its coverage.
Otherwise, there is no reason why it would not have so stated expressly.

11 In re Seamans Estate, 139 N.E. 2d 17.

All contributions designed to promote the work of the church are charitable
in nature, since religious activities depend for their support on voluntary
contributions.8 However, religious purpose is not interchangeable with the
expression charitable purpose. While it is true that there is no religious
purpose which is not also a charitable purpose, yet the converse is not
equally true, for there may be a charitable purpose which is not religious
in the legal sense of the term.9 Although the term charitable may include
matters which are religious, it is a broader term and includes matters which
are not religious, and, accordingly, there is a distinction between
charitable purpose and religious purpose, except where the two terms are
obviously used synonymously, or where the distinction has been done away
with by statute.10 The word charitable, therefore, like most other words, is
capable of different significations. For example, in the law, exempting
charitable uses from taxation, it has a very wide meaning, but under
Presidential Decree No. 1564 which is a penal law, it cannot be given such a
broad application since it would be prejudicial to petitioners.
To illustrate, the rule is that tax exemptions are generally construed strictly
against the taxpayer. However, there are cases wherein claims for
exemption from tax for religious purposes have been liberally construed as
covered in the law granting tax exemptions for charitable purposes. Thus,
the term charitable purposes, within the meaning of a statute providing that
the succession of any property passing to or for the use of any institution for
purposes only of public charity shall not be subject to succession tax, is

205

VOL. 236, SEPTEMBER 1, 1994

205
Centeno vs. Villalon-Pornillos
use as regards exemption from inheritance tax.12
On the other hand, to subsume the religious purpose of the solicitation
within the concept of charitable purpose which under Presidential Decree
No. 1564 requires a prior permit from the Department of Social Services and
Development, under pain of penal liability in the absence thereof, would be
prejudicial to petitioner. Accordingly, the term charitable should be strictly
construed so as to exclude solicitations for religious purposes. Thereby, we
adhere to the fundamental doctrine underlying virtually all penal legislations
that such interpretation should be adopted as would favor the accused.
For, it is a well-entrenched rule that penal laws are to be construed strictly
against the State and liberally in favor of the accused. They are not to be
extended or enlarged by implications, intendments, analogies or equitable
considerations. They are not to be strained by construction to spell out a
new offense, enlarge the field of crime or multiply felonies. Hence, in the
interpretation of a penal statute, the tendency is to subject it to careful
scrutiny and to construe it with such strictness as to safeguard the rights of
the accused. If the statute is ambiguous and admits of two reasonable but

contradictory constructions, that which operates in favor of a party accused

under its provisions is to be preferred.
The principle is that acts in and of themselves innocent and lawful cannot be
held to be criminal unless there is a clear and unequivocal expression of the
legislative intent to make them such. Whatever is not plainly within the
provisions of a penal statute should be regarded as without its
intendment.13
The purpose of strict construction is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of
forbidden acts.14 The word charitable is a matter of description rather than
of precise definition, and each case involving a determination of that which is
charitable must be decided on its own particular facts and circumstances.15
The law does not operate in vacuo nor should its applicability be
_________________

12 In re Clarks Estate, 159 A. 500.

13 Martin, Statutory Construction, 1979 ed., 183.
14 Gaanan vs. Intermediate Appellate Court, et al., G.R. No. L-69809,
October 16, 1986, 145 SCRA 112.

sense, or as used in a statute is a disjunctive article indicating an

alternative. It often connects a series of words or propositions indicating a
choice of either. When or is used, the various members of the enumeration
are to be taken separately.16 Accordingly, charitable and religious, which
are integral parts of an enumeration using the disjunctive or should be
given different, distinct, and disparate meanings. There is no compelling
consideration why the same treatment or usage of these words cannot be
made applicable to the questioned provisions of Presidential Decree No.
1564.
II. Petitioner next avers that solicitations for religious purposes cannot be
penalized under the law for, otherwise, it will constitute an abridgment or
restriction on the free exercise clause guaranteed under the Constitution.
It may be conceded that the construction of a church is a social concern of
the people and, consequently, solicitations appurtenant thereto would
necessarily involve public welfare. Prefatorily, it is not implausible that the
regulatory powers of the State may, to a certain degree, extend to
solicitations of this nature. Considering, however, that such an activity is
within the cloak of the free exercise clause under the right to freedom of
religion guaranteed by the Constitution, it becomes imperative to delve into
the efficaciousness of a statutory grant of the power to regulate the exercise
of this constitutional right and the allowable restrictions which may possibly
be imposed thereon.

206

The constitutional inhibition of legislation on the subject of religion has a

double aspect. On the one hand, it forestalls compulsion by law of the
acceptance of any creed or the practice of any form of worship. Freedom of
conscience and freedom to adhere to such religious organization or form of
worship as the individual may choose cannot be restricted by law. On the
other hand, it safeguards the free exercise of the chosen form of religion.
Thus, the constitution embraces two concepts, that is,

SUPREME COURT REPORTS ANNOTATED

_______________

15 Topeka Presbyterian Manor, Inc. vs. Board, 402 P. ed 802.

206

Centeno vs. Villalon-Pornillos

determined by circumstances in the abstract.

16 Martin, op. cit., 81.

Furthermore, in the provisions of the Constitution and the statutes

mentioned above, the enumerations therein given which include the words
charitable and religious make use of the disjunctive or. In its elementary

207

VOL. 236, SEPTEMBER 1, 1994

207

17 Cantwell vs. Connecticut, 301 U.S. 296 (1940).

Centeno vs. Villalon-Pornillos

18 Id., loc. cit.

freedom to believe and freedom to act. The first is absolute but, in the nature
of things, the second cannot be. Conduct remains subject to regulation for
the protection of society. The freedom to act must have appropriate
definitions to preserve the enforcement of that protection. In every case, the
power to regulate must be so exercised, in attaining a permissible end, as
not to unduly infringe on the protected freedom.17

19 16 Am. Jur. 2d, Constitutional Law, 283.

Whence, even the exercise of religion may be regulated, at some slight

inconvenience, in order that the State may protect its citizens from injury.
Without doubt, a State may protect its citizens from fraudulent solicitation by
requiring a stranger in the community, before permitting him publicly to solicit
funds for any purpose, to establish his identity and his authority to act for the
cause which he purports to represent. The State is likewise free to regulate
the time and manner of solicitation generally, in the interest of public safety,
peace, comfort, or convenience.18
It does not follow, therefore, from the constitutional guaranties of the free
exercise of religion that everything which may be so called can be
tolerated.19 It has been said that a law advancing a legitimate governmental
interest is not necessarily invalid as one interfering with the free exercise of
religion merely because it also incidentally has a detrimental effect on the
adherents of one or more religion.20 Thus, the general regulation, in the
public interest, of solicitation, which does not involve any religious test and
does not unreasonably obstruct or delay the collection of funds, is not open
to any constitutional objection, even though the collection be for a religious
purpose. Such regulation would not constitute a prohibited previous restraint
on the free exercise of religion or interpose an inadmissible obstacle to its
exercise.21
Even with numerous regulative laws in existence, it is surprising how many
operations are carried on by persons and associations who, secreting their
activities under the guise of benevolent purposes, succeed in cheating and
defrauding a generous public. It is in fact amazing how profitable the
fraudulent
__________________

20 Ibid, id., 282.

21 Cantwell vs. Connecticut, supra.
208

208
SUPREME COURT REPORTS ANNOTATED
Centeno vs. Villalon-Pornillos
schemes and practices are to people who manipulate them. The State has
authority under the exercise of its police power to determine whether or not
there shall be restrictions on soliciting by unscrupulous persons or for
unworthy causes or for fraudulent purposes. That solicitation of contributions
under the guise of charitable and benevolent purposes is grossly abused is
a matter of common knowledge. Certainly the solicitation of contributions in
good faith for worthy purposes should not be denied, but somewhere should
be lodged the power to determine within reasonable limits the worthy from
the unworthy.22 The objectionable practices of unscrupulous persons are
prejudicial to worthy and proper charities which naturally suffer when the
confidence of the public in campaigns for the raising of money for charity is
lessened or destroyed.23 Some regulation of public solicitation is, therefore,
in the public interest.24
To conclude, solicitation for religious purposes may be subject to proper
regulation by the State in the exercise of police power. However, in the case
at bar, considering that solicitations intended for a religious purpose are not
within the coverage of Presidential Decree No. 1564, as earlier
demonstrated, petitioner cannot be held criminally liable therefor.
As a final note, we reject the reason advanced by respondent judge for
increasing the penalty imposed by the trial court, premised on the supposed

perversity of petitioners act which thereby caused damage to the

complainant. It must be here emphasized that the trial court, in the
dispositive portion of its decision, even recommended executive clemency in
favor of petitioner and the other accused after finding that the latter acted in
good faith in making the solicitation from the complainant, an observation
with which we fully agree. After all, mistake upon a doubtful and difficult
question of law can be the basis of good faith, especially for a layman.
There is likewise nothing in the findings of respondent judge which would
indicate, impliedly or otherwise, that petitioner and his co-accused acted
abusively or malevolently. This could be reflective upon her objectivity,
considering that the complainant
______________

22 Id., loc. cit.

23 City of Seattle vs. Rogers, 106 P. 2d 598.
24 Commonwealth vs. Creighton, et al., 170 A. 720.
209

VOL. 236, SEPTEMBER 1, 1994

Narvasa (C.J., Chairman) and Puno, J., concur.

Padilla, J., I join Mr. Justice Mendoza in his concurring opinion.
Mendoza, J., See separate concurring opinion.
MENDOZA, J., concurring:

I concur in the result reached in this case that the solicitation of donations for
the repair of a chapel is not covered by P.D. No. 1564 which requires a
permit for the solicitation of contributions for charitable or public welfare
purposes. My reasons are three-fold.
First. Solicitation of contributions for the construction of a church is not
solicitation for charitable or public welfare purpose but for a religious
purpose, and a religious purpose is not necessarily a charitable or public
welfare purpose. A fund campaign for the construction or repair of a church
is not like fund drives for needy families or victims of calamity or for the
construction of a civic center and the like. Like solicitation of subscription to
religious magazines, it is part of the propagation of religious faith or
evangelization. Such solicitation calls upon the virtue of faith, not of charity,
save as those solicited for money or aid may not belong to the same religion
as the solicitor. Such solicitation does not engage the philantrophic as much
as the religious fervor of
______________

209
Centeno vs. Villalon-Pornillos
in this case is herself a judge of the Regional Trial Court at Kalookan City. It
bears stressing at this point that a judge is required to so behave at all times
as to promote public confidence in the integrity and impartiality of the
judiciary,25 should be vigilant against any attempt to subvert its
independence, and must resist any pressure from whatever source.26

25 Rule 2.01, Code of Judicial Conduct.

26 Rule 1.03, id.
210

WHEREFORE, the decision appealed from is hereby REVERSED and SET

ASIDE, and petitioner Martin Centeno is ACQUITTED of the offense
charged, with costs de oficio.

210

SO ORDERED.

Centeno vs. Villalon-Pornillos

SUPREME COURT REPORTS ANNOTATED

the person who is solicited for contribution.

Second. The purpose of the Decree is to protect the public against fraud in
view of the proliferation of fund campaigns for charity and other civic
projects. On the other hand, since religious fund drives are usually
conducted among those belonging to the same religion, the need for public
protection against fraudulent solicitations does not exist in as great a degree
as does the need for protection with respect to solicitations for charity or
civic projects so as to justify state regulation.
Third. To require a government permit before solicitation for religious
purpose may be allowed is to lay a prior restraint on the free exercise of
religion. Such restraint, if allowed, may well justify requiring a permit before
a church can make Sunday collections or enforce tithing. But in American
Bible Society v. City of Manila,1 we precisely held that an ordinance
requiring payment of a license fee before one may engage in business could
not be applied to the appellants sale of bibles because that would impose a
condition on the exercise of a constitutional right. It is for the same reason
that religious rallies are exempted from the requirement of prior permit for
public assemblies and other uses of public parks and streets.2 To read the
Decree, therefore, as including within its reach solicitations for religious
purposes would be to construe it in a manner that it violates the Free
Exercise of Religion Clause of the Constitution, when what we are called
upon to do is to ascertain whether a construction of the statute is not fairly
possible by which a constitutional violation may be avoided.
For these reasons, I vote to reverse the decision appealed from and to
acquit petitioner.
Judgment reversed and set aside, petitioner acquitted.
Note.Applying the rule in statutory construction known as ejusdem
generis, that iswhere general words follow an enumeration of persons or
things, by words of a particular and specific meaning, such general words
are not to be construed in
_________________

1 101 Phil. 386 (1957).

2 B.P. Blg. 880, 3(a).

211

VOL. 236, SEPTEMBER 1, 1994

211
Lim vs. Pacquing
their widest extent but are to be held as applying only to persons or things of
the same kind or class as those specifically mentioned. (Republic vs.
Migrino, 189 SCRA 289 [1990])
o0o [Centeno vs. Villalon-Pornillos, 236 SCRA 197(1994)]

G.R. No. 155076. February 27, 2006.*

LUIS MARCOS P. LAUREL, petitioner, vs. HON. ZEUS C. ABROGAR,
Presiding Judge of the Regional Trial Court, Makati City, Branch 150,
PEOPLE OF THE PHILIPPINES & PHILIPPINE LONG DISTANCE
TELEPHONE COMPANY, respondents.
Actions; Appeals; Certiorari; The general rule is that a petition for certiorari
under Rule 65 of the Rules of Court, as amended, to nullify an order denying
a motion to quash the Information is inappropriate because the aggrieved
party has a remedy of appeal in the ordinary course of law.On the issue of
whether or not the petition for certiorari instituted by the petitioner in the CA
is proper, the general rule is that a petition for certiorari under Rule 65 of the
Rules of Court, as amended, to nullify an order denying a motion to quash
the Information is inappropriate because the aggrieved party has a remedy
of appeal in the ordinary course of law. Appeal and certiorari are mutually
exclusive of each other. The remedy of the aggrieved party is to continue
with the case in due course and, when an unfavorable judgment is rendered,
assail the order and the decision on appeal. However, if the trial court issues
the order denying the motion to quash the Amended Information with grave
abuse of discretion amounting to excess or lack of jurisdiction, or if such
order is patently erroneous, or null and void for being contrary to the
Constitution, and the remedy of appeal would not afford adequate and
expeditious relief, the accused may resort to the extraordinary remedy of

certiorari. A special civil action for certiorari is also available where there are
special circumstances clearly demonstrating the inadequacy of an appeal.
Criminal Law; Criminal Procedure; Information; An Information or complaint
must state explicitly and directly every act or omission constituting an
offense and must allege facts establishing conduct that a penal statute
makes criminal, and describes the property which is the subject of the theft
to advise the accused with reasonable certainty of the accusation he is
called upon to meet at the trial and to enable him to rely on the judgment
thereunder of a subsequent prose-

said allegations whose truth and veracity are hypothetically committed, and
on additional facts admitted or not denied by the prosecution.As a general
prerequisite, a motion to quash on the ground that the Information does not
constitute the offense charged, or any offense for that matter, should be
resolved on the basis of said allegations whose truth and veracity are
hypothetically committed; and on additional facts admitted or not denied by
the prosecution. If the facts alleged in the Information do not constitute an
offense, the complaint or information should be quashed by the court.

SUPREME COURT REPORTS ANNOTATED

Same; Same; Same; Statutory Construction; The rule is that, penal laws are
to be construed strictly. Such rule is founded on the tenderness of the law for
the rights of individuals and on the plain principle that the power of
punishment is vested in Congress, not in the judicial department.The rule
is that, penal laws are to be construed strictly. Such rule is founded on the
tenderness of the law for the rights of individuals and on the plain principle
that the power of punishment is vested in Congress, not in the judicial
department. It is Congress, not the Court, which is to define a crime, and
ordain its punishment. Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a narrow interpretation is appropriate.
The Court must take heed to language, legislative history and purpose, in
order to strictly determine the wrath and

Laurel vs. Abrogar

245

_______________

* FIRST DIVISION.
244

244

cution for the same offense.An information or complaint must state

explicitly and directly every act or omission constituting an offense and must
allege facts establishing conduct that a penal statute makes criminal; and
describes the property which is the subject of theft to advise the accused
with reasonable certainty of the accusation he is called upon to meet at the
trial and to enable him to rely on the judgment thereunder of a subsequent
prosecution for the same offense. It must show, on its face, that if the
alleged facts are true, an offense has been committed. The rule is rooted on
the constitutional right of the accused to be informed of the nature of the
crime or cause of the accusation against him. He cannot be convicted of an
offense even if proven unless it is alleged or necessarily included in the
Information filed against him.
Same; Same; Motions to Quash; As a general prerequisite, a motion to
quash on the ground that the Information does not constitute the offense
charged, or any offense for that matter, should be resolved on the basis of

VOL. 483, FEBRUARY 27, 2006

245
Laurel vs. Abrogar
breath of the conduct the law forbids. However, when the congressional
purpose is unclear, the court must apply the rule of lenity, that is, ambiguity
concerning the ambit of criminal statutes should be resolved in favor of
lenity.
Same; Same; Same; Penal statutes may not be enlarged by implication or
intent beyond the fair meaning of the language used; and may not be held to
include offenses other than those which are clearly described.Penal
statutes may not be enlarged by implication or intent beyond the fair

meaning of the language used; and may not be held to include offenses
other than those which are clearly described, notwithstanding that the Court
may think that Congress should have made them more comprehensive.
Words and phrases in a statute are to be construed according to their
common meaning and accepted usage.
Same; Same; Same; When interpreting a criminal statute that does not
explicitly reach the conduct in question, the Court should not base an
expansive reading on the inferences from subjective and variable
understanding.As Chief Justice John Marshall declared, it would be
dangerous, indeed, to carry the principle that a case which is within the
reason or mischief of a statute is within its provision, so far as to punish a
crime not enumerated in the statute because it is of equal atrocity, or of
kindred character with those which are enumerated. When interpreting a
criminal statute that does not explicitly reach the conduct in question, the
Court should not base an expansive reading on inferences from subjective
and variable understanding.
Same; Theft; For one to be guilty of theft, the accused must have an intent
to steal (animus furandi) personal property, meaning the intent to deprive
another of his ownership/lawful possession of personal property which intent
is apart from and concurrently with the general criminal intent which is an
essential element of a felony of dolo (dolus malus).For one to be guilty of
theft, the accused must have an intent to steal (animus furandi) personal
property, meaning the intent to deprive another of his ownership/lawful
possession of personal property which intent is apart from and concurrently
with the general criminal intent which is an essential element of a felony of
dolo (dolus malus). An information or complaint for simple theft must allege
the following elements: (a) the taking of personal property; (b) the said
property belongs to another; (c) the taking be done
246

246
SUPREME COURT REPORTS ANNOTATED

with intent to gain; and (d) the taking be accomplished without the use of
violence or intimidation of person/s or force upon things.
Same; Same; Words and Phrases; The words personal property standing
alone, covers both tangible and intangible properties and are subject of theft
under the Revised Penal Code. The statutory definition of taking and
movable property indicates that, clearly, not all personal properties may be
the proper subjects of theft.One is apt to conclude that personal property
standing alone, covers both tangible and intangible properties and are
subject of theft under the Revised Penal Code. But the words Personal
property under the Revised Penal Code must be considered in tandem with
the word take in the law. The statutory definition of taking and movable
property indicates that, clearly, not all personal properties may be the proper
subjects of theft. The general rule is that, only movable properties which
have physical or material existence and susceptible of occupation by
another are proper objects of theft. As explained by Cuelo Callon: Cosa
juridicamente es toda sustancia corporal, material, susceptible de ser
aprehendida que tenga un valor cualquiera.
Same; Same; Same; According to Cuello Callon, in the context of the Penal
Code, only those movable properties which can be taken and carried from
the place they are found are proper subjects of theft. Intangible properties
such as rights and ideas are not subject of theft because the same cannot
be taken from the place it is found and is occupied or appropriated.
According to Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place they are
found are proper subjects of theft. Intangible properties such as rights and
ideas are not subject of theft because the same cannot be taken from the
place it is found and is occupied or appropriated. Solamente las cosas
muebles y corporales pueden ser objeto de hurto. La sustraccin de cosas
inmuebles y la cosas incorporales (v. gr., los derechos, las ideas) no puede
integrar este delito, pues no es posible asirlas, tomarlas, para conseguir su
apropiacin. El Codigo emplea la expresin cosas mueble en el sentido de
cosa que es susceptible de ser llevada del lugar donde se encuentra, como
dinero, joyas, ropas, etctera, asi que su concepto no coincide por completo
con el formulado por el Codigo civil (arts. 335 y 336).
247

Laurel vs. Abrogar

VOL. 483, FEBRUARY 27, 2006

247

248

Laurel vs. Abrogar

Same; Same; Same; Movable properties under Article 308 of the Revised
Penal Code should be distinguished from the rights or interests to which
they relate. A naked right existing merely in contemplation of law, although it
may be very valuable to the person who is entitled to exercise it, is not the
subject of theft or larceny.Movable properties under Article 308 of the
Revised Penal Code should be distinguished from the rights or interests to
which they relate. A naked right existing merely in contemplation of law,
although it may be very valuable to the person who is entitled to exercise it,
is not the subject of theft or larceny. Such rights or interests are intangible
and cannot be taken by another. Thus, right to produce oil, good will or an
interest in business, or the right to engage in business, credit or franchise
are properties. So is the credit line represented by a credit card. However,
they are not proper subjects of theft or larceny because they are without
form or substance, the mere breath of the Congress. On the other hand,
goods, wares and merchandise of businessmen and credit cards issued to
them are movable properties with physical and material existence and may
be taken by another; hence, proper subjects of theft.
Same; Same; Same; There is taking of personal property, and theft is
consummated when the offender unlawfully acquires possession of personal
property even if for a short time; or if such property is under the dominion
and control of the thief.There is taking of personal property, and theft is
consummated when the offender unlawfully acquires possession of personal
property even if for a short time; or if such property is under the dominion
and control of the thief. The taker, at some particular amount, must have
obtained complete and absolute possession and control of the property
adverse to the rights of the owner or the lawful possessor thereof. It is not
necessary that the property be actually carried away out of the physical
possession of the lawful possessor or that he should have made his escape
with it. Neither asportation nor actual manual possession of property is
required. Constructive possession of the thief of the property is enough.
Same; Same; Same; The essence of the element is the taking of a thing out
of the possession of the owner without his privity and consent and without
animus revertendi.The essence of the element is the taking of a thing out
of the possession of the owner without his privity and consent and without
animus revertendi. Taking may be by the offenders own hands, by his use of
innocent persons without

248
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
any felonious intent, as well as any mechanical device, such as an access
device or card, or any agency, animate or inanimate, with intent to gain.
Intent to gain includes the unlawful taking of personal property for the
purpose of deriving utility, satisfaction, enjoyment and pleasure.
Same; Same; Same; In defining theft, under Article 308 of the Revised Penal
Code, as the taking of personal property without the consent of the owner
thereof, the Philippine legislature could not have contemplated the human
voice which is converted into electronic impulses or electrical current which
are transmitted to the party called through the PSTN of respondent PLDT
and ISR of Baynet Card Ltd. within its coverage.In defining theft, under
Article 308 of the Revised Penal Code, as the taking of personal property
without the consent of the owner thereof, the Philippine legislature could not
have contemplated the human voice which is converted into electronic
impulses or electrical current which are transmitted to the party called
through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd.
within its coverage. When the Revised Penal Code was approved, on
December 8, 1930, international telephone calls and the transmission and
routing of electronic voice signals or impulses emanating from said calls,
through the PSTN, IPL and ISR, were still non-existent. Case law is that,
where a legislative history fails to evidence congressional awareness of the
scope of the statute claimed by the respondents, a narrow interpretation of
the law is more consistent with the usual approach to the construction of the
statute. Penal responsibility cannot be extended beyond the fair scope of the
statutory mandate.
Words and Phrases; A phreaker is one who engages in the act of
manipulating phones and illegally markets telephone services. Unless the
phone company replaces all its hardware, phreaking would be impossible to
stop.The conduct complained of by respondent PLDT is reminiscent of
phreaking (a slang term for the action of making a telephone system to do
something that it normally should not allow by making the phone company

bend over and grab its ankles). A phreaker is one who engages in the act
of manipulating phones and illegally markets telephone services. Unless the
phone company replaces all its hardware, phreaking would be impossible to
stop. The phone companies in North America were impelled to replace all
their hardware and adopted full digital switching system known as the
Common Channel Inter Office Signaling.
249

VOL. 483, FEBRUARY 27, 2006

249
Laurel vs. Abrogar

the petitioner theft under the aforequoted provision of the Revised Penal
Code.
Same; Same; Republic Act 8484 (Access Devices Regulation Act of 1998);
Among the prohibited acts enumerated in Section 9 of Republic Act 8484 are
the acts of obtaining money or anything of value through the use of an
access device, with intent to defraud or intent to gain and fleeing thereafter;
and of effecting transactions with one or more access devices issued to
another person or persons to receive payment or any other thing of value.
Under Section 11 of the law, conspiracy to commit access devices fraud is a
crime.In the Philippines, Congress has not amended the Revised Penal
Code to include theft of services or theft of business as felonies. Instead, it
approved a law, Republic Act No. 8484, otherwise known as the Access
Devices Regulation Act of 1998, on February 11, 1998. Under the law, an
250

Phreaking occurred only during the 1960s and 1970s, decades after the
Revised Penal Code took effect.
Criminal Law; Information; Theft; The petitioner is not charged, under the
Amended Information, for theft of telecommunication or telephone services
offered by PLDT. Even if he is, the term personal property under Article 308
of the Revised Penal Code cannot be interpreted beyond its seams so as to
include telecommunication or telephone services or computer services for
that matter.The petitioner is not charged, under the Amended Information,
for theft of telecommunication or telephone services offered by PLDT. Even
if he is, the term personal property under Article 308 of the Revised Penal
Code cannot be interpreted beyond its seams so as to include
telecommunication or telephone services or computer services for that
matter. The word service has a variety of meanings dependent upon the
context, or the sense in which it is used; and, in some instances, it may
include a sale. For instance, the sale of food by restaurants is usually
referred to as service, although an actual sale is involved. It may also
mean the duty or labor to be rendered by one person to another;
performance of labor for the benefit of another. In the case of PLDT, it is to
render local and international telecommunications services and such other
services as authorized by the CPCA issued by the NTC. Even at common
law, neither time nor services may be taken and occupied or appropriated. A
service is generally not considered property and a theft of service would not,
therefore, constitute theft since there can be no caption or asportation.
Neither is the unauthorized use of the equipment and facilities of PLDT by

250
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
access device means any card, plate, code, account number, electronic
serial number, personal identification number and other telecommunication
services, equipment or instrumentalities-identifier or other means of account
access that can be used to obtain money, goods, services or any other thing
of value or to initiate a transfer of funds other than a transfer originated
solely by paper instrument. Among the prohibited acts enumerated in
Section 9 of the law are the acts of obtaining money or anything of value
through the use of an access device, with intent to defraud or intent to gain
and fleeing thereafter; and of effecting transactions with one or more access
devices issued to another person or persons to receive payment or any
other thing of value. Under Section 11 of the law, conspiracy to commit
access devices fraud is a crime. However, the petitioner is not charged of
violation of R.A. 8484.
PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Salonga, Hernandez & Mendoza for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for Philippine Long Distance
Telephone Company.
CALLEJO, SR., J.:

Before us is a Petition for Review on Certiorari of the Decision1 of the Court

of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order issued by
Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City, Branch
150, which denied the Motion to Quash (With Motion to Defer Arraignment)
in Criminal Case No. 99-2425 for theft.
Philippine Long Distance Telephone Company (PLDT) is the holder of a
legislative franchise to render local and international telecommunication
services under Republic Act No.
_______________

1 Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices

Roberto A. Barrios and Edgardo F. Sundiam, concurring.
251

National Telecommunications Commission (NTC), and operates and

maintains an International Gateway Facility (IGF). The PLDT network is thus
principally composed of the Public Switch Telephone Network (PSTN),
telephone handsets and/or telecommunications equipment used by its
subscribers, the wires and cables linking said telephone handsets and/or
telecommunications equipment, antenna, the IGF, and other
telecommunications equipment which provide interconnections.3
PLDT alleges that one of the alternative calling patterns that constitute
network fraud and violate its network integrity is that which is known as
International Simple Resale (ISR). ISR is a method of routing and
completing international long distance calls using International Private
Leased Lines (IPL), cables, antenna or air wave or frequency, which connect
directly to the local or domestic exchange facilities of the terminating country
(the country where the call is destined). The IPL is linked to switching
equipment which is connected to a PLDT telephone line/number. In the
process, the calls bypass the IGF found at the terminating country, or in
some instances, even those from the originating country.4
_______________

2 AN ACT FURTHER AMENDING ACT NO. 3436, AS AMENDED, X X X

CONSOLIDATING THE TERMS AND CONDITIONS OF THE FRANCHISE
GRANTED TO [PLDT], AND EXTENDING THE SAID FRANCHISE BY
TWENTY-FIVE (25) YEARS FROM THE EXPIRATION THEREOF X X X.
3 Rollo, pp. 129-130.

VOL. 483, FEBRUARY 27, 2006

251

4 Id., at p. 131.
252

Laurel vs. Abrogar

7082.2 Under said law, PLDT is authorized to establish, operate, manage,
lease, maintain and purchase telecommunication systems, including
transmitting, receiving and switching stations, for both domestic and
international calls. For this purpose, it has installed an estimated 1.7 million
telephone lines nationwide. PLDT also offers other services as authorized by
Certificates of Public Convenience and Necessity (CPCN) duly issued by the

252
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar

One such alternative calling service is that offered by Baynet Co., Ltd.
(Baynet) which sells Bay Super Orient Card phone cards to people who
call their friends and relatives in the Philippines. With said card, one is
entitled to a 27-minute call to the Philippines for about 37.03 per minute.
After dialing the ISR access number indicated in the phone card, the ISR
operator requests the subscriber to give the PIN number also indicated in
the phone card. Once the callers identity (as purchaser of the phone card)
is confirmed, the ISR operator will then provide a Philippine local line to the
requesting caller via the IPL. According to PLDT, calls made through the IPL
never pass the toll center of IGF operators in the Philippines. Using the local
line, the Baynet card user is able to place a call to any point in the
Philippines, provided the local line is National Direct Dial (NDD) capable.5
PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to
course its incoming international long distance calls from Japan. The IPL is
linked to switching equipment, which is then connected to PLDT telephone
lines/ numbers and equipment, with Baynet as subscriber. Through the use
of the telephone lines and other auxiliary equipment, Baynet is able to
connect an international long distance call from Japan to any part of the
Philippines, and make it appear as a call originating from Metro Manila.
Consequently, the operator of an ISR is able to evade payment of access,
termination or bypass charges and accounting rates, as well as compliance
with the regulatory requirements of the NTC. Thus, the ISR operator offers
international telecommunication services at a lower rate, to the damage and
prejudice of legitimate operators like PLDT.6
PLDT pointed out that Baynet utilized the following equipment for its ISR
activities: lines, cables, and antennas or equipment or device capable of
transmitting air waves or
_______________

253
Laurel vs. Abrogar
frequency, such as an IPL and telephone lines and equipment; computers or
any equipment or device capable of accepting information applying the
prescribed process of the information and supplying the result of this
process; modems or any equipment or device that enables a data terminal
equipment such as computers to communicate with other data terminal
equipment via a telephone line; multiplexers or any equipment or device that
enables two or more signals from different sources to pass through a
common cable or transmission line; switching equipment, or equipment or
device capable of connecting telephone lines; and software, diskettes, tapes
or equipment or device used for recording and storing information.7
PLDT also discovered that Baynet subscribed to a total of 123 PLDT
telephone lines/numbers.8 Based on the Traffic Study conducted on the
volume of calls passing through Baynets ISR network which bypass the IGF
toll center, PLDT incurred an estimated monthly loss of P10,185,325.96.9
Records at the Securities and Exchange Commission (SEC) also revealed
that Baynet was not authorized to provide international or domestic long
distance telephone service in the country. The following are its officers: Yuji
Hijioka, a Japanese national (chairman of the board of directors); Gina C.
Mukaida, a Filipina (board member and president); Luis Marcos P. Laurel, a
Filipino (board member and corporate secretary); Ricky Chan Pe, a Filipino
(board member and treasurer); and Yasushi Ueshima, also a Japanese
national (board member).
Upon complaint of PLDT against Baynet for network fraud, and on the
strength of two search warrants10 issued by the RTC of Makati, Branch 147,
National Bureau of Investigation (NBI) agents searched its office at the 7th
Floor, SJG Building, Kalayaan Avenue, Makati City on November 8, 1999.
_______________

5 Id., at pp. 131, 137.

6 Id.
253

7 Id., at p. 138.
8 Id., at p. 134.
9 Id., at p. 140.

VOL. 483, FEBRUARY 27, 2006

10 Id., at pp. 142-146.

254

254
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J.
Villegas were arrested by NBI agents while in the act of manning the
operations of Baynet. Seized in the premises during the search were
numerous equipment and devices used in its ISR activities, such as
multiplexers, modems, computer monitors, CPUs, antenna, assorted
computer peripheral cords and microprocessors, cables/wires, assorted
PLDT statement of accounts, parabolic antennae and voltage regulators.
State Prosecutor Ofelia L. Calo conducted an inquest investigation and
issued a Resolution11 on January 28, 2000, finding probable cause for theft
under Article 308 of the Revised Penal Code and Presidential Decree No.
40112 against the respondents therein, including Laurel.
_______________

11 Rollo, pp. 243-246.

12 NOW, THEREFORE, I FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all the Armed Forces of the Philippines, and
pursuant to Proclamation No. 1081 dated September 21, 1972, and General
Order No. 1 dated September 22, 1972, as amended, do hereby order and
decree that any person who installs any water, electrical or telephone
connection without previous authority from the Metropolitan Waterworks and
Sewerage System, the Manila Electric Company or the Philippine Long
Distance Telephone Company, as the case may be; tampers and/or uses
tampered water or electrical meters or jumpers or other devices whereby
water or electricity is stolen; steals or pilfers water and/or electric meters or
water, electric and/or telephone wires; knowingly possesses stolen or

pilfered water and/or electrical meters as well as stolen or pilfered water,

electrical and/or telephone wires, shall, upon conviction, be punished by
prision correccional in its minimum period or a fine ranging from two
thousand to six thousand pesos, or both. If the violation is committed with
the connivance or permission of an employee or officer of the Metropolitan
Waterworks and Sewerage System, or the Manila Electric Company, or the
Philippine Long Distance Telephone Company, such employee or officer
shall, upon conviction, be punished by a penalty one degree lower than
prision correccional in its minimum period and forthwith be dismissed and
255

VOL. 483, FEBRUARY 27, 2006

255
Laurel vs. Abrogar
On February 8, 2000, State Prosecutor Calo filed an Information with the
RTC of Makati City charging Matsuura, Miyake, Lacson and Villegas with
theft under Article 308 of the Revised Penal Code. After conducting the
requisite preliminary investigation, the State Prosecutor filed an Amended
Information impleading Laurel (a partner in the law firm of Ingles, Laurel,
Salinas, and, until November 19, 1999, a member of the board of directors
and corporate secretary of Baynet), and the other members of the board of
directors of said corporation, namely, Yuji Hijioka, Yasushi Ueshima,
Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the
Revised Penal Code. The inculpatory portion of the Amended Information
reads:
On or about September 10-19, 1999, or prior thereto, in Makati City, and
within the jurisdiction of this Honorable Court, the accused, conspiring and
confederating together and all of them mutually helping and aiding one
another, with intent to gain and without the knowledge and consent of the
Philippine Long Distance Telephone (PLDT), did then and there willfully,
unlawfully and feloniously take, steal and use the international long distance
calls belonging to PLDT by conducting International Simple Resale (ISR),
which is a method of routing and completing international long distance calls
using lines, cables, antennae, and/or air wave frequency which connect
directly to the local or domestic exchange facilities of the country where the

call is destined, effectively stealing this business from PLDT while using its
facilities in the estimated amount of P20,370,651.92 to the damage and
prejudice of PLDT, in the said amount.

the Information for violation of Presidential Decree (P.D.) No. 401 filed and
pending in the Metropolitan Trial Court of Makati City, docketed as Criminal
Case No. 276766.

CONTRARY TO LAW.13

The prosecution, through private complainant PLDT, opposed the motion,14

contending that the movant unlawfully took personal property belonging to it,
as follows: 1) intangible telephone services that are being offered by PLDT
and other telecommunication companies, i.e., the connection and
interconnection to their telephone lines/facilities; 2) the use of those facilities
over a period of time; and 3) the revenues derived in connection with the
rendition of such services and the use of such facilities.15

Accused Laurel filed a Motion to Quash (with Motion to Defer Arraignment)

on the ground that the factual allegations in the Amended Information do not
constitute the felony of theft under Article 308 of the Revised Penal Code.
He
_______________

perpetually disqualified from employment in any public or private utility or

service company.

The prosecution asserted that the use of PLDTs intangible telephone

services/facilities allows electronic voice signals to pass through the same,
and ultimately to the called partys number. It averred that such
service/facility is akin to elec-

13 Rollo, pp. 57-58 (Italics supplied).

_______________

256
14 Id., at pp. 67-76.
256

15 Id., at p. 69 (Emphasis supplied).

SUPREME COURT REPORTS ANNOTATED

257

Laurel vs. Abrogar

averred that the Revised Penal Code, or any other special penal law for that
matter, does not prohibit ISR operations. He claimed that telephone calls
with the use of PLDT telephone lines, whether domestic or international,
belong to the persons making the call, not to PLDT. He argued that the caller
merely uses the facilities of PLDT, and what the latter owns are the
telecommunication infrastructures or facilities through which the call is
made. He also asserted that PLDT is compensated for the callers use of its
facilities by way of rental; for an outgoing overseas call, PLDT charges the
caller per minute, based on the duration of the call. Thus, no personal
property was stolen from PLDT. According to Laurel, the P20,370,651.92
stated in the Information, if anything, represents the rental for the use of
PLDT facilities, and not the value of anything owned by it. Finally, he averred
that the allegations in the Amended Information are already subsumed under

VOL. 483, FEBRUARY 27, 2006

257
Laurel vs. Abrogar
tricity which, although an intangible property, may, nevertheless, be
appropriated and be the subject of theft. Such service over a period of time
for a consideration is the business that PLDT provides to its customers,
which enables the latter to send various messages to installed recipients.
The service rendered by PLDT is akin to merchandise which has specific
value, and therefore, capable of appropriation by another, as in this case,
through the ISR operations conducted by the movant and his co-accused.

The prosecution further alleged that international business calls and

revenues constitute personal property envisaged in Article 308 of the
Revised Penal Code. Moreover, the intangible telephone services/facilities
belong to PLDT and not to the movant and the other accused, because they
have no telephone services and facilities of their own duly authorized by the
NTC; thus, the taking by the movant and his co-accused of PLDT services
was with intent to gain and without the latters consent.
The prosecution pointed out that the accused, as well as the movant, were
paid in exchange for their illegal appropriation and use of PLDTs telephone
services and facilities; on the other hand, the accused did not pay a single
centavo for their illegal ISR operations. Thus, the acts of the accused were
akin to the use of a jumper by a consumer to deflect the current from the
house electric meter, thereby enabling one to steal electricity. The
prosecution emphasized that its position is fortified by the Resolutions of the
Department of Justice in PLDT v. Tiongson, et al. (I.S. No. 97-0925) and in
PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No. 2000-370) which were
issued on August 14, 2000 finding probable cause for theft against the
respondents therein.
On September 14, 2001, the RTC issued an Order16 denying the Motion to
Quash the Amended Information. The court declared that, although there is
no law that expressly prohib_______________

Laurel filed a Motion for Reconsideration17 of the Order, alleging that

international long distance calls are not personal property, and are not
capable of appropriation. He maintained that business or revenue is not
considered personal property, and that the prosecution failed to adduce
proof of its existence and the subsequent loss of personal property
belonging to another. Citing the ruling of the Court in United States v. De
Guzman,18 Laurel averred that the case is not one with telephone calls
which originate with a particular caller and terminates with the called party.
He insisted that telephone calls are considered privileged communications
under the Constitution and cannot be considered as the property of PLDT.
He further argued that there is no kinship between telephone calls and
electricity or gas, as the latter are forms of energy which are generated and
consumable, and may be considered as personal property because of such
characteristic. On the other hand, the movant argued, the telephone
business is not a form of energy but is an activity.
In its Order19 dated December 11, 2001, the RTC denied the movants
Motion for Reconsideration. This time, it ruled that what was stolen from
PLDT was its business because, as alleged in the Amended Information,
the international long distance calls made through the facilities of PLDT
formed part of its business. The RTC noted that the movant was charged
with stealing the business of PLDT. To support its ruling, it cited Strochecker
v. Ramirez,20where the Court ruled that interest in business is personal
property capable of appropriation. It further declared that, through their ISR
operations, the movant and his co-accused deprived PLDT of
_______________

16 Id., at pp. 77-80.

258

17 Id., at pp. 81-86.

18 31 Phil. 494 (1915).

258
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
its the use of ISR, the facts alleged in the Amended Information will show
how the alleged crime was committed by conducting ISR, to the damage
and prejudice of PLDT.

19 Rollo, pp. 87-94.

20 44 Phil. 933, 935 (1922).
259

VOL. 483, FEBRUARY 27, 2006

259

260

Laurel vs. Abrogar

fees for international long distance calls, and that the ISR used by the
movant and his co-accused was no different from the jumper used for
stealing electricity.

260

Laurel then filed a Petition for Certiorari with the CA, assailing the Order of
the RTC. He alleged that the respondent judge gravely abused his discretion
in denying his Motion to Quash the Amended Information.21 As gleaned
from the material averments of the amended information, he was charged
with stealing the international long distance calls belonging to PLDT, not its
business. Moreover, the RTC failed to distinguish between the business of
PLDT (providing services for international long distance calls) and the
revenues derived therefrom. He opined that a business or its revenues
cannot be considered as personal property under Article 308 of the Revised
Penal Code, since a business is (1) a commercial or mercantile activity
customarily engaged in as a means of livelihood and typically involving
some independence of judgment and power of decision; (2) a commercial or
industrial enterprise; and (3) refers to transactions, dealings or intercourse of
any nature. On the other hand, the term revenue is defined as the income
that comes back from an investment (as in real or personal property); the
annual or periodical rents, profits, interests, or issues of any species of real
or personal property.22

Laurel vs. Abrogar

Laurel further posited that an electric companys business is the production

and distribution of electricity; a gas companys business is the production
and/or distribution of gas (as fuel); while a water companys business is the
production and distribution of potable water. He argued that the business in
all these cases is the commercial activity, while the goods and merchandise
are the products of such activity. Thus, in prosecutions for theft of certain
forms of energy, it is the electricity or gas which is alleged to be stolen and
not the business of providing electricity or gas. However, since a
_______________

21 CA Rollo, p. 6.
22 Id., at pp. 9-11.

SUPREME COURT REPORTS ANNOTATED

telephone company does not produce any energy, goods or merchandise

and merely renders a service or, in the words of PLDT, the connection and
interconnection to their telephone lines/facilities, such service cannot be the
subject of theft as defined in Article 308 of the Revised Penal Code.23
He further declared that to categorize business as personal property under
Article 308 of the Revised Penal Code would lead to absurd consequences;
in prosecutions for theft of gas, electricity or water, it would then be
permissible to allege in the Information that it is the gas business, the
electric business or the water business which has been stolen, and no
longer the merchandise produced by such enterprise.24
Laurel further cited the Resolution of the Secretary of Justice in Piltel v.
Mendoza,25 where it was ruled that the Revised Penal Code, legislated as it
was before present technological advances were even conceived, is not
adequate to address the novel means of stealing airwaves or airtime. In
said resolution, it was noted that the inadequacy prompted the filing of
Senate Bill 2379 (sic) entitled The Anti-Telecommunications Fraud of 1997
to deter cloning of cellular phones and other forms of communications fraud.
The said bill aims to protect in number (ESN) (sic) or Capcode, mobile
identification number (MIN), electronic-international mobile equipment
identity (EMEI/IMEI), or subscriber identity module and any attempt to
duplicate the data on another cellular phone without the consent of a public
telecommunications entity would be punishable by law.26 Thus, Laurel
concluded, there is no crime if there is no law punishing the crime.
On August 30, 2002, the CA rendered judgment dismissing the petition.27
The appellate court ruled that a petition for
_______________

23 Id.
24 Id.
25 Resolution No. 149, Series of 1999 dated April 16, 1999 (I.S. No. 963884), Rollo, pp. 95-97.
26 Id.
27 Id., at pp. 32-47.

Petitioner avers that the petition for a writ of certiorari may be filed to nullify
an interlocutory order of the trial court which was issued with grave abuse of
discretion amounting to excess or lack of jurisdiction. In support of his
petition before the Court, he reiterates the arguments in his pleadings filed
before the CA. He further claims that while the right to carry on a business or
an interest or participation in business is considered property under the New
Civil Code, the term business, however, is not. He asserts that the
Philippine
_______________

261
28 21 Phil. 553 (1911).
VOL. 483, FEBRUARY 27, 2006
261
Laurel vs. Abrogar
certiorari under Rule 65 of the Rules of Court was not the proper remedy of
the petitioner. On the merits of the petition, it held that while business is
generally an activity which is abstract and intangible in form, it is
nevertheless considered property under Article 308 of the Revised Penal
Code. The CA opined that PLDTs business of providing international calls is
personal property which may be the object of theft, and cited United States
v. Carlos28 to support such conclusion. The tribunal also cited Strochecker
v. Ramirez,29 where this Court ruled that one-half interest in a days
business is personal property under Section 2 of Act No. 3952, otherwise
known as the Bulk Sales Law. The appellate court held that the operations of
the ISR are not subsumed in the charge for violation of P.D. No. 401.
Laurel, now the petitioner, assails the decision of the CA, contending that
THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL
PROPERTY ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE
INTERNATIONAL LONG DISTANCE CALLS BUT THE BUSINESS OF
PLDT.
THE COURT OF APPEALS ERRED IN RULING THAT THE TERM
BUSINESS IS PERSONAL PROPERTY WITHIN THE MEANING OF ART.
308 OF THE REVISED PENAL CODE.30

29 Supra note 20, at p. 935.

30 Rollo, pp. 18-19.
262

262
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
Legislature, which approved the Revised Penal Code way back in January
1, 1932, could not have contemplated to include international long distance
calls and business as personal property under Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General (OSG)
maintains that the amended information clearly states all the essential
elements of the crime of theft. Petitioners interpretation as to whether an
international long distance call is personal property under the law is
inconsequential, as a reading of the amended information readily reveals
that specific acts and circumstances were alleged charging Baynet, through
its officers, including petitioner, of feloniously taking, stealing and illegally
using international long distance calls belonging to respondent PLDT by
conducting ISR operations, thus, routing and completing international long
distance calls using lines, cables, antenna and/or airwave frequency which

connect directly to the local or domestic exchange facilities of the country

where the call is destined. The OSG maintains that the international long
distance calls alleged in the amended information should be construed to
mean business of PLDT, which, while abstract and intangible in form, is
personal property susceptible of appropriation.31 The OSG avers that what
was stolen by petitioner and his co-accused is the business of PLDT
providing international long distance calls which, though intangible, is
personal property of the PLDT.32
For its part, respondent PLDT asserts that personal property under Article
308 of the Revised Penal Code comprehends intangible property such as
electricity and gas which are valuable articles for merchandise, brought and
sold like other personal property, and are capable of appropriation. It insists
that the business of international calls and revenues constitute personal
property because the same are valuable articles of merchandise. The
respondent reiterates that inter_______________

31 Id., at p. 689.
32 Id., at p. 691.
263

VOL. 483, FEBRUARY 27, 2006

263
Laurel vs. Abrogar
national calls involve (a) the intangible telephone services that are being
offered by it, that is, the connection and interconnection to the telephone
network, lines or facilities; (b) the use of its telephone network, lines or
facilities over a period of time; and (c) the income derived in connection
therewith.33
PLDT further posits that business revenues or the income derived in
connection with the rendition of such services and the use of its telephone

network, lines or facilities are personal properties under Article 308 of the
Revised Penal Code; so is the use of said telephone services/telephone
network, lines or facilities which allow electronic voice signals to pass
through the same and ultimately to the called partys number. It is akin to
electricity which, though intangible property, may nevertheless be
appropriated and can be the object of theft. The use of respondent PLDTs
telephone network, lines, or facilities over a period of time for consideration
is the business that it provides to its customers, which enables the latter to
send various messages to intended recipients. Such use over a period of
time is akin to merchandise which has value and, therefore, can be
appropriated by another. According to respondent PLDT, this is what actually
happened when petitioner Laurel and the other accused below conducted
illegal ISR operations.34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the petition for
certiorari is the proper remedy of the petitioner in the Court of Appeals; (b)
whether or not international telephone calls using Bay Super Orient Cards
through the telecommunication services provided by PLDT for such calls, or,
in short, PLDTs business of providing said telecommunication services, are
proper subjects of theft under Article 308 of the Revised Penal Code; and (c)
whether or not the trial court committed grave abuse of discretion amounting
to
_______________

33 Id., at pp. 669-670.

34 Rollo, p. 670.
264

264
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar

excess or lack of jurisdiction in denying the motion of the petitioner to quash

the amended information.
On the issue of whether or not the petition for certiorari instituted by the
petitioner in the CA is proper, the general rule is that a petition for certiorari
under Rule 65 of the Rules of Court, as amended, to nullify an order denying
a motion to quash the Information is inappropriate because the aggrieved
party has a remedy of appeal in the ordinary course of law. Appeal and
certiorari are mutually exclusive of each other. The remedy of the aggrieved
party is to continue with the case in due course and, when an unfavorable
judgment is rendered, assail the order and the decision on appeal. However,
if the trial court issues the order denying the motion to quash the Amended
Information with grave abuse of discretion amounting to excess or lack of
jurisdiction, or if such order is patently erroneous, or null and void for being
contrary to the Constitution, and the remedy of appeal would not afford
adequate and expeditious relief, the accused may resort to the extraordinary
remedy of certiorari.35 A special civil action for certiorari is also available
where there are special circumstances clearly demonstrating the inadequacy
of an appeal. As this Court held in Bristol Myers Squibb (Phils.), Inc. v.
Viloria:36
Nonetheless, the settled rule is that a writ of certiorari may be granted in
cases where, despite availability of appeal after trial, there is at least a prima
facie showing on the face of the petition and its annexes that: (a) the trial
court issued the order with grave abuse of discretion amounting to lack of or
in excess of jurisdiction; (b) appeal would not prove to be a speedy and
adequate remedy; (c) where the order is a patent nullity; (d) the decision in
the present case will arrest future litigations; and (e) for certain
considerations such as public welfare and public policy.37
_______________

35 Madarang v. Court of Appeals, G.R. No. 143044, July 14, 2005, 463
SCRA 318, 327 (2005).
36 G.R. No. 148156, September 27, 2004, 439 SCRA 202 (2004).

VOL. 483, FEBRUARY 27, 2006

265
Laurel vs. Abrogar
In his petition for certiorari in the CA, petitioner averred that the trial court
committed grave abuse of its discretion amounting to excess or lack of
jurisdiction when it denied his motion to quash the Amended Information
despite his claim that the material allegations in the Amended Information do
not charge theft under Article 308 of the Revised Penal Code, or any offense
for that matter. By so doing, the trial court deprived him of his constitutional
right to be informed of the nature of the charge against him. He further
averred that the order of the trial court is contrary to the constitution and is,
thus, null and void. He insists that he should not be compelled to undergo
the rigors and tribulations of a protracted trial and incur expenses to defend
himself against a nonexistent charge.
Petitioner is correct.
An information or complaint must state explicitly and directly every act or
omission constituting an offense38 and must allege facts establishing
conduct that a penal statute makes criminal;39 and describes the property
which is the subject of theft to advise the accused with reasonable certainty
of the accusation he is called upon to meet at the trial and to enable him to
rely on the judgment thereunder of a subsequent prosecution for the same
offense.40 It must show, on its face, that if the alleged facts are true, an
offense has been committed. The rule is rooted on the constitutional right of
the accused to be informed of the nature of the crime or cause of the
accusation against him. He cannot be convicted of an offense even if proven
unless it is alleged or necessarily included in the Information filed against
him.
As a general prerequisite, a motion to quash on the ground that the
Information does not constitute the offense charged,
_______________

37 Id., at p. 211.
265

38 Section 9, Rule 110 of the Revised Rules of Criminal Procedure.

39 People v. Weg, 450 N.Y.S.2d 957 (1982).

_______________

40 Clines v. Commonwealth, 298 S.W. 1107 (1927).

266

41 Santiago v. Garchitorena, G.R. No. 109266, December 2, 1993, 228

SCRA 214.

266

42 Garcia v. Court of Appeals, 334 Phil. 621, 634; 266 SCRA 678 (1997);
People v. Navarro, 75 Phil. 516, 518 (1945).

SUPREME COURT REPORTS ANNOTATED

43 Section 3(a), Rule 117 of the 2000 Rules of Criminal Procedure.

Laurel vs. Abrogar

44 United States v. Wiltberger, 18 U.S. 76 (1820).

or any offense for that matter, should be resolved on the basis of said
allegations whose truth and veracity are hypothetically committed;41 and on
additional facts admitted or not denied by the prosecution.42 If the facts
alleged in the Information do not constitute an offense, the complaint or
information should be quashed by the court.43

267

We have reviewed the Amended Information and find that, as mentioned by

the petitioner, it does not contain material allegations charging the petitioner
of theft of personal property under Article 308 of the Revised Penal Code. It,
thus, behooved the trial court to quash the Amended Information. The Order
of the trial court denying the motion of the petitioner to quash the Amended
Information is a patent nullity.

267

On the second issue, we find and so hold that the international telephone
calls placed by Bay Super Orient Card holders, the telecommunication
services provided by PLDT and its business of providing said services are
not personal properties under Article 308 of the Revised Penal Code. The
construction by the respondents of Article 308 of the said Code to include,
within its coverage, the aforesaid international telephone calls,
telecommunication services and business is contrary to the letter and intent
of the law.
The rule is that, penal laws are to be construed strictly. Such rule is founded
on the tenderness of the law for the rights of individuals and on the plain
principle that the power of punishment is vested in Congress, not in the
judicial department. It is Congress, not the Court, which is to define a crime,
and ordain its punishment.44 Due respect for the prerogative of Congress in
defining crimes/felonies constrains the

VOL. 483, FEBRUARY 27, 2006

Laurel vs. Abrogar

Court to refrain from a broad interpretation of penal laws where a narrow
interpretation is appropriate. The Court must take heed to language,
legislative history and purpose, in order to strictly determine the wrath and
breath of the conduct the law forbids.45 However, when the congressional
purpose is unclear, the court must apply the rule of lenity, that is, ambiguity
concerning the ambit of criminal statutes should be resolved in favor of
lenity.46
Penal statutes may not be enlarged by implication or intent beyond the fair
meaning of the language used; and may not be held to include offenses
other than those which are clearly described, notwithstanding that the Court
may think that Congress should have made them more comprehensive.47
Words and phrases in a statute are to be construed according to their
common meaning and accepted usage.
As Chief Justice John Marshall declared, it would be dangerous, indeed, to
carry the principle that a case which is within the reason or mischief of a
statute is within its provision, so far as to punish a crime not enumerated in
the statute because it is of equal atrocity, or of kindred character with those
which are enumerated.48 When interpreting a criminal statute that does not

explicitly reach the conduct in question, the Court should not base an
expansive reading on inferences from subjective and variable
understanding.49

his ownership/lawful possession of personal property which intent is apart

from and concurrently with the general criminal intent which is an essential
element of a felony of dolo (dolus malus).

Article 308 of the Revised Penal Code defines theft as follows:

An information or complaint for simple theft must allege the following

elements: (a) the taking of personal property; (b) the said property belongs
to another; (c) the taking be done with intent to gain; and (d) the taking be
accomplished without the use of violence or intimidation of person/s or force
upon things.51

Art. 308. Who are liable for theft.Theft is committed by any person who,
with intent to gain but without violence, against or intimidation of persons nor
force upon things, shall take personal property of another without the latters
consent.

45 Dowling v. United States, 473 U.S. 207 (1985).

One is apt to conclude that personal property standing alone, covers both
tangible and intangible properties and are subject of theft under the Revised
Penal Code. But the words Personal property under the Revised Penal
Code must be considered in tandem with the word take in the law. The
statutory definition of taking and movable property indi-

46 Liparota v. United States, 105 S. Ct. 2084 (1985).

_______________

_______________

47 Kelley v. State, 119 N.E.2d 322 (1954); State v. McGraw, 480 N.E.2d 552
(1985).
48 United States v. Wiltberger, supra note 44.

50 Viada, CODIGO PENAL REFORMADO DE 1870, CONCORDADO Y

COMENTADO, 219.

49 Dowling v. United States, supra note 45.

The felony has the following elements:

268

(1) Apoderamiento de una cosa mueble; (2) Que la cosa mueble sea ajena;
(3) Que el apoderamiento se verifique con intencin de lucro; (4) Que se
tome la cosa sin la voluntad de su dueo; (5) Que se realice el
apoderamiento de la cosa sin violencia intimidacin en las personas ni
fuerza en las cosas (Viada, 220-221).

268
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
The provision was taken from Article 530 of the Spanish Penal Code which
reads:

51 People v. Sison, 379 Phil. 363, 384; 322 SCRA 345 (2000); People v.
Bustinera, G.R. No. 148233, June 8, 2004, 431 SCRA 284, 291.
269

1. Los que con nimo de lucrarse, y sin violencia o intimidacin en las

personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.50

VOL. 483, FEBRUARY 27, 2006

For one to be guilty of theft, the accused must have an intent to steal
(animus furandi) personal property, meaning the intent to deprive another of

Laurel vs. Abrogar

269

cates that, clearly, not all personal properties may be the proper subjects of
theft. The general rule is that, only movable properties which have physical
or material existence and susceptible of occupation by another are proper
objects of theft.52 As explained by Cuelo Callon: Cosa juridicamente es
toda sustancia corporal, material, susceptible de ser aprehendida que tenga
un valor cualquiera.53

270

According to Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place they are
found are proper subjects of theft. Intangible properties such as rights and
ideas are not subject of theft because the same cannot be taken from the
place it is found and is occupied or appropriated.

Laurel vs. Abrogar

Solamente las cosas muebles y corporales pueden ser objeto de hurto. La

sustraccin de cosas inmuebles y la cosas incorporales (v. gr., los derechos,
las ideas) no puede integrar este delito, pues no es posible asirlas,
tomarlas, para conseguir su apropiacin. El Codigo emplea la expresin
cosas mueble en el sentido de cosa que es susceptible de ser llevada del
lugar donde se encuentra, como dinero, joyas, ropas, etctera, asi que su
concepto no coincide por completo con el formulado por el Codigo civil (arts.
335 y 336).54
Thus, movable properties under Article 308 of the Revised Penal Code
should be distinguished from the rights or interests to which they relate. A
naked right existing merely in contemplation of law, although it may be very
valuable to the person who is entitled to exercise it, is not the subject of theft
or larceny.55 Such rights or interests are intangible and cannot be taken by
another. Thus, right to produce oil, good will or an interest in business, or the
right to engage in business, credit or franchise are properties. So is the
credit line represented by a credit card. However, they are not proper
subjects
_______________

52 Cuello Callon, Derecho Penal, Tomo II, p. 724.

270
SUPREME COURT REPORTS ANNOTATED

of theft or larceny because they are without form or substance, the mere
breath of the Congress. On the other hand, goods, wares and merchandise
of businessmen and credit cards issued to them are movable properties with
physical and material existence and may be taken by another; hence, proper
subjects of theft.
There is taking of personal property, and theft is consummated when the
offender unlawfully acquires possession of personal property even if for a
short time; or if such property is under the dominion and control of the thief.
The taker, at some particular amount, must have obtained complete and
absolute possession and control of the property adverse to the rights of the
owner or the lawful possessor thereof.56 It is not necessary that the property
be actually carried away out of the physical possession of the lawful
possessor or that he should have made his escape with it.57 Neither
asportation nor actual manual possession of property is required.
Constructive possession of the thief of the property is enough.58
The essence of the element is the taking of a thing out of the possession of
the owner without his privity and consent and without animus revertendi.59
Taking may be by the offenders own hands, by his use of innocent persons
without any felonious intent, as well as any mechanical device, such as an
access device or card, or any agency, animate or inanimate, with intent to
gain. Intent to gain includes the unlawful taking of personal property for the
purpose of deriving utility, satisfaction, enjoyment and pleasure.60
_______________

53 Id.
54 See note 52, p. 725 (Italics supplied).
55 36 C.J.S. 737.

56 People v. Ashworth, 222 N.Y.S. 24 (1927).

57 People v. Salvilla, G.R. No. 86163, April 26, 1990, 184 SCRA 671, 677
(1990).
58 Harris v. State, 14 S.W. 390 (1890).

cells of different capacity known as an accumulator; or it may be sent

through a wire, just as gas or oil may be transported either in a close tank or
forced through a pipe. Having reached the premises of the consumer, it may
be used in any way he may desire, being, like illuminating gas, capable of

59 Woods v. People, 78 N.E. 607 (1906).

_______________

60 Villacorta v. Insurance Commission, G.R. No. 54171, October 28, 1980,

100 SCRA 467.
271

61 Supra note 28.

62 41 Phil. 364 (1921).

VOL. 483, FEBRUARY 27, 2006

271
Laurel vs. Abrogar
We agree with the contention of the respondents that intangible properties
such as electrical energy and gas are proper subjects of theft. The reason
for this is that, as explained by this Court in United States v. Carlos61 and
United States v. Tambunting,62 based on decisions of the Supreme Court of
Spain and of the courts in England and the United States of America, gas or
electricity are capable of appropriation by another other than the owner. Gas
and electrical energy may be taken, carried away and appropriated. In
People v. Menagas,63 the Illinois State Supreme Court declared that
electricity, like gas, may be seen and felt. Electricity, the same as gas, is a
valuable article of merchandise, bought and sold like other personal property
and is capable of appropriation by another. It is a valuable article of
merchandise, bought and sold like other personal property, susceptible of
being severed from a mass or larger quantity and of being transported from
place to place. Electrical energy may, likewise, be taken and carried away. It
is a valuable commodity, bought and sold like other personal property. It may
be transported from place to place. There is nothing in the nature of gas
used for illuminating purposes which renders it incapable of being
feloniously taken and carried away.
In People ex rel Brush Electric Illuminating Co. v. Wemple,64 the Court of
Appeals of New York held that electric energy is manufactured and sold in
determinate quantities at a fixed price, precisely as are coal, kerosene oil,
and gas. It may be conveyed to the premises of the consumer, stored in

63 11 N.E.2d 403 (1937).

64 29 N.E. 808 (1892) (Emphasis supplied).
272

272
SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar
being transformed either into heat, light, or power, at the option of the
purchaser. In Woods v. People,65 the Supreme Court of Illinois declared that
there is nothing in the nature of gas used for illuminating purposes which
renders it incapable of being feloniously taken and carried away. It is a
valuable article of merchandise, bought and sold like other personal
property, susceptible of being severed from a mass or larger quantity and of
being transported from place to place.
Gas and electrical energy should not be equated with business or services
provided by business entrepreneurs to the public. Business does not have
an exact definition. Business is referred as that which occupies the time,
attention and labor of men for the purpose of livelihood or profit. It embraces
everything that which a person can be employed.66 Business may also
mean employment, occupation or profession. Business is also defined as a
commercial activity for gain benefit or advantage.67 Business, like services
in business, although are properties, are not proper subjects of theft under
the Revised Penal Code because the same cannot be taken or occupied.

If it were otherwise, as claimed by the respondents, there would be no

juridical difference between the taking of the business of a person or the
services provided by him for gain, vis--vis, the taking of goods, wares or
merchandise, or equipment comprising his business.68 If it was its intention
to include business as personal property under Article 308 of the Revised
Penal Code, the Philippine Legislature should have spoken in language that
is clear and definite: that business is personal property under Article 308 of
the Revised Penal Code.69
_______________

65 Supra note 59 (Emphasis supplied).

66 Doggett v. Burnet, 65 F.2d 191 (1933).

In defining theft, under Article 308 of the Revised Penal Code, as the taking
of personal property without the consent of the owner thereof, the Philippine
legislature could not have contemplated the human voice which is converted
into electronic impulses or electrical current which are transmitted to the
party called through the PSTN of respondent PLDT and the ISR of Baynet
Card Ltd. within its coverage. When the Revised Penal Code was approved,
on December 8, 1930, international telephone calls and the transmission
and routing of electronic voice signals or impulses emanating from said
calls, through the PSTN, IPL and ISR, were still nonexistent. Case law is
that, where a legislative history fails to evidence congressional awareness of
the scope of the statute claimed by the respondents, a narrow interpretation
of the law is more consistent with the usual approach to the construction of
the statute. Penal responsibility cannot be extended beyond the fair scope of
the statutory mandate.70

68 United States v. McCraken, 19 C.M.R. 876 (1955).

Respondent PLDT does not acquire possession, much less, ownership of

the voices of the telephone callers or of the electronic voice signals or
current emanating from said calls. The human voice and the electronic voice
signals or current caused thereby are intangible and not susceptible of
posses-

69 People v. Tansey, 593 N.Y.S. 2d 426 (1992).

_______________

67 Blacks Law Dictionary, 5th ed., p. 179; Union League Club v. Johnson,
108 P.2d 487, 490 (1940).

273
70 People v. Case, 42 N.Y.S. 2d 101.
VOL. 483, FEBRUARY 27, 2006

274

273
Laurel vs. Abrogar

274

We agree with the contention of the petitioner that, as gleaned from the
material averments of the Amended Information, he is charged of stealing
the international long distance calls belonging to PLDT and the use thereof,
through the ISR. Contrary to the claims of the OSG and respondent PLDT,
the petitioner is not charged of stealing P20,370,651.95 from said
respondent. Said amount of P20,370,651.95 alleged in the Amended
Information is the aggregate amount of access, transmission or termination
charges which the PLDT expected from the international long distance calls
of the callers with the use of Baynet Super Orient Cards sold by Baynet Co.
Ltd.

SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar
sion, occupation or appropriation by the respondent PLDT or even the
petitioner, for that matter. PLDT merely transmits the electronic voice signals
through its facilities and equipment. Baynet Card Ltd., through its operator,
merely intercepts, reroutes the calls and passes them to its toll center.
Indeed, the parties called receive the telephone calls from Japan.

In this modern age of technology, telecommunications systems have

become so tightly merged with computer systems that it is difficult to know
where one starts and the other finishes. The telephone set is highly
computerized and allows computers to communicate across long
distances.71 The instrumentality at issue in this case is not merely a
telephone but a telephone inexplicably linked to a computerized
communications system with the use of Baynet Cards sold by the Baynet
Card Ltd. The corporation uses computers, modems and software, among
others, for its ISR.72
The conduct complained of by respondent PLDT is reminiscent of
phreaking (a slang term for the action of making a telephone system to do
something that it normally should not allow by making the phone company
bend over and grab its ankles). A phreaker is one who engages in the act
of manipulating phones and illegally markets telephone services.73 Unless
the phone company replaces all its hardware, phreaking would be
impossible to stop. The phone companies in North America were impelled to
replace all their hardware and adopted full digital switching system known as
the Common Channel Inter Office Signaling. Phreaking occurred only during
the 1960s and 1970s, decades after the Revised Penal Code took effect.
The petitioner is not charged, under the Amended Information, for theft of
telecommunication or telephone services
_______________

offered by PLDT. Even if he is, the term personal property under Article 308
of the Revised Penal Code cannot be interpreted beyond its seams so as to
include telecommunication or telephone services or computer services for
that matter. The word service has a variety of meanings dependent upon
the context, or the sense in which it is used; and, in some instances, it may
include a sale. For instance, the sale of food by restaurants is usually
referred to as service, although an actual sale is involved.74 It may also
mean the duty or labor to be rendered by one person to another;
performance of labor for the benefit of another.75 In the case of PLDT, it is to
render local and international telecommunications services and such other
services as authorized by the CPCA issued by the NTC. Even at common
law, neither time nor services may be taken and occupied or appropriated.76
A service is generally not considered property and a theft of service would
not, therefore, constitute theft since there can be no caption or
asportation.77 Neither is the unauthorized use of the equipment and
facilities of PLDT by the petitioner theft under the aforequoted provision of
the Revised Penal Code.78
If it was the intent of the Philippine Legislature, in 1930, to include services
to be the subject of theft, it should have incorporated the same in Article 308
of the Revised Penal Code. The Legislature did not. In fact, the Revised
Penal Code does not even contain a definition of services.
If taking of telecommunication services or the business of a person, is to be
proscribed, it must be by special statute79 or
_______________

71 Commonwealth v. Gerulis, 616 A.2d 686 (1992).

72 Rollo, p. 138.

74 Central Power and Light Co. v. State, 165 S.W. 2d 920 (1942).

73 Commonwealth v. Gerulis, supra note 71.

75 Blacks Law Dictionary, p. 1227.

275

76 Lund v. Commonwealth, 232 S.E.2d 745 (1977); 50 Am. Jur. 2d Larceny,

p. 83.

VOL. 483, FEBRUARY 27, 2006

275
Laurel vs. Abrogar

77 Imbau, Thomson, Moenssens, Criminal Law, Second Edition, p. 6247, 2

Wharton Criminal Law, Prodded, 604:369.
78 Id., at p. 746; Commonwealth v. Rivera, 583 N.E.2d 867 (1991).
79 People v. Tansey, supra note 69.

276

276
SUPREME COURT REPORTS ANNOTATED

professional services, have not been included within the traditional scope of
the term property in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and penalizes theft of
services, thus:
277

Laurel vs. Abrogar

an amendment of the Revised Penal Code. Several states in the United
States, such as New York, New Jersey, California and Virginia, realized that
their criminal statutes did not contain any provisions penalizing the theft of
services and passed laws defining and penalizing theft of telephone and
computer services. The Pennsylvania Criminal Statute now penalizes theft
of services, thus:
(a) Acquisition of services.
(1) A person is guilty of theft if he intentionally obtains services for himself or
for another which he knows are available only for compensation, by
deception or threat, by altering or tampering with the public utility meter or
measuring device by which such services are delivered or by causing or
permitting such altering or tampering, by making or maintaining any
unauthorized connection, whether physically, electrically or inductively, to a
distribution or transmission line, by attaching or maintaining the attachment
of any unauthorized device to any cable, wire or other component of an
electric, telephone or cable television system or to a television receiving set
connected to a cable television system, by making or maintaining any
unauthorized modification or alteration to any device installed by a cable
television system, or by false token or other trick or artifice to avoid payment
for the service.
In the State of Illinois in the United States of America, theft of labor or
services or use of property is penalized:
(a) A person commits theft when he obtains the temporary use of property,
labor or services of another which are available only for hire, by means of
threat or deception or knowing that such use is without the consent of the
person providing the property, labor or services.
In 1980, the drafters of the Model Penal Code in the United States of
America arrived at the conclusion that labor and services, including

VOL. 483, FEBRUARY 27, 2006

277
Laurel vs. Abrogar
(1) A person is guilty of theft if he purposely obtains services which he knows
are available only for compensation, by deception or threat, or by false token
or other means to avoid payment for the service. Services include labor,
professional service, transportation, telephone or other public service,
accommodation in hotels, restaurants or elsewhere, admission to
exhibitions, use of vehicles or other movable property. Where compensation
for service is ordinarily paid immediately upon the rendering of such service,
as in the case of hotels and restaurants, refusal to pay or absconding
without payment or offer to pay gives rise to a presumption that the service
was obtained by deception as to intention to pay; (2) A person commits theft
if, having control over the disposition of services of others, to which he is not
entitled, he knowingly diverts such services to his own benefit or to the
benefit of another not entitled thereto.
Interestingly, after the State Supreme Court of Virginia promulgated its
decision in Lund v. Commonwealth,80 declaring that neither time nor
services may be taken and carried away and are not proper subjects of
larceny, the General Assembly of Virginia enacted Code No. 18-2-98 which
reads:
Computer time or services or data processing services or information or data
stored in connection therewith is hereby defined to be property which may
be the subject of larceny under 18.2-95 or 18.2-96, or embezzlement
under 18.2-111, or false pretenses under 18.2-178.
In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of
Alabama of 1975 penalizes theft of services: A person commits the crime of
theft of services if: (a) He intentionally obtains services known by him to be

available only for compensation by deception, threat, false token or other

means to avoid payment for the services . . .
In the Philippines, Congress has not amended the Revised Penal Code to
include theft of services or theft of business as
_______________

80 See note 76.

278

278

the credit card under Article 308 of the Revised Penal Code; violation of
Republic Act No. 8484; and estafa under Article 315(2)(a) of the Revised
Penal Code with the service provider as the private complainant. The
petitioner is not charged of estafa before the RTC in the Amended
Information.
Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000
provides:
Sec. 33. Penalties.The following Acts shall be penalized by fine and/or
imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized access into or
interference in a computer system/server or information and
279

SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

VOL. 483, FEBRUARY 27, 2006

felonies. Instead, it approved a law, Republic Act No. 8484, otherwise known
as the Access Devices Regulation Act of 1998, on February 11, 1998. Under
the law, an access device means any card, plate, code, account number,
electronic serial number, personal identification number and other
telecommunication services, equipment or instrumentalities-identifier or
other means of account access that can be used to obtain money, goods,
services or any other thing of value or to initiate a transfer of funds other
than a transfer originated solely by paper instrument. Among the prohibited
acts enumerated in Section 9 of the law are the acts of obtaining money or
anything of value through the use of an access device, with intent to defraud
or intent to gain and fleeing thereafter; and of effecting transactions with one
or more access devices issued to another person or persons to receive
payment or any other thing of value. Under Section 11 of the law, conspiracy
to commit access devices fraud is a crime. However, the petitioner is not
charged of violation of R.A. 8484.

279

Significantly, a prosecution under the law shall be without prejudice to any

liability for violation of any provisions of the Revised Penal Code inclusive of
theft under Rule 308 of the Revised Penal Code and estafa under Article
315 of the Revised Penal Code. Thus, if an individual steals a credit card
and uses the same to obtain services, he is liable of the following: theft of

Laurel vs. Abrogar

communication system; or any access in order to corrupt, alter, steal, or
destroy using a computer or other similar information and communication
devices, without the knowledge and consent of the owner of the computer or
information and communications system, including the introduction of
computer viruses and the like, resulting on the corruption, destruction,
alteration, theft or loss of electronic data messages or electronic documents
shall be punished by a minimum fine of One hundred thousand pesos
(P100,000.00) and a maximum commensurate to the damage incurred and
a mandatory imprisonment of six (6) months to three (3) years.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
assailed Orders of the Regional Trial Court and the Decision of the Court of
Appeals are REVERSED and SET ASIDE. The Regional Trial Court is
directed to issue an order granting the motion of the petitioner to quash the
Amended Information.
SO ORDERED.

Ynares-Santiago and Austria-Martinez, JJ., concur.

Panganiban (C.J., Chairperson), No part. Former counsel of a party.

VOL. 363, AUGUST 16, 2001

Chico-Nazario, J., On Leave.

333

Petition granted, orders reversed and set aside.

Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue

Note.The elements of theft are: (1) personal property of another person

must be taken without the latters consent; (2) the act of taking the personal
property of another must be done without the use of violence against or
intimidation of persons nor force upon things, and (3) there must be an
intention to gain from the taking of another persons personal property.
(Lucas vs. Court of Appeals, 389 SCRA 749 [2002])

Petitioners counsel now was the same counsel engaged by Davao Gulf
Lumber Corporation in said case, wherein we upheld the appellate courts
computation of the refund based on rates provided in Sections 1 and 2 of
R.A. No. 1435. Despite said ruling, petitioner through counsel now
undauntingly urges this Court to take a second look at the ruling in Davao
Gulf, citing as reasons the very same arguments therein raised. Despite
petitioners studied assertions, however we find no reason to depart from our
Davao Gulf decision. While petitioner is indeed entitled to a refund under
Section 5 of R.A. No. 1435, we hold that since the partial refund is in the
nature of a tax exemption, it must be construed strictly against the grantee.
Thus, we reiterate our well-considered view in Davao Gulf: We have
carefully scrutinized RA 1435 and the subsequent pertinent statutes and
found no expression of a legislative will authorizing a refund based on higher
rates claimed by petitioner. The mere fact that the privilege of refund was
included in Section 5 and not in Section 1, is insufficient to support
petitioners claim. When the law itself does not explicitly provide that a
refund under RA 1435 may be based on higher rates which were
nonexistent at the time of its enactment, this Court cannot presume
otherwise. A legislative lacuna cannot be filled by judicial fiat.

o0o [Laurel vs. Abrogar, 483 SCRA 243(2006)]

332
SUPREME COURT REPORTS ANNOTATED
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue
G.R. No. 132155. August 16, 2001.*
ARAS-ASAN TIMBER CO., INC., petitioner, vs. COMMISSIONER OF
INTERNAL REVENUE and HON. COURT OF APPEALS, respondents.
Taxation; Tax Refunds; When the law itself does not explicitly provide that a
refund under R.A. 1435 may be based on higher rates which were
nonexistent at the time of its enactment, the Court cannot presume
otherwisea legislative lacuna cannot be filled by judicial fiat.At the
outset, we find instructive in this case our ruling in Davao Gulf Lumber
Corporation vs. Commissioner of Internal Revenue, promulgated on July 23,
1998.
_________________

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Carpio, Villaraza & Cruz for petitioner.
The Solicitor General for respondent.
QUISUMBING, J.:

* SECOND DIVISION.
333

This is an appeal by certiorari under Rule 45 of the Rules of Court from the
decision of the Court of Appeals which affirmed the judgment of the Court of
Tax Appeals in C.T.A. Case No. 3524, partially granting a claim for tax refund
of specific taxes in favor of petitioner Aras-Asan Timber Co., Inc.
Briefly, the facts of the case are as follows:
Petitioner Aras-Asan Timber Company Inc., is a duly-licensed forest
concessionaire with a Timber Licensing Agreement entered into with the
then Ministry of Natural Resources, now Department of Environment and
Natural Resources. During the period beginning from July 1, 1980 to
October 31, 1981, petitioner purchased
334

334
SUPREME COURT REPORTS ANNOTATED
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue
from Mobil Oil Philippines, Inc., refined and manufactured mineral oil, motor
fuel, and diesel fuel oil, which petitioner actually and exclusively used in
connection with the operation of its forest concession.

SECTION 1. Section 153 of the National Internal Revenue Code of 1977, as

amended, is hereby further amended to read as follows:
SEC. 153. Specific tax on manufactured oils and other fuels.On refined
and manufactured mineral oils and motor fuels, there shall be collected the
following taxes which shall attach to the articles hereunder enumerated as
soon as they are in existence as such:
(a) Kerosene, per liter of volume capacity, seven centavos;
(b) Lubricating oils, per liter of volume capacity, eighty centavos;
(c) Naphtha, gasoline and all other similar products of distillation, per liter of
volume capacity, ninety-one centavos: Provided, That, on premium and
aviation gasoline, the tax shall be one peso per liter of volume capacity;
(d) On denatured alcohol to be used for motive power, per liter of volume
capacity, one centavo: Provided, That, unless otherwise provided for by
special laws, if the denatured alcohol is mixed with gasoline, the specific tax
on which has already been paid, only the alcohol content shall be subject to
the tax herein prescribed. For the purposes of this subsection, the removal
of denatured alcohol of not less than one hundred eighty degrees proof
(ninety per centum absolute alcohol) shall
335

Pursuant to Sections 153 and 156 of the 1977 National Internal Revenue
Code (NIRC),1 Mobil Oil Philippines, Inc., paid and passed

VOL. 363, AUGUST 16, 2001

________________

335
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue

1 Sections 153 and 156 of the 1977 NIRC (formerly Sections 142 and 145 of
the NIRC, as amended) underwent several amendments. At the time
petitioners purchased the manufactured oils and paid the corresponding
specific taxes, the following provisions of Sections 153 and 156 of the 1977
NIRC were applicable:
(A) Presidential Decree No. 1672 (effective February 8, 1980 to March 20,
1981)

on to petitioner the specific taxes on refined and manufactured mineral oil,

motor fuel and diesel fuel oil, which were included in
___________________

be deemed to have been removed for motive power, unless shown to the
contrary;

(e) Processed gas, per liter of volume capacity, three centavos;

Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue

(f) Thinners and solvents, per liter of volume capacity, fifty-seven centavos;

the purchase price. Thereafter, on September 23, 1982, petitioner filed a

claim for tax refund with the Commissioner of Internal Revenue, in the
amount of P152,794.38, representing 25% of the specific taxes passed on to
it by Mobil Oil Philippines, Inc.

(g) Liquefied petroleum gas, per kilogram, fourteen centavos: Provided,

That, liquefied petroleum gas used for motive power shall be taxed at the
equivalent rate as the specific tax on diesel fuel oil;
(h) Asphalts, per kilogram, eight centavos;
(i) Greases, waxes and petrolatum, per kilogram, fifty centavos;
(j) Aviation turbo jet fuel, per liter of volume capacity, fifty-five centavos.

Petitioner based its claim for refund on the Supreme Court ruling in the case
of Insular Lumber Co. vs. Court of Tax Appeals2 and Section 53 of Republic
Act No. 1435 or An Act to Provide Means for
_____________________

(B) Executive Order No. 672 (effective March 21, 1981)

SECTION 1. The rates of specific tax on certain petroleum products are
hereby revised, hereby amending for this purpose Sections 153, 155 and
156 of the National Internal Revenue Code to read as follows:
SEC. 153. Specific tax on manufactured oils and other fuels.On refined
and manufactured mineral oils and motor fuels, there shall be collected the
following taxes which shall attach to the articles hereunder enumerated as
soon as they are in existence as such:
(a) Kerosene, per liter of volume capacity, nine centavos;
(b) Lubricating oils, per liter of volume capacity, eighty centavos;
(c) Naphtha, gasoline and all other similar products of distillation, per liter of
volume capacity, one peso and six centavos: Provided, That on premium
and aviation gasoline the tax shall be one peso and ten centavos and one
peso, respectively, per liter of volume capacity;
(d) On denatured alcohol to be used for motive power, per liter of volume
capacity, one centavo: Provided, That unless
336

336
SUPREME COURT REPORTS ANNOTATED

otherwise provided for by special laws, if the denatured alcohol is mixed with
gasoline, the specific tax on which has already been paid, only the alcohol
content shall be subject to the tax herein prescribed. For the purpose of this
subsection, the removal of denatured alcohol of not less then one hundred
eighty degrees proof (ninety per centum absolute alcohol) shall be deemed
to have been removed for motive power, unless shown to the contrary;
(e) Processed gas, per liter of volume capacity, three centavos;
(f) Thinners and solvents, per liter of volume capacity, sixty-one centavos;
(g) Liquefied petroleum gas, per kilogram, twenty-one centavos: Provided,
That liquified petroleum gas used for motive power shall be taxed at the
equivalent rate as the specific tax on diesel fuel oil;
(h) Asphalts, per kilogram, twelve centavos;
(i) Greases, waxes and petroleum, per kilogram, fifty centavos;
(j) Aviation turbe-jet fuel, per liter of volume capacity, sixty-four centavos.
xxx
SEC. 156. Specific tax on diesel fuel oil.On fuel oil, commercially known
as diesel fuel oil, and all similar fuel oils, having more or less the same
generating power, per liter of volume capacity, twenty-five and one-half
centavos, which tax shall attach to this fuel oil as soon as it is in existence
as such.

2 104 SCRA 710 (1981).

3 SEC. 5. The proceeds of the additional tax on manufactured oils shall
accrue to the road and bridge funds of the political subdivision for whose
benefit the tax is collected: Provided, however, That whenever any oils
mentioned above are used by miners or forest concessionaires in their
337

VOL. 363, AUGUST 16, 2001

337
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue
Increasing the Highway Special Fund. To support its claim, petitioner
presented the affidavits of its president, cost accountant, chief accountant
and two other duly-licensed forest concessionaires, to prove that for the
period of July 1, 1980 to October 30, 1981, petitioner had actually used said
petroleum products in its forest operations.
Without waiting for respondent Commissioners decision on the matter,
petitioner filed on October 8, 1982, a petition for review with the Court of Tax
Appeals so as to prevent the lapse of the two-year prescriptive period within
which to judicially claim a refund under Section 230 of the 1977 NIRC.4
On December 17, 1993, the CTA rendered judgment5 granting the tax
refund, but in the reduced amount of P2,721.63. While agreeing with
petitioner that a tax refund was in order, the CTA differed in its computation
of the amount to be refunded to petitioner and relied on the Supreme Courts
pronouncement in Commissioner of Internal Revenue vs. Rio Tuba Nickel
Mining Corporation and Court of Tax Appeals6 as well as the subsequent
Resolu- tion7clarifying its pronouncement.
In accordance with this ruling, the CTA based the 25% refund on the amount
deemed paid by petitioner under the provisions of
__________________

operations, twenty-five per centum of the specific tax paid thereon shall be
refunded by the Collector of Internal Revenue upon submission of proof of
actual use of oils and under similar conditions enumerated in subparagraphs
one and two of section one hereof, amending section one hundred forty-two
of the Internal Revenue Code: Provided, further, That no new road shall be
constructed unless the routes or location thereof shall have been approved
by the Commissioner of Public Highways after a determination that such
road can be made part of an integral and articulated route in the Philippine
Highway System, as required in section twenty-six of the Philippine Highway
Act of 1953.
4 Rollo, pp. 15-17.
5 Id. at 87-109.
6 202 SCRA 137 (1991).
7 Dated March 25, 1992.
338

338
SUPREME COURT REPORTS ANNOTATED
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue
Sections I8 and 29 of R.A. No. 1435, instead of the amount which petitioner
actually paid under Sections 153 and 156 of the 1977
__________________

8 SECTION 1. Section one hundred and forty-two of the National Internal

Revenue Code, as amended, is further amended to read as follows:
SEC. 142. Specific Tax on manufactured oils and other fuels.On refined
and manufactured mineral oils and motor fuels, there shall be collected the
following taxes:

(a) Kerosene or petroleum, per liter of volume capacity, two and one-half
centavos;
(b) Lubricating oils, per liter of volume capacity, seven centavos;
(c) Naptha, gasoline, and all other similar products of distillation, per liter of
volume capacity, eight centavos; and
(d) On denatured alcohol to be used for motive power, per liter of volume
capacity, one centavo: Provided, That if the denatured alcohol is mixed with
gasoline, the specific tax on which has already been paid, only the alcohol
content shall be subject to the tax herein prescribed. For the purpose of this
subsection, the removal of denatured alcohol of not less than one hundred
eighty degrees proof (ninety per centum absolute alcohol) shall be deemed
to have been removed for motive power, unless shown to the contrary.
Whenever any of the oils mentioned above are, during the five years from
June eighteen, nineteen hundred and fifty two, used in agriculture and
aviation, fifty per centum of the specific tax paid thereon shall be refunded
by the Collector of Internal Revenue upon the submission of the following:
(1) A sworn affidavit of the producer and two disinterested persons proving
that the said oils were actually used in agriculture, or in lieu thereof.
(2) Should the producer belong to any producers association or federation,
duly registered with the Securities and Exchange Commission, the affidavit
of the president of the association or federation, attesting to the fact that the
oils were actually used in agriculture.
(3) In the case of aviation oils, a sworn certificate satisfactory to the
Collector proving that the said oils were actually used in aviation: Provided,
That no such refunds shall be granted in respect to the oils used in aviation
by citizens and corporations of foreign countries which do not grant
equivalent refunds or exemptions in respect to similar oils used in aviation
by citizens and corporations of the Philippines.
9 SEC. 2. Section one hundred and forty-five of the National Internal
Revenue Code, as amended, is further amended to read as follows:
339

VOL. 363, AUGUST 16, 2001

339
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue
NIRC. The latter statutory provisions, which were applicable at the time of
payment of the specific tax, amended Sections 1 and 2 of R.A. No. 1435 by
increasing the tax rates prescribed therein.
As earlier stated, the Court of Appeals affirmed the CTAs judgment10 and
denied petitioners motion for reconsideration.11 Hence, this petition for
review.
Petitioner submits that the appellate court committed the following errors:
I

BASING THE REFUND ON THE AMOUNTS DEEMED PAID UNDER

SECTIONS 1 AND 2 OF REPUBLIC ACT NO. 1435 IS CONTRARY TO
THIS HONORABLE COURTS EN BANC DECISION IN THE 1981
INSULAR LUMBER CASE, WHICH GRANTED THE CLAIM FOR PARTIAL
REFUND OF SPECIFIC TAXES ACTUALLY PAID BY THE CLAIMANT,
WITHOUT QUALIFICATION OR LIMITATION.
II

THE SAID RULING IGNORES THE INCREASE IN RATES IMPOSED BY

SUCCEEDING AMENDATORY LAWS UNDER WHICH PETITIONER PAID
THE SPECIFIC TAXES ON MANUFACTURED AND DIESEL FUELS.
III

THE RULE ON STRICTISSIMI JURIS FINDS NO APPLICATION IN THE

CASE SUBJECT OF THE INSTANT PETITION, AND THE RESPONDENT
COURT WENT AGAINST ESTABLISHED RULES OF CONSTRUCTION
WHEN IT LENT ITSELF TO INTERPRETING SECTION 5 OF REPUBLIC

ACT NO. 1435, CONSIDERING THAT THE CONSTRUCTION OF SAID

LAW IS NOT NECESSARY.
__________________

SEC. 145. Specific Tax on Diesel fuel oil.On fuel oil, commercially known
as diesel fuel oil, and on all similar fuel oils, having more or less the same
generating power, there shall be collected, per metric ton, one peso.
10 Supra, note 4 at 49-67.
11 Id. at 69-70.
340

340
SUPREME COURT REPORTS ANNOTATED

Notwithstanding the above formulation of alleged errors, we find that the

principal issue is whether or not the lower court erred in its computation of
the amount to be refunded to petitioner.
At the outset, we find instructive in this case our ruling in Davao Gulf Lumber
Corporation vs. Commissioner of Internal Revenue,14 promulgated on July
23, 1998. Petitioners counsel now was the same counsel engaged by
Davao Gulf Lumber Corporation in said case, wherein we upheld the
appellate courts computation of the refund based on rates provided in
Sections 115 and 2 16 of R.A. No. 1435. Despite said ruling, petitioner
through counsel now undauntingly urges this Court to take a second look at
the ruling in Davao Gulf, citing as reasons the very same arguments therein
raised.
Despite petitioners studied assertions, however we find no reason to depart
from our Davao Gulf decision. While petitioner is indeed entitled to a refund
under Section 517 of R.A. No. 1435, we hold that since the partial refund is
in the nature of a tax exemp_______________

Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue

IV

12 Should be Sections 153 and 156.

13 Supra, note 4 at 20-21.

SECTIONS 1 AND 2 OF REPUBLIC ACT NO. 1435 ARE NOT THE

OPERATIVE PROVISIONS TO BE APPLIED BUT, RATHER, SECTIONS
142 AND 14512 OF THE 1977 NIRC (NOW SECTION 148 OF THE 1997
NIRC).
V

14 293 SCRA 76 (1998).

15 Supra note 8.
16 Supra note 9.
17 Supra note 3.
341

BASING THE COMPUTATION OF THE PARTIAL TAX REFUND ON

SECTIONS 1 AND 2 OF REPUBLIC ACT NO. 1435, RATHER THAN
SECTIONS 153 AND 156 OF THE 1977 NIRC (NOW SECTION 148 OF
THE 1997 NIRC), IS UNFAIR, ERRONEOUS, ARBITRARY, INEQUITABLE,
AND OPPRESSIVE).13

VOL. 363, AUGUST 16, 2001

341
Aras-Asan Timber Co., Inc. vs. Commissioner of Internal Revenue

tion, it must be construed strictly against the grantee. Thus, we reiterate our
well-considered view in Davao Gulf:
We have carefully scrutinized RA 1435 and the subsequent pertinent
statutes and found no expression of a legislative will authorizing a refund
based on higher rates claimed by petitioner. The mere fact that the privilege
of refund was included in Section 5 and not in Section 1, is insufficient to
support petitioners claim. When the law itself does not explicitly provide that
a refund under RA 1435 may be based on higher rates which were
nonexistent at the time of its enactment, this Court cannot presume
otherwise. A legislative lacuna cannot be filled by judicial fiat.18

342
SUPREME COURT REPORTS ANNOTATED
People vs. Morales
The taxpayer may file a claim for refund or credit with the Commissioner of
Internal Revenue, within two (2) years after payment of tax, before any suit
in CTA is commenced. (Philippine Bank of Communications vs.
Commissioner of Internal Revenue, 302 SCRA 241 [1999])

Given this circumstance, we no longer find it necessary to discuss the other

issues raised by petitioner. They have been well covered in Davao Gulf,
supra. Suffice it to say that here the challenged decision of the Court of
Appeals affirming that of the Court of Tax Appeals stands on sound statutory
and jurisprudential foundations and need not be disturbed.

Tax refunds are in the nature of tax exemptions, and as such they are
regarded as in derogation of sovereign authority and to be construed
strictissimi juris against the person or entity claiming the exemption.
(Commissioner of Internal Revenue vs. S.C. Johnson and Son, Inc., 309
SCRA 87 [1999])

WHEREFORE, the instant petition is DENIED and the assailed judgment of

the Court of Appeals in C.A.-G.R. SP No. 33062 is AFFIRMED. Costs
against petitioner.

o0o [Aras-Asan Timber Co., Inc. vs. Commissioner of Internal

Revenue, 363 SCRA 332(2001)]

SO ORDERED.
Bellosillo (Chairman), Mendoza, Buena and De Leon, Jr., JJ., concur.
Petition denied, judgment affirmed.
Notes.In the context of 230 of the National Internal Revenue Code, which
provides for a two-year period of prescription counted from the date of
payment of the tax for actions for refund of corporate income tax, the twoyear period should be computed from the time of actual filing of the
Adjustment Return or Annual Income Tax Return. (Commissioner of Internal
Revenue vs. Court of Appeals, 301 SCRA 435 [1999])
__________________

18 293 SCRA 76, 88 (1998) citing: Paper Industries Corp. of the Phil. vs.
CA, G.R. Nos. 106984-85, 250 SCRA 434, 455 (1995).
342

VOL. 467, AUGUST 16, 2005

93
Philippine Long Distance Telephone Company,Inc. vs. Province of Laguna
G.R. No. 151899. August 16, 2005.*
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, INC., petitioner,
vs. PROVINCE OF LAGUNA and MANUEL E. LEYCANO, JR., in his
capacity as the Provincial Treasurer of the Province of Laguna, respondents.
Taxation; Principles; Exemption; Applying the rule of strict construction of
laws granting tax exemptions and the rule that doubts should be resolved in
favor of municipal corporations in interpreting statutory provisions on
municipal taxing powers, we hold that Section 23 of R.A. No. 7925 cannot
be considered as having amended petitioners franchise so as to entitle it to
exemption from the imposition of local franchise taxes.In sum, it does not
appear that, in approving 23 of R.A. No. 7925, Congress intended it to
operate as a blanket tax exemption to all telecommunications entities.
Applying the rule of strict construction of laws granting tax exemptions and

the rule that doubts should be resolved in favor of municipal corporations in

interpreting statutory provisions on municipal taxing powers, we hold that
23 of R.A. No. 7925 cannot be considered as having amended petitioners
franchise so as to entitle it to exemption from the imposition of local
franchise taxes.
Same; Same; Same; Strictissimi Juris; The tax exemption must be
expressed in the statute in clear language that leaves no doubt of the
intention of the legislature to grant such exemption.When ex-

which others are subjected. Consequently, the rule that tax exemption
should be applied in strictissimi juris against the taxpayer and liberally in
favor of the government applies equally to tax exclusions. To construe
otherwise the in lieu of all taxes provision invoked is to be inconsistent with
the theory that R.A. No. 7925, 23 grants tax exemption because of a
similar grant to Globe and Smart.

SUPREME COURT REPORTS ANNOTATED

Same; Department of Finance; Bureau of Local Government Finance

(BLGF); The Bureau of Local Government Finance (BLGF) is not an
administrative agency whose findings on questions of fact are given weight
and deference in the courts.To be sure, the BLGF is not an administrative
agency whose findings on questions of fact are given weight and deference
in the courts. The authorities cited by petitioner pertain to the Court of Tax
Appeals, a highly specialized court which performs judicial functions as it
was created for the review of tax cases. In contrast, the BLGF was created
merely to provide consultative services and technical assistance to local
governments and the general public on local taxation, real property
assessment, and other related matters, among others. The question raised
by petitioner is a legal question, to wit, the interpretation of 23 of R.A. No.
7925. There is, therefore, no basis for claiming expertise for the BLGF that
administrative agencies are said to possess in their respective fields.

Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna

95

_______________

* THIRD DIVISION.
94

94

emption is claimed, it must be shown indubitably to exist. At the outset,

every presumption is against it. A well-founded doubt is fatal to the claim. It
is only when the terms of the concession are too explicit to admit fairly of
any other construction that the proposition can be supported. The tax
exemption must be expressed in the statute in clear language that leaves no
doubt of the intention of the legislature to grant such exemption. And, even if
it is granted, the exemption must be interpreted in strictissimi juris against
the taxpayer and liberally in favor of the taxing authority.
Same; Same; Same; Tax Exclusion; Both in their nature and in their effect
there is no difference between tax exemption and tax exclusion.Both in
their nature and in their effect there is no difference between tax exemption
and tax exclusion. Exemption is an immunity or privilege; it is freedom from
a charge or burden to which others are subjected. Exclusion, on the other
hand, is the removal of otherwise taxable items from the reach of taxation,
e.g., exclusions from gross income and allowable deductions. Exclusion is
thus also an immunity or privilege which frees a taxpayer from a charge to

VOL. 467, AUGUST 16, 2005

95
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
PETITION for review on certiorari of a decision of the Regional Trial Court of
Sta. Cruz, Laguna, Br. 91.

The facts are stated in the opinion of the Court.

Estelito P. Mendoza for petitioner.
Antonio P. Relova for respondents.

GARCIA, J.:

SUPREME COURT REPORTS ANNOTATED

Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna

Twice, this Court has denied the earlier plea of petitioner Philippine Long
Distance Company, Inc. (PLDT) to be adjudged exempt from the payment of
franchise tax assessed against it by local government units. The first was in
the 2001 case of PLDT vs. City of Davao 1 and the second, in the very
recent case of PLDT vs. City of Bacolod, et al. 2 Indeed, no less than the
Court en banc, in its Resolution of March 25, 2003,3 denied PLDTs motion
for reconsideration in Davao. In both cases, the Court in effect ruled that the
desired relief is not legally feasible.
No less than PLDTs third, albeit this time involving the Province of Laguna,
the instant similar petition for review on certiorari under Rule 45 of the Rules
of Court seeks the reversal of the decision dated 28 November 20014 of the
Regional Trial Court at Laguna, dismissing PLDTs petition in its Civil Case
No. SC-3953, an action for refund of franchise tax.
Except for inconsequential factual details which understandably vary from
the first two (2) PLDT cases, the legal landscape is practically the same:
PLDT is a holder of a legislative franchise under Act No. 3436, as amended,
to render local and international telecommunications services. On August
24, 1991, the terms and
_______________

conditions of its franchise were consolidated under Republic Act No. 7082,5
Section 12 of which embodies the so-called in-lieu-of-all taxes clause,
whereunder PLDT shall pay a franchise tax equivalent to three percent (3%)
of all its gross receipts, which franchise tax shall be in lieu of all taxes.
More specifically, the provision pertinently reads:
SEC. 12. x x x In addition thereto, the grantee, its successors or assigns
shall pay a franchise tax equivalent to three percent (3%) of all gross
receipts of the telephone or other telecommunications businesses
transacted under this franchise by the grantee, its successors or assigns,
and the said percentage shall be in lieu of all taxes on this franchise or
earnings thereof: x x x (Italics ours).
Meanwhile, or on January 1, 1992, Republic Act No. 7160, otherwise known
as the Local Government Code, took effect. Section 137 of the Code, in
relation to Section 151 thereof, grants provinces and other local government
units the power to impose local franchise tax on businesses enjoying a
franchise, thus:
SEC. 137. Franchise Tax.Notwithstanding any exemption granted by any
law or other special law, the province may impose a tax on businesses
enjoying a franchise, at a rate not exceeding fifty percent (50%) of one
percent (1%) of the gross annual receipts for the preceding calendar year
based on the incoming receipt, or realized, within its territorial jurisdiction.

3 447 Phil. 571; 399 SCRA 442 (2003).

By Section 193 of the same Code, all tax exemption privileges then enjoyed
by all persons, whether natural or juridicial, save those expressly mentioned
therein, were withdrawn, necessarily including those taxes from which PLDT
is exempted under the in-lieu-of-all taxes clause in its charter. We quote
Section 193:

4 Rollo, pp. 100, et seq.

_______________

1 415 Phil. 769; 363 SCRA 522 (August 22, 2001).

2 G.R. No. 149179, prom. July 15, 2005, 463 SCRA 528

96

96

5 An Act Further Amending Act No. 3436, as amended, x x x Consolidating

the Terms and Conditions of the Franchise Granted to [PLDT], and
Extending the Said Franchise by Twenty-Five (25) Years from the Expiration
thereof x x x.

97

VOL. 467, AUGUST 16, 2005

the franchise, the life span of the franchise, or the type of the service
authorized by the franchise.
98

97
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
SEC. 193. Withdrawal of Tax Exemption Privileges.Unless otherwise
provided in this Code, tax exemptions or incentives granted to, or presently
enjoyed by all persons, whether natural or juridical, including governmentowned or controlled corporations, except local water districts, cooperatives
duly registered under R.A. 6938, non-stock and non-profit hospitals and
educational institutions, are hereby withdrawn upon the effectivity of this
Code.
Invoking its authority under Section 137, supra, of the Local Government
Code, the Province of Laguna, through its local legislative assembly,
enacted Provincial Ordinance No. 01-92, made effective January 1, 1993,
imposing a franchise tax upon all businesses enjoying a franchise, PLDT
included.
On January 28, 1998, PLDT, in compliance with the aforementioned
Ordinance, paid the Province of Laguna its local franchise tax liability for the
year 1998 in the amount of One Million Eighty-One Thousand Two Hundred
Twelve and 10/100 Pesos (P1,081,212.10).
Prior thereto, Congress, aiming to level the playing field among
telecommunication companies, enacted Republic Act No. 7925, otherwise
known as the Public Telecommunications Policy Act of the Philippines, which
took effect on March 16, 1995. To achieve the legislative intent, Section 23
thereof, also known as the most-favored treatment clause, provides for an
equality of treatment in the telecommunications industry, to wit:
SEC. 23. Equality of Treatment in the Telecommunications Industry.Any
advantage, favor, privilege, exemption, or immunity granted under existing
franchises, or may hereafter be granted, shall ipso facto become part of
previously granted telecommunications franchises and shall be accorded
immediately and unconditionally to the grantees of such franchises:
Provided, however, That the foregoing shall neither apply to nor affect
provisions of telecommunications franchises concerning territory covered by

98
SUPREME COURT REPORTS ANNOTATED
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
Then, on June 2, 1998, the Department of Finance, thru its Bureau of Local
Government Finance (BLGF), issued a ruling to the effect that as of March
16, 1995, the effectivity date of the Public Telecommunications Policy Act of
the Philippines,6 PLDT, among other telecommunication companies,
became exempt from local franchise tax. Pertinently, the BLGF ruling reads:
It appears that RA 7082 further amending Act No. 3436 which granted to
PLDT a franchise to install, operate and maintain a telephone system
throughout the Philippine Islands was approved on August 3, 1991. Section
12 of said franchise, likewise contains the in lieu of all taxes proviso.
In this connection, Section 23 of RA 7929, quoted hereunder, which was
approved on March 1, 1995 provides for the equality of treatment in the
telecommunications industry:
xxx

xxx

xxx

On the basis of the aforequoted Section 23 of RA 7925, PLDT as a

telecommunications franchise holder becomes automatically covered by the
tax exemption provisions of RA 7925, which took effect on March 16, 1995.
Accordingly, PLDT shall be exempt from the payment of franchise and
business taxes imposable by LGUs under Sections 137 and 143,
respectively of the LGC [Local Government Code], upon the effectivity of RA
7925 on March 16, 1995. However, PLDT shall be liable to pay the franchise
and business taxes on its gross receipts realized from January 1, 1992 up to
March 15, 1995, during which period PLDT was not enjoying the most
favored clause provision of RA 7025 [sic].

On the basis of the aforequoted ruling, PLDT refused to pay the Province of
Laguna its local franchise tax liability for 1999. And, on December 22, 1999,
it even filed with the Office of the Provincial Treasurer a written claim for
refund of the amount it paid as local franchise tax for 1998.
_______________

6 Rep. Act No. 7925.

99

VOL. 467, AUGUST 16, 2005

GOVERNMENT CODE, NO FRANCHISE TAXES MAY BE IMPOSED ON

PETITIONER BY RESPONDENT PROVINCE.
5.01.b. THE LOWER COURT ERRED IN NOT HOLDING THAT SECTION
137 OF THE LOCAL GOVERNMENT CODE, WHICH ALLOWS
RESPONDENT PROVINCE TO IMPOSE THE FRANCHISE TAX, AND
SECTION 193 THEREOF, WHICH PROVIDES FOR WITHDRAWAL OF TAX
EXEMPTION PRIVILEGES, ARE NOT APPLICABLE IN THIS CASE.
5.01.c. THE LOWER COURT ERRED IN APPLYING PRINCIPLES OF
STATUTORY CONSTRUCTION THAT TAX EXEMPTIONS ARE
DISFAVORED AND IN HOLDING THAT SECTION 23 OF REPUBLIC ACT
NO. 7925 (PUBLIC TELECOMMUNICATIONS POLICY ACT) DOES NOT
SUPPORT PETITIONERS POSITION IN THIS CASE.
100

99
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
With no refund having been made, PLDT instituted with the Regional Trial
Court at Laguna a petition therefor against the Province and its Provincial
Treasurer, which petition was thereat docketed as Civil Case No. SC-3953.
In its decision of November 28, 2001, the trial court denied PLDTs petition,
thus:
WHEREFORE, the petition is denied. Petitioner PLDT is not exempt from
paying local franchise and business taxes to the Respondent Province.
Refund is denied. For failure to substantiate the claim for exemplary
damages and attorneys fees, the same is likewise denied.

100
SUPREME COURT REPORTS ANNOTATED
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
5.01.d. THE LOWER COURT ERRED IN NOT GIVING WEIGHT TO THE
RULING OF THE DEPARTMENT OF FINANCE, THROUGH ITS BUREAU
OF LOCAL GOVERNMENT FINANCE, THAT PETITIONER IS EXEMPT
FROM THE PAYMENT OF FRANCHISE AND BUSINESS TAXES
IMPOSABLE BY LOCAL GOVERNMENT UNITS UNDER THE LOCAL
GOVERNMENT CODE.

Hence, this recourse by PLDT, faulting the trial court, as follows:

5.01.e. THE LOWER COURT ERRED IN NOT GRANTING PETITIONERS

CLAIM FOR TAX REFUND. 5.01.f. THE LOWER COURT ERRED IN
DENYING THE PETITION BELOW.

5.01.a. THE LOWER COURT ERRED IN NOT HOLDING THAT UNDER

PETITIONERS FRANCHISE (REPUBLIC ACT NO. 7082), AS AMENDED
AND EXPANDED BY SECTION 23 OF REPUBLIC ACT NO. 7925, TAKING
INTO ACCOUNT THE FRANCHISES OF GLOBE TELECOM INC.,
(GLOBE) (REPUBLIC ACT NO. 7229) AND SMART COMMUNICATIONS,
INC. (SMART) (REPUBLIC ACT NO. 7294), WHICH ARE SPECIAL
PROVISIONS AND WERE ENACTED SUBSEQUENT TO THE LOCAL

We note, quite interestingly, that except for the particular local government
units involved in the earlier case of PLDT vs. City of Davao 7 and the very
recent case of PLDT vs. City of Bacolod, et al.,8 the arguments presently
advanced by petitioner on the issues raised herein are but a mere reiteration
if not repetition of the very same arguments it has already raised in the two
(2) earlier PLDT cases. For sure, the errors presently assigned are
substantially the same as those in Davao and in Bacolod, all of which have

SO ORDERED.

been adequately addressed and passed upon by this Court in its decisions
therein as well as in its en banc Resolution in Davao.
In PLDT vs. City of Davao, and again in PLDT vs. City of Bacolod, et al., this
Court has interpreted Section 23 of Rep. Act No. 7925. There, we ruled that
Section 23 does not operate to exempt PLDT from the payment of franchise
tax. We quote what we have said in Davao and reiterated in Bacolod.

To begin with, tax exemptions are highly disfavored. The reason for this was
explained by this Court in Asiatic Petroleum Co. v. Llanes, in which it was
held:

101

. . . Exemptions from taxation are highly disfavored, so much so that they

may almost be said to be odious to the law. He who claims an exemption
must be able to point to some positive provision of law creating the right. . .
As was said by the Supreme Court of Tennessee in Memphis vs. U. & P.
Bank (91 Tenn., 546, 550), The right of taxation is inherent in the State. It is
a prerogative essential to the perpetuity of the government; and he who
claims an exemption from the common burden must justify his claim by the
clearest grant of organic or statute law. Other utterances equally or more
emphatic come readily to hand from the highest authority. In Ohio Life Ins.
and Trust Co. vs. Debolt (16 Howard, 416), it was said by Chief Justice
Taney, that the right of taxation will not be held to have been surrendered,
unless the intention to surrender is manifested by words too plain to be
mistaken. In the case of the Delaware Railroad Tax (18 Wallace, 206, 226),
the Supreme Court of the United States said that the surrender, when
claimed, must be shown by clear, unambiguous language, which will admit
of no reasonable construction consistent with the reservation of the power. If
a doubt arises as to the intent of the legislature, that doubt must be solved in
favor of the State. In Erie Railway Company vs. Commonwealth of
Pennsylvania (21 Wallace, 492, 499), Mr. Justice Hunt, speaking of
exemptions, observed that a State cannot strip itself of the most essential
power of taxation by doubtful words. It cannot, by ambiguous language, be
deprived of this highest attribute of sovereignty. In Tennessee vs. Whitworth
(117 U.S., 129, 136), it was said: In all cases of this kind the question is as
to the intent of the legislature,

Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna

_______________

In sum, it does not appear that, in approving 23 of R.A. No. 7925,

Congress intended it to operate as a blanket tax exemption to all
telecommunications entities. Applying the rule of strict construction of laws
granting tax exemptions and the rule that doubts should be resolved in favor
of municipal corporations in interpreting statutory provisions on municipal
taxing powers, we hold that 23 of R.A.
_______________

7 See footnote # 1.
8 See footnote # 2.
101

VOL. 467, AUGUST 16, 2005

No. 7925 cannot be considered as having amended petitioners franchise so

as to entitle it to exemption from the imposition of local franchise taxes.
Consequently, we hold that petitioner is liable to pay local franchise taxes in
the amount of P3,681,985.72 for the period covering the first to the fourth
quarter of 1999 and that it is not entitled to a refund of taxes paid by it for the
period covering the first to the third quarter of 1998.9
The Court explains further:

9 Id., p. 780.
102

102
SUPREME COURT REPORTS ANNOTATED

Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna

the presumption always being against any surrender of the taxing power. In
Farrington vs. Tennessee and County of Shelby (95 U.S., 379, 686), Mr.
Justice Swayne said: . . . When exemption is claimed, it must be shown
indubitably to exist. At the outset, every presumption is against it. A wellfounded doubt is fatal to the claim. It is only when the terms of the
concession are too explicit to admit fairly of any other construction that the
proposition can be supported.
The tax exemption must be expressed in the statute in clear language that
leaves no doubt of the intention of the legislature to grant such exemption.
And, even if it is granted, the exemption must be interpreted in strictissimi
juris against the taxpayer and liberally in favor of the taxing authority.
xxx

xxx

xxx

The fact is that the term exemption in 23 is too general. A cardinal rule in
statutory construction is that legislative intent must be ascertained from a
consideration of the statute as a whole and not merely of a particular
provision. For, taken in the abstract, a word or phrase might easily convey a
meaning which is different from the one actually intended. A general
provision may actually have a limited application if read together with other
provisions. Hence, a consideration of the law itself in its entirety and the
proceedings of both Houses of Congress is in order.
xxx

xxx

xxx

R.A. No. 7925 is thus a legislative enactment designed to set the national
policy on telecommunications and provide the structures to implement it to
keep up with the technological advances in the industry and the needs of the
public. The thrust of the law is to promote gradually the deregulation of the
entry, pricing, and operations of all public telecommunications entities and
thus promote a level playing field in the telecommunications industry. There
is nothing in the language of 23 nor in the proceedings of both the House of
Representatives and the Senate in enacting R.A. No. 7925 which shows that
it contemplates the grant of tax exemptions to all telecommunications
entities, including those whose exemptions had been withdrawn by the LGC.
What this Court said in Asiatic Petroleum Co. v. Llanes applies mutatis
mutandis to this case: When exemption is claimed, it must be shown
indubitably to exist. At the outset, every presumption is against it. A well-

founded doubt is fatal to the claim. It is only when the terms of the
concession are too explicit to admit fairly of any
103

VOL. 467, AUGUST 16, 2005

103
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
other construction that the proposition can be supported. In this case, the
word exemption in 23 of R.A. No. 7925 could contemplate exemption from
certain regulatory or reporting requirements, bearing in mind the policy of the
law. It is noteworthy that, in holding Smart and Globe exempt from local
taxes, the BLGF did not base its opinion on 23 but on the fact that the
franchises granted to them after the effectivity of the LGC exempted them
from the payment of local franchise and business taxes.
As before, PLDT argues that because Smart Communications, Inc.
(SMART) and Globe Telecom (GLOBE) under whose respective franchises
granted after the effectivity of the Local Government Code, are exempt from
franchise tax, it follows that petitioner is likewise exempt from the franchise
tax sought to be collected by the Province of Laguna, on the reasoning that
the grant of tax exemption to SMART and GLOBE ipso facto applies to
PLDT, consistent with the most-favored-treatment clause found in Section
23 of the Public Telecommunications Policy Act of the Philippines (Rep. Act
No. 7925).
Again, there is nothing novel in petitioners contention. For sure, in Davao,
this Court even adverted to PLDTs similar argument therein, thus:
Finally, it [PLDT] argues that because Smart and Globe are exempt from the
franchise tax, it follows that it must likewise be exempt from the tax being
collected by the City of Davao because the grant of tax exemption to Smart
and Globe ipso facto extended the same exemption to it,
which argument this Court rejected in said case in the following wise:
The acceptance of petitioners theory would result in absurd consequences.
To illustrate: In its franchise, Globe is required to pay a franchise tax of only

one and one-half per centum (1/2% [sic]) of all gross receipts from its
transactions while Smart is required to pay a tax of three percent (3%) on all
gross receipts from business transacted. Petitioners theory would require
that, to level the playing
104

104
SUPREME COURT REPORTS ANNOTATED

against dominant carriers through the encouragement of equitable access

charges and equal access clauses in interconnection agreements and the
strict policing of predatory pricing by dominant carriers. Equal access should
be granted to all operators connecting into the interexchange network. There
should be no discrimination against any carrier in terms of priorities and/or
quality of services.
Nor does the term exemption in 23 of R.A. No. 7925 mean tax exemption.
The term refers to exemption from certain regula_______________

Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna

field, any advantage, favor, privilege, exemption, or immunity granted to
Globe must be extended to all telecommunications companies, including
Smart. If, later, Congress again grants a franchise to another
telecommunications company imposing, say, one percent (1%) franchise
tax, then all other telecommunications franchises will have to be adjusted to
level the playing field so to speak. This could not have been the intent of
Congress in enacting Section 23 of Rep. Act 7925. Petitioners theory will
leave the Government with the burden of having to keep track of all granted
telecommunications franchises, lest some companies be treated unequally.
It is different if Congress enacts a law specifically granting uniform
advantages, favor, privilege, exemption or immunity to all
telecommunications entities.
On PLDTs motion for reconsideration in Davao, the Court added in its en
banc Resolution of March 25, 2003,10 that even as it is a state policy to
promote a level playing field in the communications industry, Section 23 of
Rep. Act No. 7925 does not refer to tax exemption but only to exemption
from certain regulations and requirements imposed by the National
Telecommunications Commission:
x x x. The records of Congress are bereft of any discussion or even mention
of tax exemption. To the contrary, what the Chairman of the Committee on
Transportation, Rep. Jerome V. Paras, mentioned in his sponsorship of H.B.
No. 14028, which became R.A. No. 7925, were equal access clauses in
interconnection agreements, not tax exemptions. He said:
There is also a need to promote a level playing field in the
telecommunications industry. New entities must be granted protection

10 447 Phil. 571; 399 SCRA 442 (2003).

105

VOL. 467, AUGUST 16, 2005

105
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna
tions and requirements imposed by the National Telecommunications
Commission (NTC). For instance, R.A. No. 7925, 17 provides: The
Commission shall exempt any specific telecommunications service from its
rate or tariff regulations if the service has sufficient competition to ensure fair
and reasonable rates or tariffs. Another exemption granted by the law in line
with its policy of deregulation is the exemption from the requirement of
securing permits from the NTC every time a telecommunications company
imports equipment.11
PLDTs third assigned error has likewise been squarely addressed in the
same en banc Resolution, when the Court rejected PLDTs contention that
the in-lieu-of-all-taxes clause does not refer to tax exemption but to tax
exclusion and hence, the strictissimi juris rule does not apply. The en banc
explains that these two terms actually mean the same thing, such that the
rule that tax exemption should be applied in strictissimi juris against the
taxpayer and liberally in favor of the government applies equally to tax
exclusions:

Indeed, both in their nature and in their effect there is no difference between
tax exemption and tax exclusion. Exemption is an immunity or privilege; it is
freedom from a charge or burden to which others are subjected. Exclusion,
on the other hand, is the removal of otherwise taxable items from the reach
of taxation, e.g., exclusions from gross income and allowable deductions.
Exclusion is thus also an immunity or privilege which frees a taxpayer from a
charge to which others are subjected. Consequently, the rule that tax
exemption should be applied in strictissimi juris against the taxpayer and
liberally in favor of the government applies equally to tax exclusions. To
construe otherwise the in lieu of all taxes provision invoked is to be
inconsistent with the theory that R.A. No. 7925, 23 grants tax exemption
because of a similar grant to Globe and Smart.12
As in Davao, PLDT presently faults the trial court for not giving weight to the
ruling of the BLGF which, to petitioners
_______________

11 Id., pp. 580-581; SCRA pp. 448-449.

12 Id., p. 584; SCRA p. 452.
106

consultative services and technical assistance to local governments and the

general public on local taxation, real property assessment, and other related
matters, among others. The question raised by petitioner is a legal question,
to wit, the interpretation of 23 of R.A. No. 7925. There is, therefore, no
basis for claiming expertise for the BLGF that administrative agencies are
said to possess in their respective fields.13
With the reality that the arguments presently advanced by petitioner are but
a mere reiteration if not a virtual repetition of the very same arguments it has
already raised in Davao and in Bacolod, all of which arguments and
submissions have been extensively addressed and adequately passed upon
by this Court in its decisions in said two (2) PLDT cases, and noting that the
instant recourse has not raised any new fresh issue to warrant a second
look, it, too, must have to fall.
WHEREFORE, and on the basis of our consistent ruling in PLDT vs. City of
Davao and PLDT vs. City of Bacolod, et al., the petition is DENIED and the
assailed decision of the trial court AFFIRMED.
With treble costs against petitioner.
SO ORDERED.
Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.
_______________

106
SUPREME COURT REPORTS ANNOTATED
Philippine Long Distance Telephone Company, Inc. vs. Province of Laguna

13 Supra, pp. 779-780; 363 SCRA 522, 534 (2001)

107

mind, is an administrative agency with technical expertise and mastery over

the specialized matters assigned to it. Again, to quote from our ruling in
Davao:

VOL. 467, AUGUST 16, 2005

To be sure, the BLGF is not an administrative agency whose findings on

questions of fact are given weight and deference in the courts. The
authorities cited by petitioner pertain to the Court of Tax Appeals, a highly
specialized court which performs judicial functions as it was created for the
review of tax cases. In contrast, the BLGF was created merely to provide

San Miguel Corp. (Mandaue Packaging Products Plants) vs. Mandaue

Packing Products Plants-San Miguel Packaging ProductsSan Miguel Corp.
Monthlies Rank-and-File Union-FFW

107

Panganiban, J. (Chairman), No Part. Former counsel of a party.

Petition denied, assailed trial court decision affirmed.

Note.Laws granting exemption from tax are construed strictissimi juris
against the taxpayer and liberally in favor of the taxing power. (Sea-Land
Service, Inc. vs. Court of Appeals, 357 SCRA 441 [2001])
o0o [Philippine Long Distance Telephone Company,Inc. vs.
Province of Laguna, 467 SCRA 93(2005)]
478
SUPREME COURT REPORTS ANNOTATED
Asian Transmission Corporation vs. Court of Appeals
G.R. No. 144664. March 15, 2004.*
ASIAN TRANSMISSION CORPORATION, petitioner, vs. The Hon. COURT
OF APPEALS, Thirteenth Division, HON. FROILAN M. BACUNGAN as
Voluntary Arbitrator, KISHIN A. LALWANI, Union, Union representative to the
Panel Arbitrators; BISIG NG ASIAN TRANSMISSION LABOR UNION
(BATLU); HON. BIENVENIDO T. LAGUESMA in his capacity as Secretary of
Labor and Employment; and DIRECTOR CHITA G. CILINDRO in her
capacity as Director of Bureau of Working Conditions, respondents.
Actions; Pleadings and Practice; Certiorari; For the writ of certiorari under
Rule 65 of the Rules of Court to issue, a petitioner must show that he has no
plain, speedy and adequate remedy in the ordinary course of law against its
perceived grievance.[S]ince the Court of Appeals had jurisdiction over the
petition under Rule 65, any alleged errors committed by it in the exercise of
its jurisdiction would be errors of judgment which are reviewable by timely
appeal and not by a special civil action of certiorari. If the aggrieved party
fails to do so within the reglementary period, and the decision accordingly
becomes final and executory, he cannot avail himself of the writ of certiorari,
his predicament being the effect of his deliberate inaction. The appeal from a
final disposition of the Court of Appeals is a petition for review under Rule 45
and not a special civil action under Rule 65 of the Rules of Court, now Rule
45 and Rule 65, respectively, of the 1997 Rules of Civil Procedure. Rule 45
is clear that the decisions, final orders or resolutions of the Court of Appeals
in any case, i.e., regardless of the nature of the action or proceeding
involved, may be appealed to this Court by filing a petition for review, which
would be but a continuation of the appellate process over the original case.

Under Rule 45 the reglementary period to appeal is fifteen (15) days from
notice of judgment or denial of motion for reconsideration. x x x For the writ
of certiorari under Rule 65 of the Rules of Court to issue, a petitioner must
show that he has no plain, speedy and adequate remedy in the ordinary
course of law against its perceived grievance. A remedy is considered plain,
speedy and adequate if it will promptly relieve the petitioner from the
injurious effects of the judgment and the acts of the lower court or agency. In
this case, appeal was not only available but also a speedy and adequate
remedy.
Labor Law; Salaries; Holiday Pay; Holiday pay is a legislated benefit
enacted as part of the Constitutional imperative that the State shall afford
protection to labor.Holiday pay is a legislated benefit enacted as part of
the Constitutional imperative that the State shall afford protection to
_______________

* THIRD DIVISION.
479

VOL. 425, MARCH 15, 2004

479
Asian Transmission Corporation vs. Court of Appeals
labor. Its purpose is not merely to prevent diminution of the monthly income
of the workers on account of work interruptions. In other words, although the
worker is forced to take a rest, he earns what he should earn, that is, his
holiday pay. It is also intended to enable the worker to participate in the
national celebrations held during the days identified as with great historical
and cultural significance.
Same; Same; Same; Unlike a bonus, which is a management prerogative,
holiday pay is a statutory benefit demandable under the law.As reflected
above, Art. 94 of the Labor Code, as amended, affords a worker the
enjoyment of ten paid regular holidays. The provision is mandatory,
regardless of whether an employee is paid on a monthly or daily basis.

Unlike a bonus, which is a management prerogative, holiday pay is a

statutory benefit demandable under the law. Since a worker is entitled to the
enjoyment of ten paid regular holidays, the fact that two holidays fall on the
same date should not operate to reduce to nine the ten holiday pay benefits
a worker is entitled to receive.
Same; Same; Same; Article 4 of the Labor Code provides that all doubts in
the implementation and interpretation of its provisions shall be resolved in
favor of labor.In any event, Art. 4 of the Labor Code provides that all
doubts in the implementation and interpretation of its provisions, including its
implementing rules and regulations, shall be resolved in favor of labor. For
the working mans welfare should be the primordial and paramount
consideration.
Same; Same; Same; The Omnibus Rules provides for non-diminution of
benefits for unworked regular holidays.Sec. 11, Rule IV, Book III of the
Omnibus Rules to Implement the Labor Code provides that Nothing in the
law or the rules shall justify an employer in withdrawing or reducing any
benefits, supplements or payments for unworked regular holidays as
provided in existing individual or collective agreement or employer practice
or policy.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.

Augusto Gatmaytan and Lorenzo B. Ziga for petitioner.
Sanidad, Abaya, Te, Viterbo, Enriquez & Tan Law Firm for BATLU.
CARPIO-MORALES, J.:

Petitioner, Asian Transmission Corporation, seeks via petition for certiorari

under Rule 65 of the 1995 Rules of Civil Procedure
480

480

SUPREME COURT REPORTS ANNOTATED

Asian Transmission Corporation vs. Court of Appeals
the nullification of the March 28, 2000 Decision1 of the Court of Appeals
denying its petition to annul 1) the March 11, 1993 Explanatory Bulletin2 of
the Department of Labor and Employment (DOLE) entitled Workers
Entitlement to Holiday Pay on April 9, 1993, Araw ng Kagitingan and Good
Friday, which bulletin the DOLE reproduced on January 23, 1998, 2) the
July 31, 1998 Decision3 of the Panel of Voluntary Arbitrators ruling that the
said explanatory bulletin applied as well to April 9, 1998, and 3) the
September 18, 19984 Resolution of the Panel of Voluntary Arbitration
denying its Motion for Reconsideration.
The following facts, as found by the Court of Appeals, are undisputed:
The Department of Labor and Employment (DOLE), through Undersecretary
Cresenciano B. Trajano, issued an Explanatory Bulletin dated March 11,
1993 wherein it clarified, inter alia, that employees are entitled to 200% of
their basic wage on April 9, 1993, whether unworked, which[,] apart from
being Good Friday [and, therefore, a legal holiday], is also Araw ng
Kagitingan [which is also a legal holiday]. The bulletin reads:
On the correct payment of holiday compensation on April 9, 1993 which
apart from being Good Friday is also Araw ng Kagitingan, i.e., two regular
holidays falling on the same day, this Department is of the view that the
covered employees are entitled to at least two hundred percent (200%) of
their basic wage, even if said holiday is unworked. The first 100% represents
the payment of holiday pay on April 9, 1993 as Good Friday and the second
100% is the payment of holiday pay for the same date as Araw ng
Kagitingan.
Said bulletin was reproduced on January 23, 1998, when April 9, 1998 was
both Maundy Thursday and Araw ng Kagitingan x x x x
Despite the explanatory bulletin, petitioner [Asian Transmission Corporation]
opted to pay its daily paid employees only 100% of their basic pay on April 9,
1998. Respondent Bisig ng Asian Transmission Labor Union (BATLU)
protested.
In accordance with Step 6 of the grievance procedure of the Collective
Bargaining Agreement (CBA) existing between petitioner and BATLU, the

controversy was submitted for voluntary arbitration. x x x x On July 31, 1998,

the Office of the Voluntary Arbitrator rendered a decision
_______________

1 Rollo at pp. 39-51.

2 Rollo at p. 37.
3 Rollo at pp. 58-70.
4 Rollo at p. 120.
481

(c) As used in this Article, holiday includes: New Years Day, Maundy
Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June,
the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of
December and the day designated by law for holding a general election,
which was amended by Executive Order No. 203 issued on June 30, 1987,
such that the regular holidays are now:
1.
New Years
Day January 1
2.
Maundy Thursday

VOL. 425, MARCH 15, 2004

481
Asian Transmission Corporation vs. Court of Appeals
directing petitioner to pay its covered employees 200% and not just 100%
of their regular daily wages for the unworked April 9, 1998 which covers two
regular holidays, namely, Araw ng Kagitingan and Maundy Thursday.
(Emphasis and italics supplied)
Subject of interpretation in the case at bar is Article 94 of the Labor Code
which reads:
ART. 94. Right to holiday pay.(a) Every worker shall be paid his regular
daily wage during regular holidays, except in retail and service
establishments regularly employing less than ten (10) workers;
(b) The employer may require an employee to work on any holiday but such
employee shall be paid a compensation equivalent to twice his regular rate;
and

Movable Date
3.
Good Friday
Movable Date
4.
Araw ng Kagitingan (Bataan
Corregidor Day)
April 9
5.
Labor Day
May 1
6.
Independence Day
June 12

7.
National Heroes Day Last
Sunday of August
8.
Bonifacio Day
November 30
9.
Christmas Day
December 25
10.
Rizal Day
December 30
In deciding in favor of the Bisig ng Asian Transmission Labor Union
(BATLU), the Voluntary Arbitrator held that Article 94 of the Labor Code
provides for holiday pay for every regular holiday, the computation of which
is determined by a legal formula which is not changed by the fact that there
are two holidays falling on one day, like on April 9, 1998 when it was Araw
ng Kagitingan and at
482

482
SUPREME COURT REPORTS ANNOTATED

the same time was Maundy Thursday; and that that the law, as amended,
enumerates ten regular holidays for every year should not be interpreted as
authorizing a reduction to nine the number of paid regular holidays just
because April 9 (Araw ng Kagitingan) in certain years, like 1993 and 1998, is
also Holy Friday or Maundy Thursday.
In the assailed decision, the Court of Appeals upheld the findings of the
Voluntary Arbitrator, holding that the Collective Bargaining Agreement (CBA)
between petitioner and BATLU, the law governing the relations between
them, clearly recognizes their intent to consider Araw ng Kagitingan and
Maundy Thursday, on whatever date they may fall in any calendar year, as
paid legal holidays during the effectivity of the CBA and that [t]here is no
condition, qualification or exception for any variance from the clear intent
that all holidays shall be compensated.5
The Court of Appeals further held that in the absence of an explicit provision
in law which provides for [a] reduction of holiday pay if two holidays happen
to fall on the same day, any doubt in the interpretation and implementation of
the Labor Code provisions on holiday pay must be resolved in favor of
labor.
By the present petition, petitioners raise the following issues:
I

WHETHER OR NOT THE RESPONDENT COURT OF APPEALS

COMMITTED GRAVE ABUSE OF DISCRETION IN ERRONEOUSLY
INTERPRETING THE TERMS OF THE COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE PARTIES AND SUBSTITUTING ITS OWN
JUDGMENT IN PLACE OF THE AGREEMENTS MADE BY THE PARTIES
THEMSELVES
II

Asian Transmission Corporation vs. Court of Appeals

WHETHER OR NOT THE RESPONDENT COURT OF APPEALS
COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT ANY
DOUBTS ABOUT THE VALIDITY OF THE POLICIES ENUNCIATED IN THE
EXPLANATORY BULLETIN WAS LAID TO REST BY THE REISSUANCE
OF THE SAID EXPLANATORY BULLETIN

_______________

5 Rollo at p. 48.
483

WHETHER OR NOT THE RESPONDENT COURT OF APPEALS

COMMITTED GRAVE ABUSE OF DISCRETION IN SUSTAINING THE
SECRETARY OF THE DEPARTMENT OF LABOR IN REITERATING ITS
EXPLANATORY BULLETIN DATED MARCH 11, 1993 AND IN ORDERING
THAT THE SAME POLICY OBTAINED FOR APRIL 9, 1998 DESPITE THE
RULINGS OF THE SUPREME COURT TO THE CONTRARY
VI

VOL. 425, MARCH 15, 2004

Asian Transmission Corporation vs. Court of Appeals

WHETHER OR NOT RESPONDENTS ACTS WILL DEPRIVE PETITIONER

OF PROPERTY WITHOUT DUE PROCESS BY THE EXPLANATORY
BULLETIN AS WELL AS EQUAL PROTECTION OF LAWS

III

The petition is devoid of merit.

483

WHETHER OR NOT THE RESPONDENT COURT OF APPEALS

COMMITTED GRAVE ABUSE OF DISCRETION IN UPHOLDING THE
VALIDITY OF THE EXPLANATORY BULLETIN EVEN WHILE ADMITTING
THAT THE SAID BULLETIN WAS NOT AN EXAMPLE OF A JUDICIAL,
QUASI-JUDICIAL, OR ONE OF THE RULES AND REGULATIONS THAT
[Department of Labor and Employment] DOLE MAY PROMULGATE
IV

At the outset, it bears noting that instead of assailing the Court of Appeals
Decision by petition for review on certiorari under Rule 45 of the 1997 Rules
of Civil Procedure, petitioner lodged the present petition for certiorari under
Rule 65.
[S]ince the Court of Appeals had jurisdiction over the petition under Rule 65,
any alleged errors committed by it in the exercise of its jurisdiction would be
errors of judgment which are reviewable by timely appeal and not by a
special civil action of certiorari. If the aggrieved party fails to
484

WHETHER OR NOT THE SECRETARY OF THE DEPARTMENT OF

LABOR AND EMPLOYMENT (DOLE) BY ISSUING EXPLANATORY
BULLETIN DATED MARCH 11, 1993, IN THE GUISE OF PROVIDING
GUIDELINES ON ART. 94 OF THE LABOR CODE, COMMITTED GRAVE
ABUSE OF DISCRETION, AS IT LEGISLATED AND INTERPRETED
LEGAL PROVISIONS IN SUCH A MANNER AS TO CREATE
OBLIGATIONS WHERE NONE ARE INTENDED BY THE LAW
V

484
SUPREME COURT REPORTS ANNOTATED
Asian Transmission Corporation vs. Court of Appeals
do so within the reglementary period, and the decision accordingly becomes
final and executory, he cannot avail himself of the writ of certiorari, his
predicament being the effect of his deliberate inaction.
The appeal from a final disposition of the Court of Appeals is a petition for
review under Rule 45 and not a special civil action under Rule 65 of the
Rules of Court, now Rule 45 and Rule 65, respectively, of the 1997 Rules of

Civil Procedure. Rule 45 is clear that the decisions, final orders or

resolutions of the Court of Appeals in any case, i.e., regardless of the nature
of the action or proceeding involved, may be appealed to this Court by filing
a petition for review, which would be but a continuation of the appellate
process over the original case. Under Rule 45 the reglementary period to
appeal is fifteen (15) days from notice of judgment or denial of motion for
reconsideration.
xxx
For the writ of certiorari under Rule 65 of the Rules of Court to issue, a
petitioner must show that he has no plain, speedy and adequate remedy in
the ordinary course of law against its perceived grievance. A remedy is
considered plain, speedy and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment and the acts of the lower
court or agency. In this case, appeal was not only available but also a
speedy and adequate remedy.6
The records of the case show that following petitioners receipt on August
18, 2000 of a copy of the August 10, 2000 Resolution of the Court of
Appeals denying its Motion for Reconsideration, it filed the present petition
for certiorari on September 15, 2000, at which time the Court of Appeals
decision had become final and executory, the 15-day period to appeal it
under Rule 45 having expired.
Technicality aside, this Court finds no ground to disturb the assailed
decision.
Holiday pay is a legislated benefit enacted as part of the Constitutional
imperative that the State shall afford protection to labor.7 Its purpose is not
merely to prevent diminution of the monthly income of the workers on
account of work interruptions. In other words, although the worker is forced
to take a rest, he earns what
_______________

485

VOL. 425, MARCH 15, 2004

485
Asian Transmission Corporation vs. Court of Appeals
he should earn, that is, his holiday pay.8 It is also intended to enable the
worker to participate in the national celebrations held during the days
identified as with great historical and cultural significance.
Independence Day (June 12), Araw ng Kagitingan (April 9), National Heroes
Day (last Sunday of August), Bonifacio Day (November 30) and Rizal Day
(December 30) were declared national holidays to afford Filipinos with a
recurring opportunity to commemorate the heroism of the Filipino people,
promote national identity, and deepen the spirit of patriotism. Labor Day
(May 1) is a day traditionally reserved to celebrate the contributions of the
working class to the development of the nation, while the religious holidays
designated in Executive Order No. 203 allow the worker to celebrate his faith
with his family.
As reflected above, Art. 94 of the Labor Code, as amended, affords a worker
the enjoyment of ten paid regular holidays.9 The provision is mandatory,10
regardless of whether an employee is paid on a monthly or daily basis.11
Unlike a bonus, which is a management prerogative,12 holiday pay is a
statutory benefit demandable under the law. Since a worker is entitled to the
enjoyment of ten paid regular holidays, the fact that two holidays fall on the
same date should not operate to reduce to nine the ten holiday pay benefits
a worker is entitled to receive.
It is elementary, under the rules of statutory construction, that when the
language of the law is clear and unequivocal, the law
_______________

6 San Miguel Corporation v. Court of Appeals, G.R. No. 146775, January 30,
2002, 375 SCRA 311, 315, citing National Irrigation Administration v. Court
of Appeals, G.R. No. 129169, November 17, 1999, 318 SCRA, 263-264.
7 CONST., Art. XIII, Sec. 3.

8 Vide Jose Rizal College v. National Labor Relations Commission and

NATOW, G.R. No. 65482, December 1, 1987, 156 SCRA 27.

9 Vide Book V, Title I of Pres. Decree No. 1083, Code of Muslim Personal
Laws of the Philippines, (February 4, 1977) which recognizes the official
Muslim holidays.

implementing rules and regulations, shall be resolved in favor of labor. For

the working mans welfare should be the primordial and paramount
consideration.16

10 Art. 94 of the Labor Code provides by way of exception retail and service
establishments regularly employing less than ten (10) workers.

Moreover, Sec. 11, Rule IV, Book III of the Omnibus Rules to Implement the
Labor Code provides that Nothing in the law or the rules shall justify an
employer in withdrawing or reducing any benefits, supplements or payments
for unworked regular holidays as provided in existing individual or collective
agreement or employer practice or policy.17

11 Insular Bank of Asia and America Employees Union (IBAAEU) v. Inciong,

No. L-52415, October 23, 1984, 132 SCRA 663; Chartered Bank Employees
Association v. Ople, No. L-44717, August 28, 1985, 138 SCRA 273;
Mantrade/FMMC Division Employees and Workers Union v. Bacungan, No.
L-48437, September 30, 1986, 144 SCRA 510.
12 Producers Bank of the Philippines v. National Labor Relations
Commission, G.R. No. 100701, March 28, 2001, 355 SCRA 459, 496.

From the pertinent provisions of the CBA entered into by the parties,
petitioner had obligated itself to pay for the legal holidays as required by law.
Thus the 1997-1998 CBA incorporates the following provision:
_______________

486

486

13 Insular Bank of Asia and America Employees Union (IBAAEU) v. Inciong,

G.R. No. L-52415, October 23, 1984, 132 SCRA 663, 673.

SUPREME COURT REPORTS ANNOTATED

14 Wellington Investment and Manufacturing Corporation v. Trajano, G.R.

No. 114698, July 3, 1995, 245 SCRA 561.

Asian Transmission Corporation vs. Court of Appeals

15 Rollo at p. 49.

must be taken to mean exactly what it says.13 In the case at bar, there is
nothing in the law which provides or indicates that the entitlement to ten
days of holiday pay shall be reduced to nine when two holidays fall on the
same day.

16 Abella v. National Labor Relations Commission, G.R. No. 71812, July 20,
1987, 152 SCRA 140, 146.

Petitioners assertion that Wellington v. Trajano14 has over-ruled the DOLE

March 11, 1993 Explanatory Bulletin does not lie. In Wellington, the issue
was whether monthly-paid employees are entitled to an additional days pay
if a holiday falls on a Sunday. This Court, in answering the issue in the
negative, observed that in fixing the monthly salary of its employees,
Wellington took into account every working day of the year including the
holidays specified by law and excluding only Sunday. In the instant case,
the issue is whether daily-paid employees are entitled to be paid for two
regular holidays which fall on the same day.15
In any event, Art. 4 of the Labor Code provides that all doubts in the
implementation and interpretation of its provisions, including its

17 Vide Oceanic Pharmacol Employees Union v. Inciong, No. L-50568, 94

SCRA 270, 275.
487

VOL. 425, MARCH 15, 2004

487
Asian Transmission Corporation vs. Court of Appeals
ARTICLE XIV

PAID LEGAL HOLIDAYS

Petition dismissed.

The following legal holidays shall be paid by the COMPANY as required by

law:

Note.A bonus is a demandable or enforceable obligation when it is made

part of the wage or salary or compensation of the employee. (Metro Manila
Transit Organization, Inc. vs. National Labor Relations Commission, 245
SCRA 767 [1995])

1. New Years Day (January 1st)

2. Holy Thursday (moveable)
3. Good Friday (moveable)
4. Araw ng Kagitingan (April 9th)
5. Labor Day (May 1st)
6. Independence Day (June 12th)
7. Bonifacio Day [November 30]
8. Christmas Day (December 25th)
9. Rizal Day (December 30th)
10. General Election designated by law, if declared public nonworking
holiday
11. National Heroes Day (Last Sunday of August)
Only an employee who works on the day immediately preceding or after a
regular holiday shall be entitled to the holiday pay.
A paid legal holiday occurring during the scheduled vacation leave will result
in holiday payment in addition to normal vacation pay but will not entitle the
employee to another vacation leave.
Under similar circumstances, the COMPANY will give a days wage for
November 1st and December 31st whenever declared a holiday. When
required to work on said days, the employee will be paid according to Art. VI,
Sec. 36 hereof.18
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Vitug (Chairman), Sandoval-Gutierrez and Corona, JJ., concur.

o0o [Asian Transmission Corporation vs. Court of Appeals, 425

SCRA 478(2004)]
VOL. 253, FEBRUARY 9, 1996
509
Republic vs. Hernandez
G.R. No. 117209. February 9, 1996.*
REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. JOSE R.
HERNANDEZ, in his capacity as Presiding Judge, Regional Trial Court,
Branch 158, Pasig City and SPOUSES VAN MUNSON y NAVARRO and
REGINA MUNSON y ANDRADE, respondents.
Adoption; Evidence; Factual findings of the lower court, when sufficiently
buttressed by legal and evidential support, are accorded high respect and
are binding and conclusive upon the Supreme Court.It has been said all
too often enough that the factual findings of the lower court, when sufficiently
buttressed by legal and evidential support, are accorded high respect and
are binding and conclusive upon this Court. Accordingly, we fully uphold the
propriety of that portion of the order of the court below granting the petition
for adoption.
Same; Names; While the change of the adoptees surname to follow that of
the adopter is the natural and necessary consequence of a grant of
adoption, the given or proper name, also known as the first or Christian
name, of the adoptee must remain as it was originally registered in the civil
register.Clearly, the law allows the adoptee, as a matter of right and
obligation, to bear the surname of the adopter, upon issuance of the decree
of adoption. It is the change of the adoptees surname to follow that of the
adopter which is the natural and necessary consequence of a grant of
adoption and must specifically be contained in the order of the court, in fact,
even if not prayed for by petitioner. However, the given or proper name, also
known as the first or Christian name, of the adoptee must remain as it was

originally registered in the civil register. The creation of an adoptive

relationship does not confer upon the adopter a license to change the
adoptees registered Christian or first name. The automatic change thereof,
premised solely upon the adoption thus granted, is beyond the purview of a
decree of adoption. Neither is it a mere incident in nor an adjunct of an
adoption proceeding, such that a prayer therefor furtively inserted in a
petition for adoption, as in this case, cannot properly be granted.
_______________

* SECOND DIVISION.
510

510
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
Same; Same; Change of Name; Civil Register; The name of the adoptee as
recorded in the civil register should be used in the adoption proceedings in
order to vest the court with jurisdiction to hear and determine the same.
The name of the adoptee as recorded in the civil register should be used in
the adoption proceedings in order to vest the court with jurisdiction to hear
and determine the same, and shall continue to be so used until the court
orders otherwise. Changing the given or proper name of a person as
recorded in the civil register is a substantial change in ones official or legal
name and cannot be authorized without a judicial order. The purpose of the
statutory procedure authorizing a change of name is simply to have,
wherever possible, a record of the change, and in keeping with the object of
the statute, a court to which the application is made should normally make
its decree recording such change.
Same; Same; Same; Actions; If a change in ones name is desired, this can
only be done by filing and strictly complying with the substantive and
procedural requirements for a special proceeding for change of name under
Rule 103 of the Rules of Court.The official name of a person whose birth
is registered in the civil register is the name appearing therein. If a change in

ones name is desired, this can only be done by filing and strictly complying
with the substantive and procedural requirements for a special proceeding
for change of name under Rule 103 of the Rules of Court, wherein the
sufficiency of the reasons or grounds therefor can be threshed out and
accordingly determined.
Same; Same; Same; Same; A petition for change of name is an independent
and discrete special proceeding, in and by itself, governed by its own set of
rulesa fortiori, it cannot be granted by means of any other proceeding.A
petition for change of name being a proceeding in rem, strict compliance
with all the requirements therefor is indispensable in order to vest the court
with jurisdiction for its adjudication. It is an independent and discrete special
proceeding, in and by itself, governed by its own set of rules. A fortiori, it
cannot be granted by means of any other proceeding. To consider it as a
mere incident or an offshoot of another special proceeding would be to
denigrate its role and significance as the appropriate remedy available under
our remedial law system.
Same; Same; Same; Same; It would be procedurally erroneous to employ a
petition for adoption to effect a change of name in the absence of the
corresponding petition for the latter relief at law.The
511

VOL. 253, FEBRUARY 9, 1996

511
Republic vs. Hernandez
Solicitor General correctly points out the glaring defects of the subject
petition insofar as it seeks the change of name of the adoptee, all of which
taken together cannot but lead to the conclusion that there was no petition
sufficient in form and substance for change of name as would rightfully
deserve an order therefor. It would be procedurally erroneous to employ a
petition for adoption to effect a change of name in the absence of the
corresponding petition for the latter relief at law.
Actions; Joinder of Actions; Pleadings and Practice; Words and Phrases; By
a joinder of actions, or more properly, a joinder of causes of action, is meant
the uniting of two or more demands or rights of action in one action, the

statement of more than one cause of action in a declaration.By a joinder

of actions, or more properly, a joinder of causes of action, is meant the
uniting of two or more demands or rights of action in one action; the
statement of more than one cause of action in a declaration. It is the union of
two or more civil causes of action, each of which could be made the basis of
a separate suit, in the same complaint, declaration or petition. A plaintiff may
under certain circumstances join several distinct demands, controversies or
rights of action in one declaration, complaint or petition.
Same; Same; Same; Requisites for Joinder of Causes of Action.While
joinder of causes of action is largely left to the option of a party litigant,
Section 5, Rule 2 of our present Rules allows causes of action to be joined
in one complaint conditioned upon the following requisites: (a) it will not
violate the rules on jurisdiction, venue and joinder of parties; and (b) the
causes of action arise out of the same contract, transaction or relation
between the parties, or are for demands for money or are of the same
nature and character.
Same; Same; Same; While the rule allows a plaintiff to join as many
separate claims as he may have, there should nevertheless be some unity in
the problem presented and a common question of law and fact involved,
subject always to the restriction thereon regarding jurisdiction, venue and
joinder of parties.The statutory intent behind the provisions on joinder of
causes of action is to encourage joinder of actions which could reasonably
be said to involve kindred rights and wrongs, although the courts have not
succeeded in giving a standard definition of the terms used or in developing
a rule of universal application. The dominant idea is to permit joinder of
causes of action, legal or equitable, where there is some substantial unity
between them. While the rule allows a plaintiff to join as
512

involved, subject always to the restriction thereon regarding jurisdiction,

venue and joinder of parties. Unlimited joinder is not authorized.
Same; Same; Same; Adoption; Change of Name; Petitions for adoption and
change of name have no relation to each other, nor are they of the same
nature or character, much less do they present any common question of fact
or lawin short, they do not rightly meet the underlying test of conceptual
unity demanded to sanction their joinder under the Rules.Turning now to
the present petition, while it is true that there is no express prohibition
against the joinder of a petition for adoption and for change of name, we do
not believe that there is any relation between these two petitions, nor are
they of the same nature or character, much less do they present any
common question of fact or law, which conjointly would warrant their joinder.
In short, these petitions do not rightly meet the underlying test of conceptual
unity demanded to sanction their joinder under our Rules.
Same; Same; Same; The policy of avoiding multiplicity of suits which
underscores the rule on permissive joinder of causes of action is addressed
to suits that are intimately related and also present interwoven and
dependent issues which can be most expeditiously and comprehensively
settled by having just one judicial proceeding.It furthermore cannot be said
that the proposed joinder in this instance will make for a complete
determination of all matters pertaining to the coetaneous grant of adoption
and change the name of the adoptee in one petition. As already stated, the
subject petition was grossly insufficient in form and substance with respect
to the prayer for change of name of the adoptee. The policy of avoiding
multiplicity of suits which underscores the rule on permissive joinder of
causes of action is addressed to suits that are intimately related and also
present interwoven and dependent issues which can be most expeditiously
and comprehensively settled by having just one judicial proceeding, but not
to suits or actions whose subject matters or corresponding reliefs are
unrelated or diverse such that they are best taken up individually.

SUPREME COURT REPORTS ANNOTATED

Same; Same; Same; Liberal construction of the Rules may be invoked in

situations wherein there may be some excusable formal deficiency or error
in a pleading, provided that the same does not

Republic vs. Hernandez

513

512

many separate claims as he may have, there should nevertheless be some

unity in the problem presented and a common question of law and fact

VOL. 253, FEBRUARY 9, 1996

513
Republic vs. Hernandez
subvert the essence of the proceeding and connotes at least a reasonable
attempt at compliance with the Rules.The situation presented in this case
does not warrant exception from the Rules under the policy of liberal
construction thereof in general, and for change of name in particular, as
proposed by private respondents and adopted by respondent judge. Liberal
construction of the Rules may be invoked in situations wherein there may be
some excusable formal deficiency or error in a pleading, provided that the
same does not subvert the essence of the proceeding and connotes at least
a reasonable attempt at compliance with the Rules. Utter disregard of the
Rules cannot justly be rationalized by harking on the policy of liberal
construction.

and the adjudication of cases are matters of public policy. They are matters
of public order and interest which can in no wise be changed or
514

514
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
regulated by agreements between or stipulations by parties to an action for
their singular convenience.

Same; Same; Same; Adjective law is important in ensuring the effective

enforcement of substantive rights through the orderly and speedy
administration of justiceit cannot be overemphasized that procedural rules
have their own wholesome rationale in the orderly administration of justice.
Procedural rules are not to be disdained as mere technicalities that may
be ignored at will to suit the convenience of a party. Adjective law is
important in ensuring the effective enforcement of substantive rights through
the orderly and speedy administration of justice. These rules are not
intended to hamper litigants or complicate litigation but, indeed to provide for
a system under which a suitor may be heard in the correct form and manner
and at the prescribed time in a peaceful confrontation before a judge whose
authority they acknowledge. It cannot be overemphasized that procedural
rules have their own wholesome rationale in the orderly administration of
justice. Justice has to be administered according to the Rules in order to
obviate arbitrariness, caprice, or whimsicality.

Names; A persons name is a word or combination of words by which he is

known and identified, and distinguished from others, for the convenience of
the world at large in addressing him, or in speaking of or dealing with himit
is both of personal as well as public interest that every person must have a
name.It is necessary to reiterate in this discussion that a persons name is
a word or combination of words by which he is known and identified, and
distinguished from others, for the convenience of the world at large in
addressing him, or in speaking of or dealing with him. It is both of personal
as well as public interest that every person must have a name. The name of
an individual has two parts: the given or proper name and the surname or
family name. The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from other individuals. The
surname or family name is that which identifies the family to which he
belongs and is continued from parent to child. The given name may be freely
selected by the parents for the child, but the surname to which the child is
entitled is fixed by law.

Same; Same; Same; The rules and procedure laid down for the trial court
and the adjudication of cases are matters of public policy which can in no
wise be changed or regulated by agreements between or stipulations by
parties to an action for their singular convenience.The danger wrought by
non-observance of the Rules is that the violation of or failure to comply with
the procedure prescribed by law prevents the proper determination of the
questions raised by the parties with respect to the merits of the case and
makes it necessary to decide, in the first place, such questions as relate to
the form of the action. The rules and procedure laid down for the trial court

Same; Civil Register; The official name of a person is that given him in the
civil register.By Article 408 of the Civil Code, a persons birth must be
entered in the civil register. The official name of a person is that given him in
the civil register. That is his name in the eyes of the law. And once the name
of a person is officially entered in the civil register, Article 376 of the same
Code seals that identity with its precise mandate: no person can change his
name or surname without judicial authority. This statutory restriction is
premised on the interest of the State in names borne by individuals and
entities for purposes of identification.

Same; Same; Actions; Change of Name; The only way that the name of a
person can be changed legally is through a petition for change of name
under Rule 103 of the Rules of Court, and the only name that may be
changed is the true or official name recorded in the civil register.By reason
thereof, the only way that the name of person can be changed legally is
through a petition for change of name under Rule 103 of the Rules of Court.
For purposes of an application for change of name under Article 376 of the
Civil Code and correlatively implemented by Rule 103, the only name that
may be changed is the true or official name recorded in the civil register. As
earlier

cannot be recognized as his real name.Contrarily, a petition for change of

name grounded on the fact that one was baptized by another name, under
which he has been known and which he used, has been denied inasmuch
as the use of baptismal names is not sanctioned. For, in truth, baptism is not
a condition sine qua non to a change of name. Neither does the fact that the
petitioner has been using a different name and has become known by it
constitute proper and reasonable cause to legally authorize a change of
name. A name given to a person in the church records or elsewhere or by
which he is known in the communitywhen at variance with that entered in
the civil registeris unofficial and cannot be recognized as his real name.

515

Same; Same; Same; Same; Adoption; Parent and Child; While the right of a
natural parent to name the child is recognized, guaranteed and protected
under the law, the so-called right of an adoptive parent to re-name an
adopted child by virtue or as a consequence of adoption, even for the most
noble intentions and moving supplications, is unheard of in law and
consequently cannot be favorably con-sidered.While the right of a natural
parent to name the child is

VOL. 253, FEBRUARY 9, 1996

515
Republic vs. Hernandez
mentioned, a petition for change of name being a proceeding in rem,
impressed as it is with public interest, strict compliance with all the requisites
therefor in order to vest the court with jurisdiction is essential, and failure
therein renders the proceedings a nullity.
Same; Same; Same; Same; Grounds Warranting a Change of Name.
Jurisprudence has recognized, inter alia, the following grounds as being
sufficient to warrant a change of name: (a) when the name is ridiculous,
dishonorable or extremely difficult to write or pronounce; (b) when the
change results as a legal consequence of legitimation or adoption; (c) when
the change will avoid confusion; (d) when one has continuously used and
been known since childhood by a Filipino name and was unaware of alien
parentage; (e) when the change is based on sincere desire to adopt a
Filipino name to erase signs of former alienage, all in good faith and without
prejudice to anybody; and (f) when the surname causes embarrassment and
there is no showing that the desired change of name was for a fraudulent
purpose or that the change of name would prejudice public interest.
Same; Same; Same; Same; Baptism; A name given to a person in the
church records or elsewhere or by which he is known in the community
when at variance with that entered in the civil registeris unofficial and

516

516
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
recognized, guaranteed and protected under the law, the so-called right of
an adoptive parent to re-name an adopted child by virtue or as a
consequence of adoption, even for the most noble intentions and moving
supplications, is unheard of in law and consequently cannot be favorably
considered. To repeat, the change of the surname of the adoptee as a result
of the adoption and to follow that of the adopter does not lawfully extend to
or include the proper or given name. Furthermore, factual realities and legal
consequences, rather than sentimentality and symbolisms, are what are of
concern to the Court.
PETITION for certiorari to review a decision of the Regional Trial Court of
Pasig City, Br. 158.

The facts are stated in the opinion of the Court.

The Solicitor General for petitioner.
The Law Firm of Pascual Gesmundo and Lim for private respondents.
REGALADO, J.:

Indeed, whats in a name, as the Bard of Avon has written, since a rose by
any other name would smell as sweet?
This could well be the theme of the present appeal by certiorari which
challenges, on pure questions of law, the order of the Regional Trial Court,
Branch 158, Pasig City, dated September 13, 19941 in JDRC Case No.
2964. Said court is faulted for having approved the petition for adoption of
Kevin Earl Bartolome Moran and simultaneously granted the prayer therein
for the change of the first name of said adoptee to Aaron Joseph, to
complement the surname Munson y Andrade which he acquired consequent
to his adoption.

tional facts required by Rule 99 of the Rules of Court for adoption, their
qualifications as and fitness to be adoptive parents, as well as the
circumstances under and by reason of which the adoption of the
aforenamed minor was sought. In the very same petition, private
respondents prayed for the change of the first name of said minor adoptee
to Aaron Joseph, the same being the name with which he was baptized in
keeping with religious tradition, and by which he has been called by his
adoptive family, relatives and friends since May 6, 1993 when he arrived at
private respondents residence.3
At the hearing on April 18, 1994, petitioner opposed the inclusion of the relief
for change of name in the same petition for adoption. In its formal opposition
dated May 3, 1995,4 petitioner reiterated its objection to the joinder of the
petition for adoption and the petitions for change of name in a single
proceeding, arguing that these petition should be conducted and pursued as
two separate proceedings.
After considering the evidence and arguments of the contending parties, the
trial court ruled in favor of herein private respondents in this wise:

2 Annex B, id.; ibid., 41-44.

WHEREFORE, minor child Kevin Earl Bartolome Moran is freed from all
legal obligations of obedience and maintenance with respect to his natural
parents, and for all legal intents and purposes shall be known as Aaron
Joseph Munson y Andrade, the legally adopted child of Van Munson and
Regina Munson effective upon the filing of the petition on March 10, 1994.
As soon as the decree of adoption becomes final and executory, it shall be
recorded in the Office of the Local Civil Registrar of Pasig, Metro Manila
pursuant to Section 8, Rule 99 and Section 6, Rule 103, respectively, of the
Rules of Court, and shall be annotated in the record of birth of the adopted
child, which in this case is in Valenzuela, Metro Manila, where the child was
born. Likewise, send a copy of this Order to the National Census and
Statistics Office, Manila, for its appropriate action consisten(t) herewith.5

517

_______________

VOL. 253, FEBRUARY 9, 1996

3 Id., id; ibid,, 44-45.

517

4 Annex C, id; ibid., 47-50.

Republic vs. Hernandez

5 Annex A, id.; ibid., 40.

The facts are undisputed. On March 10, 1994, herein private respondent
spouses, Van Munson y Navarro and Regina Munson y Andrade, filed a
petition2 to adopt the minor Kevin Earl Bartolome Moran, duly alleging
therein the jurisdic_______________

1 Annex A, Petition; Rollo, 37-40; per Presiding Judge Jose R. Hernandez.

518

_______________

518

6 See Art. 183 in relation to Art. 185, Family Code.

SUPREME COURT REPORTS ANNOTATED

7 See Art. 188, Family Code; Arts. 32-38, Child and Youth Welfare Code;
Secs. 1-5, Rule 99, Rules of Court.

Republic vs. Hernandez

At this juncture, it should be noted that no challenge has been raised by
petitioner regarding the fitness of herein private respondents to be adopting
parents nor the validity of the decree of adoption rendered in their favor. The
records show that the latter have commendably established their
qualifications under the law to be adopters,6 and have amply complied with
the procedural requirements for the petition for adoption,7 with the findings
of the trial court being recited thus:
To comply with the jurisdictional requirements, the Order of this Court dated
March 16, 1994 setting this petition for hearing (Exh. A) was published in
the March 31, April 6 and 13, 1994 issues of the Manila Chronicle, a
newspaper of general circulation (Exhs. B to E and submarkings). x x x
xxx

519

VOL. 253, FEBRUARY 9, 1996

519
Republic vs. Hernandez
six months trial custody period has resulted to a close bond with Mr. and
Mrs. Munson and vice-versa.
We highly recommend to the Honorable Court that the adoption of Kevin
Earl Moran a.k.a. Aaron Joseph by Mr. and Mrs. Van Munson be legalized.
8

Petitioners apart from being financially able, have no criminal nor

derogatory record (Exhs. K to V); and are physically fit to be the adoptive
parents of the minor child Kevin (Exh. W). Their qualification to become the
adoptive parents of Kevin Earl finds support also in the Social Case Study
Report prepared by the DSWD through Social Worker Luz Angela Sonido,
the pertinent portion of which reads:

It has been said all too often enough that the factual findings of the lower
court, when sufficiently buttressed by legal and evidential support, are
accorded high respect and are binding and conclusive upon this Court.9
Accordingly, we fully uphold the propriety of that portion of the order of the
court below granting the petition for adoption.

Mr. and Mrs. Munson are very religious, responsible, mature and friendly
individuals. They are found physically healthy, mentally fit, spiritually and
financially capable to adopt Kevin Earl Moran a.k.a. Aaron Joseph.

The only legal issues that need to be resolved may then be synthesized
mainly as follows: (1) whether or not the court a quo erred in granting the
prayer for the change of the registered proper or given name of the minor
adoptee embodied in the petition for adoption; and (2) whether or not there
was lawful ground for the change of name.

Mr. and Mrs. Munson have provided AJ with all his needs. They unselfishly
share their time, love and attention to him. They are ready and willing to
continuously provide him a happy and secure home life.
Aaron Joseph, on the other hand, is growing normally under the care of the
Munsons. He had comfortably settled in his new environment. His stay with
the Munsons during the

I. It is the position of petitioner that respondent judge exceeded his

jurisdiction when he additionally granted the prayer for the change of the
given or proper name of the adoptee in a petition for adoption.
Petitioner argues that a petition for adoption and a petition for change of
name are two special proceedings which, in substance and purpose, are

different from and are not related to each other, being respectively governed
by distinct sets of law and rules. In order to be entitled to both reliefs,
namely, a decree of adoption and an authority to change the given or proper
name of the adoptee, the respective proceedings for each must be instituted
separately, and the substantive and procedural requirements therefor under
Articles 183 to 193 of
_______________

8 Annex A, Petition; Rollo, 37, 38.

9 FNCB Finance vs. Estavillo, G.R. No. 93394, December 20, 1990, 192
SCRA 514; Donato, et al. vs. Court of Appeals, et al., G.R. No. 102603,
January 18, 1993, 217 SCRA 196; Isabelo, Jr. vs. Perpetual Help College of
Rizal, Inc., et al., G.R. No. 103142, November 8, 1993, 227 SCRA 591.

Private respondents, on the contrary, admittedly filed the petition for

adoption with a prayer for change of name predicated upon Section 5, Rule
2 which allows permissive joinder of causes of action in order to avoid
multiplicity of suits and in line with the policy of discouraging protracted and
vexatious litigations. It is argued that there is no prohibition in the Rules
against the joinder of adoption and change of name being pleaded as two
separate but related causes of action in a single petition. Further, the
conditions for permissive joinder of causes of action, i.e., jurisdiction of the
court, proper venue and joinder of parties, have been met.13
Corollarily, petitioner insists on strict adherence to the rule regarding change
of name in view of the natural interest of the State in maintaining a system of
identification of its citizens and in the orderly administration of justice.14
Private respondents argue otherwise and invoke a liberal construction
_______________

520
10 Rollo, 18-19.
520
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
the Family Code in relation to Rule 99 of the Rules of Court for adoption,
and Articles 364 to 380 of the Civil Code in relation to Rule 103 of the Rules
of Court for change of name, must correspondingly be complied with.10
A perusal of the records, according to petitioner, shows that only the laws
and rules on adoption have been observed, but not those for a petition for
change of name.11 Petitioner further contends that what the law allows is
the change of the surname of the adoptee, as a matter of right, to conform
with that of the adopter and as a natural consequence of the adoption thus
granted. If what is sought is the change of the registered given or proper
name, and since this would involve a substantial change of ones legal
name, a petition for change of name under Rule 103 should accordingly be
instituted, with the substantive and adjective requisites therefor being
conformably satisfied.12

11 Ibid., 20-23.
12 Ibid., 16.
13 Ibid., 63, 65-66.
14 Ibid., 24-27.
521

VOL. 253, FEBRUARY 9, 1996

521
Republic vs. Hernandez
and application of the Rules, the welfare and interest of the adoptee being
the primordial concern that should be addressed in the instant
proceeding.15
On this score, the trial court adopted a liberal stance in holding that

Furthermore, the change of name of the child from Kevin Earl Bartolome to
Aaron Joseph should not be treated strictly, it appearing that no rights have
been prejudiced by said change of name. The strict and meticulous
observation of the requisites set forth by Rule 103 of the Rules of Court is
indubitably for the purpose of preventing fraud, ensuring that neither State
nor any third person should be prejudiced by the grant of the petition for
change of name under said rule, to a petitioner of discernment.

522

The first name sought to be changed belongs to an infant barely over a year
old. Kevin Earl has not exercised full civil rights nor engaged in any
contractual obligations. Neither can he nor petitioners on his behalf, be
deemed to have any immoral, criminal or illicit purpose for seeking said
cha(n)ge of name. It stands to reason that there is no way that the state or
any person may be so prejudiced by the action for change of Kevin Earls
first name. In fact, to obviate any possible doubts on the intent of petitioners,
the prayer for change of name was caused to be published together with the
petition for adoption.16

Clearly, the law allows the adoptee, as a matter of right and obligation, to
bear the surname of the adopter, upon issuance of the decree of adoption. It
is the change of the adoptees surname to follow that of the adopter which is
the natural and necessary consequence of a grant of adoption and must
specifically be contained in the order of the court, in fact, even if not prayed
for by petitioner.

Art. 189 of the Family Code enumerates in no uncertain terms the legal
effects of adoption:
(1) For civil purposes, the adopted shall be deemed to be a legitimate child
of the adopters and both shall acquire the reciprocal rights and obligations
arising from the relationship of parent and child, including the right of the
adopted to use the surname of the adopters;

SUPREME COURT REPORTS ANNOTATED

Republic vs. Hernandez
(3) The adopted shall remain an intestate heir of his parents and other blood
relatives.

However, the given or proper name, also known as the first or Christian
name, of the adoptee must remain as it was originally registered in the civil
register. The creation of an adoptive relationship does not confer upon the
adopter a license to change the adoptees registered Christian or first name.
The automatic change thereof, premised solely upon the adoption thus
granted, is beyond the purview of a decree of adoption. Neither is it a mere
incident in nor an adjunct of an adoption proceeding, such that a prayer
therefor furtively inserted in a petition for adoption, as in this case, cannot
properly be granted.

15 Ibid., 70-71.

The name of the adoptee as recorded in the civil register should be used in
the adoption proceedings in order to vest the court with jurisdiction to hear
and determine the same,17 and shall continue to be so used until the court
orders otherwise. Changing the given or proper name of a person as
recorded in the civil register is a substantial change in ones official or legal
name and cannot be authorized without a judicial order. The purpose of the
statutory procedure authorizing a change of name is simply to have,
wherever possible, a record of the change, and in keeping with the object of
the statute, a court to which the application is made should normally make
its decree recording such change.18

16 Annex A, Petition; Rollo, 39.

_______________

(2) The parental authority of the parents by nature over the adopted shall
terminate and be vested in the adopters, except that if the adopter is the
spouse of the parent by nature of the adopted, parental authority over the
adopted shall be exercised jointly by both spouses; and
_______________

522
17 Cruz vs. Republic, L-20927, July 26, 1966, 17 SCRA 693.

18 See Art. 412, Civil Code; Re Ross. 8 Cal 2d 608, 67 P2d 94, 110 ALR
217.
523

_______________

VOL. 253, FEBRUARY 9, 1996

19 Yu Chi Han vs. Republic, L-22040, November 29, 1965, 15 SCRA 454;
Cruz vs. Republic, supra, fn. 17; Republic vs. Taada, etc., et al., L-31563,
November 29, 1971, 42 SCRA 419; Secan Kok vs. Republic, L-27621,
August 30, 1973, 52 SCRA 322.

523

524

Republic vs. Hernandez

The official name of a person whose birth is registered in the civil register is
the name appearing therein. If a change in ones name is desired, this can
only be done by filing and strictly complying with the substantive and
procedural requirements for a special proceeding for change of name under
Rule 103 of the Rules of Court, wherein the sufficiency of the reasons or
grounds therefor can be threshed out and accordingly determined.
Under Rule 103, a petition for change of name shall be filed in the regional
trial court of the province where the person desiring to change his name
resides. It shall be signed and verified by the person desiring the name to be
changed or by some other person in his behalf and shall state that the
petitioner has been a bona fide resident of the province where the petition is
filed for at least three years prior to such filing, the cause for which the
change of name is sought, and the name asked for. An order for the date
and place of hearing shall be made and published, with the Solicitor General
or the proper provincial or city prosecutor appearing for the Government at
such hearing. It is only upon satisfactory proof of the veracity of the
allegations in the petition and the reasonableness of the causes for the
change of name that the court may adjudge that the name be changed as
prayed for in the petition, and shall furnish a copy of said judgment to the
civil registrar of the municipality concerned who shall forthwith enter the
same in the civil register.
A petition for change of name being a proceeding in rem, strict compliance
with all the requirements therefor is indispensable in order to vest the court
with jurisdiction for its adjudication.19 It is an independent and discrete
special proceeding, in and by itself, governed by its own set of rules. A
fortiori, it cannot be granted by means of any other proceeding. To consider
it as a mere incident or an offshoot of another

524
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
special proceeding would be to denigrate its role and significance as the
appropriate remedy available under our remedial law system.
The Solicitor General correctly points out the glaring defects of the subject
petition insofar as it seeks the change of name of the adoptee,20 all of which
taken together cannot but lead to the conclusion that there was no petition
sufficient in form and substance for change of name as would rightfully
deserve an order therefor. It would be procedurally erroneous to employ a
petition for adoption to effect a change of name in the absence of the
corresponding petition for the latter relief at law.
Neither can the allowance of the subject petition, by any stretch of
imagination and liberality, be justified under the rule allowing permissive
joinder of causes of action. Moreover, the reliance by private respondents on
the pronouncements in Briz vs. Briz, et al.,21 and Peyer vs. Martinez, et
al.22 is misplaced. A restatement of the rule and jurisprudence on joinder of
causes of action would, therefor, appear to be called for.
By a joinder of actions, or more properly, a joinder of causes of action, is
meant the uniting of two or more demands or rights of action in one action;
the statement of more than one cause of action in a declaration.23 It is the
union of two or more civil causes of action, each of which could be made the
basis of a separate suit, in the same complaint, declaration or petition. A

plaintiff may under certain circumstances join several distinct demands,

controversies or rights of action in one declaration, complaint or petition.24

between the parties, or are for demands for money or are of the same
nature and character.

As can easily be inferred from the above definitions, a party is generally not
required to join in one suit several distinct causes of action. The joinder of
separate causes of action, where allowable, is permissive and not
mandatory in the ab-

The objectives of the rule or provision are to avoid a multiplicity of suits

where the same parties and subject matter are to be dealt with by effecting
in one action a complete determination of all matters in controversy and
litigation between the parties involving one subject matter, and to expedite
the disposition of litigation at minimum cost. The provision should be
construed so as to avoid such multiplicity, where possible, without prejudice
to the rights of the litigants. Being of a remedial nature, the provision should
be liberally construed, to the end that related controversies between the
same parties may be adjudicated at one time; and it should be made
effectual as far as practicable,27 with the end in view of promoting the
efficient administration of justice.28

_______________

20 Rollo, 21-22.
21 43 Phil. 763 (1922).

23 1 C.J.S., Actions, Sec. 61, 1181.

The statutory intent behind the provisions on joinder of causes of action is to

encourage joinder of actions which could reasonably be said to involve
kindred rights and wrongs, al-

24 1 Am Jur 2d, Actions, Sec. 81, 776.

_______________

22 88 Phil. 72 (1951).

525
25 Ibid., id., Sec. 85, 778.
VOL. 253, FEBRUARY 9, 1996

26 Ibid., id., Sec. 86, 779.

525

27 Francisco, V.J., The Revised Rules of Court in the Philippines, Vol. I,

1973 ed., 186.

Republic vs. Hernandez

sence of a contrary statutory provision, even though the causes of action
arose from the same factual setting and might under applicable joinder rules
be joined.25 Modern statutes and rules governing joinders are intended to
avoid a multiplicity of suits and to promote the efficient administration of
justice wherever this may be done without prejudice to the rights of the
litigants. To achieve these ends, they are liberally construed.26
While joinder of causes of action is largely left to the option of a party litigant,
Section 5, Rule 2 of our present Rules allows causes of action to be joined
in one complaint conditioned upon the following requisites: (a) it will not
violate the rules on jurisdiction, venue and joinder of parties; and (b) the
causes of action arise out of the same contract, transaction or relation

28 1 Am Jur 2d, Actions, Sec. 86, 779.

526

526
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
though the courts have not succeeded in giving a standard definition of the
terms used or in developing a rule of universal application. The dominant

idea is to permit joinder of causes of action, legal or equitable, where there

is some substantial unity between them.29 While the rule allows a plaintiff to
join as many separate claims as he may have, there should nevertheless be
some unity in the problem presented and a common question of law and fact
involved, subject always to the restriction thereon regarding jurisdiction,
venue and joinder of parties. Unlimited joinder is not authorized.30
Our rule on permissive joinder of causes of action, with the proviso
subjecting it to the correlative rules on jurisdiction, venue and joinder of
parties31 and requiring a conceptual unity in the problems presented,
effectively disallows unlimited joinder.32
Turning now to the present petition, while it is true that there is no express
prohibition against the joinder of a petition for adoption and for change of
name, we do not believe that there is any relation between these two
petitions, nor are they of the same nature or character, much less do they
present any common question of fact or law, which conjointly would warrant
their joinder. In short, these petitions do not rightly meet the underlying test
of conceptual unity demanded to sanction their joinder under our Rules.
As keenly observed and correctly pointed out by the Solicitor General
A petition for adoption and a petition for change of name are two special
proceedings which, in substance and purpose, are different from each other.
Each action is individually governed by particular sets of laws and rules.
These two proceedings involve dispa_______________

29 Ibid., id., Sec. 89, 781.

30 Francisco, V.J., op. cit., 185-189.
31 Union Glass & Container Corp., et al. vs. Securities and Exchange
Commission, et al., G.R. No. 64013, November 28, 1983, 126 SCRA 31.
32 See Flores vs. Mallare-Phillipps, et al., G.R. No. 66620, September 24,
1986, 144 SCRA 377.
527

VOL. 253, FEBRUARY 9, 1996

527
Republic vs. Hernandez
rate issues. In a petition for adoption, the court is called upon to evaluate the
proposed adopters fitness and qualifications to bring up and educate the
adoptee properly (Prasnick vs. Republic, 99 Phil. 665). On the other hand, in
a petition for change of name, no family relations are created or affected for
what is looked into is the propriety and reasonableness of the grounds
supporting the proposed change of name (Yu vs. Republic, 17 SCRA 253).
xxx
x x x. Hence, the individual merits of each issue must be separately
assessed and determined for neither action is dependent on the other.33
The rule on permissive joinder of causes of action is clear. Joinder may be
allowed only if the actions show a commonality of relationship and conform
to the rules on jurisdiction, venue and joinder of parties (Section 5, Rule 2,
Rules of Court).
These conditions are wanting in the instant case. As already pointed out in
our Petition (pp. 9-10), an action for adoption and an action for change of
name are, in nature and purpose, not related to each other and do not arise
out of the same relation between the parties. While what is cogent in an
adoption proceeding is the proposed adopters fitness and qualifications to
adopt, a petition for change of first name may only prosper upon proof of
reasonable and compelling grounds supporting the change requested.
Fitness to adopt is not determinative of the sufficiency of reasons justifying a
change of name. And similarly, a change of first name cannot be justified in
view of a finding that the proposed adopter was found fit to adopt. There is
just no way that the two actions can connect and find a common ground,
thus the joinder would be improper.
In contending that adoption and change of name may be similarly sought in
one petition, private respondents rely upon Peyer vs. Martinez and Briz vs.
Briz (p. 4, Comment)

We however submit that these citations are non sequitur. In both cases, the
fact of intimacy and relatedness of the issues is so pronounced. In Peyer, an
application to pronounce the husband an absentee is obviously intertwined
with the action to transfer the management of conjugal assets to the wife. In
Briz, an action for declaration of heirship was deemed a clear condition
precedent to an action to recover the land subject of partition and distribution
pro-

rule on permissive joinder of causes of action is addressed to suits that are

intimately related and also present interwoven and dependent issues which
can be most expeditiously and comprehensively settled by having just one
judicial proceeding, but not to suits or actions whose subject matters or
corresponding reliefs are unrelated or diverse such that they are best taken
up individually.

_______________

In Nabus vs. Court of Appeals, et al.,35 the Court clarified the rule on
permissive joinder of causes of action:

33 Rollo, 18-19.

The rule is clearly permissive. It does not constitute an obligatory rule, as

there is no positive provision of law or any rule of jurisprudence which
compels a party to join all his causes of action

528

_______________

528

34 Ibid., 86-88.

SUPREME COURT REPORTS ANNOTATED

35 G.R. No. 91670, February 7, 1991, 193 SCRA 732; Baldovi vs. Sarte, 36
Phil. 550 (1917). Cf. Hicks vs. Hilario, et al., 40 Phil. 576 (1919) and
Insurance Company of North America vs. United Stated Lines Co., et al., L21839, April 30, 1968, 23 SCRA 438.

Republic vs. Hernandez

ceeding. However, the commonality of relationship which stands out in both
cases does not characterize the present action for adoption and change of
name. Thus the rulings in Peyer and Briz find no place in the case at bar.
Besides, it is interesting to note that although a joinder of the two actions
was, in Briz, declared feasible, the Supreme Court did not indorse an
automatic joinder and instead remanded the matter for further proceedings,
granting leave to amend the pleadings and implead additional partiesdefendants for a complete determination of the controversy (Briz vs. Briz, 43
Phil. 763, 770). Such cautionary stance all the more emphasizes that
although joinders are generally accepted, they are not allowed where the
conditions are not satisfactorily met.34
It furthermore cannot be said that the proposed joinder in this instance will
make for a complete determination of all matters pertaining to the
coetaneous grant of adoption and change the name of the adoptee in one
petition. As already stated, the subject petition was grossly insufficient in
form and substance with respect to the prayer for change of name of the
adoptee. The policy of avoiding multiplicity of suits which underscores the

529

VOL. 253, FEBRUARY 9, 1996

529
Republic vs. Hernandez
and bring them at one and the same time. Under the present rules, the
provision is still that the plaintiff may, and not that he must, unite several
causes of action although they may be included in one of the classes
specified. This, therefore, leaves it to the plaintiffs option whether the
causes of action shall be joined in the same action, and no unfavorable
inference may be drawn from his failure or refusal to do so. He may always
file another action based on the remaining cause or causes of action within
the prescriptive period therefor. (Emphasis supplied.)

The situation presented in this case does not warrant exception from the
Rules under the policy of liberal construction thereof in general, and for
change of name in particular, as proposed by private respondents and
adopted by respondent judge. Liberal construction of the Rules may be
invoked in situations wherein there may be some excusable formal
deficiency or error in a pleading, provided that the same does not subvert
the essence of the proceeding and connotes at least a reasonable attempt
at compliance with the Rules. Utter disregard of the Rules cannot justly be
rationalized by harking on the policy of liberal construction.
The Court is not impervious to the frustration that litigants and lawyers alike
would at times encounter in procedural bureaucracy but imperative justice
requires correct observance of indispensable technicalities precisely
designed to ensure its proper dispensation.36 It has long been recognized
that strict compliance with the Rules of Court is indispensable for the
prevention of needless delays and for the orderly and expeditious dispatch
of judicial business.37
Procedural rules are not to be disdained as mere technicalities that may be
ignored at will to suit the convenience of a party. Adjective law is important in
ensuring the effective enforcement of substantive rights through the orderly
and speedy administration of justice. These rules are not intended
_______________

to hamper litigants or complicate litigation but, indeed to provide for a

system under which a suitor may be heard in the correct form and manner
and at the prescribed time in a peaceful confrontation before a judge whose
authority they acknowledge.38
It cannot be overemphasized that procedural rules have their own
wholesome rationale in the orderly administration of justice. Justice has to
be administered according to the Rules in order to obviate arbitrariness,
caprice, or whimsicality.39 We have been cautioned and reminded in Limpot
vs. CA, et al., that:40
Rules of procedure are intended to ensure the orderly administration of
justice and the protection of substantive rights in judicial and extrajudicial
proceedings. It is a mistake to propose that substantive law and adjective
law are contradictory to each other or, as has often been suggested, that
enforcement of procedural rules should never be permitted if it will result in
prejudice to the substantive rights of the litigants. This is not exactly true; the
concept is much misunderstood. As a matter of fact, the policy of the courts
is to give both kinds of law, as complementing each other, in the just and
speedy resolution of the dispute between the parties. Observance of both
substantive rights is equally guaranteed by due process, whatever the
source of such rights, be it the Constitution itself or only a statute or a rule of
court.
xxx

36 Young vs. Ombudsman, G.R. No. 110736, December 27, 1993, 228
SCRA 718.
37 Villanueva vs. Court of Appeals, et al., G.R. No. 99357, January 27,
1992, 205 SCRA 537.

x x x (T)hey are required to be followed except only when for the most
persuasive of reasons they may be relaxed to relieve a litigant of an injustice
not commensurate with the degree of his thoughtlessness in not complying
with the procedure prescribed.
_______________

530

530
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez

38 Santos vs. Court of Appeals, et al., G.R. No. 92862, July 4, 1991, 198
SCRA 806; Philippine National Construction Corporation vs. Court of
Appeals, et al., G.R. No. 104437, December 17, 1993, 228 SCRA 565.
39 Vasco vs. Court of Appeals, et al., L-46763, February 28, 1978, 81 SCRA
762.

40 L-44642, February 20, 1989, 170 SCRA 367. See also Edra vs.
Intermediate Appellate Court, et al., G.R. No. 75041, November 13, 1989,
179 SCRA 344.
531

VOL. 253, FEBRUARY 9, 1996

531

41 Alonso vs. Villamor, 16 Phil. 315 (1910); Republic vs. Court of Appeals, et
al., G.R. No. 56077, February 28, 1985, 135 SCRA 165; Yong Chan Kim vs.
People, et al., G.R. No. 84719, January 25, 1991, 193 SCRA 344; Bank of
America, NT & SA vs. Gerochi, Jr., etc., et al., G.R. 73210, February 10,
1994, 230 SCRA 9; Buan, et al. vs. Court of Appeals, et al., G.R. No.
101614, August 17, 1994, 235 SCRA 424.
532

Republic vs. Hernandez

x x x. While it is true that a litigation is not a game of technicalities, this does
not mean that the Rules of Court may be ignored at will and at random to the
prejudice of the orderly presentation and assessment of the issues and their
just resolution. Justice eschews anarchy.
Only exceptionally in very extreme circumstances, when a rule deserts its
proper office as an aid to justice and becomes its great hindrance and chief
enemy such that rigid application thereof frustrates rather than promotes
substantial justice, will technicalities deserve scant consideration from the
court. In such situations, the courts are empowered, even obligated, to
suspend the operation of the rules.41
We do not perceive any injustice that can possibly be visited upon private
respondents by following the reglementary procedure for the change in the
proper or given name that they seek for their adopted child. We are hard put
to descry the indispensability of a change of the first name of the adoptee to
his welfare and benefit. Nor is the said change of such urgency that would
justify an exemption from or a relaxation of the Rules. It is the State that
stands to be prejudiced by a wanton disregard of Rule 103 in this case,
considering its natural interest in the methodical administration of justice and
in the efficacious maintenance of a system of identification of its citizens.
The danger wrought by non-observance of the Rules is that the violation of
or failure to comply with the procedure prescribed by law prevents the
proper determination of the questions raised by the parties with respect to
the merits of the case and makes it necessary to decide, in the first place,
such questions as relate to the form of the action. The rules and
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532
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
procedure laid down for the trial court and the adjudiation of cases are
matters of public policy.42 They are matters of public order and interest
which can in no wise be changed or regulated by agreements between or
stipulations by parties to an action for their singular convenience.43
In Garcia vs. Republic,44 we are reminded of the definiteness in the
application of the Rules and the importance of seeking relief under the
appropriate proceeding:
x x x The procedure set by law should be delimited. One should not confuse
or misapply one procedure for another lest we create confusion in the
application of the proper remedy.
Respondent judges unmindful disregard of procedural tenets aimed at
achieving stability of procedure is to be deplored. He exceeded his
prerogatives by granting the prayer for change of name, his order being
unsupported by both statutory and case law. The novel but unwarranted
manner in which he adjudicated this case may be characterized as a
regrettable abdication of the duty to uphold the teachings of remedial law
and jurisprudence.
II. Petitioner avers that it was error for the lower court to grant the petition for
change of name without citing or proving any lawful ground. Indeed, the only
justification advanced for the change of name was the fact of the adoptees

baptism under the name Aaron Joseph and by which he has been known
since he came to live with private respondents.45
Private respondents, through a rather stilted ratiocination, assert that upon
the grant of adoption, the subject minor adoptee ipso facto assumed a new
identification and designation, that is, Aaron Joseph which was the name
given to him during the baptismal rites. Allowing the change of his first name
as prayed for in the petition, so they claim, merely
_______________

42 Sanidad vs. Cabotaje, 5 Phil. 204 (1905).

43 Arzadon vs. Arzadon, 15 Phil. 77 (1910).
44 L-16085, November 29, 1961, 3 SCRA 519.
45 Rollo, 28.
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xxx
The given name of the minor was Kevin Earl, a name given for no other
purpose than for identification purposes in a birth certificate by a woman
who had all intentions of giving him away. The naming of the minor as Aaron
Joseph by petitioners upon the grant of their petition for adoption is symbolic
of naming the minor at birth.47
We cannot fathom any legal or jurisprudential basis for this attenuated ruling
of respondent judge and must thus set it aside.
It is necessary to reiterate in this discussion that a persons name is a word
or combination of words by which he is known and identified, and
distinguished from others, for the convenience of the world at large in
addressing him, or in speaking of or dealing with him. It is both of personal
as well as public interest that every person must have a name. The name of
an individual has two parts: the given or proper name and the surname or
family name. The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from other individuals. The
surname or family name is that which identifies the family to which he
belongs and is continued from parent to child. The given name may be freely
selected by the parents for the
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533
Republic vs. Hernandez
confirms the designation by which he is known and called in the community
in which he lives. This largely echoes the opinion of the lower court that
naming the child Aaron Joseph was symbolic of naming him at birth, and
that they, as adoptive parents, have as much right as the natural parents to
freely select the first name of their adopted child.46
The lower court was sympathetic to herein private respondents and ruled on
this point in this manner:
As adoptive parents, petitioner like other parents may freely select the first
name given to his/her child as it is only the surname to which the child is
entitled that is fixed by law. x x x.

46 Ibid., 67-68.
47 Ibid., 39.
534

534
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
child, but the surname to which the child is entitled is fixed by law.48

By Article 408 of the Civil Code, a persons birth must be entered in the civil
register. The official name of a person is that given him in the civil register.
That is his name in the eyes of the law.49 And once the name of a person is
officially entered in the civil register, Article 376 of the same Code seals that
identity with its precise mandate: no person can change his name or
surname without judicial authority. This statutory restriction is premised on
the interest of the State in names borne by individuals and entities for
purposes of identification.50
By reason thereof, the only way that the name of person can be changed
legally is through a petition for change of name under Rule 103 of the Rules
of Court.51 For purposes of an application for change of name under Article
376 of the Civil Code and correlatively implemented by Rule 103, the only
name that may be changed is the true or official name recorded in the civil
register. As earlier mentioned, a petition for change of name being a
proceeding in rem, impressed as it is with public interest, strict compliance
with all the requisites therefor in order to vest the court with jurisdiction is
essential, and failure therein renders the proceedings a nullity.52
It must likewise be stressed once again that a change of name is a privilege,
not a matter of right, addressed to the
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535
Republic vs. Hernandez
sound discretion of the court which has the duty to consider carefully the
consequences of a change of name and to deny the same unless weighty
reasons are shown. Before a person can be authorized to change his name,
that is, his true or official name or that which appears in his birth certificate
or is entered in the civil register, he must show proper and reasonable cause
or any convincing reason which may justify such change.53
Jurisprudence has recognized, inter alia, the following grounds as being
sufficient to warrant a change of name: (a) when the name is ridiculous,
dishonorable or extremely difficult to write or pronounce; (b) when the
change results as a legal consequence of legitimation or adoption; (c) when
the change will avoid confusion; (d) when one has continuously used and
been known since childhood by a Filipino name and was unaware of alien
parentage; (e) when the change is based on sincere desire to adopt a
Filipino name to erase signs of former alienage, all in good faith and without
prejudice to anybody; and (f) when the surname causes embarrassment and
there is no showing that the desired change of name was for a fraudulent
purpose or that the change of name would prejudice public interest.54

49 Chomi vs. Local Civil Registrar of Manila, 99 Phil. 1004 (1956); Ng Yao
Siong vs. Republic, L-20306, March 31, 1966, 16 SCRA 483.

Contrarily, a petition for change of name grounded on the fact that one was
baptized by another name, under which he has been known and which he
used, has been denied inasmuch as the use of baptismal names is not
sanctioned.55 For, in truth, baptism is not a condition sine qua non to a
change of name.56 Neither does the fact that the petitioner has been using
a different name and has become known by it constitute

50 Chiu Hap Chiu vs. Republic, L-20018, April 30, 1966, 16 SCRA 864.

_______________

48 Tolentino, A.M., Civil Code of the Philippines, Commentaries and

Jurisprudence, Vol. I, 1993 ed., 672.

51 Chomi vs. Local Civil Registrar of Manila, supra, fn. 49.

52 Ng Yao Siong vs. Republic, supra, fn. 49; Republic vs. Taada, etc., et
al., supra, fn. 19; Secan Kok vs. Republic, supra, fn. 19. See Tan vs.
Republic, L-16384, April 26, 1962, 4 SCRA 1128.
535

53 Ong Pen Oan vs. Republic, 102 Phil. 460 (1957); Nacionale vs. Republic,
L-18067, April 29, 1966, 16 SCRA 636; Yu vs. Republic, L-20874, May 25,
1966, 17 SCRA 253; Calderon vs. Republic, L-18127, April 5, 1967, 19
SCRA 721.

54 Republic vs. Court of Appeals, et al., G.R. No. 97906, May 21, 1992, 209
SCRA 189, 199 and cases therein cited. See also Republic vs. Avila, etc., et
al., L-33131, May 30, 1983, 122 SCRA 483.

(a)s adoptive parents, petitioners like other parents may freely select the
first name given to his/her child as it is only the surname to which the child is
entitled that is fixed by law. x x x.

55 Chomi vs. Local Civil Registrar of Manila, supra, fn. 49.

The given name of the minor was Kevin Earl, a name given for no other
purpose than for identification purposes in a birth certificate by a woman
who had all the intentions of giving him away. The naming of the minor as
Aaron Joseph by petitioners upon grant

56 Ong Te vs. Republic, L-15549, June 30, 1962, 5 SCRA 484.

536

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536
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
proper and reasonable cause to legally authorize a change of name.57 A
name given to a person in the church records or elsewhere or by which he is
known in the communitywhen at variance with that entered in the civil
registeris unofficial and cannot be recognized as his real name.58
The instant petition does not sufficiently persuade us to depart from such
rulings of long accepted wisdom and applicability. The only grounds offered
to justify the change of name prayed for was that the adopted child had been
baptized as Aaron Joseph in keeping with the religious faith of private
respondents and that it was the name by which he had been called and
known by his family, relatives and friends from the time he came to live with
private respondents.59 Apart from suffusing their pleadings with
sanctimonious entreaties for compassion, none of the justified grounds for a
change of name has been alleged or established by private respondents.
The legal bases chosen by them to bolster their cause have long been
struck down as unavailing for their present purposes. For, to allow the
adoptee herein to use his baptismal name, instead of his name registered in
the civil register, would be to countenance or permit that which has always
been frowned upon.60
The earlier quoted posturing of respondent judge, as expressed in his
assailed order that

57 Ong Pen Oan vs. Republic, supra, fn. 53; Grant vs. Republic, L-23609,
March 31, 1966, 16 SCRA 517.
58 Ng Yao Siong vs. Republic, supra, fn. 49.
59 Annex B, Petition; Rollo, 44, 67.
60 Cruz vs. Republic, supra, fn. 17.
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Republic vs. Hernandez
of their petition for adoption is symbolic of naming the minor at birth.
and supposedly based on the authority of Republic vs. Court of Appeals and
Maximo Wong, supra, painfully misapplies the ruling therein enunciated.
The factual backdrop of said case is not at all analogous to that of the case
at bar. In the Wong case, therein petitioner Maximo Wong sought the
change of his surname which he acquired by virtue of the decree of adoption
granted in favor of spouses Hoong Wong and Concepcion Ty Wong. Upon
reaching the age of majority, he filed a petition in court to change his
surname from Wong to Alcala, which was his surname prior to the adoption.
He adduced proof that the use of the surname Wong caused him

embarrassment and isolation from friends and relatives in view of a

suggested Chinese ancestry when in reality he is a Muslim Filipino residing
in a Muslim community, thereby hampering his business and social life, and
that his surviving adoptive mother consented to the change of name sought.
This Court granted the petition and regarded the change of the surname as
a mere incident in, rather than the object of, the adoption.
It should be noted that in said case the change of surname, not the given
name, and the legal consequences thereof in view of the adoption were at
issue. That it was sought in a petition duly and precisely filed for that
purpose with ample proof of the lawful grounds therefor only serves to
reinforce the imperative necessity of seeking relief under and through the
legally prescribed procedures.
Here, the Solicitor General meritoriously explained that:
Respondent Judge failed to distinguish between a situation wherein a child
is being named for the first time by his natural parent, as against one
wherein, a child is previously conferred a first name by his natural parent,
and such name is subsequently sought to be disregarded and changed by
the adoptive parents. In the first case, there is no dispute that natural
parents have the right to freely select and give the childs first name for
every person, including juridical persons, must have a name (Tolentino, A.,
Commentaries and

The liberality with which this Court treats matters leading up to adoption
insofar as it carries out the beneficent purposes of adoption and ensures to
the adopted child the rights and privileges arising therefrom, ever mindful
that the paramount consideration is the overall benefit and interest of the
adopted child,62 should be understood in its proper context. It should not be
misconstrued or misinterpreted to extend to inferences beyond the
contemplation of law and jurisprudence.
The practically unrestricted freedom of the natural parent to select the
proper or given name of the child presupposes that no other name for it has
theretofore been entered in the civil register. Once such name is registered,
regardless of the reasons for such choice and even if it be solely for the
purpose of identification, the same constitutes the official name. This
effectively authenticates the identity of the person and must remain
unaltered save when, for the most compelling reasons shown in an
appropriate proceeding, its change may merit judicial approval.
While the right of a natural parent to name the child is recognized,
guaranteed and protected under the law, the socalled right of an adoptive
parent to re-name an adopted child by virtue or as a consequence of
adoption, even for the most noble intentions and moving supplications, is
unheard of in law and consequently cannot be favorably considered. To re_______________

538
61 Rollo, 31-32.
538
SUPREME COURT REPORTS ANNOTATED
Republic vs. Hernandez
Jurisprudence on the Civil Code, Vol. I, 1987 edition, page 721). In the
second case, however, as in the case at bar, private respondents, in their
capacities as adopters, cannot claim a right to name the minor adoptee after
such right to name the child had already been exercised by the natural
parent. Adopting parents have not been conferred such right by law, hence,
the right asserted by private respondents herein remains but illusory.
Renaming the adoptee cannot be claimed as a right. It is merely a privilege
necessitating judicial consent upon compelling grounds.61

62 Republic vs. Court of Appeals, et al., G.R. No. 92326, January 24, 1992,
205 SCRA 356.
539

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539
Republic vs. Hernandez

peat, the change of the surname of the adoptee as a result of the adoption
and to follow that of the adopter does not lawfully extend to or include the
proper or given name. Furthermore, factual realities and legal
consequences, rather than sentimentality and symbolisms, are what are of
concern to the Court.
Finally, it is understood that this decision does not entirely foreclose and is
without prejudice to, private respondents privilege to legally change the
proper or given name of their adopted child, provided that the same is
exercised, this time, via a proper petition for change of name. Of course, the
grant thereof is conditioned on strict compliance with all jurisdictional
requirements and satisfactory proof of the compelling reasons advanced
therefor.
WHEREFORE, on the foregoing premises, the assailed order of respondent
judge is hereby MODIFIED. The legally adopted child of private respondents
shall henceforth be officially known as Kevin Earl Munson y Andrade unless
a change thereof is hereafter effected in accordance with law. In all other
respects, the order is AFFIRMED.

SO ORDERED.
Romero, Puno and Mendoza, JJ., concur.
Order affirmed with modification.
Notes.A witness who has two names and adopts the name of his wife is
not credible. (People vs. Buendia, 210 SCRA 531 [1992])
A petition to resume the use of maiden name filed by petitioner before the
respondent Court is a superfluity and unnecessary proceeding since the law
requires her to do so when her former husband gets married to another
woman after obtaining a decree of divorce from her in accordance with
Muslim laws. (Yasin vs. Judge, Sharia District Court, 241 SCRA 606 [1995])
o0o

[Republic vs. Hernandez, 253 SCRA 509(1996)]