Republic of the Philippines submitted that in the absence of any showing that petitioners are personally and directly
ed that in the absence of any showing that petitioners are personally and directly affected or
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
Page BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
|1 vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS,
in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his
capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director,
Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6,
Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication
in the Official Gazette of various presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303,
312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491,
503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836,
923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279,
1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180,
187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251,
253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327,
343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488,
498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-
713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538,
1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-
1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787,
1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-
1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892,
1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-
2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-
528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609,
611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107,
120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the ground
that petitioners have no legal personality or standing to bring the instant petition. The view is
prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are
without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the defendant, immediately or at some
other specified time, to do the act required to be done to Protect the rights of the petitioner, and to
pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right
and its object is to compel the performance of a public duty, they need not show any specific interest
for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved,
or some particular right to be protected, independent of that which he holds with the public at large,"
and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved
[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the
object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the
real party in interest and the relator at whose instigation the proceedings are instituted need not show
that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and
as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special election
for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court,
Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that the relator is
a proper party to proceedings of this character when a public right is sought to be enforced. If the
general rule in America were otherwise, we think that it would not be applicable to the case at bar for
the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in
mind the reason for the rule, because, if under the particular circumstances the reason for the rule does
not exist, the rule itself is not applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by counsel for the
respondent. The circumstances which surround this case are different from those in the United States,
inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we
have seen that it is not the duty of the law officer of the Government to appear and represent the
people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned
case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners
herein is a public right recognized by no less than the fundamental law of the land. If petitioners were
not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to
initiate the same, considering that the Solicitor General, the government officer generally empowered
to represent the people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirement
for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus
 submitted that since the presidential issuances in question contain special provisions as to the date
they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The
point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a
Page long line of decisions,4 this Court has ruled that publication in the Official Gazette is necessary in those
|2 cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and
resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient
importance to be so published; [4] such documents or classes of documents as may be required so to
be published by law; and [5] such documents or classes of documents as the President of the
Philippines shall determine from time to time to have general applicability and legal effect, or which he
may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of
which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken
so vital significance that at this time when the people have bestowed upon the President a power
heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of
the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the
legislative recordsno such publicity accompanies the law-making process of the President. Thus,
without publication, the people have no means of knowing what presidential decrees have actually
been promulgated, much less a definite way of informing themselves of the specific contents and texts
of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines
dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound by
law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee
said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the
land, the requirement of due process and the Rule of Law demand that the Official Gazette as the
official government repository promulgate and publish the texts of all such decrees, orders and
instructions so that the people may know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar situations in the past
this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs.
Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442;
Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination of unconstitutionality must be taken with qualifications.
The actual existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various
aspects-with respect to particular conduct, private and official. Questions of rights claimed to have
become vested, of status, of prior determinations deemed to have finality and acted upon accordingly,
of public policy in the light of the nature both of the statute and of its previous application, demand
examination. These questions are among the most difficult of those which have engaged the attention
of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement
of a principle of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The
past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees
sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to
1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject
matters nor the texts of these PDs can be ascertained since no copies thereof are available. But
whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever
been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice
Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal]
regulations and make the said penalties binding on the persons affected thereby. " The cogency of this
holding is apparently recognized by respondent officials considering the manifestation in their
 comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal
laws until the same shall have been published in the Official Gazette or in some other publication, even
though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.
Page SO ORDERED.
|3 Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made
to apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to
the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases
and under all circumstances result in a statute, presidential decree or any other executive act of the
same category being bereft of any binding force and effect. To so hold would, for me, raise a
constitutional question. Such a pronouncement would lend itself to the interpretation that such a
legislative or presidential act is bereft of the attribute of effectivity unless published in the Official
Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true
that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is,
to my mind, needed to avoid any possible misconception as to what is required for any statute or
presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires
notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily
by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise in
agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it
requires notice before laws become effective, for no person should be bound by a law without notice.
This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by
publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must
be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level
of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect
of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no
legal consequences could attach due to lack of publication in the Official Gazette, then serious problems
could arise. Previous transactions based on such "Presidential Issuances" could be open to question.
Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is
contemplated by our decision. Where such presidential decree or executive act is made the basis of a
criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases
though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing
of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under
the police power, the non-impairment clause of the Constitution may not always be successfully
invoked. There must still be that process of balancing to determine whether or not it could in such a
case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of
unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication
is essential to the effectivity of a legislative or executive act of a general application. I am not in
agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its
Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise
provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does
not and cannot have the juridical force of a constitutional command. A later legislative or executive act
which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice
that a reasonable opportunity to be informed must be afforded to the people who are commanded to
obey before they can be punished for its violation,1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and the people officially and specially
informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3
of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that has been duly published pursuant to the basic constitutional requirements of due process. The
 best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take
effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that
"most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
Page completion of 15 days following its publication which is the period generally fixed by the Civil Code for
|4 its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has
to be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the
date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity
will run counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such notice is
not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither
is the publication of laws in the Official Gazette required by any statute as a prerequisite for their
effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may
be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when
it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period
for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it
shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for
the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes
the publication of the Official Gazette, determines its frequency, provides for its sale and distribution,
and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall
be published in the Official Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and administrative orders and
proclamations, except such as have no general applicability." It is noteworthy that not all legislative acts
are required to be published in the Official Gazette but only "important" ones "of a public nature."
Moreover, the said law does not provide that publication in the Official Gazette is essential for the
effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law,
especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or
restrict the operation of a subsequent statute that has a provision of its own as to when and how it will
take effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness. However,
I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made
to apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to
the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases
and under all circumstances result in a statute, presidential decree or any other executive act of the
same category being bereft of any binding force and effect. To so hold would, for me, raise a
constitutional question. Such a pronouncement would lend itself to the interpretation that such a
legislative or presidential act is bereft of the attribute of effectivity unless published in the Official
Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true
that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is,
to my mind, needed to avoid any possible misconception as to what is required for any statute or
presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires
notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily
by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise in
agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it
requires notice before laws become effective, for no person should be bound by a law without notice.
This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by
publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must
be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level
of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect
of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no
legal consequences could attach due to lack of publication in the Official Gazette, then serious problems
could arise. Previous transactions based on such "Presidential Issuances" could be open to question.
Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is
contemplated by our decision. Where such presidential decree or executive act is made the basis of a
criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases
 though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing
of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under
the police power, the non-impairment clause of the Constitution may not always be successfully
invoked. There must still be that process of balancing to determine whether or not it could in such a
case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of
unconstitutional application. That is as far as it goes.
Page 4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication
|5 is essential to the effectivity of a legislative or executive act of a general application. I am not in
agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its
Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise
provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does
not and cannot have the juridical force of a constitutional command. A later legislative or executive act
which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice
that a reasonable opportunity to be informed must be afforded to the people who are commanded to
obey before they can be punished for its violation,1 citing the settled principle based on due process
enunciated in earlier cases that "before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and the people officially and specially
informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3
of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that has been duly published pursuant to the basic constitutional requirements of due process. The
best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take
effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that
"most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for
its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has
to be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the
date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity
will run counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such notice is
not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither
is the publication of laws in the Official Gazette required by any statute as a prerequisite for their
effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may
be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when
it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period
for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it
shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for
the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes
the publication of the Official Gazette, determines its frequency, provides for its sale and distribution,
and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall
be published in the Official Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and administrative orders and
proclamations, except such as have no general applicability." It is noteworthy that not all legislative acts
are required to be published in the Official Gazette but only "important" ones "of a public nature."
Moreover, the said law does not provide that publication in the Official Gazette is essential for the
effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law,
especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or
restrict the operation of a subsequent statute that has a provision of its own as to when and how it will
take effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness. However,
I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.
DE LA FUENTE, J., concurring:
 I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.
Footnotes
1 Section 6. The right of the people to information on matters of public concern shag be recognized,
access to official records, and to documents and papers pertaining to official acts, transactions, or
decisions, shag be afforded the citizens subject to such limitation as may be provided by law.
Page 2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345; Almario vs. City Mayor,
|6 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs. Comelec, 95 SCRA 392.
3 16 Phil. 366, 378.
4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil. 486; Republic of the
Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security System, 17
SCRA 1077; Askay vs. Cosalan, 46 Phil. 179.
5 1 Manresa, Codigo Civil 7th Ed., p. 146.
6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al., 110 Phil. 150.
7 82 SCRA 30, dissenting opinion.
8 308 U.S. 371, 374.
9 93 Phil.. 68,.
10 The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo Jr. of the
Government Printing Office, failed to respond to her letter-request regarding the respective dates of
publication in the Official Gazette of the presidential issuances listed therein. No report has been
submitted by the Clerk of Court as to the publication or non-publication of other presidential issuances.
11 129 SCRA 174.
Fernando, CJ.:
1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection Article 7, Sec. 21
of the Wisconsin Constitution and State ex rel. White v. Grand Superior Ct., 71 ALR 1354, citing the
Constitution of Indiana, U.S.A
2 Ibid, closing paragraph.
3 Learned Hand, The Spirit of Liberty 104 (1960).
4 Cardozo, The Growth of the Law, 3 (1924).
5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA 433.
6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.
Teehankee, J.:
1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice Paras.
2 Notes in brackets supplied.
3 Respondents: comment, pp. 14-15.
Plana, J.:
* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide publication of all statute
laws ... and no general law shall be in force until published." See also S ate ex rel. White vs. Grand
Superior Ct., 71 ALR 1354, citing Constitution of Indiana, U.S.A.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101279 August 6, 1992
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
Page vs.
|7 HON. RUBEN D. TORRES, as Secretary of the Department of Labor & Employment, and JOSE N.
SARMIENTO, as Administrator of the PHILIPPINE OVERSEAS EMPLOYMENT
ADMINISTRATION, respondents.
De Guzman, Meneses & Associates for petitioner.
GRIO-AQUINO, J.:
This petition for prohibition with temporary restraining order was filed by the Philippine Association of
Service Exporters (PASEI, for short), to prohibit and enjoin the Secretary of the Department of Labor
and Employment (DOLE) and the Administrator of the Philippine Overseas Employment Administration
(or POEA) from enforcing and implementing DOLE Department Order No. 16, Series of 1991 and POEA
Memorandum Circulars Nos. 30 and 37, Series of 1991, temporarily suspending the recruitment by
private employment agencies of Filipino domestic helpers for Hong Kong and vesting in the DOLE,
through the facilities of the POEA, the task of processing and deploying such workers.
PASEI is the largest national organization of private employment and recruitment agencies duly licensed
and authorized by the POEA, to engaged in the business of obtaining overseas employment for Filipino
landbased workers, including domestic helpers.
On June 1, 1991, as a result of published stories regarding the abuses suffered by Filipino housemaids
employed in Hong Kong, DOLE Secretary Ruben D. Torres issued Department Order No. 16, Series of
1991, temporarily suspending the recruitment by private employment agencies of "Filipino domestic
helpers going to Hong Kong" (p. 30, Rollo). The DOLE itself, through the POEA took over the business of
deploying such Hong Kong-bound workers.
In view of the need to establish mechanisms that will enhance the protection for Filipino domestic
helpers going to Hong Kong, the recruitment of the same by private employment agencies is hereby
temporarily suspended effective 1 July 1991. As such, the DOLE through the facilities of the Philippine
Overseas Employment Administration shall take over the processing and deployment of household
workers bound for Hong Kong, subject to guidelines to be issued for said purpose.
In support of this policy, all DOLE Regional Directors and the Bureau of Local Employment's regional
offices are likewise directed to coordinate with the POEA in maintaining a manpower pool of
prospective domestic helpers to Hong Kong on a regional basis.
For compliance. (Emphasis ours; p. 30, Rollo.)
Pursuant to the above DOLE circular, the POEA issued Memorandum Circular No. 30, Series of 1991,
dated July 10, 1991, providing GUIDELINES on the Government processing and deployment of Filipino
domestic helpers to Hong Kong and the accreditation of Hong Kong recruitment agencies intending to
hire Filipino domestic helpers.
Subject: Guidelines on the Temporary Government Processing and Deployment of Domestic Helpers to
Hong Kong.
Pursuant to Department Order No. 16, series of 1991 and in order to operationalize the temporary
government processing and deployment of domestic helpers (DHs) to Hong Kong resulting from the
temporary suspension of recruitment by private employment agencies for said skill and host market,
the following guidelines and mechanisms shall govern the implementation of said policy.
I. Creation of a joint POEA-OWWA Household Workers Placement Unit (HWPU)
An ad hoc, one stop Household Workers Placement Unit [or HWPU] under the supervision of the POEA
shall take charge of the various operations involved in the Hong Kong-DH industry segment:
The HWPU shall have the following functions in coordination with appropriate units and other entities
concerned:
1. Negotiations with and Accreditation of Hong Kong Recruitment Agencies
2. Manpower Pooling
3. Worker Training and Briefing
4. Processing and Deployment
5. Welfare Programs
II. Documentary Requirements and Other Conditions for Accreditation of Hong Kong Recruitment
Agencies or Principals
Recruitment agencies in Hong Kong intending to hire Filipino DHs for their employers may negotiate
with the HWPU in Manila directly or through the Philippine Labor Attache's Office in Hong Kong.
xxx xxx xxx
X. Interim Arrangement
All contracts stamped in Hong Kong as of June 30 shall continue to be processed by POEA until 31 July
1991 under the name of the Philippine agencies concerned. Thereafter, all contracts shall be processed
with the HWPU.
Recruitment agencies in Hong Kong shall submit to the Philippine Consulate General in Hong kong a list
of their accepted applicants in their pool within the last week of July. The last day of acceptance shall be
July 31 which shall then be the basis of HWPU in accepting contracts for processing. After the
exhaustion of their respective pools the only source of applicants will be the POEA manpower pool.
For strict compliance of all concerned. (pp. 31-35, Rollo.)
On August 1, 1991, the POEA Administrator also issued Memorandum Circular No. 37, Series of 1991,
on the processing of employment contracts of domestic workers for Hong Kong.
TO: All Philippine and Hong Kong Agencies engaged in the recruitment of Domestic helpers for Hong
Kong
Further to Memorandum Circular No. 30, series of 1991 pertaining to the government processing and
deployment of domestic helpers (DHs) to Hong Kong, processing of employment contracts which have
been attested by the Hong Kong Commissioner of Labor up to 30 June 1991 shall be processed by the
POEA Employment Contracts Processing Branch up to 15 August 1991 only.
Effective 16 August 1991, all Hong Kong recruitment agent/s hiring DHs from the Philippines shall
recruit under the new scheme which requires prior accreditation which the POEA.
Recruitment agencies in Hong Kong may apply for accreditation at the Office of the Labor Attache,
Philippine Consulate General where a POEA team is posted until 31 August 1991. Thereafter, those who
failed to have themselves accredited in Hong Kong may proceed to the POEA-OWWA Household
Workers Placement Unit in Manila for accreditation before their recruitment and processing of DHs
shall be allowed.
Recruitment agencies in Hong Kong who have some accepted applicants in their pool after the cut-off
period shall submit this list of workers upon accreditation. Only those DHs in said list will be allowed
processing outside of the HWPU manpower pool.
For strict compliance of all concerned. (Emphasis supplied, p. 36, Rollo.)
On September 2, 1991, the petitioner, PASEI, filed this petition for prohibition to annul the
aforementioned DOLE and POEA circulars and to prohibit their implementation for the following
reasons:
1. that the respondents acted with grave abuse of discretion and/or in excess of their rule-making
authority in issuing said circulars;
 2. that the assailed DOLE and POEA circulars are contrary to the Constitution, are unreasonable, unfair
and oppressive; and
3. that the requirements of publication and filing with the Office of the National Administrative Register
were not complied with.
There is no merit in the first and second grounds of the petition.
Article 36 of the Labor Code grants the Labor Secretary the power to restrict and regulate recruitment
Page and placement activities.
|8 Art. 36. Regulatory Power. The Secretary of Labor shall have the power to restrict and regulate the
recruitment and placement activities of all agencies within the coverage of this title [Regulation of
Recruitment and Placement Activities] and is hereby authorized to issue orders and promulgate rules
and regulations to carry out the objectives and implement the provisions of this title. (Emphasis ours.)
On the other hand, the scope of the regulatory authority of the POEA, which was created by Executive
Order No. 797 on May 1, 1982 to take over the functions of the Overseas Employment Development
Board, the National Seamen Board, and the overseas employment functions of the Bureau of
Employment Services, is broad and far-ranging for:
1. Among the functions inherited by the POEA from the defunct Bureau of Employment Services was
the power and duty:
"2. To establish and maintain a registration and/or licensing system to regulate private sector
participation in the recruitment and placement of workers, locally and overseas, . . ." (Art. 15, Labor
Code, Emphasis supplied). (p. 13, Rollo.)
2. It assumed from the defunct Overseas Employment Development Board the power and duty:
3. To recruit and place workers for overseas employment of Filipino contract workers on a government
to government arrangement and in such other sectors as policy may dictate . . . (Art. 17, Labor Code.)
(p. 13, Rollo.)
3. From the National Seamen Board, the POEA took over:
2. To regulate and supervise the activities of agents or representatives of shipping companies in the
hiring of seamen for overseas employment; and secure the best possible terms of employment for
contract seamen workers and secure compliance therewith. (Art. 20, Labor Code.)
The vesture of quasi-legislative and quasi-judicial powers in administrative bodies is not
unconstitutional, unreasonable and oppressive. It has been necessitated by "the growing complexity of
the modern society" (Solid Homes, Inc. vs. Payawal, 177 SCRA 72, 79). More and more administrative
bodies are necessary to help in the regulation of society's ramified activities. "Specialized in the
particular field assigned to them, they can deal with the problems thereof with more expertise and
dispatch than can be expected from the legislature or the courts of justice" (Ibid.).
It is noteworthy that the assailed circulars do not prohibit the petitioner from engaging in the
recruitment and deployment of Filipino landbased workers for overseas employment. A careful reading
of the challenged administrative issuances discloses that the same fall within the "administrative and
policing powers expressly or by necessary implication conferred" upon the respondents (People vs.
Maceren, 79 SCRA 450). The power to "restrict and regulate conferred by Article 36 of the Labor Code
involves a grant of police power (City of Naga vs. Court of Appeals, 24 SCRA 898). To "restrict" means
"to confine, limit or stop" (p. 62, Rollo) and whereas the power to "regulate" means "the power to
protect, foster, promote, preserve, and control with due regard for the interests, first and foremost, of
the public, then of the utility and of its patrons" (Philippine Communications Satellite Corporation vs.
Alcuaz, 180 SCRA 218).
The Solicitor General, in his Comment, aptly observed:
. . . Said Administrative Order [i.e., DOLE Administrative Order No. 16] merely restricted the scope or
area of petitioner's business operations by excluding therefrom recruitment and deployment of
domestic helpers for Hong Kong till after the establishment of the "mechanisms" that will enhance the
protection of Filipino domestic helpers going to Hong Kong. In fine, other than the recruitment and
deployment of Filipino domestic helpers for Hongkong, petitioner may still deploy other class of Filipino
workers either for Hongkong and other countries and all other classes of Filipino workers for other
countries.
Said administrative issuances, intended to curtail, if not to end, rampant violations of the rule against
excessive collections of placement and documentation fees, travel fees and other charges committed
by private employment agencies recruiting and deploying domestic helpers to Hongkong. [They are
reasonable, valid and justified under the general welfare clause of the Constitution, since the
recruitment and deployment business, as it is conducted today, is affected with public interest.
xxx xxx xxx
The alleged takeover [of the business of recruiting and placing Filipino domestic helpers in Hongkong] is
merely a remedial measure, and expires after its purpose shall have been attained. This is evident from
the tenor of Administrative Order No. 16 that recruitment of Filipino domestic helpers going to
Hongkong by private employment agencies are hereby "temporarily suspended effective July 1, 1991."
The alleged takeover is limited in scope, being confined to recruitment of domestic helpers going to
Hongkong only.
xxx xxx xxx
. . . the justification for the takeover of the processing and deploying of domestic helpers for Hongkong
resulting from the restriction of the scope of petitioner's business is confined solely to the unscrupulous
practice of private employment agencies victimizing applicants for employment as domestic helpers for
Hongkong and not the whole recruitment business in the Philippines. (pp. 62-65, Rollo.)
The questioned circulars are therefore a valid exercise of the police power as delegated to the
executive branch of Government.
Nevertheless, they are legally invalid, defective and unenforceable for lack of power publication and
filing in the Office of the National Administrative Register as required in Article 2 of the Civil Code,
Article 5 of the Labor Code and Sections 3(1) and 4, Chapter 2, Book VII of the Administrative Code of
1987 which provide:
Art. 2. Laws shall take effect after fifteen (15) days following the completion of their publication in the
Official Gazatte, unless it is otherwise provided. . . . (Civil Code.)
Art. 5. Rules and Regulations. The Department of Labor and other government agencies charged with
the administration and enforcement of this Code or any of its parts shall promulgate the necessary
implementing rules and regulations. Such rules and regulations shall become effective fifteen (15)
days after announcement of their adoption in newspapers of general circulation. (Emphasis supplied,
Labor Code, as amended.)
Sec. 3. Filing. (1) Every agency shall file with the University of the Philippines Law Center, three (3)
certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which
are not filed within three (3) months shall not thereafter be the basis of any sanction against any party
or persons. (Emphasis supplied, Chapter 2, Book VII of the Administrative Code of 1987.)
Sec. 4. Effectivity. In addition to other rule-making requirements provided by law not inconsistent
with this Book, each rule shall become effective fifteen (15) days from the date of filing as above
provided unless a different date is fixed by law, or specified in the rule in cases of imminent danger to
public health, safety and welfare, the existence of which must be expressed in a statement
accompanying the rule. The agency shall take appropriate measures to make emergency rules known to
persons who may be affected by them. (Emphasis supplied, Chapter 2, Book VII of the Administrative
Code of 1987).
Once, more we advert to our ruling in Taada vs. Tuvera, 146 SCRA 446 that:
. . . Administrative rules and regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation. (p. 447.)
 Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of
the administrative agency and not the public, need not be published. Neither is publication required of
the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines
to be followed by their subordinates in the performance of their duties. (p. 448.)
We agree that publication must be in full or it is no publication at all since its purpose is to inform the
public of the content of the laws. (p. 448.)
Page For lack of proper publication, the administrative circulars in question may not be enforced and
|9 implemented.
WHEREFORE, the writ of prohibition is GRANTED. The implementation of DOLE Department Order No.
16, Series of 1991, and POEA Memorandum Circulars Nos. 30 and 37, Series of 1991, by the public
respondents is hereby SUSPENDED pending compliance with the statutory requirements of publication
and filing under the aforementioned laws of the land.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr., Romero,
Nocon and Bellosillo, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 46623 December 7, 1939
MARCIAL KASILAG, petitioner,
Page vs.
| 10 RAFAELA RODRIGUEZ, URBANO ROQUE, SEVERO MAPILISAN and IGNACIO DEL
ROSARIO, respondents.
Luis M. Kasilag for petitioner.
Fortunato de Leon for respondents.
IMPERIAL, J.:
This is an appeal taken by the defendant-petitioner from the decision of the Court of Appeals which
modified that rendered by the court of First Instance of Bataan in civil case No. 1504 of said court and
held: that the contract Exhibit "1" is entirely null and void and without effect; that the plaintiffs-
respondents, then appellants, are the owners of the disputed land, with its improvements, in common
ownership with their brother Gavino Rodriguez, hence, they are entitled to the possession thereof; that
the defendant-petitioner should yield possession of the land in their favor, with all the improvements
thereon and free from any lien; that the plaintiffs-respondents jointly and severally pay to the
defendant-petitioner the sum of P1,000 with interest at 6 percent per annum from the date of the
decision; and absolved the plaintiffs-respondents from the cross-complaint relative to the value of the
improvements claimed by the defendant-petitioner. The appealed decision also ordered the registrar of
deeds of Bataan to cancel certificate of title No. 325, in the name of the deceased Emiliana Ambrosio
and to issue in lieu thereof another certificate of title in favor of the plaintiffs-respondents and their
brother Gavino Rodriguez, as undivided owners in equal parts, free of all liens and incumbrances except
those expressly provided by law, without special pronouncement as to the costs.
The respondents, children and heirs of the deceased Emiliana Ambrosio, commenced the aforesaid civil
case to the end that they recover from the petitioner the possession of the land and its improvements
granted by way of homestead to Emiliana Ambrosio under patent No. 16074 issued on January 11,
1931, with certificate of title No. 325 issued by the registrar of deeds of Bataan on June 27, 1931 in her
favor, under section 122 of Act No. 496, which land was surveyed and identified in the cadastre of the
municipality of Limay, Province of Bataan, as lot No. 285; that the petitioner pay to them the sum of
P650 being the approximate value of the fruits which he received from the land; that the petitioner sign
all the necessary documents to transfer the land and its possession to the respondents; that he
petitioner be restrained, during the pendency of the case, from conveying or encumbering the land and
its improvements; that the registrar of deeds of Bataan cancel certificate of title No. 325 and issue in
lieu thereof another in favor of the respondents, and that the petitioner pay the costs of suit.
The petitioner denied in his answer all the material allegations of the complaint and by way of special
defense alleged that he was in possession of the land and that he was receiving the fruits thereof by
virtue of a mortgage contract, entered into between him and the deceased Emiliana Ambrosio on May
16, 1932, which was duly ratified by a notary public; and in counterclaim asked that the respondents
pay him the sum of P1,000 with 12 per cent interest per annum which the deceased owed him and that,
should the respondents be declared to have a better right to the possession of the land, that they be
sentenced to pay him the sum of P5,000 as value of all the improvements which he introduced upon
the land.lawphil.net
On May 16, 1932 Emiliana Ambrosio, in life, and the petitioner executed the following public deed:
"This agreement, made and entered into this 16th day of May, 1932, by and between Emiliana
Ambrosio, Filipino, of legal age, widow and resident of Limay, Bataan, P.L., hereinafter called the party
of the first part, and Marcial Kasilag, Filipino, of legal age, married to Asuncion Roces, and resident at
312 Perdigon Street, Manila, P.L., hereinafter called party of the second part.
WITNESSETH: That the parties hereto hereby covenant and agree to and with each other as follows:
ARTICLE I. That the party of the first part is the absolute registered owner of a parcel of land in the
barrio of Alngan, municipality of Limay, Province of Bataan, her title thereto being evidenced by
homestead certificate of title No. 325 issued by the Bureau of Lands on June 11, 1931, said land being
lot No. 285 of the Limay Cadastre, General Land Registration Office Cadastral Record No. 1054,
bounded and described as follows:
Beginning at point marked 1 on plan E-57394, N. 84 32' W. 614.82 m. from B.B.M. No. 3, thence N. 66
35' E. 307.15 m. to point "2"; S. 5 07' W. to point "5"; S.6 10' E. 104.26 m. to point "4"; S. 82 17' W.
to point "5"; S. 28 53' W. 72.26 m. to point "6"; N. 71 09' W. to point "7"; N. 1 42' E. 173.72 m. to
point 1, point of beginning, "Containing an area of 6.7540 hectares. "Points 1,2,6 and 7, B.L.; points 3,4
and 5, stakes; points 4, 5 and 6 on bank of Alangan River. "Bounded on the North, by property claimed
by Maria Ambrosio; on the East, by Road; on the South, by Alangan River and property claimed by
Maxima de la Cruz; and on the West, by property claimed by Jose del Rosario. "Bearing true.
Declination 0 51' E. "Surveyed under authority of sections 12-22, Act No. 2874 and in accordance with
existing regulations of the Bureau of Lands, by Mamerto Jacinto, public land surveyor, on July 8, 1927
and approved on February 25, 1931.
ARTICLE II. That the improvements on the above described land consist of the following:
Four (4) mango trees, fruit bearing: one hundred ten (110) hills of bamboo trees; one (1) tamarind and
six (6) boga trees.
ARTICLE III. That the assessed value of the land is P940 and the assessed value of the improvements is
P860, as evidenced by tax declaration No. 3531 of the municipality of Limay, Bataan.
ARTICLE IV. That for and in consideration of the sum of one thousand pesos (P1,000) Philippine
currency, paid by the party of second part to the party of the first part, receipt whereof is hereby
acknowledged, the party of the first part hereby encumbers and hypothecates, by way of mortgage,
only the improvements described in Articles II and III hereof, of which improvements the party of the
first part is the absolute owner.
ARTICLE V. That the condition of said mortgage is such that if the party of the first part shall well and
truly pay, or cause to paid to the party of the second part, his heirs, assigns, or executors, on or before
the 16th day of November, 1936, or four and one-half (4) years after date of the execution of this
instrument, the aforesaid sum of one thousand pesos (P1,000) with interest at 12 per cent per annum,
then said mortgage shall be and become null and void; otherwise the same shall be and shall remain in
full force and effect, and subject to foreclosure in the manner and form provided by law for the amount
due thereunder, with costs and also attorney's fees in the event of such foreclosure.lawphil.net
ARTICLE VI. That the party of the first part shall pay all taxes and assessments which are or may become
due on the above described land and improvements during the term of this agreement.
ARTICLE VII. That within thirty (30) days after date of execution of this agreement, the party of the first
part shall file a motion before the Court of First Instance at Balanga, Bataan, P. I., requesting
cancellation of Homestead Certificate of Title No. 325 referred to in Article I hereof and the issuance, in
lieu thereof, of a certificate of title under the provisions of Land Registration Act No. 496, as amended
by Act 3901.
ARTICLE III. It if further agreed that if upon the expiration of the period of time (4) years stipulated in
this mortgage, the mortgagor should fail to redeem this mortgage, she would execute a deed of
absolute sale of the property herein described for the same amount as this mortgage, including all
unpaid interests at the rate of 12 per cent per annum, in favor of the mortgagee.
 ARTICLE IX. That in the event the contemplated motion under Article VII hereof is not approved by the The cardinal rule in the interpretation of contracts is to the effect that the intention of the contracting
Court, the foregoing contract of sale shall automatically become null and void, and the mortgage parties should always prevail because their will has the force of law between them. Article 1281 of the
stipulated under Article IV and V shall remain in full force and effect. Civil Code consecrates this rule and provides, that if the terms of a contract are clear and leave no
In testimony whereof, the parties hereto have hereunto set their hands the day and year first herein doubt as to the intention of the contracting parties, the literal sense of its stipulations shall be followed;
before written. and if the words appear to be contrary to the evident intention of the contracting parties, the intention
(Sgd.) MARCIAL KASILAG shall prevail. The contract set out in Exhibit 1 should be interpreted in accordance with these rules. As
Page (Sgd.) EMILIANA AMBROSIO the terms thereof are clear and leave no room for doubt, it should be interpreted according to the
| 11 Signed in the presence of: literal meaning of its clauses. The words used by the contracting parties in Exhibit 1 clearly show that
(Sgd.) ILLEGIBLE they intended to enter into the principal contract of loan in the amount of P1,000, with interest at 12
(Sgd.) GAVINO RODRIGUEZ. per cent per annum, and into the accessory contract of mortgage of the improvements on the land
acquired as homestead, the parties having moreover, agreed upon the pacts and conditions stated in
PHILIPPINE ISLANDS } ss. the deed. In other words, the parties entered into a contract of mortgage of the improvements on the
BALANGA, BATAAN } ss. land acquired as homestead, to secure the payment of the indebtedness for P1,000 and the stipulated
Before me this day personally appeared Emiliana Ambrosio without cedula by reason of her sex, to me interest thereon. In clause V the parties stipulated that Emiliana Ambrosio was to pay, within four and a
known and known to me to be the person who signed the foregoing instrument, and acknowledged to half years, or until November 16, 1936, the debt with interest thereon, in which event the mortgage
me that she executed the same as her free and voluntary act and deed. would not have any effect; in clause VI the parties agreed that the tax on the land and its
I hereby certify that this instrument consists of three (3) pages including this page of the improvements, during the existence of the mortgage, should be paid by the owner of the land; in clause
acknowledgment and that each page thereof is signed by the parties to the instrument and the VII it was covenanted that within thirty days from the date of the contract, the owner of the land would
witnesses in their presence and in the presence of each other, and that the land treated in this file a motion in the Court of First Instance of Bataan asking that certificate of title No. 325 be cancelled
instrument consists of only one parcel. and that in lieu thereof another be issued under the provisions of the Land Registration Act No. 496, as
In witness whereof I have hereunto set my hand and affixed my notarial seal, this 16th day of May, amended by Act No. 3901; in clause VIII the parties agreed that should Emiliana Ambrosio fail to
1932. redeem the mortgage within the stipulated period of four years and a half, she would execute an
(Sgd.) NICOLAS NAVARRO absolute deed of sale of the land in favor of the mortgagee, the petitioner, for the same amount of the
Notary Public loan of P1,000 including unpaid interest; and in clause IX it was stipulated that in case the motion to be
My commission expires December 31, 1933. presented under clause VII should be disapproved by the Court of First Instance of Bataan, the contract
Doc. No. 178 of sale would automatically become void and the mortgage would subsist in all its force.
Page 36 of my register Another fundamental rule in the interpretation of contracts, not less important than those indicated, is
Book No. IV to the effect that the terms, clauses and conditions contrary to law, morals and public order should be
One year after the execution of the aforequoted deed, that is, in 1933, it came to pass that Emiliana separated from the valid and legal contract and when such separation can be made because they are
Ambrosio was unable to pay the stipulated interests as well as the tax on the land and its independent of the valid contract which expresses the will of the contracting parties. Manresa,
improvements. For this reason, she and the petitioner entered into another verbal contract whereby commenting on article 1255 of the Civil Code and stating the rule of separation just mentioned, gives
she conveyed to the latter the possession of the land on condition that the latter would not collect the his views as follows:
interest on the loan, would attend to the payment of the land tax, would benefit by the fruits of the On the supposition that the various pacts, clauses or conditions are valid, no difficulty is presented; but
land, and would introduce improvements thereon. By virtue of this verbal contract, the petitioner should they be void, the question is as to what extent they may produce the nullity of the principal
entered upon the possession of the land, gathered the products thereof, did not collect the interest on obligation. Under the view that such features of the obligation are added to it and do not go to its
the loan, introduced improvements upon the land valued at P5,000, according to him and on May 22, essence, a criterion based upon the stability of juridical relations should tend to consider the nullity as
1934 the tax declaration was transferred in his name and on March 6, 1936 the assessed value of the confined to the clause or pact suffering therefrom, except in case where the latter, by an established
land was increased from P1,020 to P2,180. connection or by manifest intention of the parties, is inseparable from the principal obligation, and is a
After an analysis of the conditions of Exhibit "1" the Court of Appeals came to the conclusion and so condition, juridically speaking, of that the nullity of which it would also occasion. (Manresa,
held that the contract entered into by and between the parties, set out in the said public deed, was one Commentaries on the Civil Code, Volume 8, p. 575.)
of absolute purchase and sale of the land and its improvements. And upon this ruling it held null and The same view prevails in the Anglo-American law, as condensed in the following words:
void and without legal effect the entire Exhibit 1 as well as the subsequent verbal contract entered into Where an agreement founded on a legal consideration contains several promises, or a promise to do
between the parties, ordering, however, the respondents to pay to the petitioner, jointly and severally, several things, and a part only of the things to be done are illegal, the promises which can be separated,
the loan of P1,000 with legal interest at 6 per cent per annum from the date of the decision. In this first or the promise, so far as it can be separated, from the illegality, may be valid. The rule is that a lawful
assignment of error the petitioner contends that the Court of Appeals violated the law in holding that promise made for a lawful consideration is not invalid merely because an unlawful promise was made
Exhibit 1 is an absolute deed of sale of the land and its improvements and that it is void and without at the same time and for the same consideration, and this rule applies, although the invalidity is due to
any legal effect. violation of a statutory provision, unless the statute expressly or by necessary implication declares the
entire contract void. . . . (13 C. J., par. 470, p. 512; New York Cent. etc. R. Co. v. Gray, 239 U.S., 583; 60
 Law ed., 451; U.S. v. Mora, 97 U.S., 413, 24 Law. ed., 1017; U.S. v. Hodson, 10 Wall, 395; 19 Law ed. 937;
Gelpcke v. Dubuque, 1 Wall. 175, 17 Law ed., 520; U.S. v. Bradly, 10 Pet. 343, 9 Law. ed., 448; Borland v.
Prindle, 144 Fed 713; Western Union Tel. Co. v. Kansas Pac. R. Co., 4 Fed., 284; Northern Pac. R. Co. v.
U.S., 15 Ct. Cl., 428.)
Addressing ourselves now to the contract entered into by the parties, set out in Exhibit 1, we stated
that the principal contract is that of loan and the accessory that of mortgage of the improvements upon
Page the land acquired as a homestead. There is no question that the first of these contract is valid as it is
| 12 not against the law. The second, or the mortgage of the improvements, is expressly authorized by
section 116 of Act No. 2874, as amended by section 23 of Act No. 3517, reading:
SEC. 116. Except in favor of the Government or any of its branches, units or institutions, or legally
constituted banking corporations, lands acquired under the free patent or homestead provisions shall
not be subject to encumbrance or alienation from the date of the approval of the application and for a
term of five years from and after the date of issuance of the patent or grant, nor shall they become
liable to the satisfaction of any debt contracted prior to the expiration of said period; but the
improvements or crops on the land may be mortgaged or pledged to qualified persons, associations, or
corporations.
It will be recalled that by clause VIII of Exhibit 1 the parties agreed that should Emiliana Ambrosio fail to
redeem the mortgage within the stipulated period of four and a half years, by paying the loan together
with interest, she would execute in favor of the petitioner an absolute deed of sale of the land for
P1,000, including the interest stipulated and owing. The stipulation was verbally modified by the same
parties after the expiration of one year, in the sense that the petitioner would take possession of the
land and would benefit by the fruits thereof on condition that he would condone the payment of
interest upon the loan and he would attend to the payment of the land tax. These pacts made by the
parties independently were calculated to alter the mortgage a contract clearly entered into, converting
the latter into a contract of antichresis. (Article 1881 of the Civil Code.) The contract of antichresis,
being a real encumbrance burdening the land, is illegal and void because it is legal and valid.
The foregoing considerations bring us to the conclusion that the first assignment of error is well-
founded and that error was committed in holding that the contract entered into between the parties
was one of absolute sale of the land and its improvements and that Exhibit 1 is null and void. In the
second assignment of error the petitioner contends that the Court of Appeals erred in holding that he is
guilty of violating the Public Land Act because he entered into the contract, Exhibit 1. The assigned
error is vague and not specific. If it attempts to show that the said document is valid in its entirety, it is
not well-founded because we have already said that certain pacts thereof are illegal because they are
prohibited by section 116 of Act No. 2874, as amended.
In the third assignment of error the petitioner insists that his testimony, as to the verbal agreement
entered into between him and Emiliana Ambrosio, should have been accepted by the Court of Appeals;
and in the fourth and last assignment of error the same petitioner contends that the Court of Appeals
erred in holding that he acted in bad faith in taking possession of the land and in taking advantage of
the fruits thereof, resulting in the denial of his right to be reimbursed for the value of the
improvements introduced by him.
We have seen that subsequent to the execution of the contract, Exhibit 1, the parties entered into
another verbal contract whereby the petitioner was authorized to take possession of the land, to
receive the fruits thereof and to introduce improvements thereon, provided that he would renounce
the payment of stipulated interest and he would assume payment of the land tax. The possession by
the petitioner and his receipt of the fruits of the land, considered as integral elements of the contract of
antichresis, are illegal and void agreements because, as already stated, the contract of antichresis is a
lien and such is expressly prohibited by section 116 of Act No. 2874, as amended. The Court of Appeals
held that the petitioner acted in bad faith in taking possession of the land because he knew that the
contract he made with Emiliana Ambrosio was an absolute deed of sale and, further, that the latter
could not sell the land because it is prohibited by section 116. The Civil Code does not expressly define
what is meant by bad faith, but section 433 provides that "Every person who is unaware of any flaw in
his title, or in the manner of its acquisition, by which it is invalidated, shall be deemed a possessor in
good faith"; and provides further, that "Possessors aware of such flaw are deemed possessors in bad
faith". Article 1950 of the same Code, covered by Chapter II relative to prescription of ownership and
other real rights, provides, in turn, that "Good faith on the part of the possessor consists in his belief
that the person from whom he received the thing was the owner of the same, and could transmit the
title thereto." We do not have before us a case of prescription of ownership, hence, the last article is
not squarely in point. In resume, it may be stated that a person is deemed a possessor in bad faith
when he knows that there is a flaw in his title or in the manner of its acquisition, by which it is
invalidated.
Borrowing the language of Article 433, the question to be answered is whether the petitioner should be
deemed a possessor in good faith because he was unaware of any flaw in his title or in the manner of its
acquisition by which it is invalidated. It will be noted that ignorance of the flaw is the keynote of the
rule. From the facts found established by the Court of Appeals we can neither deduce nor presume that
the petitioner was aware of a flaw in his title or in the manner of its acquisition, aside from the
prohibition contained in section 116. This being the case, the question is whether good faith may be
premised upon ignorance of the laws. Manresa, commenting on article 434 in connection with the
preceding article, sustains the affirmative. He says:
"We do not believe that in real life there are not many cases of good faith founded upon an error of
law. When the acquisition appears in a public document, the capacity of the parties has already been
passed upon by competent authority, and even established by appeals taken from final judgments and
administrative remedies against the qualification of registrars, and the possibility of error is remote
under such circumstances; but, unfortunately, private documents and even verbal agreements far
exceed public documents in number, and while no one should be ignorant of the law, the truth is that
even we who are called upon to know and apply it fall into error not infrequently. However, a clear,
manifest, and truly unexcusable ignorance is one thing, to which undoubtedly refers article 2, and
another and different thing is possible and excusable error arising from complex legal principles and
from the interpretation of conflicting doctrines.
But even ignorance of the law may be based upon an error of fact, or better still, ignorance of a fact is
possible as to the capacity to transmit and as to the intervention of certain persons, compliance with
certain formalities and appreciation of certain acts, and an error of law is possible in the interpretation
of doubtful doctrines. (Manresa, Commentaries on the Spanish Civil Code. Volume IV, pp. 100, 101 and
102.)
According to this author, gross and inexcusable ignorance of law may not be the basis of good faith, but
possible, excusable ignorance may be such basis. It is a fact that the petitioner is not conversant with
the laws because he is not a lawyer. In accepting the mortgage of the improvements he proceeded on
the well-grounded belief that he was not violating the prohibition regarding the alienation of the land.
In taking possession thereof and in consenting to receive its fruits, he did not know, as clearly as a jurist
does, that the possession and enjoyment of the fruits are attributes of the contract of antichresis and
that the latter, as a lien, was prohibited by section 116. These considerations again bring us to the
conclusion that, as to the petitioner, his ignorance of the provisions of section 116 is excusable and
may, therefore, be the basis of his good faith. We do not give much importance to the change of the tax
declaration, which consisted in making the petitioner appear as the owner of the land, because such an
act may only be considered as a sequel to the change of possession and enjoyment of the fruits by the
petitioner, to about which we have stated that the petitioner's ignorance of the law is possible and
 excusable. We, therefore, hold that the petitioner acted in good faith in taking possession of the land
and enjoying its fruits.
The petitioner being a possessor in good faith within the meaning of article 433 of the Civil Code and
having introduced the improvements upon the land as such, the provisions of article 361 of the same
Code are applicable; wherefore, the respondents are entitled to have the improvements and plants
upon indemnifying the petitioner the value thereof which we fix at P3,000, as appraised by the trial
Page court; or the respondents may elect to compel the petitioner to have the land by paying its market
| 13 value to be fixed by the court of origin.
The respondents also prayed in their complaint that the petitioner be compelled to pay them the sum
of P650, being the approximate value of the fruits obtained by the petitioner from the land. The Court
of Appeals affirmed the judgment of the trial court denying the claim or indemnity for damages, being
of the same opinion as the trial court that the respondents may elect to compel the petitioner to have
the land. The Court of Appeals affirmed the judgment of the trial court that the respondents have not
established such damages. Under the verbal contract between the petitioner and the deceased
Emiliana Ambrosio, during the latter's lifetime, the former would take possession of the land and would
receive the fruits of the mortgaged improvements on condition that he would no longer collect the
stipulated interest and that he would attend to the payment of the land tax. This agreement, at bottom,
is tantamount to the stipulation that the petitioner should apply the value of the fruits of the land to
the payment of stipulated interest on the loan of P1,000 which is, in turn, another of the elements
characterizing the contract of antichresis under article 1881 of the Civil Code. It was not possible for the
parties to stipulate further that the value of the fruits be also applied to the payment of the capital,
because the truth was that nothing remained after paying the interest at 12% per annum. This interest,
at the rate fixed, amounted to P120 per annum, whereas the market value of the fruits obtainable from
the land hardly reached said amount in view of the fact that the assessed value of said improvements
was, according to the decision, P860. To this should be added the fact that, under the verbal
agreement, from the value of the fruits had to be taken a certain amount to pay the annual land tax.
We mention these data here to show that the petitioner is also not bound to render an accounting of
the value of the fruits of the mortgaged improvements for the reason stated that said value hardly
covers the interest earned by the secured indebtednes.
For all the foregoing considerations, the appealed decision is reversed, and we hereby adjudge: (1) that
the contract of mortgage of the improvements, set out in Exhibit 1, is valid and binding; (2) that the
contract of antichresis agreed upon verbally by the parties is a real incumbrance which burdens the
land and, as such, is a null and without effect; (3) that the petitioner is a possessor in good faith; (4) that
the respondents may elect to have the improvements introduced by the petitioner by paying the latter
the value thereof, P3,000, or to compel the petitioner to buy and have the land where the
improvements or plants are found, by paying them its market value to be filed by the court of origin,
upon hearing the parties; (5) that the respondents have a right to the possession of the land and to
enjoy the mortgaged improvements; and (6) that the respondents may redeem the mortgage of the
improvements by paying to the petitioner within three months the amount of P1,000, without interest,
as that stipulated is set off by the value of the fruits of the mortgaged improvements which petitioner
received, and in default thereof the petitioner may ask for the public sale of said improvements for the
purpose of applying the proceeds thereof to the payment of his said credit. Without special
pronouncement as to the costs in all instances. So ordered.
Diaz, J., concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-68385 May 12, 1989
ILDEFONSO O. ELEGADO, as Ancillary Administrator of the Testate Estate of the late WARREN TAYLOR
Page GRAHAM, petitioner
| 14 vs.
HON. COURT OF TAX APPEALS and COMMISSIONER OF INTERNAL REVENUE respondents.
Agrava, Lucero & Gineta for petitioners.
The Office of the Solictor General for public respondents.
CRUZ, J.:
What the petitioner presents as a rather complicated problem is in reality a very simple question from
the viewpoint of the Solicitor General. We agree with the latter. There is actually only one issue to be
resolved in this action. That issue is whether or not the respondent Court of Tax Appeals erred in
dismissing the petitioner's appeal on grounds of jurisdiction and lack of a cause of action.
Appeal from what? That indeed is the question.
But first the facts.
On March 14, 1976, Warren Taylor Graham, an American national formerly resident in the Philippines,
died in Oregon, U.S.A. 1 As he left certain shares of stock in the Philippines, his son, Ward Graham, filed
an estate tax return on September 16, 1976, with the Philippine Revenue Representative in San
Francisco, U.S.A. 2
On the basis of this return, the respondent Commissioner of Internal Revenue assessed the decedent's
estate an estate tax in the amount of P96,509.35 on February 9, 1978.3 This assessment was protested
on March 7, 1978, by the law firm of Bump, Young and Walker on behalf of the estate . 4 The protest
was denied by the Commissioner on July 7, 1978.5 No further action was taken by the estate in pursuit
of that protest.
Meanwhile, on January 18, 1977, the decedent's will had been admitted to probate in the Circuit Court
of Oregon 6Ward Graham, the designated executor, then appointed Ildefonso Elegado, the herein
petitioner, as his attorney-in-fact for the allowance of the will in the Philippines.7
Pursuant to such authority, the petitioner commenced probate proceedings in the Court of First
Instance of Rizal. 8The will was allowed on December 18, 1978, with the petitioner as ancillary
administrator. 9 As such, he filed a second estate tax return with the Bureau of Internal Revenue on
June 4, 1980.10
On the basis of this second return, the Commissioner imposed an assessment on the estate in the
amount of P72,948.87.11 This was protested on behalf of the estate by the Agrava, Lucero and Gineta
Law Office on August 13, 1980.12
While this protest was pending, the Commissioner filed in the probate proceedings a motion for the
allowance of the basic estate tax of P96,509.35 as assessed on February 9, 1978. 13 He said that this
liability had not yet been paid although the assessment had long become final and executory.
The petitioner regarded this motion as an implied denial of the protest filed on August 13, 1980, against
the second assessment of P72,948.87.14 On this understanding, he filed on September 15, 1981, a
petition for review with the Court of Tax Appeals challenging the said assessment. 15
The Commissioner did not immediately answer (in fact, as the petitioner stressed, no answer was filed
during a delay of 195 days) and in the end instead cancelled the protested assessment in a letter to the
decedent's estate dated March 31, 1982.16 This cancellation was notified to the Court of Tax Appeals in
a motion to dismiss on the ground that the protest had become moot and academic.17
The motion was granted and the petition dismissed on April 25, 1984. 18 The petitioner then came to
this Court oncertiorari under Rule 45 of the Rules of Court.
The petitioner raises three basic questions, to wit, (1) whether the shares of stocks left by the decedent
should be treated as his exclusive, and not conjugal, property; (2) whether the said stocks should be
assessed as of the time of the owner's death or six months thereafter; and (3) whether the appeal filed
with the respondent court should be considered moot and academic.
We deal first with the third issue as it is decisive of this case.
In the letter to the decedent's estate dated March 31, 1982, the Commissioner of Internal Revenue
wrote as follows:
Estate of WARREN T. GRAHAM c/o Mr. ILDEFENSO O. ELEGADO Ancillary Administrator Philex Building
cor. Brixton & Fairlane Sts. Pasig, Metro Manila
Sir:
This is with regard to the estate of the late WARREN TAYLOR GRAHAM, who died a resident of Oregon,
U.S.A. on March 14, 1976. It appears that two (2) letters of demand were issued by this Bureau. One is
for the amount of P96,509.35 based on the first return filed, and the other in the amount of
P72,948.87, based on the second return filed.
It appears that the first assessment of P96,509.35 was issued on February 9, 1978 on the basis of the
estate tax return filed on September 16, 1976. The said assessment was, however, protested in a letter
dated March 7, 1978 but was denied on July 7, 1978. Since no appeal was made within the regulatory
period, the same has become final.
In view thereof, it is requested that you settle the aforesaid assessment for P96,509.35 within fifteen
(15) days upon receipt hereof to the Receivable Accounts Division, this Bureau, BIR National Office
Building, Diliman, Quezon City. The assessment for P72,949.57 dated July 3, 1980, referred to above is
hereby cancelled.
Very truly yours,
(SGD.) RUBEN B. ANCHETA Acting Commissioner 19
It is obvious from the express cancellation of the second assessment for P72,948.87 that the petitioner
had been deprived of a cause of action as it was precisely from this assessment that he was appealing.
In its decision, the Court of Tax Appeals said that the petition questioning the assessment of July 3,
1980, was "premature" since the protest to the assessment had not yet been resolved.20 As a matter of
fact it had: the said assessment had been cancelled by virtue of the above-quoted letter. The
respondent court was on surer ground, however, when it followed with the finding that the said
cancellation had rendered the petition moot and academic. There was really no more assessment to
review.
The petitioner argues that the issuance of the second assessment on July 3, 1980, had the effect of
canceling the first assessment of February 9, 1978, and that the subsequent cancellation of the second
assessment did not have the effect of automatically reviving the first. Moreover, the first assessment is
not binding on him because it was based on a return filed by foreign lawyers who had no knowledge of
our tax laws or access to the Court of Tax Appeals.
The petitioner is clutching at straws.
It is noted that in the letter of July 3, 1980, imposing the second assessment of P72,948.87, the
Commissioner made it clear that "the aforesaid amount is considered provisional only based on the
estate tax return filed subject to investigation by this Office for final determination of the correct estate
tax due from the estate. Any amount that may be found due after said investigation will be assessed
and collected later." 21 It is illogical to suggest that aprovisional assessment can supersede an earlier
assessment which had clearly become final and executory.
The second contention is no less flimsy. The petitioner cannot be serious when he argues that the first
assessment was invalid because the foreign lawyers who filed the return on which it was based were
 not familiar with our tax laws and procedure. Is the petitioner suggesting that they are excused from
compliance therewith because of their ignorance?
If our own lawyers and taxpayers cannot claim a similar preference because they are not allowed to
claim a like ignorance, it stands to reason that foreigners cannot be any less bound by our own laws in
our own country. A more obvious and shallow discrimination than that suggested by the petitioner is
indeed difficult to find.
Page But the most compelling consideration in this case is the fact that the first assessment is already final
| 15 and executory and can no longer be questioned at this late hour. The assessment was made on
February 9, 1978. It was protested on March 7, 1978. The protest was denied on July 7, 1978. As no
further action was taken thereon by the decedent's estate, there is no question that the assessment
has become final and executory.
In fact, the law firm that had lodged the protest appears to have accepted its denial. In his motion with
the probate court, the respondent Commissioner stressed that "in a letter dated January 29, 1980, the
Estate of Warren Taylor Graham thru the aforesaid foreign law firm informed claimant that they have
paid said tax liability thru the Agrava, Velarde, Lucero and Puno, Philippine law firm of 313 Buendia
Avenue Ext., Makati, Metro Manila that initiated the instant ancillary proceedings" although he added
that such payment had not yet been received.22 This letter was an acknowledgment by the estate of the
validity and finality of the first assessment. Significantly, it has not been denied by the petitioner.
In view of the finality of the first assessment, the petitioner cannot now raise the question of its validity
before this Court any more than he could have done so before the Court of Tax Appeals. What the
estate of the decedent should have done earlier, following the denial of its protest on July 7, 1978, was
to appeal to the Court of Tax Appeals within the reglementary period of 30 days after it received notice
of said denial. It was in such appeal that the petitioner could then have raised the first two issues he
now raises without basis in the present petition.
The question of whether or not the shares of stock left by the decedent should be considered conjugal
property or belonging to him alone is immaterial in these proceedings. So too is the time at which the
assessment of these shares of stock should have been made by the BIR. These questions were not
resolved by the Court of Tax Appeals because it had no jurisdiction to act on the petitioner's appeal
from an assessment that had already been cancelled. The assessment being no longer controversial or
reviewable, there was no justification for the respondent court to rule on the petition except to dismiss
it.
If indeed the Commissioner of Internal Revenue committed an error in the computation of the estate
tax, as the petitioner insists, that error can no longer be rectified because the original assessment has
long become final and executory. If that assessment was not challenged on time and in accordance with
the prescribed procedure, that error for error it was was committed not by the respondents but
by the decedent's estate itself which the petitioner represents. So how can he now complain.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered,
Narvasa (Chairman), Grio-Aquino and Medialdea, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Baguio City
FIRST DIVISION
G.R. No. 137873 April 20, 2001
Page
D. M. CONSUNJI, INC., petitioner,
| 16 vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell
14 floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated
November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was
pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of
the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with
Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator core of the
14th floor of the Tower D, Renaissance Tower Building on board a [p]latform made of channel beam
(steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and cable wires attached
to its four corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was
merely inserted to connect the chain block with the [p]latform, got loose xxx causing the whole
[p]latform assembly and the victim to fall down to the basement of the elevator core, Tower D of the
building under construction thereby crushing the victim of death, save his two (2) companions who
luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board
and performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of
the pin which was merely inserted to the connecting points of the chain block and [p]latform but
without a safety lock.1
On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint
for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised, among other
defenses, the widows prior availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of
the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE EVIDENCE OF
THE ALLEGED NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR[sic] IS
APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT UNDER
ARTICLE 2180 OF THE CIVIL CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM RECOVERING
DAMAGES UNDER THE CIVIL CODE.3
Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible.
The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to the
hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his personal
knowledge, that is, which are derived from his perception.4 A witness, therefore, may not testify as
what he merely learned from others either because he was told or read or heard the same. Such
testimony is considered hearsay and may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought
to light and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes evidence
that cannot be tested by cross-examination.8
 The Rules of Court allow several exceptions to the rule,9 among which are entries in official records.
Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law
Page are prima facieevidence of the facts therein stated.
| 17
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person in
the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last requisite
is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
court. In Rodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who
signed the fire report also testified before the trial court. This Court held that the report was
inadmissible for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for cross-examination, the
portions of the report which were of his personal knowledge or which consisted of his perceptions and
conclusions were not hearsay. The rest of the report, such as the summary of the statements of the
parties based on their sworn statements (which were annexed to the Report) as well as the latter,
having been included in the first purpose of the offer [as part of the testimony of Major Enriquez], may
then be considered as independently relevant statements which were gathered in the course of the
investigation and may thus be admitted as such, but not necessarily to prove the truth thereof. It has
been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the
hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such
statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be
circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself
available for cross-examination by the adverse party, the Report, insofar as it proved that certain
utterances were made (but not their truth), was effectively removed from the ambit of the
aforementioned Section 44 of Rule 130. Properly understood, this section does away with the
testimony in open court of the officer who made the official record, considers the matter as an
exception to the hearsay rule and makes the entries in said official record admissible in evidence
as prima facie evidence of the facts therein stated. The underlying reasons for this exceptionary rule are
necessity and trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the
officials would be summoned from his ordinary duties to declare as a witness are numberless. The
public officers are few in whose daily work something is not done in which testimony is not needed
from official sources. Were there no exception for official statements, hosts of officials would be found
devoting the greater part of their time to attending as witnesses in court or delivering deposition before
an officer. The work of administration of government and the interest of the public having business
with officials would alike suffer in consequence. For these reasons, and for many others, a certain verity
is accorded such documents, which is not extended to private documents. (3 Wigmore on Evidence,
Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge their
several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their
duty may be given in evidence and shall be taken to be true under such a degree of caution as to the
nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his
report. In that case the applicability of Section 44 of Rule 143 would have been ripe for determination,
and this Court would have agreed with the Court of Appeals that said report was inadmissible since the
aforementioned third requisite was not satisfied. The statements given by the sources of information of
Major Enriquez failed to qualify as "official information," there being no showing that, at the very least,
they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3
Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva
had seen Juegos remains at the morgue,12 making the latters death beyond dispute. PO3 Villanueva
also conducted an ocular inspection of the premises of the building the day after the incident 13 and saw
the platform for himself.14 He observed that the platform was crushed15 and that it was totally
damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to the police
headquarters. Upon inspection, he noticed that the chain was detached from the lifting machine,
without any pin or bolt.17
What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall of
the platform was the loosening of the bolt from the chain block. It is claimed that such portion of the
 testimony is mere opinion. Subject to certain exceptions,18 the opinion of a witness is generally not
admissible.19
Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by
the CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the
Page elevator was a result of the person having charge of the instrumentality was negligent. As a rule of
| 18 evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for
specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident
or injury will not generally give rise to an inference or presumption that it was due to negligence on
defendants part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant, or some other person who is charged with
negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was
under the control or management of the defendant, and that the occurrence resulting in the injury was
such as in the ordinary course of things would not happen if those who had its control or management
used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the
absence of explanation by the defendant, that the injury arose from or was caused by the defendants
want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or
not available.22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled
to allege negligence in general terms and to rely upon the proof of the happening of the accident in
order to establish negligence. The inference which the doctrine permits is grounded upon the fact that
the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the
defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff
complains. The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it
proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it is
within the power of the defendant to show that there was no negligence on his part, and direct proof of
defendants negligence is beyond plaintiffs power. Accordingly, some court add to the three
prerequisites for the application of the res ipsa loquitur doctrine the further requirement that for the
res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge or means of
knowledge as to the cause of the accident, or that the party to be charged with negligence has superior
knowledge or opportunity for explanation of the accident.23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14th floor of a building to the basement
while he was working with appellants construction project, resulting to his death. The construction site
is within the exclusive control and management of appellant. It has a safety engineer, a project
superintendent, a carpenter leadman and others who are in complete control of the situation therein.
The circumstances of any accident that would occur therein are peculiarly within the knowledge of the
appellant or its employees. On the other hand, the appellee is not in a position to know what caused
the accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not
readily available, provided the following requisites are present: (1) the accident was of a kind which
does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused
the injury was under the exclusive control of the person charged with negligence; and (3) the injury
suffered must not have been due to any voluntary action or contribution on the part of the person
injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performing work in a
construction site unless someone is negligent[;] thus, the first requisite for the application of the rule
of res ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia and
human resources that likely caused the injury is under the exclusive control and management of
appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to
the appellees deceased husband[;] thus[,] the last requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present, thus a reasonable presumption or inference of
appellants negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondents husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendants negligence is presumed or inferred25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the
burden then shifts to defendant to explain.26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable presumption, such as
that of due care or innocence, may outweigh the inference.27 It is not for the defendant to explain or
prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of
say, due care, comes into play only after the circumstances for the application of the doctrine has been
established.1wphi1.nt
 In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the
police investigator as evidence of its due care. According to Fabros sworn statement, the company
enacted rules and regulations for the safety and security of its workers. Moreover, the leadman and
the bodegero inspect the chain block before allowing its use.
Page It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing that
| 19 private respondent failed to prove negligence on the part of petitioners employees, also assails the
same statement for being hearsay.
Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are inadmissible as
evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify
thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of opportunity on the
part of the adverse party to cross-examine the affiant, but also on the commonly known fact that,
generally, an affidavit is not prepared by the affiant himself but by another who uses his own language
in writing the affiants statements which may either be omitted or misunderstood by the one writing
them.29 Petitioner, therefore, cannot use said statement as proof of its due care any more than private
respondent can use it to prove the cause of her husbands death. Regrettably, petitioner does not cite
any other evidence to rebut the inference or presumption of negligence arising from the application
of res ipsa loquitur, or to establish any defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the death benefits provided
under the Labor Code and is, therefore, precluded from claiming from the deceaseds employer
damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund
under this Title shall be exclusive and in place of all other liabilities of the employer to the employee,
his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his
dependents. The payment of compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven hundred
sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act Numbered
Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered by the
System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act,
provided that:
Section 5. Exclusive right to compensation. The rights and remedies granted by this Act to an
employee by reason of a personal injury entitling him to compensation shall exclude all other rights and
remedies accruing to the employee, his personal representatives, dependents or nearest of kin against
the employer under the Civil Code and other laws because of said injury x x x.
Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter
in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of the
employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court of
First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death have
a right of selection or choice of action between availing themselves of the workers right under the
Workmens Compensation Act and suing in the regular courts under the Civil Code for higher damages
(actual, moral and exemplary) from the employers by virtue of the negligence or fault of the employers
or whether they may avail themselves cumulatively of both actions, i.e., collect the limited
compensation under the Workmens Compensation Act and sue in addition for damages in the regular
courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442, ruled
that an injured worker has a choice of either to recover from the employer the fixed amounts set by the
Workmens Compensation Act or to prosecute an ordinary civil action against the tortfeasor for higher
damages but he cannot pursue both courses of action simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under
the Civil Code despite having availed of the benefits provided under the Workmens Compensation Act.
The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14,
1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry
Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to
the Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of
August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in installments x x x.
Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated
may 27, 1968 x x x in the lower court, but they set up the defense that the claims were filed under the
Workmens Compensation Act before they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and violation of law by Philex, and
which report was forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter
dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such my not preclude them from bringing an action before the regular court
 because they became cognizant of the fact that Philex has been remiss in its contractual obligations
with the deceased miners only after receiving compensation under the Act. Had petitioners been aware
of said violation of government rules and regulations by Philex, and of its negligence, they would not
have sought redress under the Workmens Compensation Commission which awarded a lesser amount
for compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which
Page nullifies the choice as it was not an intelligent choice. The case should therefore be remanded to the
| 20 lower court for further proceedings. However, should the petitioners be successful in their bid before
the lower court, the payments made under the Workmens Compensation Act should be deducted from
the damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs.
Abeleda.34 In the last case, the Court again recognized that a claimant who had been paid under the Act
could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmens Compensation Law, to the exclusion of all further
claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the
claimants may invoke either the Workmens Compensation Act or the provisions of the Civil Code,
subject to the consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for additional benefits
under the other remedy. The exception is where a claimant who has already been paid under the
Workmens Compensation Act may still sue for damages under the Civil Code on the basis of
supervening facts or developments occurring after he opted for the first remedy. (Underscoring
supplied.)
Here, the CA held that private respondents case came under the exception because private respondent
was unaware of petitioners negligence when she filed her claim for death benefits from the State
Insurance Fund. Private respondent filed the civil complaint for damages after she received a copy of
the police investigation report and the Prosecutors Memorandum dismissing the criminal complaint
against petitioners personnel. While stating that there was no negligence attributable to the
respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all,"
the "case is civil in nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as
November 25, 1990, the date of the police investigators report. The appellee merely executed her
sworn statement before the police investigator concerning her personal circumstances, her relation to
the victim, and her knowledge of the accident. She did not file the complaint for "Simple Negligence
Resulting to Homicide" against appellants employees. It was the investigator who recommended the
filing of said case and his supervisor referred the same to the prosecutors office. This is a standard
operating procedure for police investigators which appellee may not have even known. This may
explain why no complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being charged by
complainant of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did not
have a chance to appear before the public prosecutor as can be inferred from the following statement
in said memorandum: "Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the appellee.
Hence, notice of appellants negligence cannot be imputed on appellee before she applied for death
benefits under ECC or before she received the first payment therefrom. Her using the police
investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the Prosecutors Office dismissing the
criminal complaint for insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as shown by the records this
case is civil in nature." (Underscoring supplied.) Considering the foregoing, We are more inclined to
believe appellees allegation that she learned about appellants negligence only after she applied for
and received the benefits under ECC. This is a mistake of fact that will make this case fall under the
exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her educational
attainment; that she did not know what damages could be recovered from the death of her husband;
and that she did not know that she may also recover more from the Civil Code than from the ECC. x x
x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear or
adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because as
early as November 28, 1990, private respondent was the complainant in a criminal complaint for
"Simple Negligence Resulting to Homicide" against petitioners employees. On February 6, 1991, two
months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a resolution
finding that, although there was insufficient evidence against petitioners employees, the case was "civil
in nature." These purportedly show that prior to her receipt of death benefits from the ECC on January
2, 1991 and every month thereafter, private respondent also knew of the two choices of remedies
available to her and yet she chose to claim and receive the benefits from the ECC.
When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a bar.37 Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on
the moral premise that it is fair to hold people responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single
wrong.38
 The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute
an ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed
to have waived the other.
Page Waiver is the intentional relinquishment of a known right.39
| 21
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not
to assert them. It must be generally shown by the party claiming a waiver that the person against whom
the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the partys
rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is
no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver
cannot be established by a consent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists and has
adequate knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of
its consequences. That a waiver is made knowingly and intelligently must be illustrated on the record or
by the evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden
private respondent with raising waiver as an issue. On the contrary, it is the defendant who ought to
plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise, the defense is waived. It is,
therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction over the
issue when petitioner itself pleaded waiver in the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her husbands death and
the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the
"fact" that served as a basis for nullifying the waiver is the negligence of petitioners employees, of
which private respondent purportedly learned only after the prosecutor issued a resolution stating that
there may be civil liability. In Floresca, it was the negligence of the mining corporation and its violation
of government rules and regulations. Negligence, or violation of government rules and regulations, for
that matter, however, is not a fact, but a conclusion of law, over which only the courts have the final
say. Such a conclusion binds no one until the courts have decreed so. It appears, therefore, that the
principle that ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca and in the
case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator
crash when on November 15, 1990 she accomplished her application for benefits from the ECC. The
police investigation report is dated November 25, 1990, 10 days after the accomplishment of the form.
Petitioner filed the application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when the claim
before the ECC was filed. On the contrary, private respondent testified that she was not aware of her
rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim
ignorance of this Courts ruling in Floresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a persons
ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing private
respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance
thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the
total amount private respondent ought to receive from the ECC, although it appears from Exhibit
"K"43 that she received P3,581.85 as initial payment representing the accrued pension from November
1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was P596.97 and
present total monthly pension was P716.40. Whether the total amount she will eventually receive from
the ECC is less than the sum of P644,000.00 in total damages awarded by the trial court is subject to
speculation, and the case is remanded to the trial court for such determination. Should the trial court
find that its award is greater than that of the ECC, payments already received by private respondent
under the Labor Code shall be deducted from the trial court' award of damages. Consistent with our
ruling in Floresca, this adjudication aims to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the
award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court
be greater than that awarded by the ECC, payments already made to private respondent pursuant to
the Labor Code shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals
is AFFIRMED.
SO ORDERED.
Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.