Separate petitions for review were filed by petitioners
Department of Agrarian Reform (DAR) (G.R. No.
Today is Tuesday, August 28, 2018
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 118712 October 6, 1995
LAND BANK OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS, PEDRO L. YAP, HEIRS OF
EMILIANO F. SANTIAGO, AGRICULTURAL MANAGEMENT
& DEVELOPMENT CORP., respondents.
G.R. No. 118745 October 6, 1995
DEPARTMENT OF AGRARIAN REFORM, represented
by the Secretary of Agrarian Reform, petitioner,
vs.
COURT OF APPEALS, PEDRO L. YAP, HEIRS OF
EMILIANO F. SANTIAGO, AGRICULTURAL MANAGEMENT
& DEVELOPMENT CORP., ET AL., respondents.
FRANCISCO, R., J.:
It has been declared that the duty of the court to
protect the weak and the underprivileged should not be
carried out to such an extent as deny justice to the
landowner whenever truth and justice happen to be on
his side.1 As eloquently stated by Justice Isagani Cruz:
. . . social justice — or any justice for that matter — is
for the deserving, whether he be a millionaire in his
mansion or a pauper in his hovel. It is true that, in case
of reasonable doubt, we are called upon to tilt the
balance in favor of the poor, to whom the Constitution
fittingly extends its sympathy and compassion. But
never is it justified to prefer the poor simply because
they are poor, or to reject the rich simply because they
are rich, for justice must always be served, for poor and
rich alike, according to the mandate of the law.2
In this agrarian dispute, it is once more imperative
that the aforestated principles be applied in its
resolution.
118745) and Land Bank of the Philippines (G.R. No.
118712) following the adverse ruling by the Court of
Appeals in CA-G.R. SP No. 33465. However, upon
motion filed by private respondents, the petitions were
ordered consolidated.3
Petitioners assail the decision of the Court of Appeals
promulgated on October 20, 1994, which granted
private respondents' Petition for Certiorari and
Mandamus and ruled as follows:
WHEREFORE, premises considered, the Petition for
Certiorari and Mandamus is hereby GRANTED:
a) DAR Administrative Order No. 9, Series of 1990 is
declared null and void insofar as it provides for the
opening of trust accounts in lieu of deposits in cash or
bonds;
b) Respondent Landbank is ordered to immediately
deposit — not merely "earmark", "reserve" or "deposit
in trust" — with an accessible bank designated by
respondent DAR in the names of the following
petitioners the following amounts in cash and in
government financial instruments — within the
parameters of Sec. 18 (1) of RA 6657:
P 1,455,207.31 Pedro L. Yap
P 135,482.12 Heirs of Emiliano Santiago
P 15,914,127.77 AMADCOR;
c) The DAR-designated bank is ordered to allow the
petitioners to withdraw the above-deposited amounts
without prejudice to the final determination of just
compensation by the proper authorities; and
d) Respondent DAR is ordered to 1) immediately
conduct summary administrative proceedings to
determine the just compensation for the lands of the
petitioners giving the petitioners 15 days from notice
within which to submit evidence and to 2) decide the
cases within 30 days after they are submitted for
decision.4
Likewise, petitioners seek the reversal of the
Resolution dated January 18, 1995,5 denying their
motion for reconsideration.
 Private respondents are landowners whose
landholdings were acquired by the DAR and subjected
to transfer schemes to qualified beneficiaries under the
Comprehensive Agrarian Reform Law (CARL, Republic
Act No. 6657).
Aggrieved by the alleged lapses of the DAR and the
Landbank with respect to the valuation and payment of
compensation for their land pursuant to the provisions
of RA 6657, private respondents filed with this Court a
Petition for Certiorari and Mandamus with prayer for
preliminary mandatory injunction. Private respondents
questioned the validity of DAR Administrative Order No.
6, Series of 19926 and DAR Administrative Order No. 9,
Series of 1990,7 and sought to compel the DAR to
expedite the pending summary administrative
proceedings to finally determine the just compensation
of their properties, and the Landbank to deposit in cash
and bonds the amounts respectively "earmarked",
"reserved" and "deposited in trust accounts" for private
respondents, and to allow them to withdraw the same.
Through a Resolution of the Second Division dated
February 9, 1994, this Court referred the petition to
respondent Court of Appeals for proper determination
and disposition.
As found by respondent court , the following are
undisputed:
Petitioner Pedro Yap alleges that "(o)n 4 September
1992 the transfer certificates of title (TCTs) of petitioner
Yap were totally cancelled by the Registrar of Deeds of
Leyte and were transferred in the names of farmer
beneficiaries collectively, based on the request of the
DAR together with a certification of the Landbank that
the sum of P735,337.77 and P719,869.54 have been
earmarked for Landowner Pedro L. Yap for the parcels
of lands covered by TCT Nos. 6282 and 6283,
respectively, and issued in lieu thereof TC-563 and TC-
562, respectively, in the names of listed beneficiaries
(ANNEXES "C" & "D") without notice to petitioner Yap
and without complying with the requirement of Section
16 (e) of RA 6657 to deposit the compensation in cash
and Landbank bonds in an accessible bank. (Rollo, p. 6).
The above allegations are not disputed by any of the
respondents.
Petitioner Heirs of Emiliano Santiago allege that the
heirs of Emiliano F. Santiago are the owners of a parcel
of land located at Laur, NUEVA ECIJA with an area of
18.5615 hectares covered by TCT No. NT-60359 of the
registry of Deeds of Nueva Ecija, registered in the name
of the late Emiliano F. Santiago; that in November and
December 1990, without notice to the petitioners, the
Landbank required and the beneficiaries executed
Actual tillers Deed of Undertaking (ANNEX "B") to pay
rentals to the LandBank for the use of their farmlots
equivalent to at least 25% of the net harvest; that on 24
October 1991 the DAR Regional Director issued an order
directing the Landbank to pay the landowner directly or
through the establishment of a trust fund in the amount
of P135,482.12, that on 24 February 1992, the
Landbank reserved in trust P135,482.12 in the name of
Emiliano F. Santiago. (ANNEX "E"; Rollo,
p. 7); that the beneficiaries stopped paying rentals to
the landowners after they signed the Actual Tiller's
Deed of Undertaking committing themselves to pay
rentals to the LandBank (Rollo, p. 133).
The above allegations are not disputed by the
respondents except that respondent Landbank claims 1)
that it was respondent DAR, not Landbank which
required the execution of Actual Tillers Deed of
Undertaking (ATDU, for brevity); and 2) that respondent
Landbank, although armed with the ATDU, did not
collect any amount as rental from the substituting
beneficiaries (Rollo, p. 99).
Petitioner Agricultural Management and
Development Corporation (AMADCOR, for brevity)
alleges — with respect to its properties located in San
Francisco, Quezon — that the properties of AMADCOR
in San Francisco, Quezon consist of a parcel of land
covered by TCT No. 34314 with an area of 209.9215
hectares and another parcel covered by TCT No. 10832
with an area of 163.6189 hectares; that a summary
administrative proceeding to determine compensation
of the property covered by TCT No. 34314 was
conducted by the DARAB in Quezon City without notice
to the landowner; that a decision was rendered on 24
November 1992 (ANNEX "F") fixing the compensation
for the parcel of land covered by TCT No. 34314 with an
area of 209.9215 hectares at P2,768,326.34 and
ordering the Landbank to pay or establish a trust
account for said amount in the name of AMADCOR; and
that the trust account in the amount of P2,768,326.34
fixed in the decision was established by adding
P1,986,489.73 to the first trust account established on
19 December 1991 (ANNEX "G"). With respect to
petitioner AMADCOR's property in Tabaco, Albay, it is
alleged that the property of AMADCOR in Tabaco, Albay
is covered by TCT No. T-2466 of the Register of Deeds of
Albay with an area of 1,629.4578 hectares'; that
emancipation patents were issued covering an area of
701.8999 hectares which were registered on 15
February 1988 but no action was taken thereafter by
the DAR to fix the compensation for said land; that on
21 April 1993, a trust account in the name of AMADCOR
was established in the amount of P12,247,217.83',
three notices of acquisition having been previously
rejected by AMADCOR. (Rollo, pp. 8-9)
The above allegations are not disputed by the
respondents except that respondent Landbank claims
that petitioner failed to participate in the DARAB
proceedings (land valuation case) despite due notice to
it (Rollo, p. 100).8
Private respondents argued that Administrative Order
No. 9, Series of 1990 was issued without jurisdiction and
with grave abuse of discretion because it permits the
opening of trust accounts by the Landbank, in lieu of
depositing in cash or bonds in an accessible bank
designated by the DAR, the compensation for the land
before it is taken and the titles are cancelled as
provided under Section 16(e) of RA 6657.9 Private
respondents also assail the fact that the DAR and the
Landbank merely "earmarked", "deposited in trust" or
"reserved" the compensation in their names as
landowners despite the clear mandate that before
taking possession of the property, the compensation
must be deposited in cash or in bonds. 10
Petitioner DAR, however, maintained that
Administrative Order No. 9 is a valid exercise of its rule-
making power pursuant to Section 49 of RA 6657.11
Moreover, the DAR maintained that the issuance of the
"Certificate of Deposit" by the Landbank was a
substantial compliance with Section 16(e) of RA 6657
and the ruling in the case of Association of Small
Landowners in the Philippines, Inc., et al. vs. Hon.
Secretary of Agrarian Reform, G.R. No. 78742, July 14,
1989 (175 SCRA 343).12
For its part, petitioner Landbank declared that the
issuance of the Certificates of Deposits was in
consonance with Circular Nos. 29, 29-A and 54 of the
Land Registration Authority where the words
"reserved/deposited" were also used.13
On October 20, 1994, the respondent court rendered
the assailed decision in favor of private respondents.14
Petitioners filed a motion for reconsideration but
respondent court denied the same.15
Hence, the instant petitions.
On March 20, 1995, private respondents filed a
motion to dismiss the petition in G.R. No. 118745
alleging that the appeal has no merit and is merely
intended to delay the finality of the appealed
decision.16 The Court, however, denied the motion and
instead required the respondents to file their
comments.17
Petitioners submit that respondent court erred in (1)
declaring as null and void DAR Administrative Order No.
9, Series of 1990, insofar as it provides for the opening
of trust accounts in lieu of deposit in cash or in bonds,
and (2) in holding that private respondents are entitled
as a matter of right to the immediate and provisional
release of the amounts deposited in trust pending the
final resolution of the cases it has filed for just
compensation.
Anent the first assignment of error, petitioners
maintain that the word "deposit" as used in Section
16(e) of RA 6657 referred merely to the act of
depositing and in no way excluded the opening of a
trust account as a form of deposit. Thus, in opting for
the opening of a trust account as the acceptable form of
deposit through Administrative Circular No. 9,
petitioner DAR did not commit any grave abuse of
discretion since it merely exercised its power to
promulgate rules and regulations in implementing the
declared policies of RA 6657.
The contention is untenable. Section 16(e) of RA 6657
provides as follows:
Sec. 16. Procedure for Acquisition of Private Lands —
xxx xxx xxx
(e) Upon receipt by the landowner of the
corresponding payment or, in case of rejection or no
response from the landowner, upon the deposit with an
accessible bank designated by the DAR of the
compensation in cash or in LBP bonds in accordance
with this Act, the DAR shall take immediate possession
of the land and shall request the proper Register of
Deeds to issue a Transfer Certificate of Title (TCT) in the
name of the Republic of the Philippines. . . . (emphasis
supplied)
It is very explicit therefrom that the deposit must be
made only in "cash" or in "LBP bonds". Nowhere does it
appear nor can it be inferred that the deposit can be
made in any other form. If it were the intention to
include a "trust account" among the valid modes of
deposit, that should have been made express, or at
least, qualifying words ought to have appeared from
which it can be fairly deduced that a "trust account" is
allowed. In sum, there is no ambiguity in Section 16(e)
of RA 6657 to warrant an expanded construction of the
term "deposit".
The conclusive effect of administrative construction is
not absolute. Action of an administrative agency may be
disturbed or set aside by the judicial department if
there is an error of law, a grave abuse of power or lack
of jurisdiction or grave abuse of discretion clearly
conflicting with either the letter or the spirit of a
legislative enactment.18 In this regard, it must be
stressed that the function of promulgating rules and
regulations may be legitimately exercised only for the
purpose of carrying the provisions of the law into effect.
The power of administrative agencies is thus confined
to implementing the law or putting it into effect.
Corollary to this is that administrative regulations
cannot extend
the law and amend a legislative enactment,19 for
settled is the rule that administrative regulations must
be in harmony with the provisions of the law. And in
case there is a discrepancy between the basic law and
an implementing rule or regulation, it is the former that
prevails.20
In the present suit, the DAR clearly overstepped the
limits of its power to enact rules and regulations when it
issued Administrative Circular No. 9. There is no basis in
allowing the opening of a trust account in behalf of the
landowner as compensation for his property because,
as heretofore discussed, Section 16(e) of RA 6657 is
very specific that the deposit must be made only in
"cash" or in "LBP bonds". In the same vein, petitioners
cannot invoke LRA Circular Nos. 29, 29-A and 54
because these implementing regulations cannot
outweigh the clear provision of the law. Respondent
court therefore did not commit any error in striking
down Administrative Circular No. 9 for being null and
void.
Proceeding to the crucial issue of whether or not
private respondents are entitled to withdraw the
amounts deposited in trust in their behalf pending the
final resolution of the cases involving the final valuation
of their properties, petitioners assert the negative.
The contention is premised on the alleged distinction
between the deposit of compensation under Section
16(e) of RA 6657 and payment of final compensation as
provided under Section 1821 of the same law.
According to petitioners, the right of the landowner to
withdraw the amount deposited in his behalf pertains
only to the final valuation as agreed upon by the
landowner, the DAR and the LBP or that adjudged by
the court. It has no reference to amount deposited in
the trust account pursuant to Section 16(e) in case of
rejection by the landowner because the latter amount is
only provisional and intended merely to secure
possession of the property pending final valuation. To
further bolster the contention petitioners cite the
following pronouncements in the case of "Association
of Small Landowners in the Phil. Inc. vs. Secretary of
Agrarian Reform".22
The last major challenge to CARP is that the
landowner is divested of his property even before
actual payment to him in full of just compensation, in
contravention of a well-accepted principle of eminent
domain.
xxx xxx xxx
The CARP Law, for its part conditions the transfer of
possession and ownership of the land to the
government on receipt by the landowner of the
corresponding payment or the deposit by the DAR of
the compensation in cash or LBP bonds with an
accessible bank. Until then, title also remains with the
landowner. No outright change of ownership is
contemplated either.
xxx xxx xxx
Hence the argument that the assailed measures
violate due process by arbitrarily transferring title
before the land is fully paid for must also be rejected.
Notably, however, the aforecited case was used by
respondent court in discarding petitioners' assertion as
it found that:
. . . despite the "revolutionary" character of the
expropriation envisioned under RA 6657 which led the
Supreme Court, in the case of Association of Small
Landowners in the Phil. Inc. vs. Secretary of Agrarian
Reform (175 SCRA 343), to conclude that "payments of
the just compensation is not always required to be
made fully in money" — even as the Supreme Court
admits in the same case "that the traditional medium
for the payment of just compensation is money and no
other" — the Supreme Court in said case did not
abandon the "recognized rule . . . that title to the
property expropriated shall pass from the owner to the
expropriator only upon full payment of the just
compensation." 23 (Emphasis supplied)
We agree with the observations of respondent court.
The ruling in the "Association" case merely recognized
the extraordinary nature of the expropriation to be
undertaken under RA 6657 thereby allowing a deviation
from the traditional mode of payment of compensation
and recognized payment other than in cash. It did not,
however, dispense with the settled rule that there must
be full payment of just compensation before the title to
the expropriated property is transferred.
The attempt to make a distinction between the
deposit of compensation under Section 16(e) of RA
6657 and determination of just compensation under
Section 18 is unacceptable. To withhold the right of the
landowners to appropriate the amounts already
deposited in their behalf as compensation for their
properties simply because they rejected the DAR's
valuation, and notwithstanding that they have already
been deprived of the possession and use of such
properties, is an oppressive exercise of eminent
domain. The irresistible expropriation of private
respondents' properties was painful enough for them.
But petitioner DAR rubbed it in all the more by
withholding that which rightfully belongs to private
respondents in exchange for the taking, under an
authority (the "Association" case) that is, however,
misplaced. This is misery twice bestowed on private
respondents, which the Court must rectify.
Hence, we find it unnecessary to distinguish between
provisional compensation under Section 16(e) and final
compensation under Section 18 for purposes of
exercising the landowners' right to appropriate the
same. The immediate effect in both situations is the
same, the landowner is deprived of the use and
possession of his property for which he should be fairly
and immediately compensated. Fittingly, we reiterate
the cardinal rule that:
. . . within the context of the State's inherent power
of eminent domain, just compensation means not only
the correct determination of the amount to be paid to
the owner of the land but also the payment of the land
within a reasonable time from its taking. Without
prompt payment, compensation cannot be considered
"just" for the property owner is made to suffer the
consequence of being immediately deprived of his land
while being made to wait for a decade or more before
actually receiving the amount necessary to cope with
his loss. 24 (Emphasis supplied)
The promulgation of the "Association" decision
endeavored to remove all legal obstacles in the
implementation of the Comprehensive Agrarian Reform
Program and clear the way for the true freedom of the
farmer.25 But despite this, cases involving its
implementation continue to multiply and clog the
courts' dockets. Nevertheless, we are still optimistic
that the goal of totally emancipating the farmers from
their bondage will be attained in due time. It must be
stressed, however, that in the pursuit of this objective,
vigilance over the rights of the landowners is equally
important because social justice cannot be invoked to
trample on the rights of property owners, who under
our Constitution and laws are also entitled to
protection.26
WHEREFORE, the foregoing premises considered, the
petition is hereby DENIED for lack of merit and the
appealed decision is AFFIRMED in toto.
SO ORDERED.
Regalado, Puno and Mendoza, JJ., concur.
Narvasa, C.J., is on leave.
Footnotes
1 Gelos v. Court of Appeals, 208 SCRA 608. 615
(1992), quoting Justice Alicia Sempio-Diy.
2 Ibid, p. 616.
3 Rollo, p. 7.
4 Rollo, pp. 122-123.
5 Rollo, p. 149.
6 which provides formulas for the valuation of land
expropriated under RA 6657.
7 which provides for the opening of trust accounts in
the Land Bank instead of depositing in an accessible
bank, in cash and bonds, the compensation for land
expropriated by the DAR.
8 Rollo, pp. 109-111.
9 Sec. 16. Procedure for Acquisition of Private Lands.
— For purposes of acquisition of private lands, the
following shall be followed:
 provided for in Sections 16 and 17 and other pertinent
xxx xxx xxx provisions hereof, or as may be finally determined by
the court as the just compensation for the land.
(e) Upon receipt by the landowner of the
corresponding payment or, in case of rejection or no 22 175 SCRA 343.
response from the landowner, upon the deposit with an
accessible bank designated by the DAR of the 23 Decision, Court of Appeals, p. 14.
compensation in cash or in LBP bonds in accordance
with this Act, the DAR shall take immediate possession 24 Municipality of Makati vs. Court of Appeals, 190
of the land and shall request the proper Register of SCRA 207, 213 (1990) citing Cosculluela vs. The Hon.
Deeds to issue a Transfer Certificate of Title (TCT) in the Court of Appeals, 164 SCRA 393, 400 (1988); Provincial
name of the Republic of the Philippines. The DAR shall Government of Sorsogon vs. Vda. de Villaroya, 153
thereafter proceed with the redistribution of the land to SCRA 291, 302 (1987).
the qualified beneficiaries.
25 175 SCRA 343, 392.
10 Rollo, p. 111.
26 Mata vs. Court of Appeals, 207 SCRA 748, 753
11 Sec. 49. Rules and Regulations. — The PARC and (1992).
the DAR shall have the power to issue rules and
regulations, whether substantive or procedural, to carry
out the objects and purposes of this Act. Said rules shall
take effect ten (l0) days after the publication in two (2)
national newspapers of general circulation.

12 Rollo, pp. 111-112.

13 Rollo, p. 112.

14 Rollo, p. 107.

15 Rollo, p. 149.

16 Rollo, p. 63.

17 Rollo, p. 67.

18 Peralta vs. Civil Service Commission 212 SCRA 425,

432 (1992).

19 Toledo vs. Civil Service Commission 202 SCRA 507,

54 (1991) citing Teoxon v. Members of the Board of
Administrators, Philippine Veterans Administration, 33
SCRA 585, 589 (1970), citing Santos vs. Estenzo, 109
Phil. 419 (1960); Animos vs. Phil. Veterans Affairs Office,
174 SCRA 214, 223-224 (1989).

20 Shell Philippines, Inc. vs. Central Bank of the

Philippines, 162 SCRA 628 (1988).

21 Sec. 18. Valuation and Mode of Compensation. —

The LBP shall compensate the landowner in such
amount as may be agreed upon by the landowner and
the DAR and LBP in accordance with the criteria
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 180462 February 9, 2011
SOUTH PACIFIC SUGAR CORPORATION and SOUTH EAST
ASIA SUGAR MILL CORPORATION, Petitioners,
vs.
COURT OF APPEALS and SUGAR REGULATORY
ADMINISTRATION, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari1 of the 6
November 2007 Decision2 of the Court of Appeals in
CA-G.R. SP No. 100571, which set aside the 26 June
2007, 6 August 2007, and 31 August 2007 Orders3 as
well as the 6 September 2007 Writ of Execution and the
12 September 2007 Amended Writ of Execution of the
Regional Trial Court (Branch 77) of Quezon City in Civil
Case No. Q-02-46236.
The Facts
In 1999, the government projected a shortage of some
500,000 metric tons of sugar due to the effects of El
Niño and La Niña phenomena. To fill the expected
shortage and to ensure stable sugar prices, then
President Joseph Ejercito Estrada issued Executive
Order No. 87, Series of 1999 (EO 87),4 facilitating sugar
importation by the private sector.
Section 2 of EO 87 created a Committee on Sugar
Conversion/Auction to determine procedures for sugar
importation as well as for collection and remittance of
conversion fee.
Under Section 3 of EO 87, sugar conversion is by auction
and is subject to conversion fee to be remitted by
respondent Sugar Regulatory Administration (SRA) to
the Bureau of Treasury.
On 3 May 1999, the Committee on Sugar
Conversion/Auction issued the Bidding Rules providing
guidelines for sugar importation. Under the Bidding
Rules, the importer pays 25% of the conversion fee
within three working days from receipt of notice of the
bid award and the 75% balance upon arrival of the
imported sugar.
The Bidding Rules also provide that if the importer fails
to make the importation or if the imported sugar fails to
arrive on or before the set arrival date, 25% of the
conversion fee is forfeited in favor of the SRA, to wit:
G. Forfeiture of Conversion Fee
G.1 In case of failure of the importer to make the
importation or for the imported sugar to arrive in the
Philippines on or before the Arrival Date, the 25% of
Conversion Fee Bid already paid shall be forfeited in
favor of the SRA and the imported sugar shall not be
classified as "B" (domestic sugar) unless, upon
application with the SRA and without objection of the
Committee, the SRA allows such conversion after
payment by the importer of 100% of the Conversion Fee
applicable to the shipment.5 (Emphasis supplied)
The SRA forthwith authorized the importation of
300,000 metric tons of sugar, to be made in three
tranches, as follows:
Tranche Volume Arrival Date
1st 100,000MT 15 May-15 June 1999
2nd 100,000MT 15 June-July 15 1999
3rd 100,000MT 15 July-15 August 19996
The Committee on Sugar Conversion/Auction caused
the publication of the invitation to bid. Several sugar
importers submitted sealed bid tenders. Petitioners
Southeast Asia Sugar Mill Corporation (Sugar Mill) and
South Pacific Sugar Corporation (Pacific Sugar) emerged
as winning bidders for the 1st, 2nd, and 3rd tranches.
For the 3rd tranche, Sugar Mill submitted the winning
bid of ₱286.80 per 50 kilogram for 10,000 metric tons of
sugar, while Pacific Sugar submitted the winning bid of
₱285.99 per 50 kilogram for 20,000 metric tons of
sugar, for a combined total volume of 30,000 metric
tons of sugar.
Pursuant to the Bidding Rules, Sugar Mill paid 25% of
the conversion fee amounting to ₱14,340,000.00, while
Pacific Sugar paid 25% of the conversion fee amounting
to ₱28,599,000.00.
As it turned out, Sugar Mill and Pacific Sugar (sugar
corporations) delivered only 10% of their sugar import
allocation, or a total of only 3,000 metric tons of sugar.
They requested the SRA to cancel the remaining 27,000
metric tons of sugar import allocation blaming sharp
decline in sugar prices. The sugar corporations sought
immediate reimbursement of the corresponding 25% of
the conversion fee amounting to ₱38,637,000.00.
The SRA informed the sugar corporations that the
conversion fee would be forfeited pursuant to
paragraph G.1 of the Bidding Rules. The SRA also
notified the sugar corporations that the authority to
reconsider their request for reimbursement was vested
with the Committee on Sugar Conversion/Auction.
On 26 February 2002, the sugar corporations filed a
complaint for breach of contract and damages in the
Regional Trial Court (Branch 77) of Quezon City,
docketed as Civil Case No. Q-02-46236.
In its notice of appearance,7 the Office of the Solicitor
General (OSG) deputized Atty. Raul Labay of the SRA’s
legal department to assist the OSG in this case, thus:
Please be informed that Atty. Raul M. Labay has been
authorized to appear in this case, and therefore, should
also be furnished with notices of hearings, orders,
resolutions, decisions, and other processes. However,
as the Solicitor General retains supervision and control
of the representation in this case and has to approve
withdrawal of the case, non-appeal, or other actions
which appear to compromise the interests of the
Government, only notices of orders, resolutions, and
decisions served on him will bind the party
represented.8
The Ruling of the RTC
The RTC held that paragraph G.1 of the Bidding Rules
contemplated delay in the arrival of imported sugar, not
cancellation of sugar importation. It concluded that the
forfeiture provision did not apply to the sugar
corporations which merely cancelled the sugar
importation. In its 19 December 2006 Decision,9 the
RTC ruled, thus:
WHEREFORE, premises considered, judgment is hereby
rendered in favor of the plaintiffs, ORDERING the
defendant Sugar Regulatory Administration to pay
plaintiffs the amount of ₱38,637,000.00 as
reimbursement of 25% of the conversion fee they paid
in 1999. The claim for legal interests, compensatory
damages, exemplary damages, and attorney’s fees is
hereby DENIED.
SO ORDERED.10
On 5 January 2007, the OSG received its copy of the RTC
Decision.11 On 24 January 2007, the deputized SRA
counsel, Atty. Raul Labay, received his own copy of the
Decision and filed a notice of appeal on 7 February
2007.12
The sugar corporations moved to expunge the notice of
appeal on the ground that only the OSG, as the principal
counsel, can decide whether an appeal should be made.
The sugar corporations stressed that a lawyer deputized
by the OSG has no authority to decide whether an
appeal should be made.
The OSG filed its opposition13 to the motion to expunge
the notice of appeal. The OSG pointed out that in its
notice of appearance,14 it authorized SRA counsel Atty.
Labay to assist the OSG in this case.
In its 26 June 2007 Order, the RTC granted the motion
to expunge the notice of appeal. The OSG moved for
reconsideration stressing that the OSG ratified Atty.
Labay’s filing of a notice of appeal. The RTC, in its 6
August 2007 Order, denied the OSG’s motion for
reconsideration.
In its 31 August 2007 Order, the RTC granted the sugar
corporations’ motion for execution, to wit:
WHEREFORE, premises considered, the plaintiffs’
motion for execution is hereby granted. Accordingly,
issue a writ of execution for the enforcement of the
decision rendered in this case.
SO ORDERED.15
Accordingly, the RTC issued on 6 September 2007 a Writ
of Execution and on 12 September 2007 an Amended
Writ of Execution.
Aggrieved, the SRA filed in the Court of Appeals a
petition for certiorari under Rule 65 seeking to set aside
the RTC’s 26 June 2007, 6 August 2007, and 31 August
2007 Orders as well as the 6 September 2007 Writ of
Execution and the 12 September 2007 Amended Writ of
Execution.
The Ruling of the Court of Appeals
The Court of Appeals held that the deputized SRA
counsel had authority to file a notice of appeal. The
appellate court thus directed the RTC to give due course
to the appeal that Atty. Labay timely filed. The decretal
part of its 6 November 2007 Decision reads:
WHEREFORE, premises considered, the present petition
is hereby GIVEN DUE COURSE and the writ prayed for
accordingly GRANTED. The Orders dated June 26, 2007,
August 6, 2007, and August 31, 2007, as well as the Writ
of Execution dated September 6, 2007 and Amended
Writ of Execution dated September 12, 2007 issued in
Civil Case No. Q-02-46236 of the Regional Trial Court of
Quezon City, Branch 77 are hereby all ANNULLED and
SET ASIDE. Said court is hereby DIRECTED to GIVE DUE
COURSE to the Notice of Appeal dated February 7, 2007
filed by Atty. Raul M. Labay in behalf of petitioner Sugar
Regulatory Administration.
No pronouncement as to costs.
SO ORDERED.16
Dissatisfied with the decision of the Court of Appeals,
the sugar corporations filed in this Court a petition for
review on certiorari.
The Issues
The issues are (1) whether a deputized SRA counsel may
file a notice of appeal and (2) whether the sugar
corporations are entitled to reimbursement of
₱38,637,000.00 in conversion fee.
The Court’s Ruling
The petition lacks merit.
The sugar corporations contend that the deputized SRA
counsel, Atty. Labay, was not authorized to file a notice
of appeal; that the OSG, as the principal counsel, had
the sole authority to file a notice of appeal; that
certiorari may not be interposed as a substitute for the
lost remedy of appeal; and that the subject conversion
fee amounting to ₱38,637,000.00 remained as private
funds in view of its summary forfeiture and as such, it
could not be deemed part of public funds.
The OSG counters that assuming Atty. Labay had no
authority to file the notice of appeal, the defect was
cured when the OSG subsequently filed its opposition to
the sugar corporations’ motion to expunge the notice of
appeal. The OSG claims that if the denial of the appeal is
sustained, the SRA would no longer have a remedy to
assail the RTC decision adjudging it liable to reimburse
the sugar corporations ₱38,637,000.00 in conversion
fee despite the admitted failure of the sugar
corporations to comply with their contractual
undertaking to import sugar.
The deputized SRA counsel may file a notice of appeal.
Section 35, Chapter 12, Title III, Book IV of the
Administrative Code of 198717 authorizes the OSG to
represent the SRA, a government agency established
pursuant to Executive Order No. 18, Series of 1986,18 in
any litigation, proceeding, investigation, or matter
requiring the services of lawyers. It provides:
SEC. 35. Powers and Functions. – The Office of the
Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, proceeding,
investigation, or matter requiring the services of
lawyers. When authorized by the President or head of
the office concerned, it shall also represent government
owned or controlled corporations. The Office of the
Solicitor General shall constitute the law office of the
Government and, as such, shall discharge duties
requiring the services of lawyers. (Emphasis supplied)
The OSG is empowered to deputize legal officers of
government departments, bureaus, agencies, and
offices in cases involving their respective offices.
Paragraph 8 of the same section reads:
(8) Deputize legal officers of government departments,
bureaus, agencies, and offices to assist the Solicitor
General and appear or represent the Government in
cases involving their respective offices, brought before
the courts and exercise supervision and control over
such legal officers with respect to such cases. (Emphasis
supplied)
In National Power Corporation v. Vine Development
Corporation,19 this Court ruled that the deputization by
the OSG of NAPOCOR counsels in cases involving the
NAPOCOR included the authority to file a notice of
appeal. The Court explained that the OSG could have
withdrawn the appeal if it believed that the appeal
would not advance the government’s cause. The Court
held that even if the deputized NAPOCOR counsel had
no authority to file a notice of appeal, the defect was
cured by the OSG’s subsequent manifestation that the
deputized NAPOCOR counsel had authority to file a
notice of appeal.
The sugar corporations’ reliance on another NAPOCOR
case, National Power Corporation v. NLRC,20 is
misplaced. There, service of the decision was never
made on the OSG, the principal counsel for NAPOCOR.
Only the deputized NAPOCOR counsel was served a
copy of the decision. Hence, the Court held that the
period to appeal the decision did not commence to run.
The Court explained that service of the decision on the
deputized NAPOCOR counsel was insufficient and not
binding on the OSG. This was why the Court stated in
that case that the deputized NAPOCOR counsel had no
authority to decide whether an appeal should be made.
Noteworthy, in National Power Corporation v. Vine
Development Corporation, both the OSG and the
deputized NAPOCOR counsel were served copies of the
decision subject of the appeal. In National Power
Corporation v. NLRC, only the deputized NAPOCOR
counsel was furnished a copy of the appealed decision.
Hence, the differing rulings by this Court.
In the present case, records show that both the OSG
and the deputized SRA counsel were served copies of
the RTC decision subject of the appeal. Thus, what
applies is National Power Corporation v. Vine
Development Corporation. Applying here the doctrine
laid down in the said case, deputized SRA counsel Atty.
Labay is, without a doubt, authorized to file a notice of
appeal.
Assuming Atty. Labay had no authority to file a notice of
appeal, such defect was cured when the OSG
subsequently filed its opposition to the motion to
expunge the notice of appeal. As the OSG explained, its
reservation21 to "approve the withdrawal of the case,
the non-appeal, or other actions which appear to
compromise the interest of the government" was
meant to protect the interest of the government in case
the deputized SRA counsel acted in any manner
prejudicial to government. Obviously, what required the
approval of the OSG was the non-appeal, not the
appeal, of a decision adverse to government.
We hold that the RTC should have given due course to
the notice of appeal that Atty. Labay timely filed. Thus,
the 19 December 2006 Decision of the RTC in Civil Case
No. Q-02-46236 cannot be deemed to have attained
finality.
The next logical step is to remand the case to the RTC.
However, a remand would only delay the resolution of
this case and frustrate the ends of justice. As a rule,
remand is avoided in the following instances: (a) where
the ends of justice would not be served; (b) where
public interest demands an early disposition of the case;
or (c) where the trial court already received all the
evidence presented by both parties, and the Supreme
Court is in a position, based upon said evidence, to
decide the case on its merits.22 All three conditions are
present here.
The sugar corporations are not entitled to
reimbursement
of 25% of the conversion fee amounting to
₱38,637,000.00.
Section 2 of EO 87 granted the Committee on Sugar
Conversion/Auction power to promulgate rules
governing sugar importation by the private sector. It
provides:
SEC. 2. Committee on Sugar Conversion/Auction. –
There is hereby created a Committee on Sugar
Conversion/Auction which shall be headed by the DA,
with the following as members: NEDA, DTI, DOF, SRA,
and a representative each from the sugar planters’
group and the sugar millers’ group. The Committee is
hereby authorized to determine the parameters and
procedures on the importation of sugar by the private
sector, and the collection and remittance of the fee for
the conversion of sugar from "C" (reserve sugar) to "B"
(domestic sugar). (Emphasis supplied)
Pursuant to this authority, the Committee issued the
Bidding Rules subject of the controversy, paragraph G.1
of which provides that if the importer fails to make the
importation, 25% of the conversion fee shall be
forfeited in favor of the SRA, thus:
G. Forfeiture of Conversion Fee
G.1 In case of failure of the importer to make the
importation or for the imported sugar to arrive in the
Philippines on or before the Arrival Date, the 25% of
Conversion Fee Bid already paid shall be forfeited in
favor of the SRA and the imported sugar shall not be
classified as "B" (domestic sugar) unless, upon
application with the SRA and without objection of the
Committee, the SRA allows such conversion after
payment by the importer of 100% of the Conversion Fee
applicable to the shipment.23 (Emphasis supplied)
In joining the bid for sugar importation, the sugar
corporations are deemed to have assented to the
Bidding Rules, including the forfeiture provision under
paragraph G.1. The Bidding Rules bind the sugar
corporations. The latter cannot rely on the lame excuse
that they are not aware of the forfeiture provision.
At the trial, Teresita Tan testified that the Bidding Rules
were duly published in a newspaper of general
circulation.24 Vicente Cenzon, a sugar importer who
participated in the bidding for the 3rd tranche, testified
that he attended the pre-bid conference where the
Bidding Rules were discussed and copies of the same
were distributed to all the bidders.25
On the other hand, all that the sugar corporations
managed to come up with was the self-serving
testimony of its witness, Daniel Fajardo, that the sugar
corporations were not informed of the forfeiture
provision in the Bidding Rules.26
The Bidding Rules passed through a consultative
process actively participated by various government
agencies and their counterpart in the private sector: the
Department of Agriculture, the National Economic
Development Authority, the Department of Trade and
Industry, the Department of Finance, the Sugar
Regulatory Administration, and a representative each
from the sugar planters’ group and the sugar millers’
group.27
We find nothing in the forfeiture provision of the
Bidding Rules that is contrary to law, morals, good
customs, public order, or public policy. On the contrary,
the forfeiture provision fully supports government
efforts to aid the country’s ailing sugar industry.
Conversion fees, including those that are forfeited
under paragraph G.1 of the Bidding Rules, are
automatically remitted to the Bureau of Treasury and
go directly to the Agricultural Competitiveness
Enhancement Fund.28
It is unrefuted that the sugar corporations failed in their
contractual undertaking to import the remaining 27,000
metric tons of sugar specified in their sugar import
allocation. Applying paragraph G.1 of the Bidding Rules,
such failure is subject to forfeiture of the 25% of the
conversion fee the sugar corporations paid as part of
their contractual undertaking.1avvphi1
The RTC gravely erred in ordering the SRA to return the
forfeited conversion fee to the sugar corporations. Its
strained interpretation that paragraph G.1 of the
Bidding Rules contemplates cases of delay in the arrival
of imported sugar but not cases of cancellation of sugar
importation defies logic and the express provision of
paragraph G.1. If delay in the arrival of imported sugar
is subject to forfeiture of 25% of the conversion fee,
with more reason is outright failure to import sugar, by
cancelling the sugar importation altogether, subject to
forfeiture of the 25% of the conversion fee.
Plainly and expressly, paragraph G.1 identifies two
situations which would bring about the forfeiture of
25% of the conversion fee: (1) when the importer fails
to make the importation or (2) when the imported
sugar fails to arrive in the Philippines on or before the
set arrival date. It is wrong for the RTC to interpret the
forfeiture provision in a way departing from its plain
and express language.
Where the language of a rule is clear, it is the duty of
the court to enforce it according to the plain meaning of
the word. There is no occasion to resort to other means
of interpretation.29
WHEREFORE, we DENY the petition. We AFFIRM the 6
November 2007 Decision of the Court of Appeals in CA-
G.R. SP No. 100571, which set aside the 26 June 2007, 6
August 2007, and 31 August 2007 Orders as well as the
6 September 2007 Writ of Execution and the 12
September 2007 Amended Writ of Execution of the
Regional Trial Court (Branch 77) of Quezon City in Civil
Case No. Q-02-46236. Further, the 19 December 2006
Decision of the Regional Trial Court (Branch 77) of
Quezon City in Civil Case No. Q-02-46236 is SET ASIDE.
Costs against petitioners.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
ANTONIO EDUARDO B. NACHURA
Associate Justice
DIOSDADO M. PERALTA
Associate Justice ROBERTO A. ABAD
Associate Justice
JOSE C. MENDOZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s 16 Id. at 65-66.
Division.
17 Otherwise known as Executive Order No. 292.
ANTONIO T. CARPIO
Associate Justice 18 Creating a Sugar Regulatory Administration. Effective
Chairperson 28 May 1986.

CERTIFICATION 19 394 Phil. 76 (2000).

Pursuant to Section 13, Article VIII of the Constitution, 20 339 Phil. 89 (1997).
and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Decision had been reached 21 In its Notice of Appearance dated 17 March 2003.
in consultation before the case was assigned to the
writer of the opinion of the Court’s Division. 22 Dela Peña v. Court of Appeals, G.R. No. 177828, 13
February 2009, 579 SCRA 396.
RENATO C. CORONA
Chief Justice 23 Rollo, p. 50.

Footnotes 24 Id. at 73.

1 Under Rule 45 of the Rules of Court. 25 Id. at 71.

2 Rollo, pp. 49-66. Penned by then Associate Justice 26 Id. at 73.

Martin S. Villarama, Jr., now a Member of this Court,
with Associate Justices Noel G. Tijam and Sesinando E. 27 Section 2, EO 87.
Villon, concurring.
SEC. 2. Committee on Sugar Conversion/Auction. –
3 Id. at 102-103, 104-105, and 106. There is hereby created a Committee on Sugar
Conversion/Auction which shall be headed by the DA,
4 Effective 1 April 1999. with the following as members: NEDA, DTI, DOF, SRA,
and representative each from the sugar planters’ group
5 Rollo, p. 50. and the sugar millers’ group. The Committee is hereby
authorized to determine the parameters and
6 Id. at 68. procedures on the importation of sugar by the private
sector, and the collection and remittance of the fee for
7 Id. at 110-111. Dated 17 March 2003. the conversion of sugar from "C" to "B".

8 Id. at 110. 28 Section 3, EO 87.

9 Id. at 67-76. SEC. 3. Conduct of Auction for Sugar Conversion. – x x x

The "Conversion Fee" shall be remitted to the Bureau of
10 Id. at 76. Treasury and may be used to pay the arrears of
government in the Agricultural Competitiveness
11 Id. at 91. Enhancement Fund.

12 Id. at 52. 29 Del Mar v. PAGCOR, 411 Phil. 430 (2001).

13 Id. at 93-100.

14 Id. at 95.

15 Id. at 106.
Republic of the Philippines SUPREME COURT Manila
THIRD DIVISION
G.R. No. 120363 September 5, 1997
CECILLEVILLE REALTY and SERVICE CORPORATION,
petitioner,
vs.
THE COURT OF APPEALS and HERMINIGILDO PASCUAL,
respondents.
FRANCISCO, J.:
In synthesis, these are the antecedent facts:
Petitioner Cecilleville Realty and Service Corporation is
the owner of a parcel of land in Catmon, Sta. Maria,
Bulacan. covered by T.C.T. No. 86.494 (M). Private
respondent Herminigildo Pascual occupies a portion
thereof. Despite repeated demands, private respondent
refused to vacate and insisted that he is entitled to
occupy the land since he is helping his mother Ana
Pascual, petitioner's tenant, to cultivate the land in
question. Thenceforth, petitioner instituted an
ejectment suit against private respondent before the
Municipal Trial Court of Sta. Maria, Bulacan. Finding no
tenancy relationship between petitioner and private
respondent, the Municipal Trial Court on September 17,
1992, ordered private respondent to vacate the land
and to pay "the sum of P10,000.00 as attorney's fees"
and "another sum of P500.00 monthly from the filing of
[the] complaint."1 Private respondent appealed to the
Regional Trial Court which, on April 4, 1994, set aside
the Municipal Trial Court's decision and remanded the
case to the DARAB for further adjudication. Thus:
There is no question that Ana Pascual may seek the
assistance of her immediate farm household in the
cultivation of the land. The law protects her in this
regard. If the tenant Ana Pascual will be deprived of
such right by ejecting her son Herminigildo Pascual from
the land, it is tantamount to circumventing the law as
Ana Pascual will be deprived of the helping hands of her
son. What could not be done directly cannot be done
indirectly. The issue of tenancy relationship between
the plaintiff corporation and Ana Pascual cannot be
avoided in this ejectment case.
WHEREFORE, in the light of the foregoing, this Court
hereby orders that the instant case be REMANDED to
the DARAB for further adjudication and the decision of
the Court a quo is hereby SET ASIDE . . .2
Petitioner moved for reconsideration but to no avail;
hence, it appealed to respondent Court of Appeals. In
its assailed decision3 , respondent court4 dismissed
petitioner's appeal. The entire ruling of respondent
court in point states:
We find this petition devoid of merit.
There is a clear tenancy relationship between the
plaintiff and the defendant, such that the defendant
cannot be ejected from the premises like a common
squatter.
The tenancy relationship dated back to 1976 when the
defendant's father, Sotero Pascual, became the tenant
of Jose A. Resurreccion, the President of the Cecilleville
Realty and Service Corporation. This tenancy continued
until 1991 when Sotero Pascual died and was succeeded
by his wife Ann Pascual by operation of law. That Ana
Pascual is entitled to the security of tenure was upheld
by the DARAB in its Decision of November 8, 1993
which ordered the plaintiff to respect and maintain the
peaceful possession and cultivation of the property by
the defendant Ana Pascual and ordered the execution
of a agricultural leasehold contract between the parties.
The defendant Herminigildo Pascual is occupying and
working on the land holding to help his mother, a bona-
fide tenant. He is an immediate member of the family
and is entitled to work on the land. As the lower court
held.
Under Republic Act No. 1199, as amended by RA 2263,
entitled An Act to Govern the Relations Between
Landholders and Tenants of Agricultural Lands
(Leasehold and Share Tenancy), Section 5(a) defines the
term tenant, to wit:
Sec. 5.
(a) A tenant shall mean a person who, himself and with
the aid available from within his immediate farm
household, cultivates the land belonging to, or
possessed by, another, with the latter's consent for
purposes of production, sharing the produce with the
landholder under the share tenancy system, or paying
to the landholder a price certain or ascertainable in
produce or in money or both, under the leasehold
tenancy system.
Similarly, the term "immediate farm household" is
defined in the same section as follows:
(o) Immediate farm household includes the members of
the family of the tenant, and such other persons,
whether related to the tenant or not, who are
dependent upon him for support and who usually help
him operate the farm enterprise.
The defendant, although not the tenant himself, is
afforded the protection provided by law as his mother is
already old and infirm and is allowed to avail of the
labor of her immediate household. He is entitled to the
security of tenure accorded his mother. His having a
house of his own on the property is merely incidental to
the tenancy.
WHEREFORE, the Decision appealed from is AFFIRMED
with costs against the petitioner.5 (Emphasis supplied.)
Dissatisfied, petitioner filed the instant petition for
review on certiorari anchored on a lone assignment of
error, to wit:
Petitioner respectfully contends that the Honorable
Court of Appeals erred in not finding that while the
private respondent is entitled to work on the
agricultural land of petitioner in his capacity as member
of the family of tenant Ana Pascual, nonetheless he can
not occupy a substantial portion thereof and utilize the
same for residential purposes.6
On August 19, 1996, the Court gave due course to the
petition and required the parties to submit their
respective memoranda. Thereafter, the Court
deliberated on the arguments set out in their pleadings.
The petition is impressed with merit.
At the outset, the Court notes that petitioner does not
dispute respondent court's finding that Ana Pascual,
private respondent's mother, is its bona-fide tenant.
Neither does petitioner question "the right of Ana
Pascual, the tenant, to be assisted by a member of her
household, who in this case is respondent Herminigildo
Pascual."7 What petitioner impugns as erroneous is
respondent court's gratuitous pronouncement which
effectively granted private respondent not only a home
lot, but also the right to maintain his own house in
petitioner's small parcel of land8 despite the fact that
Ana Pascual, the adjudged bona-fide tenant, has
previously been given a home lot and has an existing
house thereon. Private respondent Herminigildo
Pascual, for his part, insists that he is entitled by law,
"(Section 22, (3) of Rep. Act No. l199, as amended by
Rep. Act No. 2263),"9 to a home lot and the right to
maintain another house different from that of his
mother. To bolster his contention, private respondent
adopts respondent court's ruling finding him as a
member of Ana Pascual's immediate farm household.
Private respondent holds, quoting extensively from the
assailed decision, that "although not the tenant himself,
[he] is afforded the protection provided by law as his
mother is already old and infirm and is allowed to avail
of the labor of her immediate household. . . . [And] [h]is
having a house of his own on the property is merely
incidental to the tenancy." 10
As the Court sees it, the issue lies on the interpretation
of Section 22, paragraph 3, of Rep. Act No. 1199, as
amended by Rep. Act No. 2263. This section provides in
full as follows:
Sec. 22
xxx xxx xxx
(3) The tenant shall have the right to demand for a
home lot suitable for dwelling with an area of not more
than 3 per cent of the area of his landholding provided
that it does not exceed one thousand square meters
and that it shall be located at a convenient and suitable
place within the land of the landholder to be designated
by the latter where the tenant shall construct his
dwelling and may raise vegetables, poultry, pigs and
other animals and engage in minor industries, the
products of which shall accrue to the tenant exclusively.
The tenant's dwelling shall not be removed from the lot
already assigned to him by the landholder, except as
provided in section twenty-six unless there is a
severance of the tenancy relationship between them as
provided under section nine, or unless the tenant is
ejected for cause, and only after the expiration of forty-
five days following such severance of relationship or
dismissal for cause. (Emphasis supplied)
The law is unambiguous and clear. Consequently, it
must be applied according to its plain and obvious
meaning, according to its express terms. Verba legis non
est recedendum, or from the words of a statute there
should be no departure. 11 As clearly provided, only a
tenant is granted the right to have a home lot and the
right to construct or maintain a house thereon. And
here, private respondent does not dispute that he is not
petitioner's tenant. In fact, he admits that he is a mere
member of Ana Pascual's immediate farm household.
Under the law, therefore, we find private respondent
not entitled to a home lot. Neither is he entitled to
construct a house of his own or to continue maintaining
the same within the very small landholding of
petitioner. To rule otherwise is to make a mockery of
the purpose of the tenancy relations between a bona-
fide tenant and the landholder as envisioned by the
very law, i.e., Rep. Act No. 1199, as amended, upon
which private respondent relies, to wit:
Sec. 2. Purpose. — It is the purpose of this Act to
establish agricultural tenancy relations between
landholders and tenants upon the principle of social
justice; to afford adequate protection to the rights of
both tenants and landholders; to insure the equitable
division of the produce and income derived from the
land; to provide tenant-farmers with incentives to
greater and more efficient agricultural production; to
bolster their economic position and to encourage their
participation in the development of peaceful, vigorous
and democratic rural communities. (Emphasis supplied )
Thus, if the Court were to follow private respondent's
argument and allow all the members of the tenant's
immediate farm household to construct and maintain
their houses and to be entitled to not more than one
thousand (1,000) square meters each of home lot, as
what private respondent wanted this Court to dole-out,
then farms will be virtually converted into rows, if not
colonies, of houses. How then can there be "equitable
division of the produce and income derived from the
land" and "more efficient agricultural production" if the
land's productivity and use for growing crops is lessened
or, more appropriately, obliterated by its
unceremonious conversion into residential use? It is a
fundamental principle that once the policy or purpose
of the law has been ascertained, effect should be given
to it by the judiciary. 12 This Court should not deviate
therefrom.
Further, it is undisputed that Ana Pascual, the tenant
and private respondent's mother, has an existing home
lot and a house on the subject property in which private
respondent may take refuge while attending to his
work. Curiously, despite its availability private
respondent chose to construct, without petitioner's
permission, a concrete house of his own thereby saving
him the trouble of paying appropriate rents. If the Court
were to abide by the respondent court's inordinate
pronouncement that private respondent is entitled to
maintain his own house then we will be condoning the
deprivation of a landholder's property without even a
fraction of compensation. It taxes the credulity of the
Court, therefore, to insist that private respondent's
"having a house of his own on the property is merely
incidental to the tenancy" and to afford him the
convenience of attending to the cultivation of the land
for, in the first place, he is not the tenant as he himself
admits. Besides, the "incidental" use of his own house
can very well be provided by the existing house of his
mother, who with her "old and infirm" condition, surely
needs the attention and care of her children, one of
whom is herein private respondent. Be it emphasized
that like the tenant the landholder is also entitled to the
protection of the law as one of the purposes of the
"Act" is "to afford adequate protection to the rights of
BOTH tenants and landholders". 13 The policy of social
justice, we reiterate, is not intended to countenance
wrongdoing simply because it is committed by the
underprivileged. "Compassion for the poor", as we said
in Galay, et. al. v. Court of Appeals, et. al. 14 "is an
imperative of every humane society but only when the
recipient is not a rascal claiming an undeserved
privilege."
WHEREFORE, the petition is GRANTED. The part of the
decision appealed from which is inconsistent herewith
is REVERSED and SET ASIDE. The decision of the
Municipal Trial Court directing the private respondent
Herminigildo Pascual to vacate the portion of the
landholding he occupies and to pay the petitioner
attorney's fees in the amount of P10,000.00 and
another sum of P500.00 monthly from the filing of
complaint is hereby REINSTATED.
Costs against private respondent.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ.,
concur.
Footnotes
1 Decision of the Court of Appeals, p. 2; Rollo, p. 9.
2 CA Decision, p.4; Rollo, p. 11.
3 C.A-G.R SP. No. 34628, February 28, 1995.
4 Fourth Division: Montoya, J., ponente; Paras, Hofileña,
JJ., concurring.
5 CA Decision, pp. 4-6; Rollo, pp. 45-47.
6 Petition, p. 4; Rollo, p. 25.
7 Petition, p. 5; Rollo, p. 26.
8 Ana Pascual is tilling a mere two (2) hectare parcel of
land. (Memorandum for the Petitioner, p. 6; Rollo, p.
88)
9 See: Memorandum for Private Respondent, p. 4;
Rollo, p. 73.
10 Id., pp. 3-4; Rollo, pp. 72-73.
11 Globe-Mackay Cable and Radio Corp. v. NLRC, 206
SCRA 701, 711.
12 Vda. de Macabenta v. Davao Stevedore Terminal
Company, 32 SCRA 553, 557.
13 Section 2, Rep. Act No. 1199, as amended.
14 250 SCRA 629,638
Republic of the Philippines
SUPREME COURT
Manila
SPECIAL SECOND DIVISION
G.R. No. 187919 February 20, 2013
RAFAEL H. GALVEZ, and KATHERINE L. GUY, Petitioners,
vs.
HON. COURT OF APPEALS AND ASIA UNITED BANK,
Respondents.
x----------------x
G.R. No. 187979
ASIA UNITED BANK, Petitioner,
vs.
GILBERT G. GUY, PHILIP LEUNG, KATHERINE L. GUY,
RAFAEL H. GALVEZ and EUGENIO H. GALVEZ, .JR.,
Respondents.
x----------------x
G.R. No. 188030
GILBERT G. GUY, PHILIP LEUNG, and EUGENIO H.
GALVEZ, JR., Petitioners,
vs.
ASIA UNITED BANK, Respondents.
RESOLUTION
PEREZ, J.:
We resolve the Motion for Reconsideration filed by
petitioner-movants, Rafael H. Galvez and Katherine L.
Guy in G.R. No. 187919,1 and Gilbert G. Guy, Philip
Leung and Eugenio H. Galvez, Jr. in G.R. No. 1880302
addressed to our consilidated Decision dated 25 April
20123 finding probable cause to charge petitioners of
the crime of SYNDICATED ESTAFA under Article 315
(2)(a) in relation to Presidential Decree No. 1689.
Our consilidated decision read:
WHEREFORE, the Decision of the Court of Appeals
dated 27 June 2008 in CA-G.R. SP No. 97160 is hereby
AFFIRMED with MODIFICATION that Gilbert G. Guy,
Rafael H. Galvez, Philip Leung, Katherine L. Guy and
Eugenio H. Galvez, Jr. be charged for SYNDICATED
ESTAFA under Article 315 (2) (a) of the Revised Penal
Code in relation to Section 1 of Presidential Decree No.
1689.4
The Motion for Reconsideration
In the main, petitioners submit the following arguments
in support of their motion for reconsideration:
First, the petitioners cannot be charged for estafa
whether simple or syndicated for the element of deceit
was absent in the transactions that transpired between
the petitioners and respondent. This is a case of
collection of sum of money, hence, civil in nature.
Second, the petitioners cannot be charged for
syndicated estafa defined in Presidential Decree No.
1689 because they did not solicit funds from the general
public, an indispensable element for syndicated estafa
to prosper.5
In our 25 April 2012 Decision, we have more than amply
discussed the petitioners’ arguments, specifically, as to
the first issue whether deceit was present in the
transaction as to warrant prosecution for the crime of
estafa. If only to emphatically write finis to this aspect
of the case, we examine again the petitioners’
arguments vis-à-vis this Court’s ruling.
The facts
In 1999, Radio Marine Network Inc. (RMSI) claiming to
do business under the name Smartnet Philippines6
and/or Smartnet Philippines, Inc. (SPI),7 applied for an
Omnibus Credit Line for various credit facilities with
Asia United Bank (AUB). To induce AUB to extend the
Omnibus Credit Line, RMSI, through its directors and
officers, presented its Articles of Incorporation with its
400-peso million capitalization and its congressional
telecom franchise. RMSI was represented by the
following officers and directors occupying the following
positions:
Gilbert Guy - Exec. V-Pres./Director
Philip Leung - Managing Director
Katherine Guy - Treasurer
Rafael Galvez - Executive Officer
Eugenio Galvez, Jr. - Chief Financial
Officer/Comptroller
Satisfied with the credit worthiness of RMSI, AUB
granted it a ₱250 Million Omnibus Credit Line, under
the name of Smartnet Philippines, RMSI’s Division. On 1
February 2000, the credit line was increased to ₱452
Million pesos after a third-party real estate mortgage by
Goodland Company, Inc., an affiliate of Guy Group of
Companies, in favor of Smartnet Philippines, was
offered to the bank. Simultaneous to the increase of the
Omnibus Credit Line, RMSI submitted a proof of
authority to open the Omnibus Credit Line and peso and
dollar accounts in the name of Smartnet Philippines,
Inc., which Gilbert Guy, et al., represented as a division
of RMSI, as evidenced by the letterhead used in its
formal correspondences with the bank and the financial
audit made by SGV & Co., an independent accounting
firm. Attached to this authority was the Amended
Articles of Incorporation of RMSI, doing business under
the name of Smartnet Philippines, and the Secretary’s
Certificate of SPI authorizing its directors, Gilbert Guy
and Philip Leung to transact with AUB.8 Prior to this
major transaction, however, and, unknown to AUB,
while RMSI was doing business under the name of
Smartnet Philippines, and that there was a division
under the name Smartnet Philippines, Gilbert Guy, et al.
formed a subsidiary corporation, the SPI with a paid-up
capital of only ₱62,500.00.
Believing that SPI is the same as Smartnet Philippines -
the division of RMSI - AUB granted to it, among others,
Irrevocable Letter of Credit No. 990361 in the total sum
of $29,300.00 in favor of Rohde & Schwarz Support
Centre Asia Ptd. Ltd., which is the subject of these
consolidated petitions. To cover the liability of this
Irrevocable Letter of Credit, Gilbert Guy executed
Promissory Note No. 010445 in behalf of SPI in favor of
AUB. This promissory note was renewed twice, once, in
the name of SPI (Promissory Note No. 011686), and last,
in the name of Smartnet Philippines under Promissory
Note No. 136131, bolstering AUB’s belief that RMSI’s
directors and officers consistently treated this letter of
credit, among others, as obligations of RMSI.
When RMSI’s obligations remained unpaid, AUB sent
letters demanding payments. RMSI denied liability
contending that the transaction was incurred solely by
SPI, a corporation which belongs to the Guy Group of
Companies, but which has a separate and distinct
personality from RMSI. RMSI further claimed that while
Smartnet Philippines is an RMSI division, SPI, is a
subsidiary of RMSI, and hence, is a separate entity.
Aggrieved, AUB filed a case of syndicated estafa under
Article 315 (2)(a) of the Revised Penal Code in relation
to Section 1 of Presidential Decree No. 1689 against the
interlocking directors of RMSI and SPI, namely, Gilbert
G. Guy, Rafael H. Galvez, Philip Leung, Katherine L. Guy,
and Eugenio H. Galvez, Jr., before the Office of the City
Prosecutor of Pasig City.
AUB alleged that the directors of RMSI deceived it into
believing that SPI was a division of RMSI, only to insist
on its separate juridical personality later on to escape
from its liabilities with AUB. AUB contended that had it
not been for the fraudulent scheme employed by
Gilbert Guy, et al., AUB would not have parted with its
money, which, including the controversy subject of this
petition, amounted to hundreds of millions of pesos.
Our Ruling
We already emphasized in the 25 April 2012 Decision
that "this controversy could have been just a simple
case for collection of sum of money had it not been for
the sophisticated fraudulent scheme which Gilbert Guy,
et al., employed in inducing AUB to part with its
money."9 Our Decision meticulously discussed how we
found probable cause, a finding affirming that of the
prosecutor and the Court of Appeals, to indict
petitioners for the crime of estafa under Article 315
(2)(a) of the Revised Penal Code.10 We noted there and
we now reiterate that it was neither the petitioners’ act
of borrowing money and not paying it, nor their denial
thereof, but their very act of deceiving AUB in order for
the latter to part with its money that is sought to be
penalized. Thus:
x x x As early as the Penal Code of Spain, which was
enforced in the Philippines as early as 1887 until it was
replaced by the Revised Penal Code in 1932, the act of
fraud through false pretenses or similar deceit was
already being punished. Article 335 of the Penal code of
Spain punished a person who defrauded another ‘by
falsely pretending to possess any power, influence,
qualification, property, credit, agency or business, or by
means of similar deceit.’11
Under Article 315 (2)(a) of the Revised Penal Code,
estafa is committed by any person who shall defraud
another by, among others, false pretenses or fraudulent
acts executed prior to or simultaneous with the
commission of fraud, i.e., by using a fictitious name,
falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or
imaginary transactions; or by means of other similar
deceits.
Underscoring the aforesaid discussion, we found that:
First, Gilbert Guy, Philip Leung, Katherine Guy, Rafael
Galvez and Eugene Galvez, Jr., interlocking directors of
RMSI and SPI, represented to AUB in their transactions
that Smartnet Philippines and SPI were one and the
same entity. While Eugene Galvez, Jr. was not a director
of SPI, he actively dealt with AUB in his capacity as
RMSI’s Chief Financial Officer/Comptroller by falsely
representing that SPI and RMSI were the same entity.
Gilbert Guy, Philip Leung, Katherine Guy, Rafael Galvez,
and Eugene Galvez, Jr. used the business names
Smartnet Philippines, RMSI, and SPI interchangeably
and without any distinction. They successfully did this
by using the confusing similarity of RMSI’s business
name, i.e., Smartnet Philippines – its division, and,
Smartnet Philippines, Inc. – the subsidiary corporation.
Further, they were able to hide the identity of SPI, by
having almost the same directors as that of RMSI. In
order to let it appear that SPI is the same as that of
Smartnet Philippines, they submitted in their
application documents of RMSI, including its Amended
Articles of Incorporation, third-party real estate
mortgage of Goodland Company in favor of Smartnet
Philippines, and audited annual financial statement of
SGV & Co. Gilbert Guy, et al. also used RMSI letterhead
in their official communications with the bank and the
contents of these official communications conclusively
pointed to RMSI as the one which transacted with the
bank.
These circumstances are all indicia of deceit. Deceit is
the false representation of a matter of fact whether by
words or conduct, by false or misleading allegations, or
by concealment of that which should have been
disclosed which deceives or is intended to deceive
another so that he shall act upon it to his legal injury.
[Citation omitted]
Second, the intent to deceive AUB was manifest from
the start. Gilbert Guy et al.[,] laid down first all the
necessary materials they need for this deception before
defrauding the bank by first establishing Smartnet
Philippines as a division of Radio Marine under which
Radio Marine Network Inc. operated its business. Then
it organized a subsidiary corporation, the SPI, with a
capital of only ₱62,000.00. Later, it changed the
corporate name of Radio Marine Network Inc. into
RMSI.
Undoubtedly, deceit here was conceived in relation to
Gilbert Guy, et al.’s transaction with AUB. There was a
plan, documented in corporation’s papers, that led to
the defraudation of the bank. The circumstances of the
directors’ and officers’ acts in inserting in Radio Marine
the name of Smartnet; the creation of its division –
Smartnet Philippines; and its registration as business
name as Smartnet Philippines with the Department of
Trade and Industry, together with the incorporation of
its subsidiary, the SPI, are indicia of a pre-conceived
scheme to create this elaborate fraud, victimizing a
banking institution, which perhaps, is the first of a kind
in Philippine business.
xxxx
Third, AUB would not have granted the Irrevocable
Letter of Credit No. 990361, among others, had it
known that SPI which had only ₱62,500.00 paid-up
capital and no assets, is a separate entity and not the
division or business name of RMSI. x x x.
xxxx
It is true that ordinarily, in a letter of credit transaction,
the bank merely substitutes its own promise to pay for
the promise to pay of one of its customers, who in turn
promises to pay the bank the amount of funds
mentioned in the letters of credit plus credit or
commitments fees mutually agreed upon. Once the
issuing bank shall have paid the beneficiary after the
latter’s compliance with the terms of the letter of
credit, the issuing bank is entitled to reimbursement for
the amount it paid under the letter of credit. [Citation
omitted]
In the present case, however, no reimbursement was
made outright, precisely because the letter of credit
was secured by a promissory note executed by SPI. The
bank would have not agreed to this transaction had it
not been deceived by Gilbert Guy, et al. into believing
the RMSI and SPI were one and the same entity. Guy
and his cohorts’ acts in (1) securing the letter of credit
guaranteed by a promissory note in behalf of SPI; and,
(2) their act of representing SPI as RMSI’s Division, were
indicia of fraudulent acts because they fully well know,
even before transacting with the bank, that: (a) SPI was
a separate entity from Smartnet Philippines, the RMSI’s
Division, which has the Omnibus Credit Line; and (b)
despite this knowledge, they misrepresented to the
bank that SPI is RMSI’s division. Had it not [been] for
this false representation, AUB would [not] have granted
SPI’s letter of credit to be secured with a promissory
note because SPI as a corporation has no credit line
with AUB and SPI by its own, has no credit standing.
Fourth, it is not in dispute that the bank suffered
damage, which, including this controversy, amounted to
hundreds of millions of pesos.12 (Emphasis supplied)
We revisit, however, our ruling as to the second issue,
i.e., whether or not the petitioners may be charged and
tried for syndicated estafa under Presidential Decree
No. 1689.
While this case is all about finding probable cause to
hold the petitioners for trial for syndicated estafa, and,
while, without doubt, a commercial bank is covered by
Presidential Decree No. 1689, as deduced from our
pronouncements in People v. Balasa,13 People v.
Romero,14 and People v. Menil, Jr.,15 cases where the
accused used the legitimacy of the entities/corporations
to perpetrate their unlawful and illegal acts, a careful
re-evaluation of the issues indicate that while we had
ample reason to look into whether funds from
commercial bank may be subject of syndicated estafa,
the issue of who may commit the crime should likewise
be considered.
Section 1 of Presidential Decree No. 1689 provides:
Section 1. Any person or persons who shall commit
estafa or other forms of swindling as defined in Article
315 and 316 of the Revised Penal Code, as amended,
shall be punished by life imprisonment to death if the
swindling (estafa) is committed by a syndicate
consisting of five or more persons formed with the
intention of carrying out the unlawful or illegal act,
transaction, enterprise or scheme, and the defraudation
results in the misappropriation of moneys contributed
by stockholders, or members of rural banks,
cooperative, "samahang nayon(s)", or farmers’
associations, or of funds solicited by
corporations/associations from the general public.
When not committed by a syndicate as above defined,
the penalty imposable shall be reclusion temporal to
reclusion perpetua if the amount of the fraud exceeds
100,000 pesos.
Thus, the elements of syndicated estafa are: (a) estafa
or other forms of swindling as defined in Article 315 and
316 of the Revised Penal Code is committed; (b) the
estafa or swindling is committed by a syndicate of five
or more persons; and (c) defraudation results in the
misappropriation of moneys contributed by
stockholders, or members of rural banks, cooperatives,
"samahang nayon(s)," or farmers’ associations or of
funds solicited by corporations/associations from the
general public.
On review of the cases applying the law, we note that
the swindling syndicate used the association that they
manage to defraud the general public of funds
contributed to the association. Indeed, Section 1 of
Presidential Decree No. 1689 speaks of a syndicate
formed with the intention of carrying out the unlawful
scheme for the misappropriation of the money
contributed by the members of the association. In other
words, only those who formed and manage associations
that receive contributions from the general public who
misappropriated the contributions can commit
syndicated estafa.
Gilbert Guy, et al., however, are not in any way related
either by employment or ownership to AUB. They are
outsiders who, by their cunning moves were able to
defraud an association, which is the AUB. Theirs would
have been a different story, had they been managers or
owners of AUB who used the bank to defraud the public
depositors.
This brings to fore the difference between the case of
Gilbert Guy et al., and that of People v. Balasa, People v.
Romero, and People v. Menil, Jr.
In People v. Balasa, the accused formed the Panata
Foundation of the Philippines, Inc., a non-stock/non-
profit corporation and the accused managed its affairs,
solicited deposits from the public and misappropriated
the same funds.
We clarified in Balasa that although, the entity involved,
the Panata Foundation, was not a rural bank,
cooperative, samahang nayon or farmers’ association, it
being a corporation, does not take the case out of the
coverage of Presidential Decree No. 1689. Presidential
Decree No. 1689’s third "whereas clause" states that it
also applies to other "corporations/associations
operating on funds solicited from the general public." It
is this pronouncement about the coverage of
"corporations/associations" that led us to the ruling in
our 25 April 2012 Decision that a commercial bank falls
within the coverage of Presidential Decree No. 1689.
We have to note though, as we do now, that the Balasa
case, differs from the present petition because while in
Balasa, the offenders were insiders, i.e., owners and
employees who used their position to defraud the
public, in the present petition, the offenders were not
at all related to the bank. In other words, while in
Balasa the offenders used the corporation as the means
to defraud the public, in the present case, the
corporation or the bank is the very victim of the
offenders.
Balasa has been reiterated in People v. Romero, where
the accused Martin Romero and Ernesto Rodriguez
were the General Manager and Operation Manager,
respectively, of Surigao San Andres Industrial
Development Corporation, a corporation engaged in
marketing which later engaged in soliciting funds and
investments from the public.1âwphi1
A similar reiteration was by People v. Menil, Jr., where
the accused Vicente Menil, Jr. and his wife were
proprietors of a business operating under the name
ABM Appliance and Upholstery. Through ushers and
sales executives, the accused solicited investments from
the general public and thereafter, misappropriated the
same.
The rulings in Romero and Menil, Jr. further guide us in
the present case. Notably, Romero and Menil, Jr.
applied the second paragraph of Section 1 of
Presidential Decree No. 1689 because the number of
the accused was below five, the minimum needed to
form the syndicate.
The second paragraph, Section 1 of Presidential Decree
No. 1689 states:
When not committed by a syndicate as above defined,
the penalty imposable shall be reclusion temporal to
reclusion perpetua if the amount of fraud exceeds
100,000 pesos.1âwphi1
Effectively, Romero and Menil, Jr. read as written the
phrase "when not committed by a syndicate as above
defined," such that, for the second paragraph of Section
1 to apply the definition of swindling in the first
paragraph must be satisfied: the offenders should have
used the association they formed, own or manage to
misappropriate the funds solicited from the public.
In sum and substance and by precedential guidelines,
we hold that, first, Presidential Decree No. 1689 also
covers commercial banks; second, to be within the
ambit of the Decree, the swindling must be committed
through the association, the bank in this case, which
operate on funds solicited from the general public;
third, when the number of the accused are five or more,
the crime is syndicated estafa under paragraph 1 of the
Decree; fourth, if the number of accused is less than
five but the defininf element of the crime under the
Decree is present, the second paragraph of the Decree
applies (People v. Romero, People v. Balasa); fifth, the
Decree does not apply regardless of the number of the
accused, when (a) the entity soliciting funds from the
general public is the victim and not the means through
which the estafa is committed, or (b) the offenders are
not owners or employees who used the association to
perpetrate the crime, in which case, Article 315 (2)(a) of
the Revised Penal Code applies.
The present petition involves an estafa case filed by a
commercial bank as the offended party against the
accused who, as clients, defrauded the bank.
WHEREFORE, we MODIFY our 25 April 2012 Decision
and RULE that Gilbert G. Guy, Rafael H. Galvez, Philip
Leung, Katherine L. Guy and Eugenio H. Galvez, Jr., be
charged for SIMPLE ESTAFA under Article 315 (2)(a) of
the Revised Penal Code.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
ARTURO D. BRION
Associate Justice
Acting Chairperson
MARIA LOURDES P.A. SERENO
Chief Justice MARIANO C. DEL CASTILLO*
Associate Justice
BIENVENIDO L. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Resolution had
been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s
Division.
ARTURO D. BRION
Associate Justice
Acting Chairperson, Special Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution
and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Resolution had been
reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.
MARIA LOURDES P.A. SERENO
Chief Justice
Footnotes
* Associate Justice Mariano C. Del Castillo was
designated as additional member in lieu of Associate
Justice Antonio T. Carpio per Raffle dated 13 February
2013.
(a) By using a fictitious name, or falsely pretending to
possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or by
means of other similar deceits. (Emphasis supplied)
11 Rollo in G.R. No. 188030, p. 692. See Lozano v.
Martinez, G.R. No. 63419, 18 December 1986, 146 SCRA
323, 332.

1 Rollo in G.R. No. 187979. pp . 716-763. 12 Rollo in G.R. No. 188030, pp. 724-728.

2 Rollo in G.R. No. 188030, pp. 736-783. 13 356 Phil. 362 (1998).

3 Rafael H. Galvez and Katherine L. Guy v. Court of 14 365 Phil. 531 (1999).
Appeals and Asia United Bank (G.R. No. 187919) Asia
United Bank v. Gilbert G. Guy, Philip Leung, Katherine L. 15 394 Phil. 433 (2000).
Guy, Rafael H. Galvez and Eugenio H. Galvez, Jr. (G.R.
No. 187979) Gilbert G. Guy, Philip Leung and Eugenio H.
Galvez, Jr. v. Asia United Bank (G.R. No. 188030) Penned
by Associate Justice Jose Portugal Perez with Associate
Justices Antonio T. Carpio, Arturo D. Brion now Chief
Justice Maria Lourdes P.A. Sereno and Bienvenido L.
Reyes, concurring Rollo in G.R. No. 188030, pp. 714-735,
Rollo in G.R. No. 187919 pp. 696-715, Rollo in G.R. No.
187979, pp. 628-696.

4 Rollo in G.R. No. 188030, pp. 733-734.

5 Id. at 742-743.

6 Id. at 111.

7 In Civil Case No. 68366, RMSI filed a complaint,

claiming that it was doing business under the name
Smartnet Philippines and Smartnet Philippines, Inc. Id at
486.

8 Id. at 472.

9 Id. at 723.

10 Article 315 (2)(a) of the Revised Penal Code provides:

Art. 315. Swindling (estafa). – any person who shall

defraud another by any of the means mentioned herein
below x x x:

xxxx

2. By means of any of the following false pretenses or

fraudulent acts executed prior to or simultaneous with
the commission of the fraud:
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 78742 July 14, 1989
ASSOCIATION OF SMALL LANDOWNERS IN THE
PHILIPPINES, INC., JUANITO D. GOMEZ, GERARDO B.
ALARCIO, FELIPE A. GUICO, JR., BERNARDO M.
ALMONTE, CANUTO RAMIR B. CABRITO, ISIDRO T.
GUICO, FELISA I. LLAMIDO, FAUSTO J. SALVA,
REYNALDO G. ESTRADA, FELISA C. BAUTISTA, ESMENIA
J. CABE, TEODORO B. MADRIAGA, AUREA J. PRESTOSA,
EMERENCIANA J. ISLA, FELICISIMA C. ARRESTO,
CONSUELO M. MORALES, BENJAMIN R. SEGISMUNDO,
CIRILA A. JOSE & NAPOLEON S. FERRER, petitioners,
vs.
HONORABLE SECRETARY OF AGRARIAN REFORM,
respondent.
G.R. No. 79310 July 14, 1989
ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO
FERRARIS, DENNIS JEREZA, HERMINIGILDO GUSTILO,
PAULINO D. TOLENTINO and PLANTERS' COMMITTEE,
INC., Victorias Mill District, Victorias, Negros Occidental,
petitioners,
vs.
JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL
AGRARIAN REFORM COUNCIL, respondents.
G.R. No. 79744 July 14, 1989
INOCENTES PABICO, petitioner,
vs.
HON. PHILIP E. JUICO, SECRETARY OF THE DEPARTMENT
OF AGRARIAN REFORM, HON. JOKER ARROYO,
EXECUTIVE SECRETARY OF THE OFFICE OF THE
PRESIDENT, and Messrs. SALVADOR TALENTO, JAIME
ABOGADO, CONRADO AVANCENA and ROBERTO TAAY,
respondents.
G.R. No. 79777 July 14, 1989
NICOLAS S. MANAAY and AGUSTIN HERMANO, JR.,
petitioners,
vs.
HON. PHILIP ELLA JUICO, as Secretary of Agrarian
Reform, and LAND BANK OF THE PHILIPPINES,
respondents.
CRUZ, J.:
In ancient mythology, Antaeus was a terrible giant who
blocked and challenged Hercules for his life on his way
to Mycenae after performing his eleventh labor. The
two wrestled mightily and Hercules flung his adversary
to the ground thinking him dead, but Antaeus rose even
stronger to resume their struggle. This happened
several times to Hercules' increasing amazement.
Finally, as they continued grappling, it dawned on
Hercules that Antaeus was the son of Gaea and could
never die as long as any part of his body was touching
his Mother Earth. Thus forewarned, Hercules then held
Antaeus up in the air, beyond the reach of the
sustaining soil, and crushed him to death.
Mother Earth. The sustaining soil. The giver of life,
without whose invigorating touch even the powerful
Antaeus weakened and died.
The cases before us are not as fanciful as the foregoing
tale. But they also tell of the elemental forces of life and
death, of men and women who, like Antaeus need the
sustaining strength of the precious earth to stay alive.
"Land for the Landless" is a slogan that underscores the
acute imbalance in the distribution of this precious
resource among our people. But it is more than a
slogan. Through the brooding centuries, it has become a
battle-cry dramatizing the increasingly urgent demand
of the dispossessed among us for a plot of earth as their
place in the sun.
Recognizing this need, the Constitution in 1935
mandated the policy of social justice to "insure the well-
being and economic security of all the people," 1
especially the less privileged. In 1973, the new
Constitution affirmed this goal adding specifically that
"the State shall regulate the acquisition, ownership,
use, enjoyment and disposition of private property and
equitably diffuse property ownership and profits." 2
Significantly, there was also the specific injunction to
"formulate and implement an agrarian reform program
aimed at emancipating the tenant from the bondage of
the soil." 3
The Constitution of 1987 was not to be outdone.
Besides echoing these sentiments, it also adopted one
whole and separate Article XIII on Social Justice and
Human Rights, containing grandiose but undoubtedly
sincere provisions for the uplift of the common people.
These include a call in the following words for the
adoption by the State of an agrarian reform program:
SEC. 4. The State shall, by law, undertake an agrarian
reform program founded on the right of farmers and
regular farmworkers, who are landless, to own directly
or collectively the lands they till or, in the case of other
farmworkers, to receive a just share of the fruits
thereof. To this end, the State shall encourage and
undertake the just distribution of all agricultural lands,
subject to such priorities and reasonable retention
limits as the Congress may prescribe, taking into
account ecological, developmental, or equity
considerations and subject to the payment of just
compensation. In determining retention limits, the State
shall respect the right of small landowners. The State
shall further provide incentives for voluntary land-
sharing.
Earlier, in fact, R.A. No. 3844, otherwise known as the
Agricultural Land Reform Code, had already been
enacted by the Congress of the Philippines on August 8,
1963, in line with the above-stated principles. This was
substantially superseded almost a decade later by P.D.
No. 27, which was promulgated on October 21, 1972,
along with martial law, to provide for the compulsory
acquisition of private lands for distribution among
tenant-farmers and to specify maximum retention limits
for landowners.
The people power revolution of 1986 did not change
and indeed even energized the thrust for agrarian
reform. Thus, on July 17, 1987, President Corazon C.
Aquino issued E.O. No. 228, declaring full land
ownership in favor of the beneficiaries of P.D. No. 27
and providing for the valuation of still unvalued lands
covered by the decree as well as the manner of their
payment. This was followed on July 22, 1987 by
Presidential Proclamation No. 131, instituting a
comprehensive agrarian reform program (CARP), and
E.O. No. 229, providing the mechanics for its
implementation.
Subsequently, with its formal organization, the revived
Congress of the Philippines took over legislative power
from the President and started its own deliberations,
including extensive public hearings, on the
improvement of the interests of farmers. The result,
after almost a year of spirited debate, was the
enactment of R.A. No. 6657, otherwise known as the
Comprehensive Agrarian Reform Law of 1988, which
President Aquino signed on June 10, 1988. This law,
while considerably changing the earlier mentioned
enactments, nevertheless gives them suppletory effect
insofar as they are not inconsistent with its provisions. 4
The above-captioned cases have been consolidated
because they involve common legal questions, including
serious challenges to the constitutionality of the several
measures mentioned above. They will be the subject of
one common discussion and resolution, The different
antecedents of each case will require separate
treatment, however, and will first be explained
hereunder.
G.R. No. 79777
Squarely raised in this petition is the constitutionality of
P.D. No. 27, E.O. Nos. 228 and 229, and R.A. No. 6657.
The subjects of this petition are a 9-hectare riceland
worked by four tenants and owned by petitioner
Nicolas Manaay and his wife and a 5-hectare riceland
worked by four tenants and owned by petitioner
Augustin Hermano, Jr. The tenants were declared full
owners of these lands by E.O. No. 228 as qualified
farmers under P.D. No. 27.
The petitioners are questioning P.D. No. 27 and E.O.
Nos. 228 and 229 on grounds inter alia of separation of
powers, due process, equal protection and the
constitutional limitation that no private property shall
be taken for public use without just compensation.
They contend that President Aquino usurped legislative
power when she promulgated E.O. No. 228. The said
measure is invalid also for violation of Article XIII,
Section 4, of the Constitution, for failure to provide for
retention limits for small landowners. Moreover, it does
not conform to Article VI, Section 25(4) and the other
requisites of a valid appropriation.
In connection with the determination of just
compensation, the petitioners argue that the same may
be made only by a court of justice and not by the
President of the Philippines. They invoke the recent
cases of EPZA v. Dulay 5 and Manotok v. National Food
Authority. 6 Moreover, the just compensation
contemplated by the Bill of Rights is payable in money
or in cash and not in the form of bonds or other things
of value.
In considering the rentals as advance payment on the
land, the executive order also deprives the petitioners
of their property rights as protected by due process.
The equal protection clause is also violated because the
order places the burden of solving the agrarian
problems on the owners only of agricultural lands. No
similar obligation is imposed on the owners of other
properties.
The petitioners also maintain that in declaring the
beneficiaries under P.D. No. 27 to be the owners of the
lands occupied by them, E.O. No. 228 ignored judicial
prerogatives and so violated due process. Worse, the
measure would not solve the agrarian problem because
even the small farmers are deprived of their lands and
the retention rights guaranteed by the Constitution.
In his Comment, the Solicitor General stresses that P.D.
No. 27 has already been upheld in the earlier cases of
Chavez v. Zobel, 7 Gonzales v. Estrella, 8 and
Association of Rice and Corn Producers of the
Philippines, Inc. v. The National Land Reform Council. 9
The determination of just compensation by the
executive authorities conformably to the formula
prescribed under the questioned order is at best initial
or preliminary only. It does not foreclose judicial
intervention whenever sought or warranted. At any
rate, the challenge to the order is premature because
no valuation of their property has as yet been made by
the Department of Agrarian Reform. The petitioners are
also not proper parties because the lands owned by
them do not exceed the maximum retention limit of 7
hectares.
Replying, the petitioners insist they are proper parties
because P.D. No. 27 does not provide for retention
limits on tenanted lands and that in any event their
petition is a class suit brought in behalf of landowners
with landholdings below 24 hectares. They maintain
that the determination of just compensation by the
administrative authorities is a final ascertainment. As
for the cases invoked by the public respondent, the
constitutionality of P.D. No. 27 was merely assumed in
Chavez, while what was decided in Gonzales was the
validity of the imposition of martial law.
In the amended petition dated November 22, 1588, it is
contended that P.D. No. 27, E.O. Nos. 228 and 229
(except Sections 20 and 21) have been impliedly
repealed by R.A. No. 6657. Nevertheless, this statute
should itself also be declared unconstitutional because
it suffers from substantially the same infirmities as the
earlier measures.
A petition for intervention was filed with leave of court
on June 1, 1988 by Vicente Cruz, owner of a 1. 83-
hectare land, who complained that the DAR was
insisting on the implementation of P.D. No. 27 and E.O.
No. 228 despite a compromise agreement he had
reached with his tenant on the payment of rentals. In a
subsequent motion dated April 10, 1989, he adopted
the allegations in the basic amended petition that the
above- mentioned enactments have been impliedly
repealed by R.A. No. 6657.
G.R. No. 79310
The petitioners herein are landowners and sugar
planters in the Victorias Mill District, Victorias, Negros
Occidental. Co-petitioner Planters' Committee, Inc. is an
organization composed of 1,400 planter-members. This
petition seeks to prohibit the implementation of Proc.
No. 131 and E.O. No. 229.
The petitioners claim that the power to provide for a
Comprehensive Agrarian Reform Program as decreed by
the Constitution belongs to Congress and not the
President. Although they agree that the President could
exercise legislative power until the Congress was
convened, she could do so only to enact emergency
measures during the transition period. At that, even
assuming that the interim legislative power of the
President was properly exercised, Proc. No. 131 and
E.O. No. 229 would still have to be annulled for violating
the constitutional provisions on just compensation, due
process, and equal protection.
They also argue that under Section 2 of Proc. No. 131
which provides:
Agrarian Reform Fund.-There is hereby created a special
fund, to be known as the Agrarian Reform Fund, an
initial amount of FIFTY BILLION PESOS
(P50,000,000,000.00) to cover the estimated cost of the
Comprehensive Agrarian Reform Program from 1987 to
1992 which shall be sourced from the receipts of the
sale of the assets of the Asset Privatization Trust and
Receipts of sale of ill-gotten wealth received through
the Presidential Commission on Good Government and
such other sources as government may deem
appropriate. The amounts collected and accruing to this
special fund shall be considered automatically
appropriated for the purpose authorized in this
Proclamation the amount appropriated is in futuro, not
in esse. The money needed to cover the cost of the
contemplated expropriation has yet to be raised and
cannot be appropriated at this time.
Furthermore, they contend that taking must be
simultaneous with payment of just compensation as it is
traditionally understood, i.e., with money and in full,
but no such payment is contemplated in Section 5 of
the E.O. No. 229. On the contrary, Section 6, thereof
provides that the Land Bank of the Philippines "shall
compensate the landowner in an amount to be
established by the government, which shall be based on
the owner's declaration of current fair market value as
provided in Section 4 hereof, but subject to certain
controls to be defined and promulgated by the
Presidential Agrarian Reform Council." This
compensation may not be paid fully in money but in any
of several modes that may consist of part cash and part
bond, with interest, maturing periodically, or direct
payment in cash or bond as may be mutually agreed
upon by the beneficiary and the landowner or as may
be prescribed or approved by the PARC.
The petitioners also argue that in the issuance of the
two measures, no effort was made to make a careful
study of the sugar planters' situation. There is no
tenancy problem in the sugar areas that can justify the
application of the CARP to them. To the extent that the
sugar planters have been lumped in the same legislation
with other farmers, although they are a separate group
with problems exclusively their own, their right to equal
protection has been violated.
A motion for intervention was filed on August 27,1987
by the National Federation of Sugarcane Planters
(NASP) which claims a membership of at least 20,000
individual sugar planters all over the country. On
September 10, 1987, another motion for intervention
was filed, this time by Manuel Barcelona, et al.,
representing coconut and riceland owners. Both
motions were granted by the Court.
NASP alleges that President Aquino had no authority to
fund the Agrarian Reform Program and that, in any
event, the appropriation is invalid because of
uncertainty in the amount appropriated. Section 2 of
Proc. No. 131 and Sections 20 and 21 of E.O. No. 229
provide for an initial appropriation of fifty billion pesos
and thus specifies the minimum rather than the
maximum authorized amount. This is not allowed.
Furthermore, the stated initial amount has not been
certified to by the National Treasurer as actually
available.
Two additional arguments are made by Barcelona, to
wit, the failure to establish by clear and convincing
evidence the necessity for the exercise of the powers of
eminent domain, and the violation of the fundamental
right to own property.
The petitioners also decry the penalty for non-
registration of the lands, which is the expropriation of
the said land for an amount equal to the government
assessor's valuation of the land for tax purposes. On the
other hand, if the landowner declares his own valuation
he is unjustly required to immediately pay the
corresponding taxes on the land, in violation of the
uniformity rule.
In his consolidated Comment, the Solicitor General first
invokes the presumption of constitutionality in favor of
Proc. No. 131 and E.O. No. 229. He also justifies the
necessity for the expropriation as explained in the
"whereas" clauses of the Proclamation and submits
that, contrary to the petitioner's contention, a pilot
project to determine the feasibility of CARP and a
general survey on the people's opinion thereon are not
indispensable prerequisites to its promulgation.
On the alleged violation of the equal protection clause,
the sugar planters have failed to show that they belong
to a different class and should be differently treated.
The Comment also suggests the possibility of Congress
first distributing public agricultural lands and scheduling
the expropriation of private agricultural lands later.
From this viewpoint, the petition for prohibition would
be premature.
The public respondent also points out that the
constitutional prohibition is against the payment of
public money without the corresponding appropriation.
There is no rule that only money already in existence
can be the subject of an appropriation law. Finally, the
earmarking of fifty billion pesos as Agrarian Reform
Fund, although denominated as an initial amount, is
actually the maximum sum appropriated. The word
"initial" simply means that additional amounts may be
appropriated later when necessary.
On April 11, 1988, Prudencio Serrano, a coconut
planter, filed a petition on his own behalf, assailing the
constitutionality of E.O. No. 229. In addition to the
arguments already raised, Serrano contends that the
measure is unconstitutional because:
(1) Only public lands should be included in the CARP;
(2) E.O. No. 229 embraces more than one subject which
is not expressed in the title;
(3) The power of the President to legislate was
terminated on July 2, 1987; and
(4) The appropriation of a P50 billion special fund from
the National Treasury did not originate from the House
of Representatives.
G.R. No. 79744
The petitioner alleges that the then Secretary of
Department of Agrarian Reform, in violation of due
process and the requirement for just compensation,
placed his landholding under the coverage of Operation
Land Transfer. Certificates of Land Transfer were
subsequently issued to the private respondents, who
then refused payment of lease rentals to him.
On September 3, 1986, the petitioner protested the
erroneous inclusion of his small landholding under
Operation Land transfer and asked for the recall and
cancellation of the Certificates of Land Transfer in the
name of the private respondents. He claims that on
December 24, 1986, his petition was denied without
hearing. On February 17, 1987, he filed a motion for
reconsideration, which had not been acted upon when
E.O. Nos. 228 and 229 were issued. These orders
rendered his motion moot and academic because they
directly effected the transfer of his land to the private
respondents.
The petitioner now argues that:
(1) E.O. Nos. 228 and 229 were invalidly issued by the
President of the Philippines.
(2) The said executive orders are violative of the
constitutional provision that no private property shall
be taken without due process or just compensation.
(3) The petitioner is denied the right of maximum
retention provided for under the 1987 Constitution.
The petitioner contends that the issuance of E.0. Nos.
228 and 229 shortly before Congress convened is
anomalous and arbitrary, besides violating the doctrine
of separation of powers. The legislative power granted
to the President under the Transitory Provisions refers
only to emergency measures that may be promulgated
in the proper exercise of the police power.
The petitioner also invokes his rights not to be deprived
of his property without due process of law and to the
retention of his small parcels of riceholding as
guaranteed under Article XIII, Section 4 of the
Constitution. He likewise argues that, besides denying
him just compensation for his land, the provisions of
E.O. No. 228 declaring that:
Lease rentals paid to the landowner by the farmer-
beneficiary after October 21, 1972 shall be considered
as advance payment for the land.
is an unconstitutional taking of a vested property right.
It is also his contention that the inclusion of even small
landowners in the program along with other
landowners with lands consisting of seven hectares or
more is undemocratic.
In his Comment, the Solicitor General submits that the
petition is premature because the motion for
reconsideration filed with the Minister of Agrarian
Reform is still unresolved. As for the validity of the
issuance of E.O. Nos. 228 and 229, he argues that they
were enacted pursuant to Section 6, Article XVIII of the
Transitory Provisions of the 1987 Constitution which
reads:
The incumbent president shall continue to exercise
legislative powers until the first Congress is convened.
On the issue of just compensation, his position is that
when P.D. No. 27 was promulgated on October 21.
1972, the tenant-farmer of agricultural land was
deemed the owner of the land he was tilling. The
leasehold rentals paid after that date should therefore
be considered amortization payments.
In his Reply to the public respondents, the petitioner
maintains that the motion he filed was resolved on
December 14, 1987. An appeal to the Office of the
President would be useless with the promulgation of
E.O. Nos. 228 and 229, which in effect sanctioned the
validity of the public respondent's acts.
G.R. No. 78742
The petitioners in this case invoke the right of retention
granted by P.D. No. 27 to owners of rice and corn lands
not exceeding seven hectares as long as they are
cultivating or intend to cultivate the same. Their
respective lands do not exceed the statutory limit but
are occupied by tenants who are actually cultivating
such lands.
According to P.D. No. 316, which was promulgated in
implementation of P.D. No. 27:
No tenant-farmer in agricultural lands primarily devoted
to rice and corn shall be ejected or removed from his
farmholding until such time as the respective rights of
the tenant- farmers and the landowner shall have been
determined in accordance with the rules and
regulations implementing P.D. No. 27.
The petitioners claim they cannot eject their tenants
and so are unable to enjoy their right of retention
because the Department of Agrarian Reform has so far
not issued the implementing rules required under the
above-quoted decree. They therefore ask the Court for
a writ of mandamus to compel the respondent to issue
the said rules.
In his Comment, the public respondent argues that P.D.
No. 27 has been amended by LOI 474 removing any
right of retention from persons who own other
agricultural lands of more than 7 hectares in aggregate
area or lands used for residential, commercial, industrial
or other purposes from which they derive adequate
income for their family. And even assuming that the
petitioners do not fall under its terms, the regulations
implementing P.D. No. 27 have already been issued, to
wit, the Memorandum dated July 10, 1975 (Interim
Guidelines on Retention by Small Landowners, with an
accompanying Retention Guide Table), Memorandum
Circular No. 11 dated April 21, 1978, (Implementation
Guidelines of LOI No. 474), Memorandum Circular No.
18-81 dated December 29,1981 (Clarificatory Guidelines
on Coverage of P.D. No. 27 and Retention by Small
Landowners), and DAR Administrative Order No. 1,
series of 1985 (Providing for a Cut-off Date for
Landowners to Apply for Retention and/or to Protest
the Coverage of their Landholdings under Operation
Land Transfer pursuant to P.D. No. 27). For failure to file
the corresponding applications for retention under
these measures, the petitioners are now barred from
invoking this right.
The public respondent also stresses that the petitioners
have prematurely initiated this case notwithstanding
the pendency of their appeal to the President of the
Philippines. Moreover, the issuance of the
implementing rules, assuming this has not yet been
done, involves the exercise of discretion which cannot
be controlled through the writ of mandamus. This is
especially true if this function is entrusted, as in this
case, to a separate department of the government.
In their Reply, the petitioners insist that the above-cited
measures are not applicable to them because they do
not own more than seven hectares of agricultural land.
Moreover, assuming arguendo that the rules were
intended to cover them also, the said measures are
nevertheless not in force because they have not been
published as required by law and the ruling of this Court
in Tanada v. Tuvera.10 As for LOI 474, the same is
ineffective for the additional reason that a mere letter
of instruction could not have repealed the presidential
decree.
I
Although holding neither purse nor sword and so
regarded as the weakest of the three departments of
the government, the judiciary is nonetheless vested
with the power to annul the acts of either the legislative
or the executive or of both when not conformable to
the fundamental law. This is the reason for what some
quarters call the doctrine of judicial supremacy. Even
so, this power is not lightly assumed or readily
exercised. The doctrine of separation of powers
imposes upon the courts a proper restraint, born of the
nature of their functions and of their respect for the
other departments, in striking down the acts of the
legislative and the executive as unconstitutional. The
policy, indeed, is a blend of courtesy and caution. To
doubt is to sustain. The theory is that before the act
was done or the law was enacted, earnest studies were
made by Congress or the President, or both, to insure
that the Constitution would not be breached.
In addition, the Constitution itself lays down stringent
conditions for a declaration of unconstitutionality,
requiring therefor the concurrence of a majority of the
members of the Supreme Court who took part in the
deliberations and voted on the issue during their
session en banc.11 And as established by judge made
doctrine, the Court will assume jurisdiction over a
constitutional question only if it is shown that the
essential requisites of a judicial inquiry into such a
question are first satisfied. Thus, there must be an
actual case or controversy involving a conflict of legal
rights susceptible of judicial determination, the
constitutional question must have been opportunely
raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of the
case itself. 12
With particular regard to the requirement of proper
party as applied in the cases before us, we hold that the
same is satisfied by the petitioners and intervenors
because each of them has sustained or is in danger of
sustaining an immediate injury as a result of the acts or
measures complained of. 13 And even if, strictly
speaking, they are not covered by the definition, it is
still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its
addressing and resolving the serious constitutional
questions raised.
In the first Emergency Powers Cases, 14 ordinary
citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by
President Quirino although they were invoking only an
indirect and general interest shared in common with
the public. The Court dismissed the objection that they
were not proper parties and ruled that "the
transcendental importance to the public of these cases
demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure."
We have since then applied this exception in many
other cases. 15
The other above-mentioned requisites have also been
met in the present petitions.
In must be stressed that despite the inhibitions pressing
upon the Court when confronted with constitutional
issues like the ones now before it, it will not hesitate to
declare a law or act invalid when it is convinced that this
must be done. In arriving at this conclusion, its only
criterion will be the Constitution as God and its
conscience give it the light to probe its meaning and
discover its purpose. Personal motives and political
considerations are irrelevancies that cannot influence
its decision. Blandishment is as ineffectual as
intimidation.
For all the awesome power of the Congress and the
Executive, the Court will not hesitate to "make the
hammer fall, and heavily," to use Justice Laurel's pithy
language, where the acts of these departments, or of
any public official, betray the people's will as expressed
in the Constitution.
It need only be added, to borrow again the words of
Justice Laurel, that —
... when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or
invalidate an act of the Legislature, but only asserts the
solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties
in an actual controversy the rights which that
instrument secures and guarantees to them. This is in
truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial
review under the Constitution. 16
The cases before us categorically raise constitutional
questions that this Court must categorically resolve.
And so we shall.
II
We proceed first to the examination of the preliminary
issues before resolving the more serious challenges to
the constitutionality of the several measures involved in
these petitions.
The promulgation of P.D. No. 27 by President Marcos in
the exercise of his powers under martial law has already
been sustained in Gonzales v. Estrella and we find no
reason to modify or reverse it on that issue. As for the
power of President Aquino to promulgate Proc. No. 131
and E.O. Nos. 228 and 229, the same was authorized
under Section 6 of the Transitory Provisions of the 1987
Constitution, quoted above.
The said measures were issued by President Aquino
before July 27, 1987, when the Congress of the
Philippines was formally convened and took over
legislative power from her. They are not "midnight"
enactments intended to pre-empt the legislature
because E.O. No. 228 was issued on July 17, 1987, and
the other measures, i.e., Proc. No. 131 and E.O. No. 229,
were both issued on July 22, 1987. Neither is it correct
to say that these measures ceased to be valid when she
lost her legislative power for, like any statute, they
continue to be in force unless modified or repealed by
subsequent law or declared invalid by the courts. A
statute does not ipso facto become inoperative simply
because of the dissolution of the legislature that
enacted it. By the same token, President Aquino's loss
of legislative power did not have the effect of
invalidating all the measures enacted by her when and
as long as she possessed it.
Significantly, the Congress she is alleged to have
undercut has not rejected but in fact substantially
affirmed the challenged measures and has specifically
provided that they shall be suppletory to R.A. No. 6657
whenever not inconsistent with its provisions. 17
Indeed, some portions of the said measures, like the
creation of the P50 billion fund in Section 2 of Proc. No.
131, and Sections 20 and 21 of E.O. No. 229, have been
incorporated by reference in the CARP Law. 18
That fund, as earlier noted, is itself being questioned on
the ground that it does not conform to the
requirements of a valid appropriation as specified in the
Constitution. Clearly, however, Proc. No. 131 is not an
appropriation measure even if it does provide for the
creation of said fund, for that is not its principal
purpose. An appropriation law is one the primary and
specific purpose of which is to authorize the release of
public funds from the treasury. 19 The creation of the
fund is only incidental to the main objective of the
proclamation, which is agrarian reform.
It should follow that the specific constitutional
provisions invoked, to wit, Section 24 and Section 25(4)
of Article VI, are not applicable. With particular
reference to Section 24, this obviously could not have
been complied with for the simple reason that the
House of Representatives, which now has the exclusive
power to initiate appropriation measures, had not yet
been convened when the proclamation was issued. The
legislative power was then solely vested in the
President of the Philippines, who embodied, as it were,
both houses of Congress.
The argument of some of the petitioners that Proc. No.
131 and E.O. No. 229 should be invalidated because
they do not provide for retention limits as required by
Article XIII, Section 4 of the Constitution is no longer
tenable. R.A. No. 6657 does provide for such limits now
in Section 6 of the law, which in fact is one of its most
controversial provisions. This section declares:
Retention Limits. — Except as otherwise provided in this
Act, no person may own or retain, directly or indirectly,
any public or private agricultural land, the size of which
shall vary according to factors governing a viable family-
sized farm, such as commodity produced, terrain,
infrastructure, and soil fertility as determined by the
Presidential Agrarian Reform Council (PARC) created
hereunder, but in no case shall retention by the
landowner exceed five (5) hectares. Three (3) hectares
may be awarded to each child of the landowner, subject
to the following qualifications: (1) that he is at least
fifteen (15) years of age; and (2) that he is actually tilling
the land or directly managing the farm; Provided, That
landowners whose lands have been covered by
Presidential Decree No. 27 shall be allowed to keep the
area originally retained by them thereunder, further,
That original homestead grantees or direct compulsory
heirs who still own the original homestead at the time
of the approval of this Act shall retain the same areas as
long as they continue to cultivate said homestead.
The argument that E.O. No. 229 violates the
constitutional requirement that a bill shall have only
one subject, to be expressed in its title, deserves only
short attention. It is settled that the title of the bill does
not have to be a catalogue of its contents and will
suffice if the matters embodied in the text are relevant
to each other and may be inferred from the title. 20
The Court wryly observes that during the past
dictatorship, every presidential issuance, by whatever
name it was called, had the force and effect of law
because it came from President Marcos. Such are the
ways of despots. Hence, it is futile to argue, as the
petitioners do in G.R. No. 79744, that LOI 474 could not
have repealed P.D. No. 27 because the former was only
a letter of instruction. The important thing is that it was
issued by President Marcos, whose word was law during
that time.
But for all their peremptoriness, these issuances from
the President Marcos still had to comply with the
requirement for publication as this Court held in Tanada
v. Tuvera. 21 Hence, unless published in the Official
Gazette in accordance with Article 2 of the Civil Code,
they could not have any force and effect if they were
among those enactments successfully challenged in that
case. LOI 474 was published, though, in the Official
Gazette dated November 29,1976.)
Finally, there is the contention of the public respondent
in G.R. No. 78742 that the writ of mandamus cannot
issue to compel the performance of a discretionary act,
especially by a specific department of the government.
That is true as a general proposition but is subject to
one important qualification. Correctly and categorically
stated, the rule is that mandamus will lie to compel the
discharge of the discretionary duty itself but not to
control the discretion to be exercised. In other words,
mandamus can issue to require action only but not
specific action.
Whenever a duty is imposed upon a public official and
an unnecessary and unreasonable delay in the exercise
of such duty occurs, if it is a clear duty imposed by law,
the courts will intervene by the extraordinary legal
remedy of mandamus to compel action. If the duty is
purely ministerial, the courts will require specific action.
If the duty is purely discretionary, the courts by
mandamus will require action only. For example, if an
inferior court, public official, or board should, for an
unreasonable length of time, fail to decide a particular
question to the great detriment of all parties
concerned, or a court should refuse to take jurisdiction
of a cause when the law clearly gave it jurisdiction
mandamus will issue, in the first case to require a
decision, and in the second to require that jurisdiction
be taken of the cause. 22
And while it is true that as a rule the writ will not be
proper as long as there is still a plain, speedy and
adequate remedy available from the administrative
authorities, resort to the courts may still be permitted if
the issue raised is a question of law. 23
III
There are traditional distinctions between the police
power and the power of eminent domain that logically
preclude the application of both powers at the same
time on the same subject. In the case of City of Baguio
v. NAWASA, 24 for example, where a law required the
transfer of all municipal waterworks systems to the
NAWASA in exchange for its assets of equivalent value,
the Court held that the power being exercised was
eminent domain because the property involved was
wholesome and intended for a public use. Property
condemned under the police power is noxious or
intended for a noxious purpose, such as a building on
the verge of collapse, which should be demolished for
the public safety, or obscene materials, which should be
destroyed in the interest of public morals. The
confiscation of such property is not compensable, unlike
the taking of property under the power of
expropriation, which requires the payment of just
compensation to the owner.
In the case of Pennsylvania Coal Co. v. Mahon, 25
Justice Holmes laid down the limits of the police power
in a famous aphorism: "The general rule at least is that
while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking."
The regulation that went "too far" was a law prohibiting
mining which might cause the subsidence of structures
for human habitation constructed on the land surface.
This was resisted by a coal company which had earlier
granted a deed to the land over its mine but reserved all
mining rights thereunder, with the grantee assuming all
risks and waiving any damage claim. The Court held the
law could not be sustained without compensating the
grantor. Justice Brandeis filed a lone dissent in which he
argued that there was a valid exercise of the police
power. He said:
Every restriction upon the use of property imposed in
the exercise of the police power deprives the owner of
some right theretofore enjoyed, and is, in that sense, an
abridgment by the State of rights in property without
making compensation. But restriction imposed to
protect the public health, safety or morals from dangers
threatened is not a taking. The restriction here in
question is merely the prohibition of a noxious use. The
property so restricted remains in the possession of its
owner. The state does not appropriate it or make any
use of it. The state merely prevents the owner from
making a use which interferes with paramount rights of
the public. Whenever the use prohibited ceases to be
noxious — as it may because of further changes in local
or social conditions — the restriction will have to be
removed and the owner will again be free to enjoy his
property as heretofore.
Recent trends, however, would indicate not a
polarization but a mingling of the police power and the
power of eminent domain, with the latter being used as
an implement of the former like the power of taxation.
The employment of the taxing power to achieve a police
purpose has long been accepted. 26 As for the power of
expropriation, Prof. John J. Costonis of the University of
Illinois College of Law (referring to the earlier case of
Euclid v. Ambler Realty Co., 272 US 365, which
sustained a zoning law under the police power) makes
the following significant remarks:
Euclid, moreover, was decided in an era when judges
located the Police and eminent domain powers on
different planets. Generally speaking, they viewed
eminent domain as encompassing public acquisition of
private property for improvements that would be
available for public use," literally construed. To the
police power, on the other hand, they assigned the less
intrusive task of preventing harmful externalities a point
reflected in the Euclid opinion's reliance on an analogy
to nuisance law to bolster its support of zoning. So long
as suppression of a privately authored harm bore a
plausible relation to some legitimate "public purpose,"
the pertinent measure need have afforded no
compensation whatever. With the progressive growth
of government's involvement in land use, the distance
between the two powers has contracted considerably.
Today government often employs eminent domain
interchangeably with or as a useful complement to the
police power-- a trend expressly approved in the
Supreme Court's 1954 decision in Berman v. Parker,
which broadened the reach of eminent domain's "public
use" test to match that of the police power's standard
of "public purpose." 27
The Berman case sustained a redevelopment project
and the improvement of blighted areas in the District of
Columbia as a proper exercise of the police power. On
the role of eminent domain in the attainment of this
purpose, Justice Douglas declared:
If those who govern the District of Columbia decide that
the Nation's Capital should be beautiful as well as
sanitary, there is nothing in the Fifth Amendment that
stands in the way.
Once the object is within the authority of Congress, the
right to realize it through the exercise of eminent
domain is clear.
For the power of eminent domain is merely the means
to the end. 28
In Penn Central Transportation Co. v. New York City, 29
decided by a 6-3 vote in 1978, the U.S Supreme Court
sustained the respondent's Landmarks Preservation Law
under which the owners of the Grand Central Terminal
had not been allowed to construct a multi-story office
building over the Terminal, which had been designated
a historic landmark. Preservation of the landmark was
held to be a valid objective of the police power. The
problem, however, was that the owners of the Terminal
would be deprived of the right to use the airspace
above it although other landowners in the area could do
so over their respective properties. While insisting that
there was here no taking, the Court nonetheless
recognized certain compensatory rights accruing to
Grand Central Terminal which it said would
"undoubtedly mitigate" the loss caused by the
regulation. This "fair compensation," as he called it, was
explained by Prof. Costonis in this wise:
In return for retaining the Terminal site in its pristine
landmark status, Penn Central was authorized to
transfer to neighboring properties the authorized but
unused rights accruing to the site prior to the Terminal's
designation as a landmark — the rights which would
have been exhausted by the 59-story building that the
city refused to countenance atop the Terminal.
Prevailing bulk restrictions on neighboring sites were
proportionately relaxed, theoretically enabling Penn
Central to recoup its losses at the Terminal site by
constructing or selling to others the right to construct
larger, hence more profitable buildings on the
transferee sites. 30
The cases before us present no knotty complication
insofar as the question of compensable taking is
concerned. To the extent that the measures under
challenge merely prescribe retention limits for
landowners, there is an exercise of the police power for
the regulation of private property in accordance with
the Constitution. But where, to carry out such
regulation, it becomes necessary to deprive such
owners of whatever lands they may own in excess of
the maximum area allowed, there is definitely a taking
under the power of eminent domain for which payment
of just compensation is imperative. The taking
contemplated is not a mere limitation of the use of the
land. What is required is the surrender of the title to
and the physical possession of the said excess and all
beneficial rights accruing to the owner in favor of the
farmer-beneficiary. This is definitely an exercise not of
the police power but of the power of eminent domain.
Whether as an exercise of the police power or of the
power of eminent domain, the several measures before
us are challenged as violative of the due process and
equal protection clauses.
The challenge to Proc. No. 131 and E.O. Nos. 228 and
299 on the ground that no retention limits are
prescribed has already been discussed and dismissed. It
is noted that although they excited many bitter
exchanges during the deliberation of the CARP Law in
Congress, the retention limits finally agreed upon are,
curiously enough, not being questioned in these
petitions. We therefore do not discuss them here. The
Court will come to the other claimed violations of due
process in connection with our examination of the
adequacy of just compensation as required under the
power of expropriation.
The argument of the small farmers that they have been
denied equal protection because of the absence of
retention limits has also become academic under
Section 6 of R.A. No. 6657. Significantly, they too have
not questioned the area of such limits. There is also the
complaint that they should not be made to share the
burden of agrarian reform, an objection also made by
the sugar planters on the ground that they belong to a
particular class with particular interests of their own.
However, no evidence has been submitted to the Court
that the requisites of a valid classification have been
violated.
Classification has been defined as the grouping of
persons or things similar to each other in certain
particulars and different from each other in these same
particulars. 31 To be valid, it must conform to the
following requirements: (1) it must be based on
substantial distinctions; (2) it must be germane to the
purposes of the law; (3) it must not be limited to
existing conditions only; and (4) it must apply equally to
all the members of the class. 32 The Court finds that all
these requisites have been met by the measures here
challenged as arbitrary and discriminatory.
Equal protection simply means that all persons or things
similarly situated must be treated alike both as to the
rights conferred and the liabilities imposed. 33 The
petitioners have not shown that they belong to a
different class and entitled to a different treatment. The
argument that not only landowners but also owners of
other properties must be made to share the burden of
implementing land reform must be rejected. There is a
substantial distinction between these two classes of
owners that is clearly visible except to those who will
not see. There is no need to elaborate on this matter. In
any event, the Congress is allowed a wide leeway in
providing for a valid classification. Its decision is
accorded recognition and respect by the courts of
justice except only where its discretion is abused to the
detriment of the Bill of Rights.
It is worth remarking at this juncture that a statute may
be sustained under the police power only if there is a
concurrence of the lawful subject and the lawful
method. Put otherwise, the interests of the public
generally as distinguished from those of a particular
class require the interference of the State and, no less
important, the means employed are reasonably
necessary for the attainment of the purpose sought to
be achieved and not unduly oppressive upon
individuals. 34 As the subject and purpose of agrarian
reform have been laid down by the Constitution itself,
we may say that the first requirement has been
satisfied. What remains to be examined is the validity of
the method employed to achieve the constitutional
goal.
One of the basic principles of the democratic system is
that where the rights of the individual are concerned,
the end does not justify the means. It is not enough that
there be a valid objective; it is also necessary that the
means employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not
even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions,
will excuse the bypassing of an individual's rights. It is
no exaggeration to say that a, person invoking a right
guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation
who would deny him that right.
That right covers the person's life, his liberty and his
property under Section 1 of Article III of the
Constitution. With regard to his property, the owner
enjoys the added protection of Section 9, which
reaffirms the familiar rule that private property shall
not be taken for public use without just compensation.
This brings us now to the power of eminent domain.
IV
Eminent domain is an inherent power of the State that
enables it to forcibly acquire private lands intended for
public use upon payment of just compensation to the
owner. Obviously, there is no need to expropriate
where the owner is willing to sell under terms also
acceptable to the purchaser, in which case an ordinary
deed of sale may be agreed upon by the parties. 35 It is
only where the owner is unwilling to sell, or cannot
accept the price or other conditions offered by the
vendee, that the power of eminent domain will come
into play to assert the paramount authority of the State
over the interests of the property owner. Private rights
must then yield to the irresistible demands of the public
interest on the time-honored justification, as in the case
of the police power, that the welfare of the people is
the supreme law.
But for all its primacy and urgency, the power of
expropriation is by no means absolute (as indeed no
power is absolute). The limitation is found in the
constitutional injunction that "private property shall not
be taken for public use without just compensation" and
in the abundant jurisprudence that has evolved from
the interpretation of this principle. Basically, the
requirements for a proper exercise of the power are: (1)
public use and (2) just compensation.
Let us dispose first of the argument raised by the
petitioners in G.R. No. 79310 that the State should first
distribute public agricultural lands in the pursuit of
agrarian reform instead of immediately disturbing
property rights by forcibly acquiring private agricultural
lands. Parenthetically, it is not correct to say that only
public agricultural lands may be covered by the CARP as
the Constitution calls for "the just distribution of all
agricultural lands." In any event, the decision to
redistribute private agricultural lands in the manner
prescribed by the CARP was made by the legislative and
executive departments in the exercise of their
discretion. We are not justified in reviewing that
discretion in the absence of a clear showing that it has
been abused.

A becoming courtesy admonishes us to respect the
decisions of the political departments when they decide
what is known as the political question. As explained by
Chief Justice Concepcion in the case of Tañada v.
Cuenco: 36
The term "political question" connotes what it means in
ordinary parlance, namely, a question of policy. It refers
to "those questions which, under the Constitution, are
to be decided by the people in their sovereign capacity;
or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of
the government." It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure.
It is true that the concept of the political question has
been constricted with the enlargement of judicial
power, which now includes the authority of the courts
"to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality
of the Government." 37 Even so, this should not be
construed as a license for us to reverse the other
departments simply because their views may not
coincide with ours.
The legislature and the executive have been seen fit, in
their wisdom, to include in the CARP the redistribution
of private landholdings (even as the distribution of
public agricultural lands is first provided for, while also
continuing apace under the Public Land Act and other
cognate laws). The Court sees no justification to
interpose its authority, which we may assert only if we
believe that the political decision is not unwise, but
illegal. We do not find it to be so.
In U.S. v. Chandler-Dunbar Water Power Company,38 it
was held:
Congress having determined, as it did by the Act of
March 3,1909 that the entire St. Mary's river between
the American bank and the international line, as well as
all of the upland north of the present ship canal,
throughout its entire length, was "necessary for the
purpose of navigation of said waters, and the waters
connected therewith," that determination is conclusive
in condemnation proceedings instituted by the United
States under that Act, and there is no room for judicial
review of the judgment of Congress ... .
As earlier observed, the requirement for public use has
already been settled for us by the Constitution itself No
less than the 1987 Charter calls for agrarian reform,
which is the reason why private agricultural lands are to
be taken from their owners, subject to the prescribed
maximum retention limits. The purposes specified in
P.D. No. 27, Proc. No. 131 and R.A. No. 6657 are only an
elaboration of the constitutional injunction that the
State adopt the necessary measures "to encourage and
undertake the just distribution of all agricultural lands
to enable farmers who are landless to own directly or
collectively the lands they till." That public use, as
pronounced by the fundamental law itself, must be
binding on us.
The second requirement, i.e., the payment of just
compensation, needs a longer and more thoughtful
examination.
Just compensation is defined as the full and fair
equivalent of the property taken from its owner by the
expropriator. 39 It has been repeatedly stressed by this
Court that the measure is not the taker's gain but the
owner's loss. 40 The word "just" is used to intensify the
meaning of the word "compensation" to convey the
idea that the equivalent to be rendered for the property
to be taken shall be real, substantial, full, ample. 41
It bears repeating that the measures challenged in
these petitions contemplate more than a mere
regulation of the use of private lands under the police
power. We deal here with an actual taking of private
agricultural lands that has dispossessed the owners of
their property and deprived them of all its beneficial use
and enjoyment, to entitle them to the just
compensation mandated by the Constitution.
As held in Republic of the Philippines v. Castellvi, 42
there is compensable taking when the following
conditions concur: (1) the expropriator must enter a
private property; (2) the entry must be for more than a
momentary period; (3) the entry must be under warrant
or color of legal authority; (4) the property must be
devoted to public use or otherwise informally
appropriated or injuriously affected; and (5) the
utilization of the property for public use must be in such
a way as to oust the owner and deprive him of
beneficial enjoyment of the property. All these
requisites are envisioned in the measures before us.
Where the State itself is the expropriator, it is not
necessary for it to make a deposit upon its taking
possession of the condemned property, as "the
compensation is a public charge, the good faith of the
public is pledged for its payment, and all the resources
of taxation may be employed in raising the amount." 43
Nevertheless, Section 16(e) of the CARP Law provides
that:
Upon receipt by the landowner of the corresponding
payment or, in case of rejection or no response from
the landowner, upon the deposit with an accessible
bank designated by the DAR of the compensation in
cash or in LBP bonds in accordance with this Act, the
DAR shall take immediate possession of the land and
shall request the proper Register of Deeds to issue a
Transfer Certificate of Title (TCT) in the name of the
Republic of the Philippines. The DAR shall thereafter
proceed with the redistribution of the land to the
qualified beneficiaries.
Objection is raised, however, to the manner of fixing
the just compensation, which it is claimed is entrusted
to the administrative authorities in violation of judicial
prerogatives. Specific reference is made to Section
16(d), which provides that in case of the rejection or
disregard by the owner of the offer of the government
to buy his land-
... the DAR shall conduct summary administrative
proceedings to determine the compensation for the
land by requiring the landowner, the LBP and other
interested parties to submit evidence as to the just
compensation for the land, within fifteen (15) days from
the receipt of the notice. After the expiration of the
above period, the matter is deemed submitted for
decision. The DAR shall decide the case within thirty
(30) days after it is submitted for decision.
To be sure, the determination of just compensation is a
function addressed to the courts of justice and may not
be usurped by any other branch or official of the
government. EPZA v. Dulay 44 resolved a challenge to
several decrees promulgated by President Marcos
providing that the just compensation for property under
expropriation should be either the assessment of the
property by the government or the sworn valuation
thereof by the owner, whichever was lower. In
declaring these decrees unconstitutional, the Court held
through Mr. Justice Hugo E. Gutierrez, Jr.:
The method of ascertaining just compensation under
the aforecited decrees constitutes impermissible
encroachment on judicial prerogatives. It tends to
render this Court inutile in a matter which under this
Constitution is reserved to it for final determination.
Thus, although in an expropriation proceeding the court
technically would still have the power to determine the
just compensation for the property, following the
applicable decrees, its task would be relegated to
simply stating the lower value of the property as
declared either by the owner or the assessor. As a
necessary consequence, it would be useless for the
court to appoint commissioners under Rule 67 of the
Rules of Court. Moreover, the need to satisfy the due
process clause in the taking of private property is
seemingly fulfilled since it cannot be said that a judicial
proceeding was not had before the actual taking.
However, the strict application of the decrees during
the proceedings would be nothing short of a mere
formality or charade as the court has only to choose
between the valuation of the owner and that of the
assessor, and its choice is always limited to the lower of
the two. The court cannot exercise its discretion or
independence in determining what is just or fair. Even a
grade school pupil could substitute for the judge insofar
as the determination of constitutional just
compensation is concerned.
xxx
In the present petition, we are once again confronted
with the same question of whether the courts under
P.D. No. 1533, which contains the same provision on
just compensation as its predecessor decrees, still have
the power and authority to determine just
compensation, independent of what is stated by the
decree and to this effect, to appoint commissioners for
such purpose.
This time, we answer in the affirmative.
xxx
It is violative of due process to deny the owner the
opportunity to prove that the valuation in the tax
documents is unfair or wrong. And it is repulsive to the
basic concepts of justice and fairness to allow the
haphazard work of a minor bureaucrat or clerk to
absolutely prevail over the judgment of a court
promulgated only after expert commissioners have
actually viewed the property, after evidence and
arguments pro and con have been presented, and after
all factors and considerations essential to a fair and just
determination have been judiciously evaluated.
A reading of the aforecited Section 16(d) will readily
show that it does not suffer from the arbitrariness that
rendered the challenged decrees constitutionally
objectionable. Although the proceedings are described
as summary, the landowner and other interested
parties are nevertheless allowed an opportunity to
submit evidence on the real value of the property. But
more importantly, the determination of the just
compensation by the DAR is not by any means final and
conclusive upon the landowner or any other interested
party, for Section 16(f) clearly provides:
Any party who disagrees with the decision may bring
the matter to the court of proper jurisdiction for final
determination of just compensation.
The determination made by the DAR is only preliminary
unless accepted by all parties concerned. Otherwise,
the courts of justice will still have the right to review
with finality the said determination in the exercise of
what is admittedly a judicial function.
The second and more serious objection to the
provisions on just compensation is not as easily
resolved.
This refers to Section 18 of the CARP Law providing in
full as follows:
SEC. 18. Valuation and Mode of Compensation. — The
LBP shall compensate the landowner in such amount as
may be agreed upon by the landowner and the DAR and
the LBP, in accordance with the criteria provided for in
Sections 16 and 17, and other pertinent provisions
hereof, or as may be finally determined by the court, as
the just compensation for the land.
The compensation shall be paid in one of the following
modes, at the option of the landowner:
(1) Cash payment, under the following terms and
conditions:
(a) For lands above fifty (50) hectares, insofar as the
excess hectarage is concerned — Twenty-five percent
(25%) cash, the balance to be paid in government
financial instruments negotiable at any time.
(b) For lands above twenty-four (24) hectares and up to
fifty (50) hectares — Thirty percent (30%) cash, the
balance to be paid in government financial instruments
negotiable at any time.
(c) For lands twenty-four (24) hectares and below —
Thirty-five percent (35%) cash, the balance to be paid in
government financial instruments negotiable at any
time.
(2) Shares of stock in government-owned or controlled
corporations, LBP preferred shares, physical assets or
other qualified investments in accordance with
guidelines set by the PARC;
(3) Tax credits which can be used against any tax
liability;
(4) LBP bonds, which shall have the following features:
(a) Market interest rates aligned with 91-day treasury
bill rates. Ten percent (10%) of the face value of the
bonds shall mature every year from the date of issuance
until the tenth (10th) year: Provided, That should the
landowner choose to forego the cash portion, whether
in full or in part, he shall be paid correspondingly in LBP
bonds;
(b) Transferability and negotiability. Such LBP bonds
may be used by the landowner, his successors-in-
interest or his assigns, up to the amount of their face
value, for any of the following:
(i) Acquisition of land or other real properties of the
government, including assets under the Asset
Privatization Program and other assets foreclosed by
government financial institutions in the same province
or region where the lands for which the bonds were
paid are situated;
(ii) Acquisition of shares of stock of government-owned
or controlled corporations or shares of stock owned by
the government in private corporations;
(iii) Substitution for surety or bail bonds for the
provisional release of accused persons, or for
performance bonds;
(iv) Security for loans with any government financial
institution, provided the proceeds of the loans shall be
invested in an economic enterprise, preferably in a
small and medium- scale industry, in the same province
or region as the land for which the bonds are paid;
(v) Payment for various taxes and fees to government:
Provided, That the use of these bonds for these
purposes will be limited to a certain percentage of the
outstanding balance of the financial instruments;
Provided, further, That the PARC shall determine the
percentages mentioned above;

(vi) Payment for tuition fees of the immediate family of
the original bondholder in government universities,
colleges, trade schools, and other institutions;
(vii) Payment for fees of the immediate family of the
original bondholder in government hospitals; and
(viii) Such other uses as the PARC may from time to time
allow.
The contention of the petitioners in G.R. No. 79777 is
that the above provision is unconstitutional insofar as it
requires the owners of the expropriated properties to
accept just compensation therefor in less than money,
which is the only medium of payment allowed. In
support of this contention, they cite jurisprudence
holding that:
The fundamental rule in expropriation matters is that
the owner of the property expropriated is entitled to a
just compensation, which should be neither more nor
less, whenever it is possible to make the assessment,
than the money equivalent of said property. Just
compensation has always been understood to be the
just and complete equivalent of the loss which the
owner of the thing expropriated has to suffer by reason
of the expropriation . 45 (Emphasis supplied.)
In J.M. Tuazon Co. v. Land Tenure Administration, 46
this Court held:
It is well-settled that just compensation means the
equivalent for the value of the property at the time of
its taking. Anything beyond that is more, and anything
short of that is less, than just compensation. It means a
fair and full equivalent for the loss sustained, which is
the measure of the indemnity, not whatever gain would
accrue to the expropriating entity. The market value of
the land taken is the just compensation to which the
owner of condemned property is entitled, the market
value being that sum of money which a person desirous,
but not compelled to buy, and an owner, willing, but
not compelled to sell, would agree on as a price to be
given and received for such property. (Emphasis
supplied.)
In the United States, where much of our jurisprudence
on the subject has been derived, the weight of authority
is also to the effect that just compensation for property
expropriated is payable only in money and not
otherwise. Thus —
The medium of payment of compensation is ready
money or cash. The condemnor cannot compel the
owner to accept anything but money, nor can the
owner compel or require the condemnor to pay him on
any other basis than the value of the property in money
at the time and in the manner prescribed by the
Constitution and the statutes. When the power of
eminent domain is resorted to, there must be a
standard medium of payment, binding upon both
parties, and the law has fixed that standard as money in
cash. 47 (Emphasis supplied.)
Part cash and deferred payments are not and cannot, in
the nature of things, be regarded as a reliable and
constant standard of compensation. 48
"Just compensation" for property taken by
condemnation means a fair equivalent in money, which
must be paid at least within a reasonable time after the
taking, and it is not within the power of the Legislature
to substitute for such payment future obligations,
bonds, or other valuable advantage. 49 (Emphasis
supplied.)
It cannot be denied from these cases that the
traditional medium for the payment of just
compensation is money and no other. And so,
conformably, has just compensation been paid in the
past solely in that medium. However, we do not deal
here with the traditional excercise of the power of
eminent domain. This is not an ordinary expropriation
where only a specific property of relatively limited area
is sought to be taken by the State from its owner for a
specific and perhaps local purpose.
What we deal with here is a revolutionary kind of
expropriation.
The expropriation before us affects all private
agricultural lands whenever found and of whatever kind
as long as they are in excess of the maximum retention
limits allowed their owners. This kind of expropriation is
intended for the benefit not only of a particular
community or of a small segment of the population but
of the entire Filipino nation, from all levels of our
society, from the impoverished farmer to the land-
glutted owner. Its purpose does not cover only the
whole territory of this country but goes beyond in time
to the foreseeable future, which it hopes to secure and
edify with the vision and the sacrifice of the present
generation of Filipinos. Generations yet to come are as
involved in this program as we are today, although
hopefully only as beneficiaries of a richer and more
fulfilling life we will guarantee to them tomorrow
through our thoughtfulness today. And, finally, let it not
be forgotten that it is no less than the Constitution itself
that has ordained this revolution in the farms, calling for
"a just distribution" among the farmers of lands that
have heretofore been the prison of their dreams but
can now become the key at least to their deliverance.
Such a program will involve not mere millions of pesos.
The cost will be tremendous. Considering the vast areas
of land subject to expropriation under the laws before
us, we estimate that hundreds of billions of pesos will
be needed, far more indeed than the amount of P50
billion initially appropriated, which is already staggering
as it is by our present standards. Such amount is in fact
not even fully available at this time.
We assume that the framers of the Constitution were
aware of this difficulty when they called for agrarian
reform as a top priority project of the government. It is
a part of this assumption that when they envisioned the
expropriation that would be needed, they also intended
that the just compensation would have to be paid not in
the orthodox way but a less conventional if more
practical method. There can be no doubt that they were
aware of the financial limitations of the government
and had no illusions that there would be enough money
to pay in cash and in full for the lands they wanted to be
distributed among the farmers. We may therefore
assume that their intention was to allow such manner
of payment as is now provided for by the CARP Law,
particularly the payment of the balance (if the owner
cannot be paid fully with money), or indeed of the
entire amount of the just compensation, with other
things of value. We may also suppose that what they
had in mind was a similar scheme of payment as that
prescribed in P.D. No. 27, which was the law in force at
the time they deliberated on the new Charter and with
which they presumably agreed in principle.
The Court has not found in the records of the
Constitutional Commission any categorical agreement
among the members regarding the meaning to be given
the concept of just compensation as applied to the
comprehensive agrarian reform program being
contemplated. There was the suggestion to "fine tune"
the requirement to suit the demands of the project
even as it was also felt that they should "leave it to
Congress" to determine how payment should be made
to the landowner and reimbursement required from the
farmer-beneficiaries. Such innovations as "progressive
compensation" and "State-subsidized compensation"
were also proposed. In the end, however, no special
definition of the just compensation for the lands to be
expropriated was reached by the Commission. 50
On the other hand, there is nothing in the records
either that militates against the assumptions we are
making of the general sentiments and intention of the
members on the content and manner of the payment to
be made to the landowner in the light of the magnitude
of the expenditure and the limitations of the
expropriator.
With these assumptions, the Court hereby declares that
the content and manner of the just compensation
provided for in the afore- quoted Section 18 of the
CARP Law is not violative of the Constitution. We do not
mind admitting that a certain degree of pragmatism has
influenced our decision on this issue, but after all this
Court is not a cloistered institution removed from the
realities and demands of society or oblivious to the
need for its enhancement. The Court is as acutely
anxious as the rest of our people to see the goal of
agrarian reform achieved at last after the frustrations
and deprivations of our peasant masses during all these
disappointing decades. We are aware that invalidation
of the said section will result in the nullification of the
entire program, killing the farmer's hopes even as they
approach realization and resurrecting the spectre of
discontent and dissent in the restless countryside. That
is not in our view the intention of the Constitution, and
that is not what we shall decree today.
Accepting the theory that payment of the just
compensation is not always required to be made fully in
money, we find further that the proportion of cash
payment to the other things of value constituting the
total payment, as determined on the basis of the areas
of the lands expropriated, is not unduly oppressive
upon the landowner. It is noted that the smaller the
land, the bigger the payment in money, primarily
because the small landowner will be needing it more
than the big landowners, who can afford a bigger
balance in bonds and other things of value. No less
importantly, the government financial instruments
making up the balance of the payment are "negotiable
at any time." The other modes, which are likewise
available to the landowner at his option, are also not
unreasonable because payment is made in shares of
stock, LBP bonds, other properties or assets, tax credits,
and other things of value equivalent to the amount of
just compensation.
Admittedly, the compensation contemplated in the law
will cause the landowners, big and small, not a little
inconvenience. As already remarked, this cannot be
avoided. Nevertheless, it is devoutly hoped that these
countrymen of ours, conscious as we know they are of
the need for their forebearance and even sacrifice, will
not begrudge us their indispensable share in the
attainment of the ideal of agrarian reform. Otherwise,
our pursuit of this elusive goal will be like the quest for
the Holy Grail.
The complaint against the effects of non-registration of
the land under E.O. No. 229 does not seem to be viable
any more as it appears that Section 4 of the said Order
has been superseded by Section 14 of the CARP Law.
This repeats the requisites of registration as embodied
in the earlier measure but does not provide, as the
latter did, that in case of failure or refusal to register the
land, the valuation thereof shall be that given by the
provincial or city assessor for tax purposes. On the
contrary, the CARP Law says that the just compensation
shall be ascertained on the basis of the factors
mentioned in its Section 17 and in the manner provided
for in Section 16.
The last major challenge to CARP is that the landowner
is divested of his property even before actual payment
to him in full of just compensation, in contravention of a
well- accepted principle of eminent domain.
The recognized rule, indeed, is that title to the property
expropriated shall pass from the owner to the
expropriator only upon full payment of the just
compensation. Jurisprudence on this settled principle is
consistent both here and in other democratic
jurisdictions. Thus:
Title to property which is the subject of condemnation
proceedings does not vest the condemnor until the
judgment fixing just compensation is entered and paid,
but the condemnor's title relates back to the date on
which the petition under the Eminent Domain Act, or
the commissioner's report under the Local
Improvement Act, is filed. 51
... although the right to appropriate and use land taken
for a canal is complete at the time of entry, title to the
property taken remains in the owner until payment is
actually made. 52 (Emphasis supplied.)
In Kennedy v. Indianapolis, 53 the US Supreme Court
cited several cases holding that title to property does
not pass to the condemnor until just compensation had
actually been made. In fact, the decisions appear to be
uniformly to this effect. As early as 1838, in Rubottom v.
McLure, 54 it was held that "actual payment to the
owner of the condemned property was a condition
precedent to the investment of the title to the property
in the State" albeit "not to the appropriation of it to
public use." In Rexford v. Knight, 55 the Court of
Appeals of New York said that the construction upon
the statutes was that the fee did not vest in the State
until the payment of the compensation although the
authority to enter upon and appropriate the land was
complete prior to the payment. Kennedy further said
that "both on principle and authority the rule is ... that
the right to enter on and use the property is complete,
as soon as the property is actually appropriated under
the authority of law for a public use, but that the title
does not pass from the owner without his consent, until
just compensation has been made to him."
Our own Supreme Court has held in Visayan Refining
Co. v. Camus and Paredes, 56 that:
If the laws which we have exhibited or cited in the
preceding discussion are attentively examined it will be
apparent that the method of expropriation adopted in
this jurisdiction is such as to afford absolute
reassurance that no piece of land can be finally and
irrevocably taken from an unwilling owner until
compensation is paid ... . (Emphasis supplied.)
It is true that P.D. No. 27 expressly ordered the
emancipation of tenant-farmer as October 21, 1972 and
declared that he shall "be deemed the owner" of a
portion of land consisting of a family-sized farm except
that "no title to the land owned by him was to be
actually issued to him unless and until he had become a
full-fledged member of a duly recognized farmers'
cooperative." It was understood, however, that full
payment of the just compensation also had to be made
first, conformably to the constitutional requirement.
When E.O. No. 228, categorically stated in its Section 1
that:
All qualified farmer-beneficiaries are now deemed full
owners as of October 21, 1972 of the land they acquired
by virtue of Presidential Decree No. 27. (Emphasis
supplied.)
it was obviously referring to lands already validly
acquired under the said decree, after proof of full-
fledged membership in the farmers' cooperatives and
full payment of just compensation. Hence, it was also
perfectly proper for the Order to also provide in its
Section 2 that the "lease rentals paid to the landowner
by the farmer- beneficiary after October 21, 1972
(pending transfer of ownership after full payment of
just compensation), shall be considered as advance
payment for the land."
The CARP Law, for its part, conditions the transfer of
possession and ownership of the land to the
government on receipt by the landowner of the
corresponding payment or the deposit by the DAR of
the compensation in cash or LBP bonds with an
accessible bank. Until then, title also remains with the
landowner. 57 No outright change of ownership is
contemplated either.
Hence, the argument that the assailed measures violate
due process by arbitrarily transferring title before the
land is fully paid for must also be rejected.
It is worth stressing at this point that all rights acquired
by the tenant-farmer under P.D. No. 27, as recognized
under E.O. No. 228, are retained by him even now
under R.A. No. 6657. This should counter-balance the
express provision in Section 6 of the said law that "the
landowners whose lands have been covered by
Presidential Decree No. 27 shall be allowed to keep the
area originally retained by them thereunder, further,
That original homestead grantees or direct compulsory
heirs who still own the original homestead at the time
of the approval of this Act shall retain the same areas as
long as they continue to cultivate said homestead."
In connection with these retained rights, it does not
appear in G.R. No. 78742 that the appeal filed by the
petitioners with the Office of the President has already
been resolved. Although we have said that the doctrine
of exhaustion of administrative remedies need not
preclude immediate resort to judicial action, there are
factual issues that have yet to be examined on the
administrative level, especially the claim that the
petitioners are not covered by LOI 474 because they do
not own other agricultural lands than the subjects of
their petition.
Obviously, the Court cannot resolve these issues. In any
event, assuming that the petitioners have not yet
exercised their retention rights, if any, under P.D. No.
27, the Court holds that they are entitled to the new
retention rights provided for by R.A. No. 6657, which in
fact are on the whole more liberal than those granted
by the decree.
V 4. Landowners who were unable to exercise their rights
The CARP Law and the other enactments also involved
in these cases have been the subject of bitter attack
from those who point to the shortcomings of these
measures and ask that they be scrapped entirely. To be
sure, these enactments are less than perfect; indeed,
they should be continuously re-examined and rehoned,
that they may be sharper instruments for the better
protection of the farmer's rights. But we have to start
somewhere. In the pursuit of agrarian reform, we do
not tread on familiar ground but grope on terrain
fraught with pitfalls and expected difficulties. This is
inevitable. The CARP Law is not a tried and tested
project. On the contrary, to use Justice Holmes's words,
"it is an experiment, as all life is an experiment," and so
we learn as we venture forward, and, if necessary, by
our own mistakes. We cannot expect perfection
although we should strive for it by all means.
Meantime, we struggle as best we can in freeing the
farmer from the iron shackles that have unconscionably,
and for so long, fettered his soul to the soil.
By the decision we reach today, all major legal obstacles
to the comprehensive agrarian reform program are
removed, to clear the way for the true freedom of the
farmer. We may now glimpse the day he will be
released not only from want but also from the
exploitation and disdain of the past and from his own
feelings of inadequacy and helplessness. At last his
servitude will be ended forever. At last the farm on
which he toils will be his farm. It will be his portion of
the Mother Earth that will give him not only the staff of
life but also the joy of living. And where once it bred for
him only deep despair, now can he see in it the fruition
of his hopes for a more fulfilling future. Now at last can
he banish from his small plot of earth his insecurities
and dark resentments and "rebuild in it the music and
the dream."
WHEREFORE, the Court holds as follows:
1. R.A. No. 6657, P.D. No. 27, Proc. No. 131, and E.O.
Nos. 228 and 229 are SUSTAINED against all the
constitutional objections raised in the herein petitions.
2. Title to all expropriated properties shall be
transferred to the State only upon full payment of
compensation to their respective owners.
3. All rights previously acquired by the tenant- farmers
under P.D. No. 27 are retained and recognized.
of retention under P.D. No. 27 shall enjoy the retention
rights granted by R.A. No. 6657 under the conditions
therein prescribed. 18 Ibid., Sec. 63.

5. Subject to the above-mentioned rulings all the 19 Bengzon v. Secretary of Justice, 299 US 410.
petitions are DISMISSED, without pronouncement as to
costs. 20 Alalayan v. NPC, 24 SCRA 172; Sumulong v.
COMELEC, 73 Phil. 288. Tio v. Videogram Regulatory
SO ORDERED. Board, 151 SCRA 208.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., 21 Supra.

Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griño-Aquino, Medialdea and Regalado, JJ., 22 Lamb v. Phipps, 22 Phil. 456.
concur.
23 Malabanan v. Ramento, 129 SCRA 359; Espanol v.
Chairman, Philippine Veterans Administration, 137
SCRA 314.
Footnotes
24 106 Phil. 144.
1 Art. 11, Sec. 5.
25 260 US 393.
2 1973 Constitution, Art. II, Sec. 6.
26 Powell v. Pennsylvania, 127 US 678: Lutz v. Araneta,
3 Ibid., Art. XIV, Sec. 12. 98 Phil. 148; Tio v. Videogram Regulatory Board, supra.

4 R.A. No. 6657, Sec. 15. 27 John J. Costonis "The Disparity Issue: A Context for
the Grand Central Terminal Decision," Harvard Law
5 149 SCRA 305. Review, Vol. 91:40,1977, p. 404.

6 150 SCRA 89. 28 348 US 1954.

7 55 SCRA 26. 29 438 US 104.

8 91 SCRA 294. 30 See note 27.

9 113 SCRA 798. 31 International Harvester Co. v. Missouri, 234 US 199.

10 136 SCRA 271; 146 SCRA 446. 32 People v. Cayat, 68 Phil. 12.

11 Art. VIII, Sec. 4(2). 33 Ichong v. Hernandez, 101 Phil. 1155.

12 Dumlao v. COMELEC, 95 SCRA 392. 34 US v. Toribio, 15 Phil. 85; Fable v. City of Manila, 21
Phil. 486; Case v. Board of Health, 24 Phil. 256.
13 Ex Parte Levitt, 303 US 633.
35 Noble v. City of Manila, 67 Phil. 1.
14 Araneta v. Dinglasan, 84 Phil. 368.
36 100 Phil. 1101.
15 Pascual v. Secretary of Public Works, 110 Phil. 331;
PHILCONSA v. Gimenez, 15 SCRA 479; Sanidad v. 37 1987 Constitution, Art. VIII, Sec. 1.
COMELEC, 73 SCRA 333.
38 57 L ed. 1063.
16 Angara v. Electoral Commission, 63 Phil. 139.
39 Manila Railroad Co. v. Velasquez, 32 Phil. 286.
17 R.A. No. 6657, Sec. 75.
40 Province of Tayabas v. Perez, 66 Phil. 467; J.M.
Tuazon & Co., Inc. v. Land Tenure Administration, 31
SCRA 413; Municipality of Daet v. Court of Appeals, 93
SCRA 503; Manotok v. National Housing Authority, 150
SCRA 89.

41 City of Manila v. Estrada, 25 Phil. 208.

42 58 SCRA 336.

43 Lewis, Law of Eminent Domain, 3rd Edition, pp.

1166- 1167.

44 149 SCRA 305.

45 Manila Railroad Co. v. Velasquez, 32 Phil. 286;

Province of Tayabas v. Perez, supra, at note 40.

46 31 SCRA 413.

47 Mandl v. City of Phoenix, 18 p 2d 273.

48 Sacramento Southern R. Co. v. Heilbron 156 Cal.

408,104 pp. 979, 980.

49 City of Waterbury v. Platt Bros. & Co., 56 A 856, 76

Conn, 435 citing Butler v. Ravine Road Sewer Com'rs, 39
N.J.L. 665; Bloodgood v. Mohawk v. H.R.R. Co., N.Y. 18
Wend. 9 35, 31 Am. Dec. 313; Sanborn v. Helden, 51 Cal
266; Burlington & C.R. Co. v. Schweikart, 14 p. 329, 10
Colo, 178; 23 Words and Phrases, pl. 460.

50 Record of the Constitutional Commission, Vol. 2, pp.

647, 704; Vol. 3, pp. 16-20, 243-247.

51 Chicago Park Dist. v. Downey Coal Co., 1 Ill. 2d 54.

52 Kennedy v. Indianapolis, 103 US 599, 26 L ed 550.

53 Ibid.

54 4 Blkf., 508.

55 11 NY 314.

56 40 Phil. 550.

57 Sec. 16(d)
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 79416 September 5, 1989
ROSALINA BONIFACIO, surviving wife; and children
GABRIEL, PONCIANO, TIBURCIO, BEATRIZ, GENEROSA,
SILVERIA, LEONARDO, FELOMENA, ENCARNACION and
LEONILA, all surnamed BONIFACIO, petitioners,
vs.
HON. NATIVIDAD G. DIZON, Presiding Judge of the
Regional Trial Court of Malolos, Branch XIII, Malolos,
Bulacan and PASTORA SAN MIGUEL, respondents.
FERNAN, C.J.:
The issue raised in the instant petition for certiorari
certified to us by the Court of Appeals in its resolution 1
dated November 28, 1986 in CA-G.R. SP No. 10033 as
involving a pure question of law is phrased by
petitioners, thus:
WHETHER OR NOT, THE FAVORABLE JUDGMENT
OBTAINED BY THE DECEDENT IS INHERITED BY THE
COMPULSORY HEIRS, THEREBY VESTING TO THE
LATTER, ALL THE RIGHTS CONFERRED BY THE
JUDGMENT TO (sic) THE DECEDENT. 2
The favorable judgment adverted to by petitioners
traces its origin to the complaint filed on July 1, 1968 by
Olimpio Bonifacio before the then Court of Agrarian
Relations, Fifth Regional District, Branch I-A of Baliwag,
Bulacan, seeking the ejectment of private respondent
Pastora San Miguel from Bonifacio's two-hectare
agricultural land situated at Patubig, Marilao, Bulacan
and covered by Transfer Certificate of Title No. T-27298.
The ground relied upon therefor was personal
cultivation under Section 36 (1) of R.A. 3844, otherwise
known as the Agricultural Land Reform Code (CAR Case
No. 2160-B'68).
After trial on the merits, judgment was rendered
therein on September 18, 1970 by Judge Manuel Jn.
Serapio:
1. Granting authority to plaintiff OLIMPIO BONIFACIO to
eject defendant PASTORA SAN MIGUEL from the
landholding in question situated at Patubig, Marilao,
Bulacan with an area of two (2) hectares, more or less,
and consequently, ordering said defendant to vacate
the same landholding and deliver possession thereof to
said plaintiff for the latter's personal cultivation, subject
to the provisions of Section 25 of R.A. 3844; and
2. Dismissing all other claims and counterclaims of the
parties. 3
On appeal by private respondent Pastora San Miguel,
the Court of Appeals 4 modified said judgment with
respect to her counterclaim by ordering Olimpio
Bonifacio to pay her the amount of P 1,376.00. The
judgment was affirmed in all other respects. 5
Still dissatisfied, private respondent Pastora San Miguel
sought relief from this Court. During the pendency of
her petition, on August 7, 1983, Olimpio Bonifacio died.
As no notice of such death was given to the Court, no
order for the substitution of his heirs was made. On July
31, 1985, the Court En Banc resolved to deny private
respondent's petition for lack of merit and to affirm the
decision of the Court of Appeals. 6
Subsequently, petitioners Rosalina Bonifacio, as
surviving wife, and Gabriel, Ponciano, Tiburcio, Beatriz,
Generosa, Silveria, Leonardo, Felomena, Encarnacion
and Leonila all surnamed Bonifacio, as children and
heirs of Olimpio Bonifacio, moved for the execution of
the decision in CAR Case No. 2160-B'68 before the
respondent Regional Trial Court of Bulacan. A writ of
execution was issued on February 20, 1986 and on
March 6, 1986, the Deputy Sheriff submitted his Report
(Partial Delivery of Possession), stating in part that
except for a portion thereof occupied by the house of
Pastora San Miguel which the latter refused to vacate,
he had delivered the land subject matter of the action
to Rosalina Bonifacio as surviving wife of Olimpio
Bonifacio.
Thereafter, private respondent Pastora San Miguel
moved to quash the writ of execution. This was
opposed by petitioners who in turn sought the issuance
of a writ of demolition and an order declaring Pastora
San Miguel in contempt of court for allegedly re-
entering the subject land.
After hearing, respondent Judge Natividad G. Dizon
issued a resolution on July 15, 1986, the dispositive
portion of which reads:
WHEREFORE, the implementation of the writ of
execution of the Decision dated September 18, 1970
made by the Sheriff of this Court, per directive
contained in our Order of February 18, 1986, is hereby
declared null and void; the "Motion for Demolition"
filed by plaintiff is hereby denied; and, the "Petition for
Contempt" likewise denied.
SO ORDERED. 7
Petitioners assail this resolution in the petition for
certiorari filed before the Court of Appeals, which as
stated earlier, was certified to us pursuant to Section 9
(3) of Batas Pambansa Blg. 129 in relation to Section 5
(2) [e], Art. X of the 1973 Constitution and Rule 50, Sec.
3 of the Revised Rules of Court.
Petitioners contend that respondent judge committed
grave abuse of discretion tantamount to lack of
jurisdiction in ruling that the decision in CAR Case No.
2160-B'68 can no longer be executed as said action is
purely personal in character and therefore cannot, upon
Olimpio Bonifacio's death, be inherited by his heirs.
They assert that CAR Case No. 2160-B'68, being an
ejectment case and not one of those specifically
provided by law to be purely personal, survives the
death of a party. Furthermore, as under Rule 39,
Section 49 (b) of the Rules of Court, a judgment is
binding not only upon the parties but also on their
successors-in-interest, petitioners are entitled to
enforce the decision in CAR Case No. 2160-B'68.
Private respondent, on the other hand, places stress on
the fact that the action under consideration is not an
ordinary ejectment case but an agrarian case for the
ejectment of an agricultural lessee. She theorizes that
the right being asserted in the action is personal to
Olimpio Bonifacio, which necessarily died with him. She
further contends that the non-substitution of Olimpio
Bonifacio by his heirs rendered the proceedings taken
after his death null and void. She also points to certain
supervening events which allegedly prohibit execution
of the judgment in CAR Case No. 2160-B'68, to wit: the
amendment of Section 36 (1), R.A. 3844 by R.A. No.
6389 and 2) the promulgation of P.D. No. 27.
Private respondent is correct in characterizing CAR Case
No. 2160-B'68 as more than an ordinary ejectment case.
It is, indeed, an agrarian case for the ejectment of an
agricultural lessee, which in the light of the public policy
involved, is more closely and strictly regulated by the
State. This factor, however, does not operate to bar the
application to the instant case of the general rule that
an ejectment case survives the death of a party. 8
Much of the problem lies in the term "personal
cultivation" by which the ground for ejectment under
Section 36 (1) of R.A. 3844 was loosely referred. As it is,
the term gave the impression that the ejectment of an
agricultural lessee was allowed only if and when the
landowner-lessor and no other opted to cultivate the
landholding; thereby giving use to a bigger
misconception that the right of cultivation pertained
exclusively to the landowner-lessor, and therefore his
personal right alone. A reading of Section 36 (1), R.A.
3844 however readily demonstrates the fallacy of this
interpretation. Said section provides:
Sec. 36. Possession of Landholding; Exceptions. —
Notwithstanding any agreement as to the period or
future surrender of the land, an agricultural lessee shall
continue in the enjoyment and possession of his
landholding except when his dispossession has been
authorized by the Court in a judgment that is final and
executory if after due hearing it is shown that:
(1) The agricultural lessor-owner or a member of the
immediate family will personally cultivate the
landholding or will convert the landholding, if suitably
located, into residential, factory, hospital or school site
or other useful non-agricultural purposes . . . .
Under this provision, ejectment of an agricultural lessee
was authorized not only when the landowner-lessor
desired to cultivate the landholding, but also when a
member of his immediate family so desired. In so
providing, the law clearly did not intend to limit the
right of cultivation strictly and personally to the
landowner but to extend the exercise of such right to
the members of his immediate family. Clearly then, the
right of cultivation as a ground for ejectment was not a
right exclusive and personal to the landowner-lessor. To
say otherwise would be to put to naught the right of
cultivation likewise conferred upon the landowner's
immediate family members.
The right of cultivation was extended to the
landowner's immediate family members evidently to
place the landowner-lessor in parity with the
agricultural lessee who was (and still is) allowed to
cultivate the land with the aid of his farm household. In
this regard, it must be observed that an agricultural
lessee who cultivates the landholding with the aid of his
immediate farm household is within the contemplation
of the law engaged in "personal cultivation."
Thus, whether used in reference to the agricultural
lessor or lessee, the term "personal cultivation" cannot
be given a restricted connotation to mean a right
personal and exclusive to either lessor or lessee. In
either case, the right extends to the members of the
lessor's or lessee's immediate family members.
Petitioners are not only the heirs and successors-in-
interest, but the immediate family members of the
deceased landowner-lessor as well. The right to
cultivate the landholding asserted in CAR Case No.
2160-B'68 not being a purely personal right of the
deceased landowner-lessor, the same was transmitted
to petitioners as heirs and successors-in-interest.
Petitioners are entitled to the enforcement of the
judgment in CAR Case No. 2160-B'68.
Rules of procedure make it the duty of the attorney to
inform the court promptly of his client's death,
incapacity or incompetency during the pendency of the
action and to give the name and residence of his
executor, administrator, guardian or other legal
representative. 9 In case of a party's death, the court, if
the action survives, shall then order upon proper notice
the legal representatives of the deceased to appear and
to be substituted for the deceased within a period of 30
days or within such time as may be granted.10
In the case at bar, Olimpio Bonifacio's death during the
pendency of private respondent's petition was not
communicated to the Court. As ruled by this Court in
the case of Florendo, Jr. vs. Coloma, supra, involving
substantially the same facts and issue:
. . . The petitioners challenge the proceeding in the
Court of Appeals after the death of the plaintiff-
appellant Adela Salindon. They are of the opinion that
since there was no legal representative substituted for
Salindon after her death, the appellate court lost its
jurisdiction over the case and consequently, the
proceedings in the said court are null and void. This
argument is without merit.
There is no dispute that an ejectment case survives the
death of a party. The supervening death of plaintiff-
appellant Salindon did not extinguish her civil
personality (Republic v. Bagtas 6 SCRA 242; Vda. de
Haberes v. Court of Appeals, 104 SCRA 534). . . .
xxx xxx xxx
In the case at bar, Salindon's counsel after her death on
December 11, 1976 failed to inform the court of
Salindon's death. The appellate court could not be
expected to know or take judicial notice of the death of
Salindon without the proper manifestation from
Salindon's counsel. In such a case and considering that
the supervening death of appellant did not extinguish
her civil personality, the appellate court was well within
its jurisdiction to proceed as it did with the case. There
is no showing that the appellate court's proceedings in
the case were tainted with irregularities.
Private respondent's challenge against the proceedings
held after Olimpio Bonifacio's death cannot therefore
be heeded.
Neither can private respondent derive comfort from the
amendment of Section 36 (1) of R.A. 3844 by Section 7
of R.A. No. 6389 11 and the promulgation of P.D. No.
27. 12 In Nilo v. Court of Appeals, G.R. No. L-34586,
April 2, 1984,128 SCRA 519, we categorically ruled that
both R.A. No. 6389 and P.D. No. 27 cannot be applied
retroactively under the general rule that statutes have
no retroactive effect unless otherwise provided therein.
There being no cogent reason to nullify the
implementation of the writ of execution in CAR Case
No. 2160-B'68, respondent judge acted with grave
abuse of discretion in having done so. The writ prayed
for should issue.
WHEREFORE, the petition is GRANTED. The assailed
resolution dated July 15, 1986 is hereby SET ASIDE. The
immediate execution of the decision in CAR Case No.
2160-B'68 is ordered. This decision is immediately
executory. No pronouncement as to costs.
SO ORDERED.
Gutierrez, Jr., Bidin and Cortes, JJ., concur.
Feliciano, J., is on leave.
Footnotes
1 Penned by Associate Justice Celso L. Magsino
concurred in by Associate Justices Serafin E. Camilon
and Manuel C. Herrera.
2 Rollo, p. 2.
3 Rollo, p. 25.
4 Decision promulgated on March 6, 1973 in CA-G.R.
No. 46549-R penned by Justice Antonio G. Lucero and
concurred in by then CA Justices Cecilia Muñoz-Palma
and Guillermo S. Santos.
5 Rollo, p. 35.
6 Rollo, p. 36.
7 Rollo, p. 17.
8 Florendo, Jr. vs. Coloma, G.R. No. 60544, May 19,
1984, 129 SCRA 304.
9 Sec. 16, Rule 16, Rules of Court.
10 Sec. 17, Rule 3, Rules of Court.
11 Section 36 (1) of R.A. 3844 was amended by Sec. 7 of
R.A. No. 6389 to read:
"(1) The landholding is declared by the department
head upon recommendation of the National Planning
Commission to be suited for residential, commercial,
industrial or some other urban purposes: Provided, That
the agricultural lessee shall be entitled to disturbance
compensation equivalent to five times the average of
the gross harvests on his landholding during the last five
preceding calendar years," thereby eliminating personal
cultivation as a ground for the ejectment of a
tenant/lessee.

12 P.D. No. 27 decreed the emancipation of the tenant

from the bondage of the soil, transferred to him the
ownership of the land he tills and provided for the
instruments and mechanisms for such transfer.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-61388 April 20, 1983
IN THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR
DR. AURORA PARONG, NORBERTO PORTUGUESE,
SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE
LOS SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI,
MARIANO SORIANO, TITO TANGUILIG, LETTY
BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR.,
JUANITO GRANADA and TOM VASQUEZ. JOSEFINA
GARCIA-PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN, FABIAN C. VER,
GEN. FIDEL V. RAMOS, and FIDEL V. RAMOS, and LT.
COL. MIGUEL CORONEL, respondents.
Lorenzo M. Tanada, Jose W. Diokno, Joker P. Arroyo,
Efren M Mercado and Alexander Padilla for petitioner.
The Solicitor General for respondents.
DE CASTRO, J.:
Petition for a writ of habeas corpus and mandamus
seeking the following relief:
WHEREFORE, petitioners pray this Honorable Court:
1. To immediately issue a writ of habeas corpus
directing respondents to appear and produce the
bodies of Dr. AURORA PARONG, NORBERTO
PORTUGUESE, SABINO PADILLA, FRANCIS
DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN
PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO
TANGUILIG, LETTY BALLOGAN, BIENVENIDA GARCIA,
EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM
VASQUEZ, forthwith before this Honorable Court and to
make due return of the writ therewith;
2. To issue, in addition or in the alternative to the writ
of habeas corpus, a writ of mandamus compelling the
respondents to disclose the petitioners' present place of
detention and to order the respondents to allow
counsel and relatives to visit and confer with the
petitioners;
3. Pending the determination of the legality of their
continued detention, to forthwith release the detainees
on bail upon such terms and conditions as the Court
may fix, and after hearing, to order petitioners'
immediate release; and
4. To grant petitioners such other and further relief as
may be deemed just and equitable in the premises.
The records show that nine (9) of the fourteen (14)
detainees herein were arrested on July 6, 1982 at about
1:45 p.m. when three (3) teams of the PC/INP of
Bayombong, Nueva Viscaya led by Lt. Col. Coronel, lst
Lt. de Guzman and lst Lt. Baria, after securing a Search
Warrant No. S-82 issued by Judge Sofronio Sayo of the
Court of First Instance of Nueva Viscaya conducted a
raid at the residence of Dra. Aurora Parong.
Apprehended during the said raid were Dra. Aurora
Parong, Benjamin Pineda, Sabino Padilla, Francisco
Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto
Portuguese, and Mariano Soriano who were then
having a conference in the dining room of Dra. Parong's
residence which had been doing on since 10:00 a.m. of
that same day.
The other four (4) detainees herein, namely: Imelda de
los Santos, Eufronio Ortiz, Jr., Juanita Granada, and
Bienvenida Garcia, were arrested on the following day,
July 7, 1982 by the same PC teams.
On July 15, 1982, Tom Vasquez was arrested, and his
Volkswagen car, bearing Plate No. DAP 347, was seized
by the PC authorities.
The herein fourteen (14) detainees (hereafter referred
to sometimes as petitioners) were all detained at the
PC/INP Command Headquarters, Bayombong, Nueva
Vizcaya from July 6, 1982 until their transfer on the
morning of August 10, 1982 to an undisclosed place
reportedly to Camp Crame, Quezon City, to Echague,
Isabela, and to Tuguegarao, Cagayan.
Hence, this petition for the writ of habeas corpus and
mandamus filed by Josefina Garcia-Padilla, mother of
detained petitioner Sabino G. Padilla, Jr. on August 13,
1982. The mandamus aspect of the instant petition has,
however, become moot and academic, and
whereabouts of petitioners having already become
known to petitioner Josefina Garcia-Padilla.
It is alleged in the petition that the arrest of petitioners
was patently unlawful and illegal since it was effected
without any warrant of arrest; that the PC/INP raiding
team which made the arrest were only armed with a
search warrant (No. 3-82) issued by Judge Sofronio G.
Sayo of the Court of First Instance of Nueva Viscaya, and
nowhere in said warrant was authority given to make
arrests, much less detention; that the search warrant
which authorized respondents to seize "subversive
documents, firearms of assorted calibers, medicine and
other subversive paraphernalia" in the house and clinic
of Dra. Aurora Parong was a roving and general warrant
and is, therefore, illegal per se because it does not state
specifically the things that are to be seized (Stonehill vs.
Diokno, 20 SCRA 383); that no criminal charges have as
of yet been filed against any of the detainees; that the
fourteen (14) detainees were initially held at the PC/INP
Command in Bayombong, Nueva Viscaya from July 6 up
to August 10, 1982, but were subsequently transferred
by helicopter in the morning of August 10, 1982 to a
place or safehouse known only to respondents; that
there is no judgment, decree, decision or order from a
court of law which would validate the continued
detention of the petitioner; that while it is true that a
purported telegram stating the issuance of a
Presidential Commitment Order (PCO) was shown to
the detainees on or about July 11 and 12, 1982, but
counsel and the detainees have not yet been given a
copy of such PCO nor notified of its contents, raising a
doubt whether such commitment order has in fact been
issued.
It is further alleged that respondents are denying the
detainees their constitutional right to counsel, averring
that the detainees were allowed regular visits by
counsel and relatives during their period of detention
from July 6 to August 10, 1982 at the PC/INP Command
in Bayombong, Nueva Viscaya; however, when a certain
Major Cristobal and Lt. Marcos (alleged to be from the
Camp Crame Intelligence Units) took full control of the
investigation, counsels were allowed to visit only on
weekends; that when the detainees were transferred
on August 10, 1982 to a place known only to
respondents, the detainees' counsels and relatives were
not notified, raising the apprehension that petitioners'
constitutional rights to silence, to counsel and against
self- incrimination are being violated; that counsels
have tried to locate if the detainees were taken to
Camp Crame or Camp Bago Bantay but to no avail; that
Major Forondo of the PC Command in Nueva Viscaya
informed Mrs. Josefina Padilla that the detainees were
transferred to Tuguegarao, Cagayan, others to Echague,
Isabela; that there seems to be a deliberate and
concerted effort by respondents to conceal from
counsel and relatives the detainees' place of detention,
raising the apprehension that respondents are using
force, violence, threat, intimidation and other means
which vitiate free will to obtain confession and
statements from the detainees in violation of their
constitutional rights.
In the resolution of this Court en banc dated August 17,
1982, the writ of habeas corpus was issued and
respondents were required to make a return of the writ.
Hearing on the petition was set on August 26, 1982.
In the return to the writ filed on August 23, 1982.
respondents, through the Solicitor General, alleged, to
wit:
I. AS TO HABEAS CORPUS
1. The detainees mentioned in the petition, with the
exception of Tom Vasquez who was temporarily
released on July 17, 1982, after his arrest on July 15,
1982, are all being detained by virtue of a Presidential
Commitment Order (PCO) issued on July 12, 1982,
pursuant to LOI No. 1211 dated March 9, 1982, in
relation to Presidential Proclamation No. 2045 dated
January 17, 1981. The said PCO was issued by President
Ferdinand E. Marcos for violation of P.D. No. 885. ...
2. The corresponding charges against the said detainees
have been filed in court and before the Acting Provincial
Fiscal of Nueva Viscaya where they are pleading. A
warrant of arrest against detainee Dra. Aurora Parong
was issued on August 4, 1982, by the Municipal Court of
Bayombong, for illegal possession of firearm and
ammunition. ...
II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS
3. The persons named in the above-mentioned
Presidential Commitment Order were arrested and are
being detained for offenses with respect to which under
Proclamation No. 2045, the privilege of the writ of
habeas corpus continues to be suspended, thus:
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President/Prime Minister of the Philippines, by virtue of
the powers vested in me by the Constitution, do hereby
revoke Proclamation No. 1081 (Proclaiming a state of
Martial Law in the Philippines) and Proclamation No.
1104 (Declaring the Continuation of Martial Law) and
proclaim the termination of the state of martial law
throughout the Philippines; Provided, that the call to
the Armed Forces of the Philippines to prevent or
suppress lawless violence, insurrection, rebellion and
subversion shall continue to be in force and effect; and
Provided that in the two autonomous regions in
Mindanao, upon the request of the residents therein,
the suspension of the privilege of the writ of habeas
corpus shag continue; and in all other places the
suspension of the privilege of the writ shall also
continue with respect to persons at present detained as
well as others who may hereafter be similarly detained
for the crimes of insurrection or rebellion, subversion,
conspiracy or proposals to commit such crimes, and for
all other crimes and offenses committed by them in
furtherance or on the occasion thereof, or incident
thereto, or in connection therewith. (Emphasis
supplied)
The privilege of the writ of habeas corpus is unavailing
as to them. Courts cannot inquire into the validity and
cause of their arrest and detention.
4. The power of the President in an emergency, such as
that which necessitated the continued suspension of
the privilege of the writ of habeas corpus, to order the
detention of persons believed engaged in crimes related
to national security is recognized. (Aquino vs. Enrile, 59
SCRA 83; Luneta, et al. vs. Special Military Commission,
No. 1, et al., 102 SCRA 56).
5. In the instant petition, petitioner Josefina Garcia-
Padilla does not appear to have been authorized by the
thirteen (13) other detainees to represent them in the
case at bar."
Accordingly, the petition was duly heard on August 26,
1982. After hearing, the Court issued the following
resolution, to wit:
G.R. No. 61388 (In the Matter of the Petition for the
Insurance of the Writ of Habeas Corpus of Dr. Aurora
Parong, Norberto Portuguese, Sabino Padilla, Francis
Divinagracia, Imelda de los Santos, Benjamin Pineda,
Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty
Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito
Granada and Tom Vasquez; Josefina Garcia-Padilla vs.
Minister Juan Ponce Enrile, Gen. Fabian C. Ver, Gen.
Fidel V. Ramos and Lt. Col. Miguel Coronel.)- The return
of the writ of habeas corpus and answer to the prayer
for mandamus filed by the Solicitor General for
respondents in compliance with the resolution of
August 17, 1982 is NOTED.
At the hearing of this case this morning, former Senator
Jose W. Diokno, Attorneys Alexander A. Padilla and
Efren H. Mercado appeared for petitioner. Solicitor
General Estelito P. Mendoza and Assistant Solicitor
General Ramon A. Barcelona, appeared for the
respondents. All of the detainees, except Tom Vasquez,
who was temporarily released on July 17, 1982, were
present in Court; Dr. Aurora Parong, Norberto
Portuguese, Sabino Padilla, Francis Divinagracia, Imelda
de los Santos, Benjamin Pineda, Zenaida Mallari,
Mariano Soriano, Tito Tanguilig, Letty Ballogan,
Bienvenida Garcia, Eufronio Ortiz, Jr. and Juanito
Granada. Attorney Alexander A. Padilla argued for the
petitioner. Solicitor General Mendoza argued for the
respondents. Former Senator Diokno argued in the
rebuttal. The Court Resolved to require the Solicitor
General to SUBMIT within five (5) days from date the
documents relevant to the issuance of the Presidential
Commitment Order. Thereafter, the case shall be
considered SUBMITTED for resolution.
As required, the Solicitor General submitted the
documents relevant to the issuance of the Presidential
Commitment Order on August 27, 1982, after which the
case was submitted for resolution.
The fundamental issue here, as in all petitioner for the
writ of habeas corpus, is whether or not petitioners'
detention is legal. We have carefully gone over the
claims of the parties in their respective pleadings as well
as in the oral argument during the hearing on August
26, 1982, and We find that petitioners have not been
illegally deprived of their constitutional right to liberty,
neither in the manner of their arrest, nor by their
continued detention, and that the circumstances
attendant in the herein case do not warrant their
release on a writ of habeas corpus.
1. At the time of the arrest of the nine (9) of the
fourteen (14) detainees herein on July 6, 1982, records
reveal that they were then having conference in the
dining room of Dra. Parong's residence from 10:00 a.m.
of that same day. Prior thereto, all the fourteen (14)
detainees were under surveillance as they were then
Identified as members of the Communist Party of the
Philippines (CPP) engaging in subversive activities and
using the house of detainee Dra. Aurora Parong in
Bayombong, Nueva Viscaya, as their headquarters.
Caught in flagrante delicto, the nine (9) detainees
mentioned scampered towards different directions
leaving in top of their conference table numerous
subversive documents, periodicals, pamphlets, books,
correspondence, stationaries, and other papers,
including a plan on how they would infiltrate the youth
and student sector (code-named YORK). Also found
were one (1) .38 cal. revolver with eight (8) live bullets,
nineteen (19) rounds of ammunition for M16 armalite,
eighteen thousand six hundred fifty pesos (P18,650.00)
cash believed to be CPP/NPA funds, assorted medicine
packed and ready for distribution, as sizeable quantity
of printing paraphernalia, which were then seized.
There is no doubt that circumstances attendant in the
arrest of the herein detainees fall under a situation
where arrest is lawful even without a judicial warrant as
specifically provided for under Section 6(a), Rule 113 of
the Rules of Court and allowed under existing
jurisprudence on the matter. As provided therein, a
peace officer or a private person may, without a
warrant, arrest a person when the person to be
arrested has committed or actually committing, or is
about to commit an offense in his presence.
From the facts as above narrated, the claim of the
petitioners that they were initially arrested illegally is,
therefore, without basis in law and in fact. The crimes of
insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and other crimes and
offenses committed in the furtherance on the occasion
thereof, or incident thereto, or in connection therewith
under Presidential Proclamation No. 2045, are all in the
nature of continuing offenses which set them apart
from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide
magnitude. Clearly then, the arrest of the herein
detainees was well within the bounds of the law and
existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion
whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the
rebellion, is more an act of capturing them in the course
of an armed conflict, to quell the rebellion, than for the
purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow
the usual procedure in the prosecution of offenses
which requires the determination by a judge of the
existence of probable cause before the issuance of a
judicial warrant of arrest and the granting of bail if the
offense is bailable. Obviously, the absence of a judicial
warrant is no legal impediment to arresting or capturing
persons committing overt acts of violence against
government forces, or any other milder acts but equally
in pursuance of the rebellious movement. The arrest or
capture is thus impelled by the exigencies of the
situation that involves the very survival of society and
its government and duly constituted authorities. If
killing and other acts of violence against the rebels find
justification in the exigencies of armed hostilities which
is of the essence of waging a rebellion or insurrection,
most assuredly so in case of invasion, merely seizing
their persons and detaining them while any of these
contingencies continues cannot be less justified. In the
language of Moyer vs. Peabody, 1 cited with approval in
Aquino, et al. vs. Ponce Enrile, 2 the President " shall
make the ordinary use of the soldiers to that end that
he may kill persons who resist, and, of course, that he
may use the milder measure of seizing the bodies of
those whom he considers to stand in the way of
restoring peace. Such arrests are not necessarily for
punishment, but are by way of precaution, to prevent
the exercise of hostile power."
Thus characterized, the arrest and detention of persons
ordered by the President through the issuance of
Presidential Commitment Order PCO is merely
preventive. "When it comes to a decision by the head of
the State upon a matter involving its life, the ordinary
rights of individuals must yield to what he deems the
necessities of the moment. Public danger warrants the
substitution of executive process for judicial process." 3
What should be underscored is that if the greater
violation against life itself such as killing, will not be the
subject of judicial inquiry, as it cannot be raised as
transgressing against the due process clause that
protects life, liberty and property, lesser violations
against liberty, such as arrest and detention, may not be
insisted upon as reviewable by the courts.
3. Transcendentally important, therefore, is the
question of whether the issuance of a Presidential
Commitment Order (PCO) has provided the legal basis
of the detention of herein detainees following their
arrest for Proclamation No. 2045 covered offenses. This
question has to be set at rest promptly and decisively, if
We are to break a seemingly continuous flow of
petitions for habeas corpus, as what had been seen
lately of such petitioners being filed in this Court one
after the other.
The function of the PCO is to validate, on constitutional
ground, the detention of a person for any of the
offenses covered by Proclamation No. 2045 which
continues in force the suspension of the privilege of the
writ of habeas corpus, if the arrest has been made
initially without any warrant, its legal effect is to render
the writ unavailing as a means of judicially inquiring into
the legality of the detention in view of the suspension
of the privilege of the writ. The grant of the power to
suspend the said privilege provides the basis for
continuing with perfect legality the detention as long as
the invasion or rebellion has not been repelled or
quelled, and the need therefor in the interest of public
safety continues.
The significance of the conferment of this power,
constitutionally upon the President as Commander-in-
Chief, is that the exercise thereof is not subject to
judicial inquiry, with a view to determining its legality in
the light of the bill of rights guarantee to individual
freedom. This must be so because the suspension of the
privilege is a military measure the necessity of which
the President alone may determine as an incident of his
grave responsibility as the Commander-in-Chief of the
Armed Forces, of protecting not only public safety but
the very life of the State, the government and duly
constituted authorities. This should be clear beyond
doubt in the case of "invasion," along which "rebellion"
or "insurrection" is mentioned by the Constitution,
which contingency does not present a legal question on
whether there is a violation of the right to personal
liberty when any member of the invading force is
captured and detained.
The presidential responsibility is one attended with all
urgency when so grave a peril to the life of the Nation
besets the country in times of the aforementioned
contingencies. In the discharge of this awesome and
sacred responsibility, the President should be free from
interference. The existence of warlike conditions as are
created by invasion, rebellion or insurrection, the direst
of all emergencies that can possibly confront a nation,
argues, beyond dispute, against subjecting his actions in
this regard to judicial inquiry or interference from
whatever source. If freedom from judicial review is
conceded in the exercise of his peacetime powers as
that of appointment and of granting pardon,
denominated as political powers of the President, it
should incontestably be more so with his wartime
power, as it were, to adopt any measure in dealing with
situations calling for military action as in case of
invasion, rebellion or insurrection.
The suspension of the privilege of the writ of habeas
corpus is one such measure. To be effective, the
occasion for its application on specific individuals should
be left to the exclusive and sound judgment of the
President, at least while the exigencies of invasion,
rebellion or insurrection persist, and the public safety
requires it, a matter, likewise, which should be left for
the sole determination of the President as Commander-
in-Chief of the Nation's armed forces. The need for a
unified command in such contingencies is imperative-
even axiomatic-as a basic military concept in the art of
warfare.
4. From the clear language of the Lansang case, 4 "the
function of Court is merely to check — not to supplant
— the Executive, or to ascertain merely whether he has
gone beyond the constitutional limits of his jurisdiction,
not to exercise the power vested in him or to determine
the wisdom of his act. " If, however, the constitutional
right to bail is granted to the herein petitioners by the
court, through the procedure laid down under Rule 114
of the Rules of court, what inevitably results is the
supplanting of the decision of the President to detain
pursuant to Proclamation No. 2045, of persons who
come under its coverage.
The specific mention in the Constitution of rebellion and
insurrection along with invasion and imminent danger
thereof, shows that the terms "rebellion and
insurrection" are used therein in the sense of a state or
condition of the Nation, not in the concept of a
statutory offense. What, therefore, should determine
the legality of imposing what is commonly referred to as
"preventive detention" resulting from the suspension of
the privilege of habeas corpus, is the necessity of its
adoption as a measure to suppress or quell the
rebellion, or beat off an invasion. The necessity for such
measure as a means of defense for national survival
quite clearly transcends in importance and urgency the
claim of those detained to the right to bail to obtain
their freedom. To hold otherwise would defeat the
purpose of the constitutional grant of the power to
suspend the privilege of the writ of habeas corpus on
the occasions expressly mentioned in the charter. For
what indeed could the purpose be of suspending the
privilege of the writ of habeas corpus other than to
restrict, at least for the duration of the emergency of
invasion or rebellion, the right to personal liberty,
dictated as it is, in the greater interest of public safety
and national security.
So it is that Proclamation No. 2045 mentions not only
rebellion or insurrection as coming within the
suspension of the privilege of the writ of habeas corpus,
but also other offenses, including subversion which is
not mentioned in the Constitution, committed by
reason or on the occasion of the rebellion, or in
connection therewith, or in the furtherance thereof.
There need be no alarm over what libertarian jurists
fear as violation of the constitutional right to personal
liberty when the President decrees the suspension of
the privilege of habeas corpus. Only those who give
cause for it will be subject to restriction of their liberty,
as the necessity therefor arises in the interest of
national defense and survival. The constitutional
guarantee of individual freedom is intact in all its
plenitude and sanctity, save only as the Constitution has
envisioned the need for its limitation, and only to a few,
in relation to the entire population, as the Constitution
itself permits in case of overwhelming and imperious
necessity.
5. Worthy of profound notice and keen appreciation is
the fact that the authority to suspend the privilege of
the writ of habeas corpus has been deliberately vested
on the President as the Commander-in-Chief of the
armed forces, together with the related power to call
out the armed forces to suppress lawless violence and
impose martial law. 5 The choice could not have been
more wise and sound, for no other official may, with
equal capability and fitness, be entrusted with the grave
responsibility that goes with the grant of the authority.
The legislature was considered in the alternative upon
which to lodge the power, or to share in its exercise, but
the distilled wisdom of the Constitutional Convention
finally made its choice for the President alone.
As previously noted, "invasion" which is not a
statutorily-defined offense and "imminent danger
thereof" as mentioned in the Constitution indicate that
"rebellion and insurrection" are also mentioned therein
not in their concept as statutorily-defined public crimes,
but as a state or condition of extreme emergency
resulting from the existence of the aforesaid events.
Now, if captured enemies from the invading force may
not be charged with any statutory offense that would
provide the occasion to demand the right to bail, it is
obvious that persons engaged in rebellion or
insurrection may not claim the right to be released on
bail when similarly captured or arrested during the
continuance of the aforesaid contingency. They may not
even claim the right to be charged immediately in court,
as they may rightfully do so, were they being charged
with an ordinary or common offense. This is so because
according to legal writers or publicists, the suspension
of the privilege of the writ of habeas corpus "has the
sole effect of allowing the executive to defer the trials
of persons charged with certain offenses during the
period of emergency." 6 This clearly means denial of the
right to be released on bail on being charged in court
with bailable offenses.
The suspension of the privilege of the writ of habeas
corpus must, indeed, carry with it the suspension of the
right to bail, if the government's campaign to suppress
the rebellion is to be enhanced and rendered effective.
If the right to bail may be demanded during the
continuance of the rebellion, and those arrested,
captured and detained in the course thereof will be
released, they would, without the least doubt, rejoin
their comrades in the field thereby jeopardizing the
success of government efforts to bring to an end the
invasion, rebellion or insurrection.
Realistically, a person engaged in the rebellion does not,
upon being arrested or captured, cease to be as
committed to the cause of the movement. Through a
grand conspiracy, as is of the essence of how rebellion
is committed, involving a great mass of confederates
bound together by a common goal, he remains in a
state of continued participation in the criminal act or
design. His heart still beats with the same emotion for
the success of the movement of which he continues to
be an ardent adherent and ally. It is simple logic then to
hold that there should be no legal compulsion for a
captured rebel to be charged in court, only to be
released on bail, while he is, realistically and legally, still
as much as part and parcel of the movement,
continuing as it is, as those still engaged in carrying on
actively to attain their goal of overthrowing the
established regime. Hence, it is easy to perceive how
impressed with absolute verity is the opinion expressed
by two acknowledged authorities on Constitutional law
in our country, 7 which We quote:
... If the return to the writ shows that the person in
custody was apprehended and detained in areas where
the privileges of the writ have been suspended or for
the crimes mentioned in the executive proclamation,
the court will suspend further proceedings in the action.
Impeccable as it is, the opinion could not but find a
resonant echo as it did in the recent case of Buscayno
vs. Military Commission; 8 decided after Proclamation
No. 2045 was issued, which in terms clear and
categorical, held that the constitutional right to bail is
unavailing when the privilege of the writ of habeas
corpus is suspended with respect to certain crimes as
enumerated or described in the abovementioned
Proclamation.
It is, likewise, all too well-known that when the rebel
forces capture government troopers or kidnap private
individuals, they do not accord to them any of the rights
now being demanded by the herein petitioners,
particularly to be set at liberty upon the filing of bail. As
a matter of common knowledge, captives of the rebels
or insurgents are not only not given the right to be
released, but also denied trial of any kind. In some
instances, they may even be liquidated
unceremoniously. What is then sought by the
suspension of the privilege of the writ of habeas corpus
is, among others, to put the government forces on
equal fighting terms with the rebels, by authorizing the
detention of their own rebel or dissident captives as the
rebellion goes on. In this way, the advantage the
rebellion forces have over those of the government, as
when they resort to guerilla tactics with sophisticated
weapons, is, at least, minimized, thereby enhancing the
latter's chances of beating their enemy. It would,
therefore, seem to be ignoring realities in the name of
misplaced magnanimity and compassion, and for the
sake of humanity, to grant the demand for respect of
rights supposedly guaranteed by the Constitution by
those who themselves seek to destroy that very same
instrument, trampling over it already as they are still
waging war against the government. This stark actuality
gives added force and substance to the rationale of the
suspension of the privilege of the writ of habeas corpus
in case of invasion, insurrection, rebellion, or imminent
danger thereof, when public safety requires it.
6. Invoking the Lansang case, 9 however, petitioners
would ask this Court to review the issuance of the PCO
against them, intimating that arbitrariness attended its
issuance because, relying on the evidence supposedly
available in the hands of the military, they claim they
are not guilty of rebellion. They also contend that the
provisions of LOI No. 1211 have not been complied
with.
The Lansang case went no further than to pronounce
the suspension of the writ of the privilege of habeas
corpus on August 21, 1971, valid and constitutional, on
a finding that there was no arbitrariness attendant to
the suspension. It never intended to suggest that for
every individual case of arrest and detention, the writ of
habeas corpus is available, even after the suspension of
this privilege, to question the legality of the arrest and
detention on ground of arbitrariness. When a person is
charged in court for an ordinary offense, the law does
not authorize the filing of a petition for habeas corpus
based on the ground that there is absolutely no
evidence to hold him for trial, which, in effect,
constitutes an allegation of arbitrariness in the filing of
the case against him. The law has afforded him
adequate safeguards against arbitrariness, such as the
requirement of determining the existence of a probable
cause by the judge before the issuance of the warrant
of arrest. The finding of such probable cause may not be
immediately brought for review by this Court in a
habeas corpus proceeding, on the claim of arbitrariness.
The matter is to be decided on the basis of the
evidence, and this Court is not the proper forum for the
review sought, not being a trier of facts. If such a
procedure were allowed, it would be easy to delay and
obstruct the prosecution of an offense by a resort to a
petition for habeas corpus based on arbitrariness, which
most accuse, if not all, would be most inclined, specially
when they are out on bail. The petition now before Us is
exactly one of this kind. If granted, the effect is to
transfer the jurisdiction of the trial courts in criminal
cases to this Court, which is simply inconceivable.
Moreover, arbitrariness, while so easy to allege, is hard
to prove, in the face of the formidable obstacle built up
by the presumption of regularity in the performance of
official duty. Unexhilaratingly, this is the revealing
experience of this Court in the Lansang case, where it
doubtlessly realized how hardly possible it is to adduce
evidence or proof upon which to show the President
having acted with arbitrariness.
7. The last question relates to the legality of the
Presidential Commitment Order (PCO) issued by the
President on July 12, 1982, tested by the conformity of
its issuance to the procedure laid down under LOI 1211,
petitioners insisting that the LOI limits the authority of
the President to cause the arrest and detention of
persons engaged in or charged with, the crimes
mentioned in Proclamation No. 2045. They contend
that the procedure prescribed in the LOI not having
been observed, the PCO issued thereunder did not
validate the initial illegal arrest of the herein petitioners
as wen as their continued detention.
It must be noted that LOI No. 1211, which provides the
guidelines in the arrest and detention of persons
engaged in, or charged with, the crimes mentioned in
Proclamation No. 2045, charged with, the crimes
mentioned contemplates of three situations when an
arrest can be made, to wit:
1. The arrest and detention effected by virtue of a
warrant issued by a judge;
2. The arrest and detention effected by a military
commander or the head of a law enforcement agency
after it is determined that the person or persons to be
arrested would probably escape or commit further acts
which would endanger public order and safety. After
the arrest, however, the case shall be immediately
referred to the city or provincial fiscal or to the
municipal, city, circuit, or district judge for preliminary
examination or investigation who, if the evidence
warrants, shall file the corresponding charges and,
thereafter, we a warrant of arrest;
3. The military commander or the head of the law
enforcement agency may apply to the President thru
the Minister of National Defense, for a Presidential
Commitment Order under the following circumstances:
(a) When resort to judicial process is not possible or
expedient without endangering public order and safety;
or
(b) When the release on bail of the person or persons
already under arrest by virtue of a judicial warrant
would endanger said public order and safety.
Petitioners appear to place entire reliance on
paragraphs 1 and 2 of LOI No. 1211, ignoring paragraph
3 of LOI No. 1211, which provides:
3. The above notwithstanding, the military commander
or the head of the law enforcement agency may apply
to the President thru the Minister of National Defense,
for a Presidential Commitment Order covering the
person or persons believed to be participants in the
commission of the crimes referred to in paragraph 1
under the following circumstances:
(a) When resort to judicial process is not possible or
expedient without endangering public order and safety;
or
(b) When the release on bail of the person or persons
already under arrest by virtue of a judicial warrant
would endanger said public order and safety.
The reliance of petitioners on paragraphs 1 and 2 of LOI
1211 as to the alleged necessity of judicial warrant
before a person may be arrested and detained is not
well-founded. Neither is the contention that paragraph
3 of LOI 1211 applies only when judicial process is not
possible. This is a narrow and constricted interpretation
of LOI 1211 when viewed in its entirety. Even in
instances when a resort to judicial process is possible,
where, in the judgment of the President, a resort
thereto would not be expedient because it would
endanger the public order or safety, a PCO is justified.
So, too, when release on bail in the ordinary judicial
process will invite the same danger.
By its very nature, and clearly by its language, LOI 1211
is a mere directive of the President as Commander-in-
Chief of the Armed Forces of the Philippines to his
subordinates or implementing officers for the ultimate
objective of providing guidelines in the arrest and
detention of the persons covered by Presidential
Proclamation No. 2045. The purpose is "to insure
protection to individual liberties without sacrificing the
requirements of public order and safety and the
effectiveness of the campaign against those seeking the
forcible overthrow of the government and duty
constituted authorities. " LOI 1211 does not, in any
manner, limit the authority of the President to cause
the arrest and detention of persons engaged in, or
charged with the crimes or offenses mentioned in said
Proclamation in that he (President) would subject
himself to the superior authority of the judge who,
under normal judicial processes in the prosecution of
the common offenses, is the one authorized to issue a
judicial warrant after a preliminary investigation is
conducted with a finding of probable cause. Those who
would read such an intention on the part of the
President in issuing LOI 1211 seems to do so in their
view that LOI forms part of the law of the land under
the 1976 amendment of the Constitution. 10 They
would then contend that a PCO issued not in
compliance with the provisions of the LOI would be an
illegality and of no effect.
To form part of the law of the land, the decree, order or
LOI must be issued by the President in the exercise of
his extraordinary power of legislation as contemplated
in Section 6 of the 1976 amendments to the
Constitution, whenever in his judgment, there exists a
grave emergency or a threat or imminence thereof, or
whenever the interim Batasan Pambansa or the regular
National Assembly fails or is unable to act adequately
on any matter for any reason that in his judgment
requires immediate action. There can be no pretense,
much less a showing, that these conditions prompted
the President to issue LOI 1211. Verily, not all LOI issued
by the President should be dignified into forming part of
the law of the land.
In the event then that the judge believes no warrant
shall issue, the President, under Presidential
Proclamation No. 2045 and Letter of Instruction No.
1211, is not bound by such finding, as explicitly
provided in paragraph 2 of LOI 1211. That the President
avails of the facilities of the judicial machinery, as is the
clear intent of LOI 1211, to aid him in exercising his
power to restrain personal liberty, as dictated by the
necessities and exigencies of the emergency, does not
indicate any intention on his part to renounce or to
allow even mere curtailment of his power such that the
judicial process will thereupon take its normal course,
under which the detainees or accused would then be
entitled to demand their right of due process,
particularly in relation to their personal liberty. 11 The
issuance of the PCO by the President necessarily
constitutes a finding that the conditions he has
prescribed in LOI 1211 for the issuance of that PCO have
been met, and intends that the detention would be
pursuant to the executive process incident to the
government campaign against the rebels, subversives
and dissidents waging a rebellion or insurrection. The
ruling in the Nava vs. Gatmaitan case,* as above
intimated, must have shown him that to prosecute the
offense through the judicial process of forthwith instead
of deferring it, would neither be wise nor expedient if
he were to deal effectively with the grave emergency at
hand.
What has been said above shows the need of
reexamining the Lansang case with a view to reverting
to the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905
decision, and Montenegro vs. Castaneda, 91 Phil. 882
(1952), that the President's decision to suspend the
privilege of the writ of habeas corpus is "final and
conclusive upon the courts, and all other persons." This
well-settled ruling was diluted in the Lansang case
which declared that the "function of the Court is merely
to check — not to supplant — the Executive, or
ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction not to exercise
the power vested in him or to determine the wisdom of
his act." Judicial interference was thus held as
permissible, and the test as laid down therein is not
whether the President acted correctly but whether he
acted arbitrarily. This would seem to be pure
semanticism, if We consider that with particular
reference to the nature of the actions the President
would take on the occasion of the grave emergency he
has to deal with, which, as clearly indicated in Section 9,
Art. VII of the Constitution partakes of military
measures, the judiciary can, with becoming modesty, ill
afford to assume the authority to check or reverse or
supplant the presidential actions. On these occasions,
the President takes absolute command, for the very life
of the Nation and its government, which, incidentally,
includes the courts, is in grave peril. In so doing, the
President is answerable only to his conscience, the
people and to God. For their part, in giving him the
supreme mandate as their President, the people can
only trust and pray that, giving him their own loyalty
with utmost patriotism, the President will not fail them.
In his separate opinion in the Lansang case, then Justice
Fernando, now our learned Chief Justice, went along
with the proposition that the decision of the Executive
in the exercise of his power to suspend the privilege of
the writ of habeas corpus is his alone, and in his own
language, is "ordinarily beyond the ken of the Courts."
This is so, as the Founding Fathers must have felt that in
the particular situations at hand, the Executive and the
Judiciary should maintain a mutually deferential
attitude. This is the very essence of the doctrine of
"political question, " as determining the justiciability of
a case. The wisdom of this concept remains well-
recognized in advanced constitutional systems. To erase
it from our own system as seems to be what was done
in the Lansang case, may neither be proper nor prudent.
A good example could be given in the exercise of the
presidential power of pardon which is beyond judicial
review, specially under the new Constitution where the
condition that it may be granted only after final
conviction has been done away with.
True, the Constitution is the law "equally in war and in
peace," 12 as Chief Justice Fernando cited in his brilliant
separate opinion in the same Lansang case. Precisely, it
is the Constitution that gives the President specific
"military power" in times of warlike conditions as exist
on the occasion of invasion, insurrection or rebellion.
Both power and right are constitutionally granted, with
the difference that the guarantee of the right to liberty
is for personal benefit, while the grant of the
presidential power is for public safety. Which of the two
enjoys primacy over the other is all too obvious. For the
power is intended as a limitation of the right, in much
the same way as individual freedom yields to the
exercise of the police power of the State in the interest
of general welfare. The difference again is that the
power comes into being during extreme emergencies
the exercise of which, for complete effectiveness for the
purpose it was granted should not permit intereference,
while individual freedom is obviously for full enjoyment
in time of peace, but in time of war or grave peril to the
nation, should be limited or restricted. In a true sense
then, our Constitution is for both peacetime and in time
of war; it is not that in time of war the Constitution is
silenced. The Founding Fathers, with admirable
foresight and vision, inserted provisions therein that
come into play and application in time of war or similar
emergencies. So it is that, as proclaimed by the
Constitution, the defense of the State is a prime duty of
government. Compulsory military service may be
imposed, certainly a mandate that derogates on the
right to personal liberty. It, therefore, becomes self-
evident that the duty of the judiciary to protect
individual rights must yield to the power of the
Executive to protect the State, for if the State perishes,
the Constitution, with the Bill of Rights that guarantees
the right to personal liberty, perishes with it.
In times of war or national emergency, the legislature
may surrender a part of its power of legislation to the
President. 13 Would it not be as proper and wholly
acceptable to lay down the principle that during such
crises, the judiciary should be less jealous of its power
and more trusting of the Executive in the exercise of its
emergency powers in recognition of the same
necessity? Verily, the existence of the emergencies
should be left to President's sole and unfettered
determination. His exercise of the power to suspend the
privilege of the writ of habeas corpus on the occasion
thereof, should also be beyond judicial review.
Arbitrariness, as a ground for judicial inquiry of
presidential acts and decisions, sounds good in theory
but impractical and unrealistic, considering how well-
nigh impossible it is for the courts to contradict the
finding of the President on the existence of the
emergency that gives occasion for the exercise of the
power to suspend the privilege of the writ. For the
Court to insist on reviewing Presidential action on the
ground of arbitrariness may only result in a violent
collision of two jealous powers with tragic
consequences, by all means to be avoided, in favor of
adhering to the more desirable and long-tested doctrine
of "political question" in reference to the power of
judicial review. 14
Amendment No. 6 of the 1973 Constitution, as earlier
cited, affords further reason for the reexamination of
the Lansang doctrine and reversion to that of Barcelon
vs. Baker and Montenegro vs. Castaneda.
Accordingly, We hold that in times of war and similar
emergency as expressly provided in the Constitution,
the President may suspend the privilege of the writ of
habeas corpus, which has the effect of allowing the
Executive to defer the prosecution of any of the
offenses covered by Proclamation No. 2045, including,
as a necessary consequence, the withholding for the
duration of the suspension of the privilege, of the right
to bail. The power could have been vested in Congress,
instead of the President, as it was so vested in the
United States for which reason, when President Lincoln
himself exercised the power in 1861, Chief Justice Taney
of the U.S. Supreme Court expressed the opinion that
Congress alone possessed this power under the
Constitutional., 15 Incidentally, it seems unimaginable
that the judiciary could subject the suspension, if
decreed through congressional action, to the same
inquiry as our Supreme Court did with the act of the
President, in the Lansang case, to determine if the
Congress acted with arbitrariness.
We further hold that under LOI 1211, a Presidential
Commitment Order, the issuance of which is the
exclusive prerogative of the President under the
Constitution, may not be declared void by the courts,
under the doctrine of "political question," as has been
applied in the Baker and Castaneda cases, on any
ground, let alone its supposed violation of the provision
of LOI 1211, thus diluting, if not abandoning the
doctrine of the Lansang case. The supreme mandate
received by the President from the people and his oath
to do justice to every man should be sufficient
guarantee, without need of judicial overseeing, against
commission by him of an act of arbitrariness in the
discharge particularly of those duties imposed upon him
for the protection of public safety which in itself
includes the protection of life, liberty and property. This
Court is not possessed with the attribute of infallibility
that when it reviews the acts of the President in the
exercise of his exclusive power, for possible fault of
arbitrariness, it would not itself go so far as to commit
the self-same fault.
Finally, We hold that upon the issuance of the
Presidential Commitment Order against herein
petitioners, their continued detention is rendered valid
and legal, and their right to be released even after the
filing of charges against them in court, to depend on the
President, who may order the release of a detainee or
his being placed under house arrest, as he has done in
meritorious cases.
WHEREFORE, the instant petition should be, as it is
hereby dismissed.
SO ORDERED.
Guerrero, Plana, Escolin, Vasquez, Relova and Gutierrez,
Jr., JJ., concur.
Concepcion, Jr. and Melencio-Herrera, JJ., concur in the
result.
Aquino, J., is on leave.
I am constrained to dissent from the all-encompassing
scope of the main opinion of Mr. Justice de Castro
which would overturn the landmark doctrine of Lansang
vs. Garcia 1 which upheld the Supreme Court's authority
to inquire into the existence of factual bases for the
President's suspension of the privilege of the writ of
habeas corpus in order to determine the constitutional
sufficiency thereof and would revert to the
retrogressive and colonial era ruling of Barcelon vs.
Baker 2 and Montenegro vs. Castañeda 3 that the
President's decision to so suspend the privilege of the
writ "is final and conclusive upon the courts and all
other persons," and would further deny the right to bail
even after the filing of charges in court to persons
detained under Presidential Commitment Orders.
This case, as in other like cases, focuses on the
grievances that persons detained or charged for the
crimes of insurrection, rebellion, subversion, conspiracy
or proposal to commit such crimes, invariably bring to
this Court. They complain, as petitioners do here, of
being arrested without any warrant of arrest; of being
informed of purported telegrams concerning the
issuance of a Presidential Commitment Order PCO
authorizing their arrest and detention, but that they are
not given a copy of such PCO nor notified of its
contents, raising doubts whether such PCO has in fact
been issued; of being kept in isolation or transferred to
so-called "safehouses" and being denied of their
constitutional right to counsel and to silence; of
prolonged detention without charges; "of a seeming
deliberate and concerted effort by respondents to
conceal from counsel and relatives the detainees' place
of detention, raising the apprehension that respondents
are using force, violence, threat, intimidation and other
means which vitiate free will to obtain confessions and
statements from the detainees in violation of their
constitutional rights;" and of their counsel and families
undergoing great difficulties in locating or having access
to them (main opinion at p. 3).
The State through the Solicitor General on the other
hand invariably denies all such charges and submits
affidavits of the arresting officers and detention
custodian that detainees are afforded decent and
humane treatment, further countering that such claims
are merely calculated to arouse sympathy and as
propaganda against the Government and its
institutions.
In many such cases, however, the Court in issuing the
writ of habeas corpus requiring respondents to make a
return of the writ includes a resolution, in recognition of
the detainees' constitutional rights, "to allow counsel
for petitioners to visit and confer with the detainee(s) in
an atmosphere of confidentiality consistent with
reasonable security measures which respondents may
impose." 4 In other cases where respondents military
officials have allegedly denied having in their custody
the person(s) detained, the Court has issued its
resolution "on the assumption that the detained person
is in the custody of respondents, that there be due
observance and respect of his right to counsel and other
constitutional rights by respondents." 5
Respondents' return through the Solicitor General in
the case at bar states that the detainees are all detained
by virtue of a Presidential Commitment Order issued on
July 12, 1982 (several days after their arrest without
warrant on July 6 and 7, 1982) and that corresponding
charges against the detainees were filed in court and
before the Acting Provincial Fiscal of Nueva Viscaya
where they are pending. As to the detainee Dr. Aurora
Parong, the return further states that a warrant of
arrest was issued against her on August 4, 1982 by the
Municipal Court of Bayombong for illegal possession of
a firearm and ammunition. As in all other returns in
similar cases, the Solicitor General asserts "that the
privilege of the writ of habeas corpus is unavailing as to
them. Courts cannot inquire into the validity and cause
of their arrest and detention" by virtue of the continued
suspension, under Presidential Proclamation No. 2045
(which proclaimed the termination of martial law in the
Philippines), of the privilege of the writ of habeas
corpus in the two autonomous regions in Mindanao and
in all other places with respect to persons detained for
suspected involvement in crimes related to national
security.
The main opinion confronts the question of whether the
issuance of a Presidential Commitment Order (PCO) has
provided the legal basis of the detention of herein
detainees following their arrest for Proclamation No.
2045-covered offenses," and remarks that "this
question has to be set at rest promptly and decisively, if
we are to break a seemingly continuous flow of
petitions for habeas corpus, as what had been seen
lately of such petitions being filed in this Court one after
the other.
I. I submit that the resolution of the issues in this case
does not call for the all-encompassing ruling in the main
opinion with its sweeping scope that would reexamine
and overturn the benchmark ruling in Lansang. The
limited suspension of the privilege of the writ of habeas
corpus in the two instances provided under Presidential
Proclamation No. 2045 has not been challenged in this
case. So, what's the point of an advance declaration
that all checks and barriers are down? Lansang
recognizes the greatest deference and respect that is
due the President's determination for the necessity of
suspending the privilege of the writ of habeas corpus.
But Lansang sets at the same time the constitutional
confines and limits of the President's power to suspend
the privilege of the writ and enunciates the
constitutional test, not of the correctness of the
President's decision, but that the President's decision to
suspend the privilege not suffer from the constitutional
infirmity of arbitrariness. 6 Thus, after laying the
premise "that every case must depend on its own
circumstances," the Court therein thru then Chief
Justice Roberto Concepcion held that:
Indeed, the grant of power to suspend the privilege is
neither absolute nor unqualified. The authority
conferred by the Constitution, both under the Bill of
Rights and under the Executive Department, is limited
and conditional. The precept in the Bill of Rights
establishes a general rule, as well as an exception
thereto. What is more, it postulates the former in the
negative, evidently to stress its importance, by
providing that '(t)he privilege of the writ of habeas
corpus shall not be suspended ....' It is only by way of
exception that it permits the suspension of the privilege
'in cases of invasion, insurrection, or rebellion'- or,
under Art. VII of the Constitution, 'imminent danger
thereof '- 'when the public safety requires it, in any of
which events the same may be suspended wherever
during such period the necessity for such suspension
shall exist.' Far from being fun and plenary, the
authority to suspend the privilege of the writ is thus
circumscribed, confined and restricted, not only by the
prescribed setting or the conditions essential to its
existence, but, also, as regards the time when ? the
place where it may be exercised. These factors and the
aforementioned setting or conditions mark, establish
and define the extent, the confines and the limits of
said power, beyond which it does not exist. And, like the
limitations and restrictions imposed by the
Fundamental Law upon the legislative department,
adherence thereto and compliance therewith may,
within proper bounds, be inquired into by courts of
justice. Otherwise, the explicit constitutional provisions
thereon would be meaningless. Surely, the framers of
our Constitution could not have intended to engage in
such a wasteful exercise in futility.
Much less may the assumption be indulged in when we
bear in mind that our political system is essentially
democratic and republican in character and that the
suspension of the privilege affects the most
fundamental element of that system. namely, individual
freedom. Indeed, such freedom includes and connotes,
as well as demands, the right of every single member of
our citizenry to freely discuss and dissent from, as well
as criticize and denounce, the views, the policies and
the practices of the government and the party in power
that he deems unwise, improper or inimical to the
commonwealth, regardless of whether his own opinion
is objectively correct or not. The untrammelled
enjoyment and exercise of such right-which, under
certain conditions, may be a civic duty of the highest
order is-vital to the democratic system and essential to
its successful operation and wholesome growth and
development.
Manifestly, however, the liberty guaranteed and
protected by our Basic Law is one enjoyed and exercise,
not in derogation thereof, but consistently therewith,
and, hence, within the framework of the social order
established by the Constitution and the context of the
Rule of Law. Accordingly, when individual freedom is
used to destroy that social order, by means of force and
violence, in defiance of the Rule of Law such as by rising
publicly and taking arms against the government to
overthrow the same, thereby committing the crime of
rebellion- there emerges a circumstance that may
warrant a limited withdrawal of the aforementioned
guarantee or protection, by suspending the privilege of
the writ of habeas corpus, when public safety requires
it. Although we must before warned against mistaking
mere dissent- no matter how emphatic or intemperate
it may be-for dissidence amounting to rebellion or
insurrection, the Court cannot hesitate, much less
refuse- when the existence of such rebellion or
insurrection has been fairly established or cannot
reasonably be denied- to uphold the finding of the
Executive thereon, without, in effect, encroaching upon
a power vested in him by the Supreme Law of the land
and depriving him, to this extent, of such power, and,
therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is called
upon to epitomize. " 7
II. The crucial issue at bar is that adversely decided by
the main opinion, denying petitioners' motion that the
Court order their release on bail, on the ground that the
suspension of the privilege of the writ of habeas corpus
for any of the offenses covered by Proclamation No.
2045 "includes, as a necessary consequence, the
withholding for the duration of the suspension of the
privilege of the right to bail" (main opinion, at page 16).
1. I submit that notwithstanding the suspension of the
privilege of the writ of habeas corpus and the issuance
on March 9, 1982 of Letter of Instruction No. 1211 that
the Presidential Commitment Order constitutes
authority to keep the subject person under detention
"until ordered released by the President or his duly
authorized representative" (which is a mere internal
instruction to certain agencies), the higher and superior
mandate of the Constitution guarantees the right to bail
and vests the courts with the jurisdiction and judicial
power to grant bail which may not be removed nor
diminished nor abdicated. We cannot but so hold, if we
are to be true to the fundamental precept that "The
Constitution is a law for rulers and for people equally in
war and in peace and covers with the shield of its
protection all classes of men at all times and under all
circumstances."
The argument that otherwise the purpose of the
suspension of the privilege would be defeated ignores
the overwhelming capability of the State and its military
and police forces to keep suspects under surveillance
and the courts' imposition of reasonable conditions in
granting bail, such as periodic reports to the authorities
concerned, and prohibiting their going to certain critical
areas.
2. The most authoritative pronouncement in this regard
is of course none other than the President's himself. In
all the metropolitan newspapers of April 20, 1983, the
President is reported to have "said that Pimentel has
been charged with rebellion before the regional trial
court of Cebu City and is therefore under the
jurisdiction of the civil court and not only under the
jurisdiction of the military by virtue of the PCO." In a
telegram in reply to the appeal of Msgr. Patrick Cronin,
Archbishop of Cagayan de Oro and Misamis Oriental, for
lifting of the PCO on Mayor Aquilino Pimentel of
Cagayan de Oro City, the President said that "(T)he
disposal of the body of the accused, as any lawyer will
inform you, is now within the powers of the regional
trial court of Cebu City and not within the powers of the
President. "
3. This is but in consonance with the majority holding in
the leading 1951 cases of Nava vs. Gatmaitan and
Hernandez vs. Montesa 8 (although it failed one vote
short of the required majority of six affirmative votes at
the time) as expounded by then Chief Justice Ricardo
Paras and Associate Justice (later Chief Justice) Cesar
Bengzon and Associate Justices Pedro Tuason, Alex
Reyes and Fernando Jugo that after formal indictment
in court by the filing against them of an information
charging rebellion with multiple murder, etc., accused
persons covered by the proclamation of suspension of
the privilege of the writ of habeas corpus are entitled to
the right to bail.
4. As stressed by then Chief Justice Ricardo Paras, "(T)he
right to bail, along with the right of an accused to be
heard by himself and counsel to be informed of the
nature and cause of the accusation against him, to have
a speedy and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the
attendance of witnesses in his behalf (Article III, Section
1, Paragraph 17, of the Constitution), tends to aid the
accused to prove his innocence and obtain acquittal. If
it be contended that the suspension of the privilege of
the writ of habeas corpus includes the suspension of
the distinct right to bail or to be provisionally at liberty,
it would a fortiori imply the suspension of all his other
rights (even the right to be tried by a court) that may
win for him ultimate acquittal and, hence, absolute
freedom. The latter result is not insisted upon for being
patently untenable. "
Then Chief Justice Paras stressed that "... The privilege
of the writ of habeas corpus and the right to bail
guaranteed under the Bill of Rights are separate and co-
equal. If the intention of the framers of the Constitution
was that the suspension of the privilege of the writ of
habeas corpus carries or implies the suspension of the
right to bail, they would have very easily provided that
all persons shall before conviction be bailable by
sufficient sureties, except those charged with capital
offenses when evidence of guilt is strong and except
when the privilege of the writ of habeas corpus is
suspended. As stated in the case of Ex Parte Milligan, 4
Wall. 2, 18 L. ed. 297, the Constitution limited the
suspension to only one great right, leaving the rest to
remain forever inviolable. "
5. It is noteworthy and supportive of the prevailing
stand since 1951 that the other great constitutional
rights remain forever inviolable since the Constitution
limited the suspension to only one great right (of the
privilege of the writ of habeas corpus), that there has
been no amendment of the Constitution to curtail the
right to bail in case of such suspension notwithstanding
the numerous constitutional amendments adopted
after the 1973 Constitution.
6. The late Justice Pedro Tuason emphasized that "(T)o
the plea that the security of the State would be
jeopardized by the release of the defendants on bail,
the answer is that the existence of danger is never a
justification for courts to tamper with the fundamental
rights expressly granted by the Constitution. These
rights are immutable, inflexible, yielding to no pressure
of convenience, expediency or the so-called 'judicial
statesmanship.' The Legislature itself cannot infringe
them, and no court conscious of its responsibilities and
limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to
the Nation, let the Constitution be amended, or
abolished. It is trite to say that, while the Constitution
stands, the courts of justice as the repository of civil
liberty are bound to protect and maintain undiluted
individual rights."
7. And former Chief Justice Cesar Bengzon then made
the same forceful plea echoed these days by men of
goodwill that respect for constitutional and human
rights and adherence to the rule of law would help in
the fight against rebellion and movement for national
reconciliation, thus: "And in my opinion, one of the
surest means to ease the uprising is a sincere
demonstration of this Government's adherence to the
principles of the Constitution together with an impartial
application thereof to all citizens, whether dissidents or
not. Let the rebels have no reason to apprehend that
their comrades now under custody are being railroaded
into Muntinglupa, without benefit of those fundamental
privileges which the experience of the ages has deemed
essential for the protection of all persons accused of
crime before the tribunal of justice. Give them the
assurance that the judiciary, ever mindful of its sacred
mission, will not, thru faulty or misplaced devotion,
uphold any doubtful claims of governmental power in
diminution of individual rights, but will always cling to
the principles uttered long ago by Chief Justice Marshall
that when in doubt as to the construction of the
Constitution, 'The Courts will favor personal liberty.'"
8. The right to bail cannot just be cancelled out
summarily because of the issuance of a PCO In the case
at bar, detainee Dr. Aurora Parong is charged in the
municipal court with the crime of illegal possession of
firearm, which is a clearly bailable offense. The charges
filed against the other detainees are likewise for clearly
bailable offenses. It is elementary that the right to bail
in non-capital offenses and even in capital offenses
where evidence of guilt is not strong will be generally
granted and respected by the courts, "the natural
tendency of the courts (being) towards a fair and liberal
appreciation," particularly taking into consideration the
record and standing of the person charged and the
unlikelihood of his fleeing the court's jurisdiction.
As the Court held in the leading case of Montano vs.
Ocampo 9 wherein the Supreme Court granted bail to
Senator Montano who was charged with multiple
murders and frustrated murders:
Brushing aside the charge that the prelimiminary
investigation of this case by the aforesaid Judge was
railroaded, the same having been conducted at
midnight, a few hours after the complaint was filed, we
are of the opinion that, upon the evidence adduced in
the applicaction for bail in the lower court, as such
evidence is recited lengthily in the present petition and
the answer thereto, and extensively analyzed and
discussed in the oral argument, there is not such clear
showing of guilt as would preclude all reasonable
probability of any other conclusion.
Exclusion from bail in capital offenses being an
exception to the otherwise absolute right guaranteed
by the constitution, the natural tendency of the courts
has been toward a fair and liberal appreciation, rather
than otherwise , of the evidence in the determination of
the degree of proof and presumption of guilt necessary
to war. rant a deprivation of that right.
Besides, to deny bail it is not enough that the evidence
of guilt is strong; it must also appear that in case of
conviction the defendant 's liability would probably call
for a capital punishment. No clear or conclusive
showing before this Court has been made.
In the evaluation of the evidence the probability of
flight is one other important factor to be taken into
account. The sole purpose of confining accusedin jail
before conviction, it has been observed, is to assure his
presence at the trial. In other words, if denial of bail is
authorized in capital cases, it is only on the theory that
the proof being strong, the dependant would flee, if he
has the opportunity, rather than face the verdict of the
jury. Hence the exception to the fundamental right to
be bailed should be applied in direct ratio to the extent
of the probability of evasion of prosecution.
The possibility of escape in this case, bearing in mind
the defendant's official and social standing and his
other personal circumstances, seems remote if not nil."
In the recent case of Sobremonte vs. Enrile, 10 the
detainee was released upon her filing of the
recommended P1,000.00 bail bond for the offense of
possession of subversive literature with which she was
charged and the habeas corpus petition, like many
others, although dismissed for having thereby become
moot, accomplished the purpose of securing the
accused's release from prolonged detention. The Court
had occasion to decry therein that "all the effort, energy
and manhours expended by the parties and their
counsel, including this Court, ... could have been
avoided had the officers of the AVSECOM and the ISAFP
responded promptly to the inquiries of petitioner
instead of giving her the 'run-around' by referring her
from one office to another."
9. "The continuous flow of petitions for habeas corpus"
filed with this Court should not be decried nor
discouraged. The Court stands as the guarantor of the
constitutional and human rights of all persons within its
jurisdiction and must see to it that the rights are
respected and enforced. It is settled in his jurisdiction
that once a deprivation of a constitutional right is
shown to exist, the court that rendered the judgment or
before whom the case is pending is ousted of
jurisdiction and habeas corpus is the appropriate
remedy to assail the legality of the detention. 11 So
accused persons deprived of the constitutional right of
speedy trial have been set free. 12 And likewise persons
detained indefinitely without charges so much so that
the detention becomes punitive and not merely
preventive in character are entitled to regain their
freedom. The spirit and letter of our Constitution
negates as contrary to the basic precepts of human
rights and freedom that a person be detained
indefinitely without any charges.
III. The main opinion invokes "a time of war or grave
peril to the nation" (at page 16), oblivious of the
Presidents lifting of martial law under Proclamation No.
2045 on January 17, 1981 and the specific premises
therein set forth that
WHEREAS, the Filipino people, having subdued threats
to the stability of government, public order and
security, are aware that the time has come to
consolidate the gains attained by the nation under a
state of martial law by assuming their normal political
roles and shaping the national destiny within the
framework of civil government and popular democracy:
WHEREAS, the experience gained by the nation under
martial law in subduing threats to the stability of the
government, public order and security, has enabled the
Filipino people to rediscover their confidence in their
ability to command the resources of national unity,
patriotism, discipline and sense of common destiny;
WHEREAS, the government and the people are at the
same time also aware that the public safety continues
to require a degree of capability to deal adequately with
elements who persist in endeavoring to overthrow the
government by violent means and exploiting every
opportunity to disrupt the peaceful and productive
labors of the government; ..."
As to the "self-evident" submittal of the main opinion
that "the duty of the judiciary to protect individual
rights must yield to the power of the Executive to
protect the State, for if the State perishes, the
Constitution, with the Bill of Rights that guarantees the
right to personal liberty, perishes with it" (at page 16), I
can only recall the exhortation of the Holy Father John
Paul II in his address to the Philippine nation on
February 17, 1981, thus: "Even in exceptional situations
that may at times arise, one can never justify any
violation of the fundamental dignity of the human
person or of the basic rights that safeguard this dignity.
Legitimate concern for the security of a nation, as
demanded by the common good, could lead to the
temptation of subjugating to the State the human being
and his or her dignity and rights. Any apparent conflict
between the exigencies of security and of the citizens'
basic rights must be resolved according to the
fundamental principle-upheld always by the Church-
that social organization exists only for the service of
man and for the protection of his dignity, and that it
cannot claim to serve the common good when human
rights are not safeguaded. People will have faith in the
safeguarding of their security and the promotion of
their well-being only to the extent that they feel truly
involved, and supported in their very humanity."
Footnotes
1 212 U.S. 416, 417.
2 59 SCRA 183 (1974).
3 Moyer vs. Peabody, 212 U.S. 78, citing Keely vs.
Sanders, 99 U.S. 441, 446, 25 L. Ed. 327, 328.
4 Lansang vs. Garcia, 42 SCRA 488.
5 Section 9, Article VII, Constitution.
6 Encyclopedia of the Social Sciences, Vol. VIII, p. 236,
1950 Ed.
7 Political Law of the Philippines by Senator Lorenzo
Tañada and Atty. Francisco Carreon, Vol. II p. 236.
8 109 SCRA 273.
9 Lansang vs. Garcia, supra
10 Section 6, 1976 Amendment to the Constitution.
11 Nava vs. Gatmaitan, 90 Phil. 172.
* The ruling was non-doctrinal for lack of the necessary
votes.

12 Ex parte Milligan, 4 Wallace 2 (1866).
13 Section 15, Article VIII, 1973 Constitution.
14 As explained in Tañada, et al. vs. Cuenco, et al. (103
Phil. 1051), term "political question" connotes, in legal
parlance, what it means in ordinary parlance, namely, a
question of policy. It refers to those questions, which,
under the Constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the
Legislature or Executive branch of the Government (16
C.J.S. 413).
15 Ex parte Merryman, Federal Case No. 9487 (1861).
FERNANDO J.
1 Decision, 17.
2 L-33964, December 11, 1971, 42 SCRA 448.
3 5 Phil. 87 (1905).
4 91 Phil. 882 (1952).
5 L-32613, December 27, 1972, 48 SCRA 382.
6 L-35546, September 17, 1974, 59 SCRA 183.
7 L-37364, May 9,1975,63 SCRA 546.
8 1 Cranch 137 (1803).
9 63 Phil. 139 (1936).
10 Cf. In addition to Angara, there is likewise the case of
Tañada v. Cuenco, 103 Phil. 1051 (1957).
11 Black, The People and the Court, 8 (1960).
12 Ibid., 8-9.
13 L-35546, September 17, 1974, 59 SCRA 183.
14 Ibid., 286.
15 L-30026, January 30,1971, 37 SCRA 420.
16 Ibid., 423.
17 Ibid., 423-424. The quotation from Chafee is found in
The Most Important Human Right in the Constitution,
32 Boston Univ. Law Rev. 143 (1947); from Cooley in 2
Constitutional Limitations 709 (1927); from Willoughby
in 3 on the Constitution 1612 (1929); from Burdick in
the Law of the American Constitution 27 (1922); from
Fraenkel in Our Civil Liberties 6 (1944).
18 372 US 391 (1963).
19 Ibid., 399-400.
20 Cf. Lansang v. Garcia, L-33964, December 11, 1971,
42 SCRA 448; Barcelon v. Baker, 5 Phil. 87 (1905);
Montenegro v. Castaneda, 91 Phil. 882 (1952).
21 Proclamation No. 2045 (1981).
22 Ibid.
23 Article VII, Sec. 9 of the Constitution.
24 42 SCRA 448, 488.
25 212 US 78.
26 Ibid., 83.
27 Ibid., 84-85.
28 Ibid., 86.
29 According to Article IV, Sec. 18 of the Constitution:
"All persons, except those charged with capital offenses
when evidence of guilt is strong, shall before conviction,
be bailable by sufficient sureties. Excessive bail shall not
be required. "
30 90 Phil. 172 (1951). It is reported along with Nava v.
Gatmaitan and Angeles v. Abaya in a single resolution.
31 42 SCRA 448.
32 L-47185, January 15, 1981, 102 SCRA 7.
33 Suffian, (1976), An Introduction to the Constitution
of Malaysia, 226.
34 Cf. Malaysia Soo Kua v. Public Prosecutor [1970] 1.
Malaysian Law Journal 91; Karam Singh v. The Minister
of Internal Affairs [1969] 2. Malaysian Law Journal 129;
Phong Chin Hock v. Public Prosecutor (1977) 1
Malaysian Law Journal 70. The above provision is
likewise applicable to Singapore. This decision from that TEEHANKEE J.
jurisdiction may be cited: Lim Hock Siew v. Minister of
Interior and Defense [1918] 2 Malaysian Law Journal 1 42 SCRA 448 (1971).
219. There is likewise relevance to these articles:
Hickling, The Prerogative in Malaysia 17 Malaya Law 2 5 Phil. 87 (1905).
Review 207 (1975) and Jayakumar, Emergency Powers
in Malaysia 18 Malaya Law Review 149 (1976). 3 91 Phil. 882 (1952).

35 Jain, Judicial Creativity and Preventive Detention in 4 Resolution of July 30, 1982 in G.R. No. 61016 In re:
India, 262. Petition for Habeas Corpus of Horacio R. Morales, Jr.

36 Ibid. 5 Resolution of April 4, 1983 in G.R. No. 63581 In re:

Petition for Habeas Corpus of Carl Gaspar.
37 Ibid., Liversidge is reported in [1942] A.C. 206.
6 42 SCRA at page 481.
38 Ibid., 263.
7 Idem, at pages 473-475; emphasis copied.
39 Ibid., 263-264.
8 Jointly decided with Angeles vs. Abaya and reported in
40 Ibid., 263. 90 Phil. 172 (1951).

41 Ibid., 303-304. 9 G.R. L-6352. Resolution of Jan. 29, 1953. 49 O.G. 1855;
emphasis supplied. See Villasenor vs. Abancio, 21 SCRA
42 Ibid., 304. 321.

43 I had a separate opinion, dissenting in part, but I 10 G.R. No. 60602, Sept. 30, 1982, per Escolin, J.
concurred in the holding that the question is judicial
rather than political. 11 Gumabon v. Director of Prisons, 37 SCRA 420, 427.

44 42 SCRA 448, 473-474. 12 Conde vs. Diaz, 45 Phil. 173.

45 Ibid., 474-475.

46 Ibid., 475.

47 Ibid., 479-480.

48 Ibid., 480.

49 5 Phil. 87.

50 91 Phil. 882 (1952).

51 42 SCRA 448, 505-506.

52 Ibid., 506-507.

53 84 Phil. 368 (1949).

54 Ibid., 376.

55 Ibid., 383.

FIRST DIVISION
[G.R. No. 113539. March 12, 1998]
CELSO R. HALILI and ARTHUR R. HALILI, petitioners, vs.
COURT OF APPEALS, HELEN MEYERS GUZMAN, DAVID
REY GUZMAN and EMILIANO CATANIAG, respondents.
DECISION
PANGANIBAN, J.:
The factual findings of a trial court, when affirmed by
the Court of Appeals, may no longer be reviewed and
reversed by this Court in a petition for review under
Rule 45 of the Rules of Court. The transfer of an interest
in a piece of land to an alien may no longer be assailed
on constitutional grounds after the entire parcel has
been sold to a qualified citizen.
The Case
These familiar and long-settled doctrines are applied by
this Court in denying this petition under Rule 45 to set
aside the Decision[1] of the Court of Appeals[2] in CA-
GR CV No. 37829 promulgated on September 14, 1993,
the dispositive portion of which states:[3]
WHEREFORE, and upon all the foregoing, the Decision
of the court below dated March 10, 1992 dismissing the
complaint for lack of merit is AFFIRMED without
pronouncement as to costs.
The Facts
The factual antecedents, as narrated by Respondent
Court, are not disputed by the parties. We reproduce
them in part, as follows:
Simeon de Guzman, an American citizen, died sometime
in 1968, leaving real properties in the Philippines. His
forced heirs were his widow, defendant appellee
[herein private respondent] Helen Meyers Guzman, and
his son, defendant appellee [also herein private
respondent] David Rey Guzman, both of whom are also
American citizens. On August 9, 1989, Helen executed a
deed of quitclaim (Annex A-Complaint), assigning[,]
transferring and conveying to David Rey all her rights,
titles and interests in and over six parcels of land which
the two of them inherited from Simeon.
Among the said parcels of land is that now in litigation,
x x x situated in Bagbaguin, Sta. Maria, Bulacan,
containing an area of 6,695 square meters, covered by
Transfer Certificate of Title No. T-170514 of the Registry
of Deeds of Bulacan. The quitclaim having been
registered, TCT No. T-170514 was cancelled and TCT No.
T-120259 was issued in the name of appellee David Rey
Guzman.
On February 5, 1991, David Rey Guzman sold said parcel
of land to defendant-appellee [also herein private
respondent] Emiliano Cataniag, upon which TCT No. T-
120259 was cancelled and TCT No. T-130721(M) was
issued in the latters name.[4]
Petitioners, who are owners of the adjoining lot, filed a
complaint before the Regional Trial Court of Malolos,
Bulacan, questioning the constitutionality and validity of
the two conveyances -- between Helen Guzman and
David Rey Guzman, and between the latter and
Emiliano Cataniag -- and claiming ownership thereto
based on their right of legal redemption under Art.
1621[5]of the Civil Code.
In its decision[6] dated March 10, 1992,[7] the trial
court dismissed the complaint. It ruled that Helen
Guzmans waiver of her inheritance in favor of her son
was not contrary to the constitutional prohibition
against the sale of land to an alien, since the purpose of
the waiver was simply to authorize David Rey Guzman
to dispose of their properties in accordance with the
Constitution and the laws of the Philippines, and not to
subvert them. On the second issue, it held that the
subject land was urban; hence, petitioners had no
reason to invoke their right of redemption under Art.
1621 of the Civil Code.
The Halilis sought a reversal from the Court of Appeals
which, however, denied their appeal. Respondent Court
affirmed the factual finding of the trial court that the
subject land was urban. Citing Tejido vs. Zamacoma[8]
and Yap vs. Grageda,[9] it further held that, although
the transfer of the land to David Rey may have been
invalid for being contrary to the Constitution, there was
no more point in allowing herein petitioners to recover
the property, since it has passed on to and was thus
already owned by a qualified person.
Hence, this petition.[10]
Issues
The petition submits the following assignment of errors:

x x x the Honorable Court of Appeals -
1. Erred in affirming the conclusion of the trial court
that the land in question is urban, not rural
2. Erred in denying petitioners right of redemption
under Art. 1621 of the Civil Code
3. Having considered the conveyance from Helen
Meyers Guzman to her son David Rey Guzman illegal,
erred in not declaring the same null and void[.][11]
The Courts Ruling
The petition has no merit.
First Issue: The Land Is Urban;
Thus, No Right of Redemption
The first two errors assigned by petitioners being
interrelated -- the determination of the first being a
prerequisite to the resolution of the second -- shall be
discussed together.
Subject Land Is Urban
Whether the land in dispute is rural or urban is a factual
question which, as a rule, is not reviewable by this
Court.[12] Basic and long-settled is the doctrine that
findings of fact of a trial judge, when affirmed by the
Court of Appeals, are binding upon the Supreme Court.
This admits of only a few exceptions, such as when the
findings are grounded entirely on speculation, surmises
or conjectures; when an inference made by the
appellate court from its factual findings is manifestly
mistaken, absurd or impossible; when there is grave
abuse of discretion in the appreciation of facts; when
the findings of the appellate court go beyond the issues
of the case, run contrary to the admissions of the
parties to the case or fail to notice certain relevant facts
which, if properly considered, will justify a different
conclusion; when there is a misappreciation of facts;
when the findings of fact are conclusions without
mention of the specific evidence on which they are
based, are premised on the absence of evidence or are
contradicted by evidence on record.[13]
The instant case does not fall within any of the
aforecited exceptions. In fact, the conclusion of the trial
court -- that the subject property is urban land -- is
based on clear and convincing evidence, as shown in its
decision which disposed thus:
x x x As observed by the court, almost all the roadsides
along the national ghighway [sic] of Bagbaguin, Sta.
Maria, Bulacan, are lined up with residential,
commercial or industrial establishments. Lined up along
the Bagbaguin Road are factories of feeds, woodcrafts
[sic] and garments, commercial stores for tires,
upholstery materials, feeds supply and spare parts.
Located therein likewise were the Pepsi-Cola
Warehouse, the Cruz Hospital, three gasoline stations,
apartment buildings for commercial purposes and
construction firms. There is no doubt, therefore, that
the community is a commercial area thriving in business
activities. Only a short portion of said road [is] vacant. It
is to be noted that in the Tax Declaration in the name of
Helen Meyers Guzman[,] the subject land is termed
agricultural[,] while in the letter addressed to defendant
Emiliano Cataniag, dated October 3, 1991, the Land
Regulatory Board attested that the subject property is
commercial and the trend of development along the
road is commercial. The Boards classification is based
on the present condition of the property and the
community thereat. Said classification is far more later
[sic] than the tax declaration.[14]
No Ground to Invoke Right of Redemption
In view of the finding that the subject land is urban in
character, petitioners have indeed no right to invoke
Art. 1621 of the Civil Code, which presupposes that the
land sought to be redeemed is rural. The provision is
clearly worded and admits of no ambiguity in
construction:
ART. 1621. The owners of adjoining lands shall also have
the right of redemption when a piece of rural land, the
area of which does not exceed one hectare, is alienated,
unless the grantee does not own any rural land.
xxx xxx xxx
Under this article, both lands -- that sought to be
redeemed and the adjacent lot belonging to the person
exercising the right of redemption -- must be rural. If
one or both are urban, the right cannot be invoked.[15]
The purpose of this provision which is limited in scope
to rural lands not exceeding one hectare, is to favor
agricultural development.[16] The subject land not
being rural and, therefore, not agricultural, this purpose
would not be served if petitioners are granted the right
of redemption under Art. 1621. Plainly, under the
circumstances, they cannot invoke it.
Second Issue: Sale to Cataniag Valid
Neither do we find any reversible error in the appellate
courts holding that the sale of the subject land to
Private Respondent Cataniag renders moot any
question on the constitutionality of the prior transfer
made by Helen Guzman to her son David Rey.
True, Helen Guzmans deed of quitclaim -- in which she
assigned, transferred and conveyed to David Rey all her
rights, titles and interests over the property she had
inherited from her husband -- collided with the
Constitution, Article XII, Section 7 of which provides:
SEC. 7. Save in cases of hereditary succession, no
private lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to
acquire or hold lands of the public domain.
The landmark case of Krivenko vs. Register of Deeds[17]
settled the issue as to who are qualified (and
disqualified) to own public as well as private lands in the
Philippines. Following a long discourse maintaining that
the public agricultural lands mentioned in Section 1,
Article XIII of the 1935 Constitution, include residential,
commercial and industrial lands, the Court then stated:
Under section 1 of Article XIII [now Sec. 2, Art. XII] of
the Constitution, natural resources, with the exception
of public agricultural land, shall not be alienated, and
with respect to public agricultural lands, their alienation
is limited to Filipino citizens. But this constitutional
purpose conserving agricultural resources in the hands
of Filipino citizens may easily be defeated by the Filipino
citizens themselves who may alienate their agricultural
lands in favor of aliens. It is partly to prevent this result
that section 5 is included in Article XIII, and it reads as
follows:
Sec. 5. Save in cases of hereditary succession, no private
agricultural land will be transferred or assigned except
to individuals, corporations or associations qualified to
acquire or hold lands of the public domain in the
Philippines.
This constitutional provision closes the only remaining
avenue through which agricultural resources may leak
into aliens hands. It would certainly be futile to prohibit
the alienation of public agricultural lands to aliens if,
after all, they may be freely so alienated upon their
becoming private agricultural lands in the hands of
Filipino citizens. Undoubtedly, as above indicated,
section 5 [now Sec. 7] is intended to insure the policy of
nationalization contained in section 1 [now Sec. 2]. Both
sections must, therefore, be read together for they
have the same purpose and the same subject matter. It
must be noticed that the persons against whom the
prohibition is directed in section 5 [now Sec. 7] are the
very same persons who under section 1 [now Sec. 2] are
disqualified to acquire or hold lands of the public
domain in the Philippines. And the subject matter of
both sections is the same, namely, the non
transferability of agricultural land to aliens. x x x[18]
The Krivenko rule was recently reiterated in Ong Ching
Po vs. Court of Appeals,[19] which involves a sale of
land to a Chinese citizen. The Court said:
The capacity to acquire private land is made dependent
upon the capacity to acquire or hold lands of the public
domain. Private land may be transferred or conveyed
only to individuals or entities qualified to acquire lands
of the public domain (II Bernas, The Constitution of the
Philippines 439-440 [1988 ed.]).
The 1935 Constitution reserved the right to participate
in the disposition, exploitation, development and
utilization of all lands of the public domain and other
natural resources of the Philippines for Filipino citizens
or corporations at least sixty percent of the capital of
which was owned by Filipinos. Aliens, whether
individuals or corporations, have been disqualified from
acquiring public lands; hence, they have also been
disqualified from acquiring private lands.[20]
In fine, non-Filipinos cannot acquire or hold title to
private lands or to lands of the public domain, except
only by way of legal succession.[21]
But what is the effect of a subsequent sale by the
disqualified alien vendee to a qualified Filipino citizen?
This is not a novel question. Jurisprudence is consistent
that if land is invalidly transferred to an alien who
subsequently becomes a citizen or transfers it to a
citizen, the flaw in the original transaction is considered
cured and the title of the transferee is rendered
valid.[22]
Thus, in United Church Board of World Ministries vs.
Sebastian,[23] in which an alien resident who owned
properties in the Philippines devised to an American
non-stock corporation part of his shares of stock in a
Filipino corporation that owned a tract of land in Davao
del Norte, the Court sustained the invalidity of such
legacy. However, upon proof that ownership of the
American corporation has passed on to a 100 percent
Filipino corporation, the Court ruled that the defect in
the will was rectified by the subsequent transfer of the
property.
The present case is similar to De Castro vs. Tan.[24] In
that case, a residential lot was sold to a Chinese. Upon
his death, his widow and children executed an
extrajudicial settlement, whereby said lot was allotted
to one of his sons who became a naturalized Filipino.
The Court did not allow the original vendor to have the
sale annulled and to recover the property, for the
reason that the land has since become the property of a
naturalized Filipino citizen who is constitutionally
qualified to own land.
Likewise, in the cases of Sarsosa vs. Cuenco,[25]
Godinez vs. Pak Luen,[26] Vasquez vs. Li Seng Giap[27]
and Herrera vs. Luy Kim Guan,[28] which similarly
involved the sale of land to an alien who thereafter sold
the same to a Filipino citizen, the Court again applied
the rule that the subsequent sale can no longer be
impugned on the basis of the invalidity of the initial
transfer.
The rationale of this principle was explained in Vasquez
vs. Li Seng Giap thus:
x x x [I]f the ban on aliens from acquiring not only
agricultural but also urban lands, as construed by this
Court in the Krivenko case, is to preserve the nations
lands for future generations of Filipinos, that aim or
purpose would not be thwarted but achieved by making
lawful the acquisition of real estate by aliens who
became Filipino citizens by naturalization.[29]
Accordingly, since the disputed land is now owned by
Private Respondent Cataniag, a Filipino citizen, the prior
invalid transfer can no longer be assailed. The objective
of the constitutional provision -- to keep our land in
Filipino hands -- has been served.
WHEREFORE, the petition is hereby DENIED. The
challenged Decision is AFFIRMED. Costs against
petitioner.
SO ORDERED.
Davide, Jr. (Chairman), Bellosillo, Vitug and Quisumbing,
JJ., concur.
[1] Rollo, pp. 19-30.
[2] Ninth Division, composed of JJ. Cezar D. Francisco,
ponente; Gloria C. Paras (chairman) and Buenaventura
J. Guerrero, concurring.
[3] Assailed Decision, p. 12; Rollo, p. 30.
[4] Assailed Decision, p. 2; Rollo, p. 20.
[5] ART. 1621. The owners of adjoining lands shall also
have the right of redemption when a piece of rural land,
the area of which does not exceed one hectare, is
alienated, unless the grantee does not own any rural
land.
This right is not applicable to adjacent lands which are
separated by brooks, drains, ravines, roads and other
apparent servitudes for the benefit of other estates.
If two or more adjoining owners desire to exercise the
right of redemption at the same time, the owner of the
adjoining land of smaller area shall be preferred; and
should both lands have the same area, the one who first
requested the redemption.
[6] CA Rollo, pp. 29-31.
[7] Penned by Judge Valentin R. Cruz.
[8] 138 SCRA 78, August 7, 1985.
[9] 121 SCRA 244, March 28, 1983.
[10] This case was considered submitted for resolution
upon receipt by this Court of petitioners memorandum
on November 8, 1996.
[11] Petition, p. 6; Rollo, p. 12.
[12] First Philippine International Bank vs. Court of
Appeals, 252 SCRA 259, January 24, 1996.
[13] Fuentes vs. Court of Appeals, 268 SCRA 703,
February 26, 1997; Geronimo vs. Court of Appeals, 224
SCRA 494, July 5, 1993. See also Lacanilao vs. Court of
Appeals, 262 SCRA 486, September 26, 1996; Verendia
vs. Court of Appeals, 217 SCRA 417, January 22, 1993.
[14] RTC decision, p. 3; CA Rollo, p. 31.
[15] Tolentino, Ibid.; Cortes vs. Flores, 47 Phil 992,
September 6, 1924.
[16] Tolentino, Civil Code of the Philippines, 1992 ed.,
Vol. V, p. 182; Del Pilar vs. Catindig, 35 Phil 263,
November 4, 1916.

[17] 79 Phil 461, November 15, 1947, per Moran, CJ.

[18] Ibid., pp. 473-474.

[19] 239 SCRA 341, December 20, 1994, per Quiason, J.

[20] At p. 346.

[21] Cf. Ramirez vs. Vda. de Ramirez, 111 SCRA 704,

February 15, 1982.

[22] United Church Board of World Ministries vs.

Sebastian, 159 SCRA 446, 451-452, March 30, 1988; per
Cruz, J. See also Tejido vs. Zamacoma, 138 SCRA 78,
August 7, 1985; Sarsosa vda. de Barsobia vs. Cuenco,
113 SCRA 547, April 16, 1982; Godinez vs. Fong Pak
Luen, 120 SCRA 223, January 27, 1983; Yap vs.
Maravillas, 121 SCRA 244, March 28, 1983; De Castro vs.
Tan, 129 SCRA 85, April 30, 1984.

[23] Ibid.

[24] Supra.

[25] Supra.

[26] Supra.

[27] 96 Phil 447, January 31, 1955, per Padilla, J.

[28] 1 SCRA 406, January 31, 1961, per Barrera, J.

[29] Supra, p. 453.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127255 June 26, 1998
JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN HENRY R.
OSMEÑA, WIGBERTO E. TAÑADA, and RONALDO B.
ZAMORA, petitioners,
vs.
JOSE DE VENECIA, RAUL DAZA, RODOLFO ALBANO, THE
EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE,
AND THE COMMISSIONER OF INTERNAL REVENUE,
respondents.
MENDOZA, J.:
Petitioners seek a rehearing and reconsideration of the
Court's decision dismissing their petition for certiorari
and prohibition. Basically, their contention is that when
the Majority Leader (Rep. Rodolfo Albano) moved for
the approval of the conference committee report on
the bill that became R.A. No. 8240, leading the Chair
(Deputy Speaker Raul Daza) to ask if there was any
objection to the motion, and Rep. Joker P. Arroyo
asked, "What is that, Mr. Speaker?", the Chair allegedly
ignored him and instead declared the report approved.
Petitioners claim that the question "What is that, Mr.
Speaker?" was a privileged question or a point of order
which, under the rules of the House, has precedence
over other matters, with the exception of motions to
adjourn.
The contention has no merit. Rep. Arroyo did not have
floor. Without first drawing the attention of the Chair,
he simply stood up and started talking. As a result, the
Chair did not hear him and proceeded to ask if there
were objections to the Majority Leader's motion.
Hearing none, he declared the report approved. Rule
XVI, §96 of the Rules of the House of Representatives
provides:
§96. Manner of Addressing the Chair. — When a
member desires to speak, he shall rise and respectfully
address the Chair "Mr. Speaker."
The Rules of the Senate are even more emphatic. Rule
XXVI, §59 says:
§59. Whenever a Senator wishes to speak, he shall rise
and request the President or the Presiding Officer to
allow him to have the floor which consent shall be
necessary before he may proceed.
If various Senators wish to have the floor, the President
or Presiding Officer shall recognize the one who first
made the request.
Indeed, the transcript of the proceedings of November
21, 1996 1 shows that after complaining that he was
being "hurried" by the Majority Leader to finish his
interpellation of the sponsor (Rep. Javier) of the
conference committee report Rep. Arroyo concluded
and then sat down. However, when the Majority Leader
moved for the approval of the conference committee
report and the Chair asked if there was any objection to
the motion, Rep. Arroyo stood up again and, without
requesting to be recognized, asked, "What is that, Mr.
Speaker?" Apparently, the Chair did not hear Rep.
Arroyo since his attention was on the Majority Leader.
Thus, he proceeded to ask if there was any objection
and, hearing none, declared the report approved and
brought down the gavel. At that point, Rep. Arroyo
shouted, "No, no, no, wait a minute," and asked what
the question was. Only after he had been told that the
Chair had called for objection to the motion for
approval of the report did Rep. Arroyo register his
objection. It is not, therefore, true that Rep. Arroyo was
ignored. He was simply not heard because he had not
first obtained recognition from the Chair.
Nor is it correct to say that the question ("What is that,
Mr. Speaker?'') he was raising was a question of
privilege or a point of older. Rule XX, §121 of the Rules
of the House defines a question of privilege as follows
—
Sec. 121. Definition. — Questions of privilege are those
affecting the duties, conduct, rights, privileges, dignity,
integrity or reputation of the House or of its members,
collectively or individually.
while a point of order is defined as follows —
Points of order or questions of order are legislative
devices used in requiring the House or any of its
Members to observe its own rules and to follow regular
or established parliamentary procedure. In effect, they
are either objections to pending proceedings as
violative of some of those rules or demands for
immediate return to the aforementioned parliamentary
procedure. 2

Petitioners further charge that there was a disregard of
Rule XIX, §112 and Rule XVII, §103 of the Rules of the
House which require that the Chair should state a
motion and ask for the individual votes of the members
instead of merely asking whether there was any
objection to the motion. As explained already in the
decision in this case, the practice in cases involving the
approval of a conference committee report is for the
Chair simply to ask if there are objections to the motion
for approval of the report. This practice is well-
established and is as much a part of parliamentary law
as the formal rules of the House. As then Majority
Leader Arturo M. Tolentino explained in 1957 when this
practice was questioned:
MR. TOLENTINO. The fact that nobody objects means a
unanimous action of the House. Insofar as the matter of
procedure is concerned, this has been a precedent since
I came here seven years ago, and it has been the
procedure in this House that if somebody objects, then
a debate follows and after the debate, then the voting
comes in.
xxx xxx xxx
Mr. Speaker, a point of order was raised by the
gentleman from Leyte, and I wonder what his attitude is
now on his point of order. I should just like to state that
I believe that we have had a substantial compliance
with the Rules. The Rule invoked is not one that refers
to statutory or constitutional requirement, and a
substantial compliance, to my mind, is sufficient. When
the Chair announces the vote by saying "Is there any
objection?" and nobody objects, then the Chair
announces "The bill is approved on second reading." If
there was any doubt as to the vote, any motion to
divide would have been proper. So, if that motion is not
presented, we assume that the House approves the
measure. So I believe there is substantial compliance
here, and if anybody wants a division of the House he
can always ask for it, and the Chair can announce how
many are in favor and how many are against. 3
At all events, Rep. Arroyo could have asked for a
reconsideration of the ruling of the Chair declaring the
conference committee report approved. It is not true he
was prevented from doing so. The session was
suspended, obviously to settle the matter amicably.
From all appearances, the misunderstanding was
patched up during the nearly hour-long suspension
because, after the session was resumed, Rep. Arroyo
did not say anything anymore. As the Journal of
November 21, 1996 of the House shows, the session
was thereafter adjourned.
On the same day, the bill was signed by the Speaker of
the House and the President of the Senate, and certified
by the respective secretaries of both houses of Congress
as having been finally passed. The following day, the bill
was signed into law by the President of the Philippines.
Finally, petitioners take exception to the following
statement in the decision that "The question of quorum
cannot be raised repeatedly — especially when the
quorum is obviously present — for the purpose of
delaying the business of the House." 4 They contend
that, following this ruling, even if only 10 members of
the House remain in the session hall because the others
have gone home, the quorum may not be questioned.
That was not the situation in this case, however. As
noted in the decision, at 11:48 a.m. on November 21,
1996, Rep. Arroyo questioned the existence of a
quorum, but after a roll call, it was found that was one.
After that, he announced he would again question the
quorum, apparently to delay the voting on the
conference report. Hence, the statement in the decision
that the question of quorum cannot repeatedly be
raised for the purpose of delaying the business of the
House.
In sum, there is no basis for the charge that the
approval of the conference committee report on what
later became R.A. No. 8240 was railroaded through the
House of Representatives. Nor is there any need for
petitioners to invoke the power of this Court under Art.
VIII, §1 of the Constitution to determine whether, in
enacting R.A. No. 8240, the House of Representatives
acted with grave abuse of discretion, since that is what
we have precisely done, although the result of our
review may not be what petitioners want. It should be
added that, even if petitioners' allegations are true, the
disregard of the rules in this case would not affect the
validity of R.A. No. 8240, the rules allegedly violated
being merely internal rules of procedure of the House
rather than constitutional requirements for the
enactment of laws. It is well settled that a legislative act
will not be declared invalid for non-compliance with
internal rules.
WHEREFORE, the motion for rehearing and
reconsideration is DENIED with FINALITY.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Kapunan, Martinez, Quisumbing and
Purisima, JJ., concur.

Vitug, J., I reiterate my separate (concurring) opinion

promulgated with the decision.

Panganiban, J., took no part.

Footnotes

1 Transcript, pp. 128-129, Supplemental Comment on

Petition, Annex 3.

2 INOCENCIO B. PAREJA, PARLIAMENTARY GUIDELINES;

HOUSE OF REPRESENTATIVES 33 (1969).

3 4 CONG. REC., 413-414 (Feb. 15, 1957).

4 Decision, pp. 18-19.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 184836 December 23, 2009
SIMON B. ALDOVINO, JR., DANILO B. FALLER AND
FERDINAND N. TALABONG, Petitioners,
vs.
COMMISSION ON ELECTIONS AND WILFREDO F. ASILO,
Respondents.
DECISION
BRION, J.:
Is the preventive suspension of an elected public official
an interruption of his term of office for purposes of the
three-term limit rule under Section 8, Article X of the
Constitution and Section 43(b) of Republic Act No. 7160
(RA 7160, or the Local Government Code)?
The respondent Commission on Elections (COMELEC)
ruled that preventive suspension is an effective
interruption because it renders the suspended public
official unable to provide complete service for the full
term; thus, such term should not be counted for the
purpose of the three-term limit rule.
The present petition1 seeks to annul and set aside this
COMELEC ruling for having been issued with grave
abuse of discretion amounting to lack or excess of
jurisdiction.
THE ANTECEDENTS
The respondent Wilfredo F. Asilo (Asilo) was elected
councilor of Lucena City for three consecutive terms: for
the 1998-2001, 2001-2004, and 2004-2007 terms,
respectively. In September 2005 or during his 2004-
2007 term of office, the Sandiganbayan preventively
suspended him for 90 days in relation with a criminal
case he then faced. This Court, however, subsequently
lifted the Sandiganbayan’s suspension order; hence, he
resumed performing the functions of his office and
finished his term.
In the 2007 election, Asilo filed his certificate of
candidacy for the same position. The petitioners Simon
B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N.
Talabong (the petitioners) sought to deny due course to
Asilo’s certificate of candidacy or to cancel it on the
ground that he had been elected and had served for
three terms; his candidacy for a fourth term therefore
violated the three-term limit rule under Section 8,
Article X of the Constitution and Section 43(b) of RA
7160.
The COMELEC’s Second Division ruled against the
petitioners and in Asilo’s favour in its Resolution of
November 28, 2007. It reasoned out that the three-
term limit rule did not apply, as Asilo failed to render
complete service for the 2004-2007 term because of the
suspension the Sandiganbayan had ordered.
The COMELEC en banc refused to reconsider the Second
Division’s ruling in its October 7, 2008 Resolution;
hence, the PRESENT PETITION raising the following
ISSUES:
1. Whether preventive suspension of an elected local
official is an interruption of the three-term limit rule;
and
2. Whether preventive suspension is considered
involuntary renunciation as contemplated in Section
43(b) of RA 7160
Thus presented, the case raises the direct issue of
whether Asilo’s preventive suspension constituted an
interruption that allowed him to run for a 4th term.
THE COURT’S RULING
We find the petition meritorious.
General Considerations
The present case is not the first before this Court on the
three-term limit provision of the Constitution, but is the
first on the effect of preventive suspension on the
continuity of an elective official’s term. To be sure,
preventive suspension, as an interruption in the term of
an elective public official, has been mentioned as an
example in Borja v. Commission on Elections.2
Doctrinally, however, Borja is not a controlling ruling; it
did not deal with preventive suspension, but with the
application of the three-term rule on the term that an
elective official acquired by succession.
a. The Three-term Limit Rule:
The Constitutional Provision Analyzed
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials,
except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of
his service for the full term for which he was elected.
Section 43 (b) of RA 7160 practically repeats the
constitutional provision, and any difference in wording
does not assume any significance in this case.
As worded, the constitutional provision fixes the term
of a local elective office and limits an elective official’s
stay in office to no more than three consecutive terms.
This is the first branch of the rule embodied in Section
8, Article X.
Significantly, this provision refers to a "term" as a
period of time – three years – during which an official
has title to office and can serve. Appari v. Court of
Appeals,3 a Resolution promulgated on November 28,
2007, succinctly discusses what a "term" connotes, as
follows:
The word "term" in a legal sense means a fixed and
definite period of time which the law describes that an
officer may hold an office. According to Mechem, the
term of office is the period during which an office may
be held. Upon expiration of the officer’s term, unless he
is authorized by law to holdover, his rights, duties and
authority as a public officer must ipso facto cease. In
the law of public officers, the most and natural frequent
method by which a public officer ceases to be such is by
the expiration of the terms for which he was elected or
appointed. [Emphasis supplied].1avvphi1
A later case, Gaminde v. Commission on Audit,4
reiterated that "[T]he term means the time during
which the officer may claim to hold office as of right,
and fixes the interval after which the several
incumbents shall succeed one another."
The "limitation" under this first branch of the provision
is expressed in the negative – "no such official shall
serve for more than three consecutive terms." This
formulation – no more than three consecutive terms –
is a clear command suggesting the existence of an
inflexible rule. While it gives no exact indication of what
to "serve. . . three consecutive terms" exactly connotes,
the meaning is clear – reference is to the term, not to
the service that a public official may render.1awphi1 In
other words, the limitation refers to the term.
The second branch relates to the provision’s express
initiative to prevent any circumvention of the limitation
through voluntary severance of ties with the public
office; it expressly states that voluntary renunciation of
office "shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected." This declaration complements the term
limitation mandated by the first branch.
A notable feature of the second branch is that it does
not textually state that voluntary renunciation is the
only actual interruption of service that does not affect
"continuity of service for a full term" for purposes of the
three-term limit rule. It is a pure declaratory statement
of what does not serve as an interruption of service for
a full term, but the phrase "voluntary renunciation," by
itself, is not without significance in determining
constitutional intent.
The word "renunciation" carries the dictionary meaning
of abandonment. To renounce is to give up, abandon,
decline, or resign.5 It is an act that emanates from its
author, as contrasted to an act that operates from the
outside. Read with the definition of a "term" in mind,
renunciation, as mentioned under the second branch of
the constitutional provision, cannot but mean an act
that results in cutting short the term, i.e., the loss of
title to office. The descriptive word "voluntary" linked
together with "renunciation" signifies an act of
surrender based on the surenderee’s own freely
exercised will; in other words, a loss of title to office by
conscious choice. In the context of the three-term limit
rule, such loss of title is not considered an interruption
because it is presumed to be purposely sought to avoid
the application of the term limitation.
The following exchanges in the deliberations of the
Constitutional Commission on the term "voluntary
renunciation" shed further light on the extent of the
term "voluntary renunciation":
MR. MAAMBONG. Could I address the clarificatory
question to the Committee? This term "voluntary
renunciation" does not appear in Section 3 [of Article
VI]; it also appears in Section 6 [of Article VI].
MR DAVIDE. Yes.
MR. MAAMBONG. It is also a recurring phrase all over
the Constitution. Could the Committee please enlighten
us exactly what "voluntary renunciation" mean? Is this
akin to abandonment?
MR. DAVIDE. Abandonment is voluntary. In other
words, he cannot circumvent the restriction by merely
resigning at any given time on the second term.
MR. MAAMBONG. Is the Committee saying that the
term "voluntary renunciation" is more general than
abandonment and resignation?
MR. DAVIDE. It is more general, more embracing.6
From this exchange and Commissioner Davide’s
expansive interpretation of the term "voluntary
renunciation," the framers’ intent apparently was to
close all gaps that an elective official may seize to
defeat the three-term limit rule, in the way that
voluntary renunciation has been rendered unavailable
as a mode of defeating the three-term limit rule.
Harking back to the text of the constitutional provision,
we note further that Commissioner Davide’s view is
consistent with the negative formulation of the first
branch of the provision and the inflexible interpretation
that it suggests.
This examination of the wording of the constitutional
provision and of the circumstances surrounding its
formulation impresses upon us the clear intent to make
term limitation a high priority constitutional objective
whose terms must be strictly construed and which
cannot be defeated by, nor sacrificed for, values of less
than equal constitutional worth. We view preventive
suspension vis-à-vis term limitation with this firm
mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule
Other than the above-cited materials, jurisprudence
best gives us a lead into the concepts within the
provision’s contemplation, particularly on the
"interruption in the continuity of service for the full
term" that it speaks of.
Lonzanida v. Commission on Elections7 presented the
question of whether the disqualification on the basis of
the three-term limit applies if the election of the public
official (to be strictly accurate, the proclamation as
winner of the public official) for his supposedly third
term had been declared invalid in a final and executory
judgment. We ruled that the two requisites for the
application of the disqualification (viz., 1. that the
official concerned has been elected for three
consecutive terms in the same local government post;
and 2. that he has fully served three consecutive terms)
were not present. In so ruling, we said:
The clear intent of the framers of the constitution to bar
any attempt to circumvent the three-term limit by a
voluntary renunciation of office and at the same time
respect the people’s choice and grant their elected
official full service of a term is evident in this provision.
Voluntary renunciation of a term does not cancel the
renounced term in the computation of the three term
limit; conversely, involuntary severance from office for
any length of time short of the full term provided by law
amounts to an interruption of continuity of service. The
petitioner vacated his post a few months before the
next mayoral elections, not by voluntary renunciation
but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect. Such
involuntary severance from office is an interruption of
continuity of service and thus, the petitioner did not
fully serve the 1995-1998 mayoral term. [Emphasis
supplied]
Our intended meaning under this ruling is clear: it is
severance from office, or to be exact, loss of title, that
renders the three-term limit rule inapplicable.
Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida,
also involved the issue of whether there had been a
completed term for purposes of the three-term limit
disqualification. These cases, however, presented an
interesting twist, as their final judgments in the
electoral contest came after the term of the contested
office had expired so that the elective officials in these
cases were never effectively unseated.
Despite the ruling that Ong was never entitled to the
office (and thus was never validly elected), the Court
concluded that there was nevertheless an election and
service for a full term in contemplation of the three-
term rule based on the following premises: (1) the final
decision that the third-termer lost the election was
without practical and legal use and value, having been
promulgated after the term of the contested office had
expired; and (2) the official assumed and continuously
exercised the functions of the office from the start to
the end of the term. The Court noted in Ong the
absurdity and the deleterious effect of a contrary view –
that the official (referring to the winner in the election
protest) would, under the three-term rule, be
considered to have served a term by virtue of a
veritably meaningless electoral protest ruling, when
another actually served the term pursuant to a
proclamation made in due course after an election. This
factual variation led the Court to rule differently from
Lonzanida.
In the same vein, the Court in Rivera rejected the theory
that the official who finally lost the election contest was
merely a "caretaker of the office" or a mere "de facto
officer." The Court obeserved that Section 8, Article X of
the Constitution is violated and its purpose defeated
when an official fully served in the same position for
three consecutive terms. Whether as "caretaker" or "de
facto" officer, he exercised the powers and enjoyed the
perquisites of the office that enabled him "to stay on
indefinitely."
Ong and Rivera are important rulings for purposes of
the three-term limitation because of what they directly
imply. Although the election requisite was not actually
present, the Court still gave full effect to the three-term
limitation because of the constitutional intent to strictly
limit elective officials to service for three terms. By so
ruling, the Court signalled how zealously it guards the
three-term limit rule. Effectively, these cases teach us to
strictly interpret the term limitation rule in favor of
limitation rather than its exception.
Adormeo v. Commission on Elections10 dealt with the
effect of recall on the three-term limit disqualification.
The case presented the question of whether the
disqualification applies if the official lost in the regular
election for the supposed third term, but was elected in
a recall election covering that term. The Court upheld
the COMELEC’s ruling that the official was not elected
for three (3) consecutive terms. The Court reasoned out
that for nearly two years, the official was a private
citizen; hence, the continuity of his mayorship was
disrupted by his defeat in the election for the third
term.
Socrates v. Commission on Elections11 also tackled
recall vis-à-vis the three-term limit disqualification.
Edward Hagedorn served three full terms as mayor. As
he was disqualified to run for a fourth term, he did not
participate in the election that immediately followed his
third term. In this election, the petitioner Victorino
Dennis M. Socrates was elected mayor. Less than 1 ½
years after Mayor Socrates assumed the functions of
the office, recall proceedings were initiated against him,
leading to the call for a recall election. Hagedorn filed
his certificate of candidacy for mayor in the recall
election, but Socrates sought his disqualification on the
ground that he (Hagedorn) had fully served three terms
prior to the recall election and was therefore
disqualified to run because of the three-term limit rule.
We decided in Hagedorn’s favor, ruling that:
After three consecutive terms, an elective local official
cannot seek immediate reelection for a fourth term.
The prohibited election refers to the next regular
election for the same office following the end of the
third consecutive term. Any subsequent election, like a
recall election, is no longer covered by the prohibition
for two reasons. First, a subsequent election like a recall
election is no longer an immediate reelection after
three consecutive terms. Second, the intervening period
constitutes an involuntary interruption in the continuity
of service.
When the framers of the Constitution debated on the
term limit of elective local officials, the question asked
was whether there would be no further election after
three terms, or whether there would be "no immediate
reelection" after three terms.
xxxx
Clearly, what the Constitution prohibits is an immediate
reelection for a fourth term following three consecutive
terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the
reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term
following the third consecutive term is a subsequent
election but not an immediate reelection after the third
term.
Neither does the Constitution prohibit one barred from
seeking immediate reelection to run in any other
subsequent election involving the same term of office.
What the Constitution prohibits is a consecutive fourth
term.12
Latasa v. Commission on Elections13 presented the
novel question of whether a municipal mayor who had
fully served for three consecutive terms could run as
city mayor in light of the intervening conversion of the
municipality into a city. During the third term, the
municipality was converted into a city; the cityhood
charter provided that the elective officials of the
municipality shall, in a holdover capacity, continue to
exercise their powers and functions until elections were
held for the new city officials. The Court ruled that the
conversion of the municipality into a city did not
convert the office of the municipal mayor into a local
government post different from the office of the city
mayor – the territorial jurisdiction of the city was the
same as that of the municipality; the inhabitants were
the same group of voters who elected the municipal
mayor for 3 consecutive terms; and they were the same
inhabitants over whom the municipal mayor held power
and authority as their chief executive for nine years. The
Court said:
This Court reiterates that the framers of the
Constitution specifically included an exception to the
people’s freedom to choose those who will govern
them in order to avoid the evil of a single person
accumulating excessive power over a particular
territorial jurisdiction as a result of a prolonged stay in
the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three
consecutive terms as a municipal mayor would
obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed
another three consecutive terms as mayor of the City of
Digos, petitioner would then be possibly holding office
as chief executive over the same territorial jurisdiction
and inhabitants for a total of eighteen consecutive
years. This is the very scenario sought to be avoided by
the Constitution, if not abhorred by it.14
Latasa instructively highlights, after a review of
Lonzanida, Adormeo and Socrates, that no three-term
limit violation results if a rest period or break in the
service between terms or tenure in a given elective post
intervened. In Lonzanida, the petitioner was a private
citizen with no title to any elective office for a few
months before the next mayoral elections. Similarly, in
Adormeo and Socrates, the private respondents lived as
private citizens for two years and fifteen months,
respectively. Thus, these cases establish that the law
contemplates a complete break from office during
which the local elective official steps down and ceases
to exercise power or authority over the inhabitants of
the territorial jurisdiction of a particular local
government unit.
Seemingly differing from these results is the case of
Montebon v. Commission on Elections,15 where the
highest-ranking municipal councilor succeeded to the
position of vice-mayor by operation of law. The
question posed when he subsequently ran for councilor
was whether his assumption as vice-mayor was an
interruption of his term as councilor that would place
him outside the operation of the three-term limit rule.
We ruled that an interruption had intervened so that he
could again run as councilor. This result seemingly
deviates from the results in the cases heretofore
discussed since the elective official continued to hold
public office and did not become a private citizen during
the interim. The common thread that identifies
Montebon with the rest, however, is that the elective
official vacated the office of councilor and assumed the
higher post of vice-mayor by operation of law. Thus, for
a time he ceased to be councilor – an interruption that
effectively placed him outside the ambit of the three-
term limit rule.
c. Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption"
of a term exempting an elective official from the three-
term limit rule is one that involves no less than the
involuntary loss of title to office. The elective official
must have involuntarily left his office for a length of
time, however short, for an effective interruption to
occur. This has to be the case if the thrust of Section 8,
Article X and its strict intent are to be faithfully served,
i.e., to limit an elective official’s continuous stay in
office to no more than three consecutive terms, using
"voluntary renunciation" as an example and standard of
what does not constitute an interruption.
Thus, based on this standard, loss of office by operation
of law, being involuntary, is an effective interruption of
service within a term, as we held in Montebon. On the
other hand, temporary inability or disqualification to
exercise the functions of an elective post, even if
involuntary, should not be considered an effective
interruption of a term because it does not involve the
loss of title to office or at least an effective break from
holding office; the office holder, while retaining title, is
simply barred from exercising the functions of his office
for a reason provided by law.
An interruption occurs when the term is broken
because the office holder lost the right to hold on to his
office, and cannot be equated with the failure to render
service. The latter occurs during an office holder’s term
when he retains title to the office but cannot exercise
his functions for reasons established by law. Of course,
the term "failure to serve" cannot be used once the
right to office is lost; without the right to hold office or
to serve, then no service can be rendered so that none
is really lost.
To put it differently although at the risk of repetition,
Section 8, Article X – both by structure and substance –
fixes an elective official’s term of office and limits his
stay in office to three consecutive terms as an inflexible
rule that is stressed, no less, by citing voluntary
renunciation as an example of a circumvention. The
provision should be read in the context of interruption
of term, not in the context of interrupting the full
continuity of the exercise of the powers of the elective
position. The "voluntary renunciation" it speaks of
refers only to the elective official’s voluntary
relinquishment of office and loss of title to this office. It
does not speak of the temporary "cessation of the
exercise of power or authority" that may occur for
various reasons, with preventive suspension being only
one of them. To quote Latasa v. Comelec:16
Indeed, [T]he law contemplates a rest period during
which the local elective official steps down from office
and ceases to exercise power or authority over the
inhabitants of the territorial jurisdiction of a particular
local government unit. [Emphasis supplied].
Preventive Suspension and the Three-Term Limit Rule
a. Nature of Preventive Suspension
Preventive suspension – whether under the Local
Government Code,17 the Anti-Graft and Corrupt
Practices Act,18 or the Ombudsman Act19 – is an
interim remedial measure to address the situation of an
official who have been charged administratively or
criminally, where the evidence preliminarily indicates
the likelihood of or potential for eventual guilt or
liability.
Preventive suspension is imposed under the Local
Government Code "when the evidence of guilt is strong
and given the gravity of the offense, there is a
possibility that the continuance in office of the
respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and
other evidence." Under the Anti-Graft and Corrupt
Practices Act, it is imposed after a valid information
(that requires a finding of probable cause) has been
filed in court, while under the Ombudsman Act, it is
imposed when, in the judgment of the Ombudsman, the
evidence of guilt is strong; and (a) the charge involves
dishonesty, oppression or grave misconduct or neglect
in the performance of duty; or (b) the charges would
warrant removal from the service; or (c) the
respondent’s continued stay in office may prejudice the
case filed against him.
Notably in all cases of preventive suspension, the
suspended official is barred from performing the
functions of his office and does not receive salary in the
meanwhile, but does not vacate and lose title to his
office; loss of office is a consequence that only results
upon an eventual finding of guilt or liability.
Preventive suspension is a remedial measure that
operates under closely-controlled conditions and gives a
premium to the protection of the service rather than to
the interests of the individual office holder. Even then,
protection of the service goes only as far as a temporary
prohibition on the exercise of the functions of the
official’s office; the official is reinstated to the exercise
of his position as soon as the preventive suspension is
lifted. Thus, while a temporary incapacity in the exercise
of power results, no position is vacated when a public
official is preventively suspended. This was what exactly
happened to Asilo.
That the imposition of preventive suspension can be
abused is a reality that is true in the exercise of all
powers and prerogative under the Constitution and the
laws. The imposition of preventive suspension,
however, is not an unlimited power; there are
limitations built into the laws20 themselves that the
courts can enforce when these limitations are
transgressed, particularly when grave abuse of
discretion is present. In light of this well-defined
parameters in the imposition of preventive suspension,
we should not view preventive suspension from the
extreme situation – that it can totally deprive an
elective office holder of the prerogative to serve and is
thus an effective interruption of an election official’s
term.
Term limitation and preventive suspension are two
vastly different aspects of an elective officials’ service in
office and they do not overlap. As already mentioned
above, preventive suspension involves protection of the
service and of the people being served, and prevents
the office holder from temporarily exercising the power
of his office. Term limitation, on the other hand, is
triggered after an elective official has served his three
terms in office without any break. Its companion
concept – interruption of a term – on the other hand,
requires loss of title to office. If preventive suspension
and term limitation or interruption have any
commonality at all, this common point may be with
respect to the discontinuity of service that may occur in
both. But even on this point, they merely run parallel to
each other and never intersect; preventive suspension,
by its nature, is a temporary incapacity to render service
during an unbroken term; in the context of term
limitation, interruption of service occurs after there has
been a break in the term.

b. Preventive Suspension and the Intent of the Three-
Term Limit Rule
Strict adherence to the intent of the three-term limit
rule demands that preventive suspension should not be
considered an interruption that allows an elective
official’s stay in office beyond three terms. A preventive
suspension cannot simply be a term interruption
because the suspended official continues to stay in
office although he is barred from exercising the
functions and prerogatives of the office within the
suspension period. The best indicator of the suspended
official’s continuity in office is the absence of a
permanent replacement and the lack of the authority to
appoint one since no vacancy exists.
To allow a preventively suspended elective official to
run for a fourth and prohibited term is to close our eyes
to this reality and to allow a constitutional violation
through sophistry by equating the temporary inability to
discharge the functions of office with the interruption
of term that the constitutional provision contemplates.
To be sure, many reasons exist, voluntary or involuntary
– some of them personal and some of them by
operation of law – that may temporarily prevent an
elective office holder from exercising the functions of
his office in the way that preventive suspension does. A
serious extended illness, inability through force
majeure, or the enforcement of a suspension as a
penalty, to cite some involuntary examples, may
prevent an office holder from exercising the functions
of his office for a time without forfeiting title to office.
Preventive suspension is no different because it disrupts
actual delivery of service for a time within a term.
Adopting such interruption of actual service as the
standard to determine effective interruption of term
under the three-term rule raises at least the possibility
of confusion in implementing this rule, given the many
modes and occasions when actual service may be
interrupted in the course of serving a term of office. The
standard may reduce the enforcement of the three-
term limit rule to a case-to-case and possibly see-
sawing determination of what an effective interruption
is.
c. Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by
operation of law, does not involve a voluntary act on
the part of the suspended official, except in the indirect
sense that he may have voluntarily committed the act
that became the basis of the charge against him. From
this perspective, preventive suspension does not have
the element of voluntariness that voluntary
renunciation embodies. Neither does it contain the
element of renunciation or loss of title to office as it
merely involves the temporary incapacity to perform
the service that an elective office demands. Thus
viewed, preventive suspension is – by its very nature –
the exact opposite of voluntary renunciation; it is
involuntary and temporary, and involves only the actual
delivery of service, not the title to the office. The easy
conclusion therefore is that they are, by nature,
different and non-comparable.
But beyond the obvious comparison of their respective
natures is the more important consideration of how
they affect the three-term limit rule.
Voluntary renunciation, while involving loss of office
and the total incapacity to render service, is disallowed
by the Constitution as an effective interruption of a
term. It is therefore not allowed as a mode of
circumventing the three-term limit rule.
Preventive suspension, by its nature, does not involve
an effective interruption of a term and should therefore
not be a reason to avoid the three-term limitation. It
can pose as a threat, however, if we shall disregard its
nature and consider it an effective interruption of a
term. Let it be noted that a preventive suspension is
easier to undertake than voluntary renunciation, as it
does not require relinquishment or loss of office even
for the briefest time. It merely requires an easily
fabricated administrative charge that can be dismissed
soon after a preventive suspension has been imposed.
In this sense, recognizing preventive suspension as an
effective interruption of a term can serve as a
circumvention more potent than the voluntary
renunciation that the Constitution expressly disallows
as an interruption.
Conclusion
To recapitulate, Asilo’s 2004-2007 term was not
interrupted by the Sandiganbayan-imposed preventive
suspension in 2005, as preventive suspension does not
interrupt an elective official’s term. Thus, the COMELEC
refused to apply the legal command of Section 8, Article
X of the Constitution when it granted due course to
Asilo’s certificate of candidacy for a prohibited fourth
term. By so refusing, the COMELEC effectively
committed grave abuse of discretion amounting to lack
or excess of jurisdiction; its action was a refusal to
perform a positive duty required by no less than the
Constitution and was one undertaken outside the 2 329 Phil. 409 (1996).
contemplation of law.21
3 G.R. No. L-30057, January 31, 1984, 127 SCRA 231,
WHEREFORE, premises considered, we GRANT the 240.
petition and accordingly NULLIFY the assailed COMELEC
rulings. The private respondent Wilfredo F. Asilo is 4 401 Phil. 77, 88 (2000).
declared DISQUALIFIED to run, and perforce to serve, as
Councilor of Lucena City for a prohibited fourth term. 5 Webster’s Third New International Dictionary (1993),
Costs against private respondent Asilo. p. 1922.

SO ORDERED. 6 II RECORD, Constitutional Commission 591 (August 1,

1986).
ARTURO D. BRION
Associate Justice 7 G.R. No. 135150, July 28, 1999, 311 SCRA 602.

WE CONCUR: 8 G.R. No. 163295, January 23, 2006, 479 SCRA 473.

REYNATO S. PUNO 9 G.R. No. 167591, May 9, 2007, 523 SCRA 41.
Chief Justice
ANTONIO T. CARPIO 10 426 Phil. 472 (2002).
Acting Chief Justice CONCHITA CARPIO MORALES
Associate Justice 11 440 Phil. 106 (2002).
ANTONIO EDUARDO B. NACHURA
Associate Justice DIOSDADO M. PERALTA 12 Id. at 125-127.
Associate Justice
RENATO C. CORONA 13 G.R. No. 154829, December 10, 2003, 417 SCRA 601.
Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice 14 Id. at 312-313.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice LUCAS P. BERSAMIN 15 G.R. No. 180444, April 9, 2008, 551 SCRA 50.
Associate Justice
MARIANO C. DEL CASTILLO 16 Supra note 12.
Associate Justice ROBERTO A. ABAD
Associate Justice 17 RA 7160, Sections 63 and 64.

MARTIN S. VILLARAMA, JR. 18 RA 3019, Section 13.

Associate Justice
19 RA 6770, Sections 24 and 25.
CERTIFICATION
20 See: Sec. 24, R.A. No. 6770; Sec. 63, R.A. No. 7160;
Pursuant to Section 13, Article VIII of the Constitution, it Sec. 13, R.A. No. 3019.
is hereby certified that the conclusions in the above
Decision were reached in consultation before the case 21 Grave abuse of discretion defies exact definition, but
was assigned to the writer of the opinion of the Court. it generally refers to "capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction – the
REYNATO S. PUNO abuse of discretion must be patent and gross as to
Chief Justice amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at
Footnotes all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason
1 Filed under Rule 64, in relation with Rule 65 of the of passion and hostility; Quintos v. Commission on
Rules of Court. Elections, 440 Phil. 1045, 1064 (2002), citing Sahali v.
Commission on Elections, 381 Phil. 505 (2002).
G.R. No. 154512 November 12, 2002
VICTORINO DENNIS M. SOCRATES, Mayor of Puerto
Princesa City, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE PREPARATORY
RECALL ASSEMBLY (PRA) of Puerto Princesa City, PRA
Interim Chairman Punong Bgy. MARK DAVID
HAGEDORN, PRA Interim Secretary Punong Bgy.
BENJAMIN JARILLA, PRA Chairman and Presiding Officer
Punong Bgy. EARL S. BUENVIAJE and PRA Secretary
Punong Bgy. CARLOS ABALLA, JR. respondents.
-----------------------------
G.R. No. 154683 November 12, 2002
VICENTE S. SANDOVAL, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS, respondent.
-----------------------------
G.R. Nos. 155083-84 November 12, 2002
MA. FLORES P. ADOVO, MERCY E. GILO and
BIENVENIDO OLLAVE, SR., petitioners,
vs.
THE COMMISSION ON ELECTIONS, and EDWARD S.
HAGEDORN, respondents.
DECISION
CARPIO, J.:
The Case
Before us are consolidated petitions for certiorari1
seeking the reversal of the resolutions issued by the
Commission on Elections ("COMELEC" for brevity) in
relation to the recall election for mayor of Puerto
Princesa City, Palawan.
The Antecedents
On July 2, 2002, 312 out of 528 members of the then
incumbent barangay officials of the Puerto Princesa
convened themselves into a Preparatory Recall
Assembly ("PRA" for brevity) at the Gymnasium of
Barangay San Jose from 9:00 a.m. to 12:00 noon. The
PRA was convened to initiate the recall2 of Victorino
Dennis M. Socrates ("Socrates" for brevity) who
assumed office as Puerto Princesa's mayor on June 30,
2001. The members of the PRA designated Mark David
M. Hagedorn, president of the Association of Barangay
Captains, as interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02
("Recall Resolution" for brevity) which declared its loss
of confidence in Socrates and called for his recall. The
PRA requested the COMELEC to schedule the recall
election for mayor within 30 days from receipt of the
Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a
petition, docketed as E.M. No. 02-010 (RC), to nullify
and deny due course to the Recall Resolution.
On August 14, 2002, the COMELEC en banc3
promulgated a resolution dismissing for lack of merit
Socrates' petition. The COMELEC gave due course to the
Recall Resolution and scheduled the recall election on
September 7, 2002.
On August 21, 2002, the COMELEC en banc
promulgated Resolution No. 5673 prescribing the
calendar of activities and periods of certain prohibited
acts in connection with the recall election. The
COMELEC fixed the campaign period from August 27,
2002 to September 5, 2002 or a period of 10 days.
On August 23, 2002, Edward M. Hagedorn ("Hagedorn"
for brevity) filed his certificate of candidacy for mayor in
the recall election.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for
brevity) and Merly E. Gilo ("Gilo" for brevity) filed a
petition before the COMELEC, docketed as SPA No. 02-
492, to disqualify Hagedorn from running in the recall
election and to cancel his certificate of candidacy. On
August 30, 2002, a certain Bienvenido Ollave, Sr.
("Ollave" for brevity) filed a petition-in-intervention in
SPA No. 02-492 also seeking to disqualify Hagedorn. On
the same date, a certain Genaro V. Manaay filed
another petition, docketed as SPA No. 02-539, against
Hagedorn alleging substantially the same facts and
involving the same issues. The petitions were all
anchored on the ground that "Hagedorn is disqualified
from running for a fourth consecutive term, having
been elected and having served as mayor of the city for
three (3) consecutive full terms immediately prior to the
instant recall election for the same post." Subsequently,
SPA Nos. 02-492 and 02-539 were consolidated.
In a resolution promulgated on September 20, 2002, the
COMELEC's First Division4 dismissed for lack of merit
SPA Nos. 02-492 and 02-539. The COMELEC declared
Hagedorn qualified to run in the recall election. The
COMELEC also reset the recall election from September
7, 2002 to September 24, 2002.
On September 23, 2002, the COMELEC en banc
promulgated a resolution denying the motion for
reconsideration of Adovo and Gilo. The COMELEC
affirmed the resolution declaring Hagedorn qualified to
run in the recall election.
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en
banc resolution dated August 14, 2002 in E.M. No. 02-
010 (RC) which gave due course to the Recall Resolution
and scheduled the recall election on September 7, 2002.
Socrates alleges that the COMELEC gravely abused its
discretion in upholding the Recall Resolution. Socrates
cites the following circumstances as legal infirmities
attending the convening of the PRA and its issuance of
the Recall Resolution: (1) not all members of the PRA
were notified of the meeting to adopt the resolution;
(2) the proof of service of notice was palpably and
legally deficient; (3) the members of the PRA were
themselves seeking a new electoral mandate from their
respective constituents; (4) the adoption of the
resolution was exercised with grave abuse of authority;
and (5) the PRA proceedings were conducted in a
manner that violated his and the public's constitutional
right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul
COMELEC Resolution No. 5673 dated August 21, 2002
insofar as it fixed the recall election on September 7,
2002, giving the candidates only a ten-day campaign
period. He prayed that the COMELEC be enjoined from
holding the recall election on September 7, 2002 and
that a new date be fixed giving the candidates at least
an additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en
banc enjoined the COMELEC from implementing
Resolution No. 5673 insofar as it fixed the date of the
recall election on September 7, 2002. The Court
directed the COMELEC to give the candidates an
additional fifteen 15 days from September 7, 2002
within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en
banc issued Resolution No. 5708 giving the candidates
an additional 15 days from September 7, 2002 within
which to campaign. Thus, the COMELEC reset the recall
election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELEC's
resolutions dated September 20, 2002 and September
23, 2002 in SPA Nos. 02-492 and 02-539 declaring
Hagedorn qualified to run for mayor in the recall
election. They likewise prayed for the issuance of a
temporary restraining order to enjoin the proclamation
of the winning candidate in the recall election.
Petitioners argue that the COMELEC gravely abused its
discretion in upholding Hagedorn's qualification to run
for mayor in the recall election despite the
constitutional and statutory prohibitions against a
fourth consecutive term for elective local officials.
In a resolution dated September 24, 2002, the Court
ordered the COMELEC to desist from proclaiming any
winning candidate in the recall election until further
orders from the Court. Petitioners were required to
post a P20,000 bond.
On September 27, 2002, Socrates filed a motion for
leave to file an attached petition for intervention
seeking the same reliefs as those sought by Adovo, Gilo
and Ollave.
In the meantime, Hagedorn garnered the highest
number of votes in the recall election with 20,238
votes. Rival candidates Socrates and Sandoval obtained
17,220 votes and 13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the
COMELEC from proclaiming the winning candidate and
to allow him to assume office to give effect to the will of
the electorate.
On October 1, 2002, the Court granted Socrates' motion
for leave to file a petition for intervention.
The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC
committed grave abuse of discretion in giving due
course to the Recall Resolution and scheduling the
recall election for mayor of Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn is qualified
to run for mayor in the recall election of Puerto Princesa
on September 24, 2002.
In G.R. No. 154683, the issue of whether the COMELEC
committed grave abuse of discretion in fixing a
campaign period of only 10 days has become moot. Our
Resolution of September 3, 2002 and COMELEC
Resolution No. 5708 granted an additional 15 days for
the campaign period as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC
committed grave abuse of discretion in upholding the
Recall Resolution despite the absence of notice to 130
PRA members and the defective service of notice to
other PRA members. The COMELEC, however, found
that –
"On various dates, in the month of June 2002, the
proponents for the Recall of incumbent City Mayor
Victorino Dennis M. Socrates sent notices of the
convening of the PRA to the members thereof pursuant
to Section 70 of the Local Government Code. Copies of
the said notice are in Volumes I and II entitled Notices
to PRA. Likewise, Proof of Service for each of the said
notices were attached to the Petition and marked as
Annex "G" of Volumes II and III of the Petition.
Notices were likewise posted in conspicuous places
particularly at the Barangay Hall. Photos establishing
the same were attached to the Petition and marked as
Annex "H". The proponents likewise utilized the
broadcast mass media in the dissemination of the
convening of the PRA.
Notices of the convening of the Puerto Princesa PRA
were also sent to the following: [a list of 25 names of
provincial elective officials, print and broadcast media
practitioners, PNP officials, COMELEC city, regional and
national officials, and DILG officials].
xxx
The City Election Officer of Puerto Princesa City in her
Certification dated 10 July 2002 certified that upon a
'thorough and careful verification of the signatures
appearing in PRA Resolution 01-02, x x x the majority of
all members of the PRA concerned approved said
resolution.' She likewise certified 'that not a single
member/signatory of the PRA complained or objected
as to the veracity and authenticity of their signatures.'
The Provincial Election Supervisor of Palawan, Atty.
Urbano Arlando, in his Indorsement dated 10 July 2002,
stated, 'upon proper review, all documents submitted
are found in order.'
The Acting Director IV, Region IV, in his study dated 30
July 2002 submitted the following recommendations:
'This Office, after evaluating the documents filed, finds
the instant Petition sufficient in form and substance.
That the PRA was validly constituted and that the
majority of all members thereof approved Resolution
No. 01-02 calling for the recall of Mayor Victorino
Dennis M. Socrates.'
x x x ."
This Court is bound by the findings of fact of the
COMELEC on matters within the competence and
expertise of the COMELEC, unless the findings are
patently erroneous. In Malonzo v. COMELEC,5 which
also dealt with alleged defective service of notice to
PRA members, we ruled that –
"Needless to state, the issue of propriety of the notices
sent to the PRA members is factual in nature, and the
determination of the same is therefore a function of the
COMELEC. In the absence of patent error, or serious
inconsistencies in the findings, the Court should not
disturb the same. The factual findings of the COMELEC,
based on its own assessments and duly supported by
gathered evidence, are conclusive upon the court, more
so, in the absence of a substantiated attack on the
validity of the same."
In the instant case, we do not find any valid reason to
hold that the COMELEC's findings of fact are patently
erroneous.
Socrates also claims that the PRA members had no
authority to adopt the Recall Resolution on July 2, 2002
because a majority of PRA members were seeking a
new electoral mandate in the barangay elections
scheduled on July 15, 2002. This argument deserves
scant consideration considering that when the PRA
members adopted the Recall Resolution their terms of
office had not yet expired. They were all de jure
sangguniang barangay members with no legal
disqualification to participate in the recall assembly
under Section 70 of the Local Government Code.
Socrates bewails that the manner private respondents
conducted the PRA proceedings violated his
constitutional right to information on matters of public
concern. Socrates, however, admits receiving notice of
the PRA meeting and of even sending his representative
and counsel who were present during the entire PRA
proceedings. Proponents of the recall election
submitted to the COMELEC the Recall Resolution,
minutes of the PRA proceedings, the journal of the PRA
assembly, attendance sheets, notices sent to PRA
members, and authenticated master list of barangay
officials in Puerto Princesa. Socrates had the right to
examine and copy all these public records in the official
custody of the COMELEC. Socrates, however, does not
claim that the COMELEC denied him this right. There is
no legal basis in Socrates' claim that respondents
violated his constitutional right to information on
matters of public concern.
Thus, we rule that the COMELEC did not commit grave
abuse of discretion in upholding the validity of the
Recall Resolution and in scheduling the recall election
on September 24, 2002.
Second Issue: Hagedorn's qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is
found in Section 8, Article X of the Constitution, which
states:
"Section 8. The term of office of elective local officials,
except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of
his service for the full term for which he was elected."
This three-term limit rule is reiterated in Section 43 (b)
of RA No. 7160, otherwise known as the Local
Government Code, which provides:
"Section 43. Term of Office. – (a) x x x
(b) No local elective official shall serve for more than
three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of service for the full term for which the
elective official was elected."
These constitutional and statutory provisions have two
parts. The first part provides that an elective local
official cannot serve for more than three consecutive
terms. The clear intent is that only consecutive terms
count in determining the three-term limit rule. The
second part states that voluntary renunciation of office
for any length of time does not interrupt the continuity
of service. The clear intent is that involuntary severance
from office for any length of time interrupts continuity
of service and prevents the service before and after the
interruption from being joined together to form a
continuous service or consecutive terms.
After three consecutive terms, an elective local official
cannot seek immediate reelection for a fourth term.
The prohibited election refers to the next regular
election for the same office following the end of the
third consecutive term. Any subsequent election, like a
recall election, is no longer covered by the prohibition
for two reasons. First, a subsequent election like a recall
election is no longer an immediate reelection after
three consecutive terms. Second, the intervening period
constitutes an involuntary interruption in the continuity
of service.
When the framers of the Constitution debated on the
term limit of elective local officials, the question asked
was whether there would be no further election after
three terms, or whether there would be "no immediate
reelection" after three terms. This is clear from the
following deliberations of the Constitutional
Commission:
"THE PRESIDENT: The Acting Floor Leader is recognized.
MR. ROMULO:6 We are now ready to discuss the two
issues, as indicated on the blackboard, and these are
Alternative No. I where there is no further election after
a total of three terms and Alternative No. 2 where there
is no immediate reelection after three successive
terms."7
The Journal of the Constitutional Commission reports
the following manifestation on the term of elective local
officials:
"MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested
that the Body would proceed to the consideration of
two issues on the term of Representatives and local
officials, namely: 1) Alternative No. 1 (no further
reelection after a total of three terms), and 2)
Alternative No. 2 (no immediate reelection after three
successive terms)."8
The framers of the Constitution used the same "no
immediate reelection" question in voting for the term
limits of Senators9 and Representatives of the House.10
Clearly, what the Constitution prohibits is an immediate
reelection for a fourth term following three consecutive
terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the
reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term
following the third consecutive term is a subsequent
election but not an immediate reelection after the third
term.
Neither does the Constitution prohibit one barred from
seeking immediate reelection to run in any other
subsequent election involving the same term of office.
What the Constitution prohibits is a consecutive fourth
term. The debates in the Constitutional Commission
evidently show that the prohibited election referred to
by the framers of the Constitution is the immediate
reelection after the third term, not any other
subsequent election.
If the prohibition on elective local officials is applied to
any election within the three-year full term following
the three-term limit, then Senators should also be
prohibited from running in any election within the six-
year full term following their two-term limit. The
constitutional provision on the term limit of Senators is
worded exactly like the term limit of elective local
officials, thus:
"No Senator shall serve for more than two consecutive
terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption
in the continuity of his service for the full term for
which he was elected."11
In the debates on the term limit of Senators, the
following exchange in the Constitutional Convention is
instructive:
"GASCON:12 I would like to ask a question with regard
to the issue after the second term. We will allow the
Senator to rest for a period of time before he can run
again?
DAVIDE:13 That is correct.
GASCON: And the question that we left behind before -
if the Gentleman will remember - was: How long will
that period of rest be? Will it be one election which is
three years or one term which is six years?
DAVIDE: If the Gentleman will remember,
Commissioner Rodrigo expressed the view that during
the election following the expiration of the first 12
years, whether such election will be on the third or on
the sixth year thereafter, this particular member of the
Senate can run. So, it is not really a period of
hibernation for six years. That was the Committee's
stand.
GASCON: So, effectively, the period of rest would be
three years at the least."14 (Emphasis supplied)
The framers of the Constitution thus clarified that a
Senator can run after only three years15 following his
completion of two terms. The framers expressly
acknowledged that the prohibited election refers only
to the immediate reelection, and not to any subsequent
election, during the six-year period following the two
term limit. The framers of the Constitution did not
intend "the period of rest" of an elective official who
has reached his term limit to be the full extent of the
succeeding term.
In the case of Hagedorn, his candidacy in the recall
election on September 24, 2002 is not an immediate
reelection after his third consecutive term which ended
on June 30, 2001. The immediate reelection that the
Constitution barred Hagedorn from seeking referred to
the regular elections in 2001. Hagedorn did not seek
reelection in the 2001 elections.
Hagedorn was elected for three consecutive terms in
the 1992, 1995 and 1998 elections and served in full his
three consecutive terms as mayor of Puerto Princesa.
Under the Constitution and the Local Government
Code, Hagedorn could no longer run for mayor in the
2001 elections. The Constitution and the Local
Government Code disqualified Hagedorn, who had
reached the maximum three-term limit, from running
for a fourth consecutive term as mayor. Thus, Hagedorn
did not run for mayor in the 2001 elections.16 Socrates
ran and won as mayor of Puerto Princesa in the 2001
elections. After Hagedorn ceased to be mayor on June
30, 2001, he became a private citizen until the recall
election of September 24, 2002 when he won by 3,018
votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on
September 24, 2002, the mayor of Puerto Princesa was
Socrates. During the same period, Hagedorn was simply
a private citizen. This period is clearly an interruption in
the continuity of Hagedorn's service as mayor, not
because of his voluntary renunciation, but because of a
legal prohibition. Hagedorn's three consecutive terms
ended on June 30, 2001. Hagedorn's new recall term
from September 24, 2002 to June 30, 2004 is not a
seamless continuation of his previous three consecutive
terms as mayor. One cannot stitch together Hagedorn's
previous three-terms with his new recall term to make
the recall term a fourth consecutive term because
factually it is not. An involuntary interruption occurred
from June 30, 2001 to September 24, 2002 which broke
the continuity or consecutive character of Hagedorn's
service as mayor.
In Lonzanida v. Comelec,17 the Court had occasion to
explain interruption of continuity of service in this
manner:
"x x x The second sentence of the constitutional
provision under scrutiny states, "Voluntary renunciation
of office for any length of time shall not be considered
as an interruption in the continuity of service for the full
term for which he was elected." The clear intent of the
framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the
people's choice and grant their elected official full
service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced
term in the computation of the three-term limit;
conversely, involuntary severance from office for any
length of time short of the full term provided by law
amounts to an interruption of continuity of service. x x
x." (Emphasis supplied)
In Hagedorn's case, the nearly 15-month period he was
out of office, although short of a full term of three
years, constituted an interruption in the continuity of
his service as mayor. The Constitution does not require
the interruption or hiatus to be a full term of three
years. The clear intent is that interruption "for any
length of time," as long as the cause is involuntary, is
sufficient to break an elective local official's continuity
of service.
In the recent case of Adormeo v. Comelec and Talaga,18
a unanimous Court reiterated the rule that an
interruption consisting of a portion of a term of office
breaks the continuity of service of an elective local
official. In Adormeo, Ramon Y. Talaga, Jr. had served
two consecutive full terms as mayor of Lucena City. In
his third bid for election as mayor in 1998, Talaga lost to
Bernard G. Tagarao. However, in the recall election of
May 12, 2000, Talaga won and served the unexpired
term of Tagarao from May 12, 2000 to June 30, 2001.
When Talaga ran again for mayor in the 2001 elections,
Raymundo Adormeo, the other candidate for mayor,
petitioned for Talaga's disqualification on the ground
that Talaga had already served three consecutive terms
as mayor.
Thus, the issue in Adormeo was whether Talaga's recall
term was a continuation of his previous two terms so
that he was deemed to have already served three
consecutive terms as mayor. The Court ruled that
Talaga was qualified to run in the 2001 elections, stating
that the period from June 30, 1998 to May 12, 2000
when Talaga was out of office interrupted the
continuity of his service as mayor. Talaga's recall term
as mayor was not consecutive to his previous two terms
because of this interruption, there having been a break
of almost two years during which time Tagarao was the
mayor.
We held in Adormeo that the period an elective local
official is out of office interrupts the continuity of his
service and prevents his recall term from being stitched
together as a seamless continuation of his previous two
consecutive terms. In the instant case, we likewise hold
that the nearly 15 months Hagedorn was out of office
interrupted his continuity of service and prevents his
recall term from being stitched together as a seamless
continuation of his previous three consecutive terms.
The only difference between Adormeo and the instant
case is the time of the interruption. In Adormeo, the
interruption occurred after the first two consecutive
terms. In the instant case, the interruption happened
after the first three consecutive terms. In both cases,
the respondents were seeking election for a fourth
term.
In Adormeo, the recall term of Talaga began only from
the date he assumed office after winning the recall
election. Talaga's recall term did not retroact to include
the tenure in office of his predecessor. If Talaga's recall
term was made to so retroact, then he would have been
disqualified to run in the 2001 elections because he
would already have served three consecutive terms
prior to the 2001 elections. One who wins and serves a
recall term does not serve the full term of his
predecessor but only the unexpired term. The period of
time prior to the recall term, when another elective
official holds office, constitutes an interruption in
continuity of service. Clearly, Adormeo established the
rule that the winner in the recall election cannot be
charged or credited with the full term of three years for
purposes of counting the consecutiveness of an elective
official's terms in office.
In the same manner, Hagedorn's recall term does not
retroact to include the tenure in office of Socrates.
Hagedorn can only be disqualified to run in the
September 24, 2002 recall election if the recall term is
made to retroact to June 30, 2001, for only then can the
recall term constitute a fourth consecutive term. But to
consider Hagedorn's recall term as a full term of three
years, retroacting to June 30, 2001, despite the fact that
he won his recall term only last September 24, 2002, is
to ignore reality. This Court cannot declare as
consecutive or successive terms of office which
historically and factually are not.
Worse, to make Hagedorn's recall term retroact to June
30, 2001 creates a legal fiction that unduly curtails the
freedom of the people to choose their leaders through
popular elections. The concept of term limits is in
derogation of the sovereign will of the people to elect
the leaders of their own choosing. Term limits must be
construed strictly to give the fullest possible effect to
the sovereign will of the people. As this Court aptly
stated in Borja, Jr. v. Comelec:
"Thus, a consideration of the historical background of
Art. X, §8 of the Constitution reveals that the members
of the Constitutional Commission were as much
concerned with preserving the freedom of choice of the
people as they were with preventing the
monopolization of political power. Indeed, they rejected
a proposal put forth by Commissioner Edmundo F.
Garcia that after serving three consecutive terms or
nine years there should be no further reelection for
local and legislative officials. Instead, they adopted the
alternative proposal of Commissioner Christian Monsod
that such officials be simply barred from running for the
same position in the succeeding election following the
expiration of the third consecutive term. Monsod
warned against 'prescreening candidates [from] whom
the people will choose' as a result of the proposed
absolute disqualification, considering that the draft
constitution contained provisions 'recognizing people's
power.'"19 (Emphasis supplied)
A necessary consequence of the interruption of
continuity of service is the start of a new term following
the interruption. An official elected in recall election
serves the unexpired term of the recalled official. This
unexpired term is in itself one term for purposes of
counting the three-term limit. This is clear from the
following discussion in the Constitutional Commission:
"SUAREZ:20 For example, a special election is called for
a Senator, and the Senator newly elected would have to
serve the unexpired portion of the term. Would that
mean that serving the unexpired portion of the term is
already considered one term? So, half a term, which is
actually the correct statement, plus one term would
disqualify the Senator concerned from running? Is that
the meaning of this provision on disqualification,
Madam President?
DAVIDE: Yes, because we speak of 'term,' and if there is
a special election, he will serve only for the unexpired
portion of that particular term plus one more term for
the Senator and two more terms for the Members of
the Lower House."21
Although the discussion referred to special elections for
Senators and Representatives of the House, the same
principle applies to a recall election of local officials.
Otherwise, an elective local official who serves a recall
term can serve for more than nine consecutive years
comprising of the recall term plus the regular three full
terms. A local official who serves a recall term should
know that the recall term is in itself one term although
less than three years. This is the inherent limitation he
takes by running and winning in the recall election.
In summary, we hold that Hagedorn is qualified to run
in the September 24, 2002 recall election for mayor of
Puerto Princesa because:
1. Hagedorn is not running for immediate reelection
following his three consecutive terms as mayor which
ended on June 30, 2001;
2. Hagedorn's continuity of service as mayor was
involuntarily interrupted from June 30, 2001 to
September 24, 2002 during which time he was a private
citizen;
3. Hagedorn's recall term from September 24, 2002 to
June 30, 2004 cannot be made to retroact to June 30,
2001 to make a fourth consecutive term because
factually the recall term is not a fourth consecutive
term; and
4. Term limits should be construed strictly to give the
fullest possible effect to the right of the electorate to
choose their leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683
and 155083-84 are DISMISSED. The temporary
restraining order issued by this Court on September 24,
2002 enjoining the proclamation of the winning
candidate for mayor of Puerto Princesa in the recall
election of September 24, 2002 is lifted. No costs.
SO ORDERED.
Bellosillo, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio-Morales, and Callejo, Sr., JJ.,
concur.
Davide, Jr., C.J., see concurring and dissenting opinion.
Puno, J., see concurring opinion.
Vitug, J., in the result.
Mendoza, J., in the result, without to the filing of
separate opinion.
Austria-Martinez, J., on leave.
Corona, J., no part - prior consultation.
Azcuna, J., joins the separate opinion of C.J. Davide.
CONCURRING AND DISSENTING OPINION
DAVIDE, JR., C.J.:
I concur with the opinion and conclusion of Mr. Justice
Antonio T. Carpio in G.R. No. 154512 and G.R. No.
154683. The Commission on Elections (COMELEC)
committed no grave abuse of discretion in giving due
course to the Recall Resolution. Dismissal then of G.R.
No. 154512 is inevitable. This notwithstanding, I still
hold on to my dissenting view in G.R. No. 111511
(Garcia, et al. vs. COMELEC, et al., 227 SCRA 100, 121
[1993]) that the provision on the preparatory recall
assembly in Section 70 of the Local Government Code of
1991 is unconstitutional.
Our issuance of the Resolution of 3 September 2002 in
G.R. No. 154683 enjoining the COMELEC from
implementing its Resolution No. 5673 insofar as it fixed
the recall election on 7 September 2002, and the
subsequent Resolution of the COMELEC giving the
candidates an additional campaign period of fifteen
days from 7 September 2002 rendered moot and
academic the principal issue in G.R. No. 154683. The
dismissal of the petition therein is also in order.
However, I regret I cannot concur with the argument
and conclusion relative to G.R. Nos. 155083-84. I
respectfully submit that private respondent Edward S.
Hagedorn is disqualified from running for the position
of Mayor of Puerto Princesa City in the recall election in
question.
Section 8 of Article X of the Constitution expressly
provides:
SEC. 8. The term of office of elective local officials,
except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall
not be considered as an Interruption In the continuity of
his service for the full term for which he was elected.
Paragraph (b), Section 43 of R.A. No. 7160 (The Local
Government Code) restates this constitutional
restriction, thus: SEC. 43. Term of office. –
…(b) No local elective official shall serve for more than
three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of service for the full term for which the
elective official was elected.
Section 8 of Article X of the Constitution was not found
in the Report of the Committee on Local Governments
of the Constitutional Commission of 1986. It was
introduced at the plenary session by Commissioner
Hilario G. Davide, Jr. Commenting thereon in his book
entitled "The Intent of 1986 Constitution Writers" (1995
ed., p. 699), Commissioner Joaquin Bernas states:
This provision was not found among the Committee's
proposals but came as an amendment proposed by
Commissioner Davide. It was readily accepted without
much discussion and formally approved.
Section 8 sets the duration of a term at three years, and
prohibits elective local officials from serving for more
than three consecutive terms.
Pursuant to the second paragraph of Section 1 of Article
XVIII (The Transitory Provision) of the Constitution, and
Executive Order No. 270, as amended by R.A. No. 6636,
the first local election, that is, the election for the first
term under the Constitution for elective local officials,
was on 18 January 1988. By express provision of Section
5 of R.A. No. 6636, in relation to Section 2 of Article
XVIII of the Constitution, that term expired at noon of
30 June 1992. The second election, i.e., the election for
the second term of elective local officials which expired
at noon of 30 June 1995, for elective local officials, was
on the second Monday of May 1992 pursuant to R.A.
No. 7166 (An Act Providing for Synchronized National
and Local Elections and for Electoral Reforms). The third
election, i.e., for the third term which expired at noon
of 30 June 1998, was on the second Monday of May
1995, pursuant to Section 2 of R.A. No. 7166. The fourth
election, or for the fourth term which expired at noon
of 30 June 2001, was on the second Monday of May
1998. The fifth election, i.e., for the fifth term which
would expire at noon of 30 June 2004, was on the
second Monday of May 2001.Conformably with Section
8 of Article X of the Constitution and Section 43(b) of
R.A. No. 7160, a local official elected in the first local
election of 18 January 1988 may be reelected in the
synchronized elections in May 1992 and in May 1995.
He could not seek another reelection in the May 1998
election because that would have been his fourth term.
Similarly, a local official who was elected in the May
1992 election could be reelected in the May 1995 and
May 1998 elections.
Private respondent Hagedorn was first elected as City
Mayor of Puerto Princesa City in the May 1992 election.
He was reelected in the May 1995 and May 1998
elections. His third term, by virtue of his election in the
May 1998 election, expired on 30 June 2001. Therefore,
he was constitutionally and statutorily barred from
seeking reelection In the May 2001 election, which
would have been his fourth term.
The term of office covered by the May 2001 election is
up to 30 June 2004. Section 8 of Article X of the
Constitution and Section 43(b) of R.A. No. 7160 are
clear in what is prohibited, which is the fourth term.
Nothing can be clearer from the wordings thereof: "the
term of office of elective local officials ... shall be three
years and no such official shall serve for more that three
consecutive terms." In short, an elective local official
who has served three consecutive terms, like Hagedorn,
is disqualified from seeking re-election for the
succeeding fourth term. The provision bars the holding
of four consecutive terms.
The ponencia is then correct when it holds that the
three-term limit bars an immediate reelection for a
fourth term. But I disagree when it rules that in the case
of Hagedorn he did not seek an immediate reelection
for a fourth term because he was not a candidate for
reelection in the May 2001 election. It forgets that what
would have been his fourth term by virtue of the May
2001 election was for the period from 30 June 2001 to
30 June 2004. The flaw in the ruling results from an
apparent confusion between term and election, the
root cause of which is the attempt to distinguish
"voluntary renunciation" of office from "involuntary
severance" from office and the term of office to which it
relates.
Let me first discuss the matter of whether the
Constitutional Commission did approve the rule of "no
Immediate reelection after three consecutive terms." In
support of its affirmative conclusion the ponencia
quotes the Manifestation of Commissioner Romulo as
entered in the Journal of the Constitutional
Commission, thus:
MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested
that the Body would proceed to the consideration of
two issues on the term of Representatives and local
officials, namely: a) Alternative No. 1 (no further
reelection after a total of three terms), and 2)
Alternative No. 2 (no immediate reelection after three
successive terms).
This is inaccurate. What actually happened was that the
issue was originally for elective national and local
officials. However, the Commission decided to consider
first the term of the members of Congress; and to defer
the discussion on the term of elective local officials until
the Commission would consider the report of the
Committee on Local Governments. On this point I quote
the pertinent portions of Volume Two, pages 238-245 of
the Record of the Constitutional Commission of its
proceedings on 25 July 1986:
THE PRESIDENT. Maybe it will be of help we Just remind
ourselves that what we have before us now is the
report of the Committee on the Legislative. Therefore,
maybe we should confine ourselves first to what is
covered by the report which is the term of office of the
Senators and the Representatives.And with respect to
the local officials, let us await the report of the
Committee on Local Governments as to its
recommendation on this matter.
MR. RODRIGO. As a matter of fact, I will go further than
that, it is my belief, as regards local officials, that we
should leave this matter to the legislative.
THE PRESIDENT. So what is the pleasure now of the
Acting Floor Leader or of the Chairman of the
Committee on the Legislative?
MR. RODRIGO. I wonder if the two proponents, Madam
President, will agree that we first talk about the term of
office of the Representatives because we are now
discussing the legislative department.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I will agree really that this matter should
relate only to the term of office of the Representatives.
THE PRESIDENT. But are we agreed on these two
proposals - the one of Commissioner Garcia where
there is no further election after a total of three terms
and the other where there is no Immediate reelection
after three successive terms?
MR. OPLE. Madam President, originally if I remember
right, the Commission decided to consider the
synchronization of elections. And from that original
commitment, we proceeded to fix the terms and
decided related questions within the context of
synchronization. Are we now abandoning the original
task of synchronization which could only be fully settled
in terms of delimitations on the proposed terms of the
President and the Vice-President, the Members of
Congress and the local officials, or do we want to
postpone the synchronization task to a later time after
we hear from the Committee on Local Governments
and the other concerned committees?
THE PRESIDENT. What does the Acting Floor Leader say
to this particular question of Commissioner Ople?
MR. ROMULO. In a way, Madam President, we have
settled the synchronization task, because we have
decided on the officials' absolute terms. All we are
really talking about now is whether or not they are
eligible for reelection, and I think those are separable
issues.
MR. OPLE. If they are separable, and we have already
settled the synchronization task, then I think that is
something to be thankful about. But considering the
immediate business at hand, is it the wish of the Acting
Floor Leader that the election of the local officials
should be eliminated from the consideration of those
two choices?
MR. ROMULO. Yes. I think the sense of the body now is
to limit this choice to the Members of the House of
Representatives.
MR. OPLE. And do the manifestations of both
Commissioners Garcia and Monsod still stand after the
elimination of the election of the local officials?
MR. ROMULO. Yes, I think so.
…
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. Madam President, as worded, It is a
personal disqualification.
MR. ROMULO. We are now ready to vote, Madam
President.
SUSPENSION OF SESSION
THE PRESIDENT. We are now ready to vote by ballot. Let
us distribute the ballots. Anyway the voting would take
only about 10 minutes.
The session is suspended.
It was 3:40 p.m.
At this juncture, pieces of paper were distributed, and
the Commissioners wrote down their votes.
RESUMPTION OF SESSION
At 3:50 p.m., the session was resumed.
THE PRESIDENT. The session is resumed.
MR. GASCON. Madam President, may I have a
clarification before we count the ballots. The voting
now is just for Representatives. We are not speaking of
the term of office of the Senators yet. Is that correct?
THE PRESIDENT. The term of office of the Senators was
disposed of this morning.
This voting now is only for Representatives.
MR. GASCON. I think the Issue of whether the Senators
could run again for election after their two consecutive
terms or 12 years after a lapse of a period of time has
not yet been finalized.
THE PRESIDENT. I beg the Commissioner's pardon.
MR. GASCON. Is this voting just for Congressmen?
THE PRESIDENT. Yes.
The Secretary-General will now please proceed to count
the votes.
COUNTING OF BALLOTS
THE SECRETARY-GENERAL. Madam President, we have
here 43 ballots cast. We will now start the counting.
Alternative No. 1 - no further election after a total of
three terms: /////-/////-/////-//
Alternative No. 2 - no immediate reelection after three
successive terms: /////-/////-/////-/////-/////-/
THE PRESIDENT. The results show 17 votes for
Alternative No. 1 and 26 votes for Alternative No. 2;
Alternative No. 2 is approved.
What does the Acting Floor Leader say?
MR. ROMULO. Alternative No. 2 has won, Madam
President. It seems there are some doubts as to the
term of office of the Senators, so I propose that we
similarly vote on that to end any doubt. It was my
understanding this morning that when we voted for the
term of office of the Senators, they would not be
perpetually disqualified.
THE PRESIDENT. From the transcripts, it appears here
that with respect to Senators, 22 votes went to Scheme
No. II; that is, with one reelection. This is already a
majority. So, does the Acting Floor Leader propose that
we vote again?
MR. ROMULO. The question is whether or not that will
be perpetual, Madam President, or after resting for six
years they can run again. That is the question that is not
answered. I am talking of the Senators.
THE PRESIDENT. This morning, Scheme No. I, without
reelection, has 3 votes; Scheme No. II, with one
reelection - 22 votes; Scheme No. III, no limit on
reelection - 17 votes.
MR. REGALADO. Madam President.
MR. RODRIGO. Madam President.
THE PRESIDENT. May we first clarify this from the
Secretary-General?
MR. ROMULO. The question is whether or not in voting
for the term of six years with one reelection, the
Senator is perpetually disqualified, so that is a similar
question to what we had posed with regard to the
House of Representatives.
THE PRESIDENT. In other words, after serving with one
reelection, whether or not he is perpetually disqualified
after serving 12 years?
MR. ROMULO. Yes, Madam President.
MR. RODRIGO. Madam President.
THE PRESIDENT. Yes, Commissioner Rodrigo is
recognized.
MR. RODRIGO. Or, if after one reelection, he is
perpetually disqualified or he can hibernate - the very
word used - for six years and then run again for
reelection but not consecutive, not immediate. In other
words, he is entitled to one immediate reelection.
REV. RIGOS. Another point, Madam President.
MR. RODRIGO. And then, after that, if there is a gap,
when he is not a Senator, then he can run for the same
office.
REV. RIGOS. Madam President.
THE PRESIDENT. Yes, Commissioner Rigos is recognized.
REV. RIGOS. In relation to that, if he will be allowed to
run again as Senator after a period of hibernation, we
have to clarify how long that should be. It could be
three years, because in the proposed scheme, every
three years we can elect the Senators.
MR. RODRIGO. Yes, Madam President, it can be three
years.
SUSPENSION OF SESSION
THE PRESIDENT. I will suspend the session again so as to
allow the parties to compare with the Acting Floor
Leader so that we will know what we are going to vote
on.
The session is suspended
It was 3:58 p.m.
RESUMPTION OF SESSION
At 4:05 p.m., the session was resumed.
THE PRESIDENT. The session is resumed.
The Acting Floor Leader is recognized.
MR. ROMULO. Madam President, we are now ready to
vote on the question of the Senators, and the schemes
are as follows: The first scheme is, no further election
after two terms; the - second scheme is, no immediate
reelection after two successive terms.
Madam President, inasmuch as the principles applicable
here are the same as those for the House of
Representatives, I move that we go directly to the
voting and forego any further discussions.
THE PRESIDENT. Please distribute the ballots for this
particular item for Senators.
Are we ready now?
The Secretary-General will please count the ballots.
COUNTING OF BALLOTS
THE SECRETARY-GENERAL. We have 43 ballots here,
Madam President. We shall now begin to count.
THE PRESIDENT. Please proceed.
THE SECRETARY-GENERAL, reading:
Scheme No. I - /////-/////-//
Scheme No. II - /////-/////-/////-/////-/////-/////-//
THE PRESIDENT. The results show 12 votes for Scheme
No. I and 32 votes for Scheme No. II; Scheme No. II
approved.
All the results will be considered by the Committee on
the Legislative in preparation of their report.
So can we leave this matter now?
The corresponding proposal on the three-term limit for
elective local officials without immediate reelection was
taken up by the Constitutional Commission much later
or specifically on 16 August 1986. On this point, the
pertinent portions of Vol. Three, pages 406-408, Record
of the Constitutional Commission, read as follows:
MR. RAMA. Madam President, I ask that Commissioner
Davide be recognized.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. Thank you, Madam President.
After Section 4, I propose to Insert a new section to
be denominated later as Section 5. It provides as
follows: THE TERM OF OFFICE OF ELECTIVE LOCAL
OFFICIALS, EXCEPT BARANGAY OFFICIALS, WHICH SHALL
BE DETERMINED BY LAW, SHALL BE THREE YEARS AND
NO SUCH OFFICIAL SHALL SERVE FOR MORE THAN
THREE CONSECUTIVE TERMS. VOLUNTARY
RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF
TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION
IN THE CONTINUITY OF HIS SERVICE FOR THE FULL
TERM FOR WHICH HE WAS ELECTED. This is in
accordance with the mandate of the Commission when
we voted on the terms of officials up to local officials,
excluding the term of barangay officials which was a
very specific exception.
MR. NOLLEDO. One clarificatory question, Madam
President. What will be the term of the office of
barangay officials as provided for?
MR. DAVIDE. As may be determined by law.
MR. NOLLEDO. As provided for in the Local Government
Code.
MR. DAVIDE. Yes.
MR. NOLLEDO. We accept the amendment. The
Committee accepts the amendment.
…
THE PRESIDENT. May we have the reaction of the
Committee?
MR. NOLLEDO. The Committee accepts the amendment,
as amended, Madam President.

THE PRESIDENT. Is there any other comment?
MR. OPLE. Madam President.
THE PRESIDENT. Commissioner Ople is recognized.'
MR. OPLE. May we ask the Committee to read the
proposed amendment now.
MR. NOLLEDO. May we ask Commissioner Davide to
read the new section.
MR. DAVIDE. THE TERM OF OFFICE OF ELECTIVE LOCAL
OFFICIALS, EXCEPT BARANGAY OFFICIALS, WHICH SHALL
BE DETERMINED BY LAW, SHALL BE THREE YEARS AND
N SUCH OFFICIAL SHALL SERVE FOR MORE THAN THREE
CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF
THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT BE
CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY
OF HIS SERVICE FOR THE FULL TERM FOR WHICH HE
WAS ELECTED.
… Scheme No. I - ///
THE PRESIDENT. Then let us vote first on the Davide
amendment.
Is there any objection to this new section proposed by
Commissioner Davide which has been read to the body?
(Silence) The Chair hears none; the proposed section is
approved.
I wish to add that the Constitutional Commission
debates on the issue of "no immediate reelection" after
three consecutive terms for members of Congress
clearly indicated that the "no immediate reelection"
after the 3-term limit would equally apply to the
elective local officials. This accounted for the immediate
acceptance by the Committee on Local Governments of
the aforementioned Amendment of Commissioner
Davide, which is now Section 8 of Article X of the
Constitution. These debates clearly showed the Intent
of the Commission that the ban against an immediate
reelection after three consecutive terms applies to the
fourth term, i.e., the term immediately following the
three consecutive terms, to be filled up by the regular
election for such fourth term. For one to be able to run
again after three consecutive terms, he has to rest for
the entire immediately succeeding fourth term. On the
next fifth term he can run again to start a new series of
three consecutive terms. We quote these pertinent
portions of the debates, recorded in Volume Two, pages
232-233 of the Record of the Constitutional
Commission:
MR. ROMULO. Madam President, the following are the
various alternatives:Scheme No. I is without reelection;
Scheme No. II is with one reelection; and Scheme No. III
is reelection without limit. This is for 'the Senators.
At this juncture, pieces of paper were distributed and
the Commissioners wrote down their votes.
THE PRESIDENT. The Chair asks the Chairman,
Commissioner Davide, to please consolidate the results
of the voting for President and Vice-President.
THE SECRETARY-GENERAL. Madam President, we are
ready. THE PRESIDENT. The Secretary-General will
please proceed.
COUNTING OF BALLOTS
THE SECRETARY-GENERAL, reading:
Scheme No. II - /////-/////-/////-/////-//
Scheme No. Ill - /////-/////-/////-//
THE PRESIDENT. The results show 3 votes for Scheme
No. I; 22 votes for Scheme No. II; and 17 votes for
Scheme No. III; Scheme No. II is approved.
MR. ROMULO. Madam President, the next position is
for the House of Representatives, the Congressmen. I
would assume we can use the same choices. Does any
one want any variation?
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. For the record, I would like to ask
Commissioner Romulo some questions.
MR. ROMULO. Yes.
MR. RODRIGO. Scheme No. II says "the Vice-President -
with one reelection."
THE PRESIDENT. No, that is for Senators.'
MR. GUINGONA. Madam President.

THE PRESIDENT. Yes, Commissioner Guenon is
recognized.
MR. GUINGONA. May I suggest one more scheme - with
two reelections for the Members of the House of
Representatives?
THE PRESIDENT. So, we shall distribute ballots again.
MR. ROMULO. While the ballots are being distributed,
may I read the following four propositions for
Congressmen: '
Scheme No. I, without reelection.
Scheme No. II, with one reelection.
Scheme No. III, with two reelections.
Scheme No. IV, no limit on reelection. I
MR. DE LOS REYES. Madam President.
THE PRESIDENT. Commissioner de los Reyes is
recognized.
MR. DE LOS REYES. The term of the Members of the
House of Representatives will be three years, according
to the first voting; the term of the Senators, if they are
entitled to one reelection, will be 12 years. So, in order
for a Member of the House of Representatives to have
also 12 years, he must be entitled to three reelections. I
propose another scheme with three reelections to make
it equal.
MR. RODRIGO. Will the Gentleman maintain the
number there and add that as No. V. I filled up my ballot
already and if I erase, this might be disqualified as a
marked ballot.
THE PRESIDENT. Commissioner Rodrigo may change his
ballot.
MR. DE CASTRO. Madam President.
THE PRESIDENT. Commissioner de Castro Is recognized.
MR. DE CASTRO. The situation stated by Commissioner
de los Reyes is apparently covered by Scheme No. II
which we agreed upon earlier. The situation will not
happen, because both the Senators and the
Congressmen will have five (5) years on the first
election. So, the possibility that the Senators will have a
longer term than the Congressmen is remote.
MR. MONSOD. Madam President.
THE PRESIDENT. Commissioner Monsod is recognized.
MR. MONSOD. Madam President, it occurred to us that
the three alternatives are not really mutually exclusive.
Can we have only these three: without reelection, with
reelection and with unlimited reelection? We are asking
here for plurality only, Madam President. Can we
eliminate?
THE PRESIDENT. In other words, we shall have the same
schemes as those for Senators; without reelection, with
one reelection and unlimited reelection.
REV. RIGOS. Madam President, besides we have already
submitted our ballots.
MR. MONSOD. I withdraw my proposal, Madam
President.
MR. GARCIA. Madam President, I would suggest that
the two schemes with the highest votes be voted upon
to get the key majority. For example, if the schemes
with two reelections and no limit to election get the
highest number of votes, then we vote again to get the
key majority.
THE PRESIDENT. We will do that. Are all the votes in?
COUNTING OF BALLOTS
THE SECRETARY-GENERAL. Madam President, we have
43 ballots.
THE PRESIDENT. The Secretary-General will please
proceed. THE SECRETARY-GENERAL, reading:
Scheme No. I - 0
Scheme No. II - //
Scheme No. III - /////-/////-/////-/////-/
Scheme No. IV - /////-/////-////
Scheme No. V - /////-/
THE PRESIDENT. The results show no vote for Scheme
No. I; 2 votes for Scheme No. II; 21 votes for Scheme
No. III; 14 votes for Scheme No. IV; and 6 votes for
Scheme No. V; Scheme No. III is approved.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO.. I would like to ask a question for
clarification.
THE PRESIDENT. Please proceed.
MR. RODRIGO. If the Members of the Lower House can
have two reelections, does this mean two immediate
reelections, or a term of nine consecutive years? Let us
say that a Member of the Lower House has been
reelected twice; that means he will serve for nine years.
Can he let three years elapse and then run again?
THE PRESIDENT. We will ask the Chairman of the
Committee on the Legislative to answer the question.
MR. DAVIDE. That is correct, Madam President, because
two reelections mean two successive reelections. So he
cannot serve beyond nine consecutive years.
MR. RODRIGO. Consecutively?
MR. DAVIDE. Consecutively.
MR. RODRIGO. But after nine years he can let one …
MR. DAVIDE. He can rest. He can hibernate for three
years.
MR. RODRIGO. And run again.
MR. DAVIDE. He can run again.
MR. RODRIGO. And again have nine years as a
maximum.
MR. DAVIDE. I do not know if that is also the thinking of
Commissioner Garcia who is the main proponent of this
proposal on two reelections. I would seek the opinion of
Commissioner Garcia for the record. (underscoring
supplied for emphasis.)
The dichotomy made in the ponencia between
"voluntary renunciation of the office" as used in Section
8 of Article X of the Constitution and Section 43(b) of
R.A. No. 7160 and "involuntary severance from office" is
unnecessary, if not misplaced. From the discussion in
the ponencia, the latter is made to apply to the banned
term, i.e., the fourth term immediately following three
consecutive terms. Speaking now of Hagedorn, he
cannot have suffered "involuntary severance from
office" because there was nothing to be severed; he
was not a holder of an office either in a de jure or de
facto capacity. He knew he was disqualified from
seeking a third reelection to office. Disqualification is,
definitely, not synonymous with involuntary severance.
Even if we concede that involuntary severance is an act
which interrupts the continuity of a term for purposes
of applying the three-term principle the rule laid down
in Lonzanida vs. COMELEC (311 SCRA 609), cited in the
ponencia, page 17, is not applicable in the case of
Hagedorn. The involuntary severance referred to in that
case was one that took place during any of the three
terms; hence, the term during which it occurred should
be excluded in the computation. In the case of
Hagedorn, no such involuntary severance took place
during any of his three terms brought about by his
election in 1992 and reelections in 1995 and 1998.
More importantly, the voluntary renunciation referred
to in Section 8, Article X of the Constitution and Section
43(b) of R.A. No. 7160 is one that takes place at any
time during either the first, second, or third term of the
three consecutive terms. This is very clear from the last
clause of Section 8, Article X of the Constitution, which
reads: "shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected." The purpose of the provision is to prevent
an elective local official from voluntarily resigning from
office for the purpose of circumventing the rule on the
belief that the term during which he resigned would be
excluded in the counting of the three-term rule. In
short, the provision excluded is intended to impose a
penalty on one who flouts the rule or make a mockery
of it by the simple act of resigning. Thus, applying it in
the case of Hagedorn, even if he voluntarily resigned on
his third term, he would still be barred from seeking
reelection in the May 2001 election.
Hagedorn cannot likewise avail of the ruling in Adormeo
vs. COMELEC (G.R. No. 147927, 4 February 2002)
because in that case Talaga did not win in his second
reelection bid, or for a third term, in the May 1998
elections. He won in the recall election of 12 May 2000.
Hagedorn, as earlier stated, fully served three
successive terms.
Neither can we allow Hagedorn to take refuge under
the exchange between Commissioner Suarez and
Commissioner Davide found on page 592, Vol. II of the
Record of the Constitutional Commission and quoted on
pages 19-20 of the ponencia:
SUAREZ: For example, a special election is called for a
Senator, and the Senator newly elected would have to
serve the unexpired portion of the term. Would that
mean that serving the unexpired portion of the term is
already considered one term? So, half a term, which is
actually the correct statement, plus one term would
disqualify the Senator concerned from running? Is that
the meaning of this provision on disqualification,
Madam President?
DAVIDE: Yes, because we speak of "term" And if there is
a special election, he will serve only for the unexpired
portion of that particular term plus one more term for
the Senator and two more terms for the Members of
the Lower House.
On the contrary, it is clear from the views of
Commissioners Suarez and Davide that the term of
office of one who is elected in a special election is
considered one term for purposes of determining the
three consecutive terms.
A declaration that Hagedorn is qualified to seek
reelection in a recall election to remove the Mayor who
was elected for a term for which Hagedorn was
constitutionally and statutorily disqualified to be
reelected to or, to hold Is to subvert the rationale of the
three-consecutive-term rule and make a mockery of it.
Worse, it abets destructive endless partisan politics and
unsound governance. An elective local official who is
disqualified to seek a fourth term because of the three-
term limit but obsessed to hold on to power would
spend the first year of the fourth term campaigning for
the recall of the incumbent in the second year of said
term. This would' not be a problem If the disqualified
official has a solid following and a strong political
machinery. Interestingly, in this case, as stated on page
3 of the ponencia, the President of the Association of
Barangay Captains of Puerto Princesa City is one Mark
David M. Hagedorn and he was designated by the
Preparatory Recall Assembly as interim Chairman.
I therefore vote to grant the petition in G.R. Nos.
155083-84, to set aside the resolution of the COMELEC
holding private respondent Edward Hagedorn a
qualified candidate for the position of Mayor of Puerto
Princesa City in the recall election, and to declare him
DISQUALIFIED from seeking reelection for a fourth term
or from being a candidate for Mayor in the recall
election in question.
CONCURRING OPINION
PUNO, J.:
The correctness of the decision so ably written by Mr.
Justice Carpio speaks for itself. Nonetheless, the
complex constitutional dimensions of the issue for
resolution compels this humble concurring opinion. The
issue is whether private respondent Hagedorn is
disqualified from running in the September 24, 2002
recall election for mayor of Puerto Princesa City and
from serving the unexpired portion of the 2001-2004
mayoralty term considering that he has thrice been
consecutively elected and has served three full terms as
Puerto Princesa City mayor from 1992-1998. In
illuminating the gray interstices of this election case,
prudence dictates that ". . . where the sovereignty of
the people is at stake, we must not only be legally right
but also politically correct."1
Private respondent Hagedorn was elected mayor of
Puerto Princesa City, Palawan in 1992, 1995 and 1998
and served three full terms. In the May 14, 2001
national and local elections, he ran for governor for the
Province of Palawan and lost. Petitioner-intervenor
Victorino Dennis M. Socrates was elected mayor of
Puerto Princesa City.
On July 2, 2002, three hundred twelve (312) out of five
hundred twenty-eight (528) members of the Barangay
Officials of Puerto Princesa City convened themselves
into a Preparatory Recall Assembly to initiate the recall
of Mayor Socrates. On August 21, 2002, COMELEC
promulgated Resolution No. 5673 prescribing a calendar
of activities for the recall election. Two days after,
Hagedorn filed his certificate of candidacy for mayor in
said election.
On August 27, 2002, petitioners Adovo and Gilo sought
for Hagedorn's immediate disqualification on the
ground that he had served three consecutive full terms
as mayor of Puerto Princesa City immediately prior to
the recall election and was thus proscribed by the
Constitution from running in said election. On August
30, 2002, petitioner Ollave, Sr. intervened to disqualify
Hagedorn on the same ground.
The recall election was set on September 24, 2002. On
September 20, 2002, public respondent COMELEC's First
Division denied the petitions for Hagedorn's
disqualification. The following day, petitioners Adovo,
Gilo and Ollave, Sr. filed a motion for reconsideration
imploring the COMELEC en banc to reverse the
September 20 resolution. On September 23, 2002, the
COMELEC en banc affirmed the resolution of the First
Division holding Hagedorn qualified to run in the recall
election.
On September 24, 2002, petitioners Adovo, Gilo and
Ollave, Sr. sought recourse in this Court with a Very
Urgent Petition for Certiorari and Prohibition with
Preliminary Injunction and Prayer for Temporary
Restraining Order. On the same date, Mayor Socrates
filed a petition-in-intervention to nullify the September
23 resolution of the COMELEC.
The petitions before us raise the following issues:
"I.
THE COMELEC GRAVELY ABUSED ITS DISCRETION
WHEN IT RULED THAT RESPONDENT HAGEDORN IS NOT
DISQUALIFIED FROM RUNNING FOR THE POSITION OF
MAYOR OF PUERTO PRINCESA CITY IN THE SCHEDULED
RECALL ELECTION, THE CLEAR AND UNAMBIGUOUS
CONSTITUTIONAL AND STATUTORY PROHIBITION
AGAINST A FOURTH CONSECUTIVE TERM FOR LOCAL
ELECTIVE OFFICIALS NOTWITHSTANDING.
II.
THE HONORABLE COMELEC GRAVELY ERRED AND
ABUSED ITS DISCRETION WHEN IT PROCEEDED TO
DIVIDE A SINGLE TERM OF OFFICE INTO TWO.
III.
THE HONORABLE COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION AND VIOLATED THE INTENT AND
PURPOSE FOR HOLDING THE SCHEDULED RECALL
ELECTIONS FOR THE POSITION OF MAYOR OF PUERTO
PRINCESA CITY AND THE CONSTITUTIONAL AND
STATUTORY BAR AGAINST A FOURTH CONSECUTIVE
TERM.
IV.
THE HONORABLE COMELEC GRAVELY ABUSED ITS
DISCRETION WHEN IT RULED THAT RESPONDENT
HAGEDORN IS NOT DISQUALIFIED FROM RUNNING IN
THE UPCOMING RECALL ELECTIONS AS HIS INELIGIBILITY
IS NOT APPARENT UNDER SECTIONS 65 AND 68 OF THE
OMNIBUS ELECTION CODE, SECTIONS 39 AND 40 OF RA
7160 (LOCAL GOVERNMENT CODE), AND RULES 23 AND
25 OF THE COMELEC RULES OF PROCEDURE.
V.
THE HONORABLE COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT
RESPONDENT HAGEDORN IS QUALIFIED TO RUN IN THE
RECALL ELECTION EVEN IF HE STANDS DISQUALIFIED
FROM SERVING UNDER A FOURTH CONSECUTIVE TERM
AS SUCH IS ALLEGEDLY NOT THE PROVINCE OF THE
INSTANT DISQUALIFICATION PROCEEDINGS.
VI.
THE HONORABLE COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT ISSUED A DEFECTIVE
AND CLEARLY VOID RESOLUTION."2
The foregoing issues may be reduced to the singular
issue of whether or not private respondent Hagedorn is
disqualified from running in the September 24, 2002
recall election and serving as mayor of Puerto Princesa
City considering that he has been thrice consecutively
elected and has served three full terms in that position
from 1992 to 2001.
I find the petitions devoid of merit.
Art. X, Sec. 8 of the Constitution provides:
"Sec. 8: The term of office of elective local officials,
except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of
his service for the full term for which he was elected."
This constitutional provision is restated in the Local
Government Code of 1991, to wit:
"Sec. 43. Term of Office. -. . . (b) No local elective official
shall serve for more than three (3) consecutive terms in
the same position. Voluntary renunciation of the office
for any length of time shall not be considered as an
interruption in the continuity of service for the full term
for which the elective official concerned was elected."
We have not interpreted Art. X, Sec. 8 of the
Constitution in the recall election context of the cases at
bar. It is imperative to distill the intent of the framers of
the Constitution and the people who ratified it.3 Mere
reliance on the surface meaning of the words of the
above provision, however, will not suffice to capture
this elusive intent. Thus, we turn to the proceedings and
debates of the Constitutional Commission (ConCom) as
an extrinsic aid to interpretation.4 The Record of the
Constitutional Commission shows that Art. X. Sec. 8 was
readily accepted by the Commissioners without much
discussion;5 nonetheless, their debates on setting the
term limit for Representatives show that the rationale
for the limit applies to both Representatives and
elective local officials. We quote at length the relevant
portions of the debates, to wit:
"MR. GARCIA. I would like to advocate the proposition
that no further election for local and legislative officials
be allowed after a total of three terms or nine years. I
have four reasons why I would like to advocate this
proposal, which are as follows: (1) to prevent monopoly
of political power; (2) to broaden the choice of the
people; (3) so that no one is indispensable in running
the affairs of the country; (4) to create a reserve of
statesmen both in the national and local levels. May I
explain briefly these four reasons.
First: To prevent monopoly of political power - Our
history has shown that prolonged stay in public office
can lead to the creation of entrenched preserves of
political dynasties. In this regard, I would also like to
advocate that immediate members of the families of
public officials be barred from occupying the same
position being vacated.
Second: To broaden the choice of the people - Although
individuals have the right to present themselves for
public office, our times demand that we create
structures that will enable more aspirants to offer to
serve and to provide the people a broader choice so
that more and more people can be enlisted to the cause
of public service, not just limited only to those who may
have the reason or the advantage due to their position.
Third: No one is indispensable in running the affairs of
the country – After the official's more than a decade or
nearly a decade of occupying the same public office, I
think we should try to encourage a more team-oriented
consensual approach to governance favored by a
proposal that will limit public servants to occupy the
same office for three terms. And this would also favor
not relying on personalities no matter how heroic, some
of whom, in fact, are now in our midst.
Lastly, the fact that we will not reelect people after
three terms would also favor the creation of a reserve
of statesmen both in the national and local levels.
Turnovers in public office after nine years will ensure
that new ideas and new approaches will be welcome.
Public office will no longer be a preserve of
conservatism and tradition. At the same time, we will
create a reserve of statesmen, both in the national and
local levels, since we will not deprive the community of
the wealth of experience and advice that could come
from those who have served for nine years in public
office.
Finally, the concept of public service, if political dynasty
symbolized by prolonged stay in particular public offices
is barred will have fuller meaning. It will not be limited
only to those who directly hold public office, but also to
consultative bodies organized by the people, among
whom could be counted those who have served in
public office with accomplishment and distinction, for
public service must no longer be limited only to public
office.
xxx xxx xxx
MR. MONSOD. Madam President, I was reflecting on
this issue earlier and I asked to speak because in this
draft Constitution, we are recognizing people power.
We have said that now there is a new awareness, a new
kind of voter, a new kind of Filipino. And yet at the
same time, we are prescreening candidates among
whom they will choose. We are saying that this 48-
member Constitutional Commission has decreed that
those who have served for a period of nine years are
barred from running for the same position.
The argument is that there may be other positions. But
there are some people who are very skilled and good at
legislation, and yet are not of a national stature to be
Senators. They may be perfectly honest, perfectly
competent and with integrity. They get voted into office
at the age of 25, which is the age we provide for
Congressmen. And at 34 years old we put them to
pasture.
Second, we say that we want to broaden the choices of
the people. We are talking here only of congressional or
senatorial seats. We want to broaden the people's
choice but we are making a prejudgment today because
we exclude a certain number of people. We are, in
effect, putting an additional qualification for office -
that the officials must not have served a total of more
than a number of years in their lifetime.
Third, we are saying that by putting people to pasture,
we are creating a reserve of statesmen, but the future
participation of these statesmen is limited. Their skills
may only be in some areas, but we are saying that they
are going to be barred from running for the same
position.
Madam President, the ability and capacity of a
statesman depend as well on the day-to-day honing of
his skills and competence, in intellectual combat, in
concern and contact with the people, and here we are
saying that he is going to be barred from the same kind
of public service.
I do not think it is in our place today to make such a
very important and momentous decision with respect
to many of our countrymen in the future who may have
a lot more years ahead of them in the service of their
country.
If we agree that we will make sure that these people do
not set up structures that will perpetuate them, then let
us give them this rest period of three years or whatever
it is. Maybe during that time, we would even agree that
their fathers or mothers or relatives of the second
degree should not run. But let us not bar them for life
after serving the public for a number of years.
xxx xxx xxx
MR. OPLE. . . . The principle involved is really whether
this Commission shall impose a temporary or a
perpetual disqualification on those who have served
their terms in accordance with the limits on consecutive
service as decided by the Constitutional Commission. I
would be very wary about the Commission exercising a
sort of omnipotent power in order to disqualify those
who will already have served their terms from
perpetuating themselves in office. I think the
Commission achieves its purpose in establishing
safeguards against the excessive accumulation of power
as a result of consecutive terms. We do put a gap on
consecutive service - in the case of the President, six
years; in the case of the Vice-President, unlimited; and
in the case of the Senators, one reelection. In the case
of the Members of Congress, both from the legislative
districts and from the party list and sectoral
representation, this is now under discussion and later
on the policy concerning local officials will be taken up
by the Committee on Local Governments. The principle
remains the same. I think we want to prevent future
situations where, as a result of continuous service and
frequent reelections, officials from the President down
to the municipal mayor tend to develop a proprietary
interest in their positions and to accumulate those
powers and perquisites that permit them to stay on
indefinitely or to transfer these posts to members of
their families in a subsequent election. I think that is
taken care of because we put a gap on the continuity or
unbroken service of all of these officials. But were we
now (to) decide to put these prospective servants of the
people or politicians, if we want to use the coarser
term, under a perpetual disqualification, I have a feeling
that we are taking away too much from the people,
whereas we should be giving as much to the people as
we can in terms of their own freedom of choice.
I think the veterans of the Senate and of the House of
Representatives here will say that simply getting
nominated on a party ticket is a very poor assurance
that the people will return them to the Senate or to the
House of Representatives. There are many casualties
along the way of those who want to return to their
office, and it is the people's decision that matters. They
judge whether or not a Soc Rodrigo, a Sumulong, a
Padilla, an Alonto and a Rosales, after a first and second
term, should go back to the Senate. That is a
prerogative of the people that we should not take away
from them -the right to judge those who have served. In
any case, we already take away from the people the
freedom to vote for the third termers because we say
that a Senator, say, Mr. Rodrigo, is only good for twelve
years. But if he wants to be like Cincinnatus, if he is
called back by his people to serve again, let us say for a
period of six years – which Commissioner Davide called
a period of hibernation which is spent at his fishpond in
Bulacan, Bulacan - because there is a new situation in
the country that fairly impels the people to summon
him back, like Cincinnatus in the past, then there will no
longer be any Cincinnatus.
That is not perhaps a very important point, but I think
we already have succeeded in striking a balance of
policies, so that the structures, about which
Commissioner Garcia expressed a very legitimate
concern, could henceforth develop to redistribute
opportunities, both in terms of political and economic
power, to the great majority of the people, because
very soon, we will also discuss the multiparty system.
We have unshackled the Philippine politics from the
two-party system, which really was the most critical
support for the perpetuation of political dynasties in the
Philippines. That is quite a victory, but at the same time,
let us not despise the role of political parties. The
strength of democracy will depend a lot on how strong
our democratic parties are, and a splintering of all these
parties so that we fall back on, let us say, nontraditional
parties entirely will mean a great loss to the vitality and
resiliency of our democracy...
xxx xxx xxx
BISHOP BACANI. . . . I think when we voted on the
provision that the illiterate be allowed to vote and
when we proposed in this Constitutional Commission
for initiative as a way also of empowering our people to
engage in the legislative exercise, we are really
presupposing the political maturity of our people. Why
is it that that political maturity seems now to be denied
by asking that we should put a constitutional bar to a
further election of any Representative after a term of
three years? Why should we not leave that to the
premise accepted by practically everybody here that
our people are politically mature? Should we use this
assumption only when it is convenient for us, and not
when it may also lead to a freedom of choice for the
people and for politicians who may aspire to serve
longer?
xxx xxx xxx
MR. GARCIA. I would like to answer Commissioner
Bacani. We put a constitutional bar to reelection of any
Representative basically because of the undue
advantage of the incumbent. It is not because of lack of
trust in the people. We realize from history that Mexico
fought a revolution simply because of the issue of
reelection. No reeleccion, sufragio universal. Basically, it
is because of the undue advantage of the incumbent
that he accumulates power, money, party machine or
patronage. As regards what Commissioner Aquino has
said, politics is not won by ideals alone; it is won by
solid organizing work by organizations that have the
capacity to do so; and normally the incumbent has all
the advantages. . .
xxx xxx xxx
THE SECRETARY-GENERAL. Madam President, we have
here 43 ballots cast. We will now start the counting.
Alternative No. 1 - no further election after a total of
three terms: /////-/////-/////-//
Alternative No. 2 - no immediate reelection after three
successive terms: /////-/////-/////-/////-/////-/"6
(emphasis supplied)
In several cases, this Court was guided by the
proceedings of the ConCom in construing Art. X, Sec. 8
of the Constitution in relation to Section 43(b) of the
Local Government Code of 1991. Different from the
issue presented by the cases at bar, however, the
question in those cases was what constitutes a "term"
for purposes of counting the three consecutive terms
allowed under Art. X, Sec. 8. It is apropos to revisit
these cases to aid us in extracting the intent behind said
Constitutional provision and properly apply it to the
unique case of private respondent Hagedorn.
The maiden case was Borja, Jr. v. Commission on
Elections and Jose T. Capco7 which involved the 1998
mayoralty election in Pateros. In 1989, private
respondent Capco became mayor by operation of law
upon the death of the incumbent, Cesar Borja. In 1992,
he was elected mayor for a term ending in 1995. In
1995, he was reelected mayor for another term of three
years ending in June 1998. In March 1998, he filed his
certificate of candidacy for the May 1998 mayoralty
election of Pateros. Petitioner Borja, Jr., another
candidate for mayor, sought Capco's disqualification on
the ground that by June 30, 1998, Capco would have
already served as mayor for three consecutive terms
and would therefore be ineligible to serve for another
term. The COMELEC en banc declared Capco eligible to
run for mayor, thus Borja, Jr. sought recourse in this
Court. In dismissing the petition, we considered the
historical background of Art. X, Sec. 8 of the
Constitution, viz:
"…a consideration of the historical background of Article
X, §8 of the Constitution reveals that the members of
the Constitutional Commission were as much concerned
with preserving the freedom of choice of the people as
they were with preventing the monopolization of
political power. Indeed, they rejected a proposal put
forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there
should be no further reelection for local and legislative
officials. Instead, they adopted the alternative proposal
of Commissioner Christian Monsod that such officials be
simply barred from running for the same position in the
succeeding election following the expiration of the third
consecutive term (2 RECORD OF THE CONSTITUTIONAL
COMMISSION 236-243 [Session of July 25, 1986] . . .).
Monsod warned against 'prescreening candidates
[from] whom the people will choose' as a result of the
proposed absolute disqualification, considering that the
draft constitution contained provisions 'recognizing
people's power.'
xxx xxx xxx
Two ideas thus emerge from a consideration of the
proceedings of the Constitutional Commission. The first
is the notion of service of term, derived from the
concern about the accumulation of power as a result of
a prolonged stay in office. The second is the idea of
election, derived from the concern that the right of the
people to choose whom they wish to govern them be
preserved. (emphasis supplied)
xxx xxx xxx
To recapitulate, the term limit for elective local officials
must be taken to refer to the right to be elected as well
as the right to serve in the same elective position.
Consequently, it is not enough that an individual has
served three consecutive terms in an elective local
office, he must also have been elected to the same
position for the same number of times before the
disqualification can apply. This point can be made
clearer by considering the following cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes
mayor by reason of the death of the incumbent. Six
months before the next election, he resigns and is twice
elected thereafter. Can he run again for mayor in the
next election?
Yes, because although he has already first served as
mayor by succession and subsequently resigned from
office before the full term expired, he has not actually
served three full terms in all for the purpose of applying
the term limit. Under Art. X, §8, voluntary renunciation
of the office is not considered as an interruption in the
continuity of his service for the full term only if the term
is one "for which he was elected." Since A is only
completing the service of the term for which the
deceased and not he was elected, A cannot be
considered to have completed one term. His resignation
constitutes an interruption of the full term.
xxx xxx xxx
...the mayor is entitled to run for reelection because the
two conditions for the application of the disqualification
provisions have not concurred, namely, that the local
official concerned has been elected three consecutive
times and that he has fully served three consecutive
terms. In the first case, even if the local official is
considered to have served three full terms
notwithstanding his resignation before the end of the
first term, the fact remains that he has not been elected
three times. . .
Case No. 3. The case of vice-mayor C who becomes
mayor by succession involves a total failure of the two
conditions to concur for the purpose of applying Art. X,
§ 8. Suppose he is twice elected after that term, is he
qualified to run again in the next election?
Yes, because he was not elected to the office of mayor
in the first term but simply found himself thrust into it
by operation of law. Neither had he served the full term
because he only continued the service, interrupted by
the death, of the deceased mayor.
To consider C in the third case to have served the first
term in full and therefore ineligible to run a third time
for reelection would be not only to falsify reality but
also to unduly restrict the right of the people to choose
whom they wish to govern them. If the vice-mayor
turns out to be a bad mayor, the people can remedy the
situation by simply not reelecting him for another term.
But if, on the other hand, he proves to be a good mayor,
there will be no way the people can return him to office
(even if it is just the third time he is standing for
reelection) if his service of the first term is counted as
one for the purpose of applying the term limit.
To consider C as eligible for reelection would be in
accord with the understanding of the Constitutional
Commission that while the people should be protected
from the evils that a monopoly of political power may
bring about, care should be taken that their freedom of
choice is not unduly curtailed."8 (emphasis supplied)
We reiterated the Borja ruling in Lonzanida v.
Commission on Elections, et al.9 which involved the
election for mayor of San Antonio, Zambales. Prior to
the May 8, 1995 elections, petitioner Romeo Lonzanida
served two consecutive terms as municipal mayor of
San Antonio, Zambales. In the May 1995 elections, he
ran for mayor, was proclaimed winner, and assumed
office. His proclamation was, however, contested by his
opponent Juan Alvez in an election protest filed before
the Regional Trial Court of Zambales which rendered a
decision declaring a failure of elections. Upon appeal of
the decision to the COMELEC, Alvez was declared the
duly elected mayor of San Antonio. In February 1998,
the COMELEC issued a writ of execution ordering
Lonzanida to vacate the post, and Alvez served the
remainder of the term.
Lonzanida filed his certificate of candidacy for the May
11, 1998 election for mayor of San Antonio. His
opponent Eufemio Muli filed with the COMELEC a
petition to disqualify Lonzanida on the ground that he
had already served three consecutive terms in the same
office and was thus prohibited from running in the
upcoming election. On May 13, 1998, Lonzanida was
proclaimed winner. COMELEC ruled that Lonzanida was
disqualified as his assumption to office in 1995,
although he was unseated before the expiration of the
term, was considered one full term for purposes of
counting the three term limit under the Constitution
and the Local Government Code of 1991.
On appeal to this Court, we ruled, viz:
"It is not disputed that the petitioner was previously
elected and served two consecutive terms as mayor of
San Antonio, Zambales prior to the May 1995 mayoral
elections. In the May 1995 elections he again ran for
mayor of San Antonio, Zambales and was proclaimed
winner. He assumed office and discharged the rights
and duties of mayor until March 1998 when he was
ordered to vacate the post by reason of the COMELEC
decision dated November 13, 1997 on the election
protest against the petitioner which declared his
opponent Juan Alvez, the duly elected mayor of San
Antonio. Alvez served the remaining portion of the
1995-1998 mayoral term.
The two requisites for the application of the three term
rule are absent. First, the petitioner cannot be
considered as having been duly elected to the post in
the May 1995 elections, and second, the petitioner did
not fully serve the 1995-1998 mayoral term by reason
of voluntary relinquishment of office. After a re-
appreciation and revision of the contested ballots the
COMELEC itself declared by final judgment that
petitioner Lonzanida lost in the May 1995 mayoral
elections and his previous proclamation as a winner was
declared null and void. His assumption of office as
mayor cannot be deemed to have been by reason of a
valid election but by reason of a void proclamation...
Second, the petitioner cannot be deemed to have
served the May 1995 to 1998 term because he was
ordered to vacate his post before the expiration of the
term. The respondents' contention that the petitioner
should be deemed to have served one full term from
May 1995- 1998 because he served the greater portion
of that term has no legal basis to support it; it
disregards the second requisite for the application of
the disqualification, i.e., that he has fully served three
consecutive terms.
In sum, the petitioner was not the duly elected mayor
and he did not hold office for the full term; hence, his
assumption of office from May 1995 to March 1998
cannot be counted as a term for purposes of computing
the three term limit."10 (emphasis supplied)
Finally, in the recent case of Adormeo v. COMELEC, et
al.,11 we ruled that a mayor who assumed office via a
recall election and served the unexpired portion of the
mayoralty term is not considered to have served a full
term for purposes of applying the three term limit. In
this case, therein private respondent Ramon Talaga, Jr.
was elected mayor in May 1992 and served the full
term. In 1995, he was reelected and again served the
full term. In 1998, he lost to Bernard G. Tagarao. About
two years later, a recall election was held where Talaga,
Jr. ran against Tagarao. He (Talaga, Jr.) won and served
the remainder of Tagarao's term.
In view of the upcoming May 2001 mayoralty election,
Talaga, Jr. filed his certificate of candidacy. On March 2,
2001, therein petitioner Adormeo sought the
cancellation of Talaga, Jr.'s certificate of candidacy
and/or his disqualification on the ground that he had
been thrice elected and had served three consecutive
terms as city mayor. Talaga, Jr., however, was declared
qualified for the position of city mayor. Adormeo thus
sought recourse before this Court.
Citing the Borja and Lonzanida rulings, we ruled that
Talaga, Jr. was not disqualified as the two conditions for
disqualification, namely (1) the elective official
concerned was elected for three consecutive terms in
the same post and (2) he has fully served three
consecutive terms, were not met. We did not consider
Talaga, Jr.'s service of the unexpired portion of
Tagarao's term as service of a full term for purposes of
the three term limit. We also ruled that he did not serve
for three consecutive terms as there was a break in his
service when he lost to Tagarao in the 1998 elections.
We held, viz:
"COMELEC's ruling that private respondent was not
elected for three (3) consecutive terms should be
upheld. For nearly two years, he was a private citizen.
The continuity of his mayorship was disrupted by his
defeat in the 1998 elections.
Patently untenable is petitioner's contention that
COMELEC in allowing respondent Talaga, Jr. to run in
the May 1998 election violates Article X, Section 8 of
the 1987 Constitution. (footnote omitted) To bolster his
case, respondent adverts to the comment of Fr. Joaquin
Bernas, a Constitutional Commission member, stating
that in interpreting said provision that 'if one is elected
representative to serve the unexpired term of another,
that unexpired (term), no matter how short, will be
considered one term for the purpose of computing the
number of successive terms allowed.'
As pointed out by the COMELEC en banc, Fr. Bernas'
comment is pertinent only to members of the House of
Representatives. Unlike local government officials,
there is no recall election provided for members of
Congress. (Rollo, pp. 83-84)"12 (emphasis supplied)
The deliberations of the ConCom and the ruling case
law of Borja, Lonzanida and Adormeo show that there
are two principal reasons for the three term limit for
elective local officials: (1) to prevent political dynasties
perpetuated by the undue advantage of the incumbent
and (2) to broaden the choice of the people by allowing
candidates other than the incumbent to serve the
people. Likewise evident in the deliberations is the
effort to balance between two interests, namely, the
prevention of political dynasties and broadening the
choice of the people on the one hand, and respecting
the freedom of choice and voice of the people, on the
other; thus, the calibration between perpetual
disqualification after three consecutive terms as
proposed by Commissioner Garcia, and setting a limit
on immediate reelection and providing for a hibernation
period.
In all three cases - Borja, Lonzanida and Adormeo - we
ruled that the "term" referred to in the three term limit
is service of a full term of three years for elective local
officials. This ruling furthers the intent of the ConCom
to prevent political dynasties as it is the service of
consecutive full terms that makes service continuous
and which opens the gates to political dynasties limiting
the people's choice of leaders. In the words Of
Commissioner Ople, ". . . we want to prevent future
situations where, as a result of continuous service and
frequent reelections, officials from the President down
to the municipal mayor tend to develop a proprietary
interest in their positions and to accumulate those
powers and perquisites that permit them to stay on
indefinitely or to transfer these posts to members of
their families in a subsequent election. I think that is
taken care of because we put a gap on the continuity or
unbroken service of all of these officials. (emphasis
supplied)" Thus, ConCom set the limit on consecutive
full terms to no more than three. Otherwise stated, it is
a fourth consecutive full term that is prohibited.
In the cases at bar, however, private respondent
Hagedorn will not serve a prohibited fourth consecutive
full term as he will be serving only the unexpired
portion of the 2001-2004 mayoralty term. Similar to
Talaga, Jr. in the Adormeo case, Hagedorn's service as
mayor will not be continuous from the third to a fourth
consecutive full term as it was broken when Socrates
was elected in the 2001 regular mayoralty election and
served for one year. In the same vein that Talaga, Jr.
was elected into office by recall election and his service
of the unexpired portion of the incumbent's term was
not considered a consecutive full term for purposes of
applying the three term limit, Hagedorn's service of the
unexpired portion of Socrates' term should not also be
counted as a prohibited fourth consecutive full term. It
should not make a difference whether the recall
election came after the second consecutive full term as
in the Adormeo case or after the third consecutive term
as in the cases at bar because the intent to create a
hiatus in service is satisfied in both instances.
Even a textual analysis of Art. X, Sec. 8 will yield the
interpretation that what is prohibited is the service of a
fourth consecutive full term. Petitioners are correct in
foisting the view that "term" is a fixed and definite
period of time prescribed by law or the Constitution
during which the public officer may claim to hold the
office as a right. It is a fixed and definite period of time
to hold office, perform its functions, and enjoy its
privileges and emoluments until the expiration of the
period.13 In ascertaining what "term" means for
elective local officials, the Constitution itself provides in
Art. X, Sec. 8 that it means a fixed, definite, and full
period of three years, viz: "Sec. 8. The term of office of
elective local officials, except barangay officials, which
shall be determined by law, shall be three years ..."
Although one or more persons may discharge the duties
of the office during this fixed three-year period, the
term is not divided into smaller terms by the number of
incumbents who may fill the office. It is one and
indivisible, and term follows term in successive cycles of
three years each. If the incumbent or the one elected to
the office fills a higher vacant office, refuses to assume
office, fails to qualify, dies, is removed from office,
voluntarily resigns or is otherwise permanently
incapacitated to discharge the functions of his office,
thereby creating a permanent vacancy,14 the term
would remain unbroken until the recurring election for
the office.15
The provisions on voluntary renunciation under Art. X,
Sec. 8 and other articles of the Constitution bolster the
interpretation that for purposes of applying the three
term limit, service of a full term of three years is
contemplated, viz:

"Art. X, Sec. 8. The term of office of elective local
officials, except barangay officials, which shall be
determined by law, shall be three years and no such
official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption
in the continuity of the service for the full term for
which he was elected."
"Art. VI, Sec. 4. . . . No Senator shall serve for more than
two consecutive terms. Voluntary renunciation of the
office for any length of time shall be considered as an
interruption in the continuity of his service for the full
term for which he was elected.
xxx xxx xxx
Sec. 7. . . . No Member of the House of Representatives
shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected.
xxx xxx xxx
Art. VII, Sec. 4. . . . No Vice-President shall serve more
than two successive terms. Voluntary renunciation of
the office for any length of time shall not be considered
as an interruption in the continuity of the service for the
full term for which he was elected." (emphasis supplied)
Similarly, the Local Government Code of 1991 provides
in Sec. 43(b), viz:
"Sec. 43(b) . . . No local elective official shall serve for
more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption
in the continuity of service for the full term for which
the elective official concerned was elected." (emphasis
supplied)
Likewise, because "term" is understood to be a fixed,
definite, and full period, the Constitution, in Art. Vi, Sec.
9, uses the qualifier "unexpired term" to refer to only a
portion of a term, viz:
"Art. VI, Sec. 9. In case of vacancy in the Senate or in the
House of Representatives, a special election may be
called to fill such vacancy in the manner prescribed by
law, but the Senator or Member of the House of
Representatives thus elected shall serve only for the
unexpired term." (emphasis supplied)
Similarly, Sec. 44 of the Local Government Code of 1991
uses the phrase "unexpired term" to mean the
remainder of the term, viz:
"Sec. 44(d). The successors as defined herein shall serve
only the unexpired terms of his predecessors. . ."
(emphasis supplied)
Thus, when Art. X, Sec. 8 of the Constitution states that
"...no such (local elective) official shall serve for more
than three consecutive terms," it consistently means
that it allows service of a maximum of three
consecutive full terms and prohibits service of a
minimum fourth consecutive full term.
In putting a cap on the number of consecutive full terms
an elective local official can serve, the ConCom sought
to curb the undue advantage of the incumbent over
other aspirants, which advantage makes it easier to
found a political dynasty. At the time of the September
24, 2002 recall election, however, Hagedorn was not
the incumbent favored with this feared "undue
advantage of the incumbent." On the contrary, he ran
against the incumbent Mayor Socrates who alone could
be the subject of recall election and who, by law, was
automatically a candidate in the election.16 Hagedorn
did not run in the 2001 regular mayoralty election of
Puerto Princesa City which Socrates won, precisely
because he was aware of the three term limit.
It is my respectful submission that the Constitution and
the Local Government Code of 1991 proscribe a local
official who has been thrice consecutively elected in
regular elections and has served three full terms in the
same position, from running in the regular election
succeeding his third consecutive term. It is this situation
that is prohibited because it makes possible service of
more than three consecutive and continuous full terms,
i.e., service of a fourth consecutive full term. We cannot
overstress that it is this continuousness that the
ConCom feared would open the gates to the two evils
sought to be avoided: the incumbent's use of his undue
advantage to put up a political dynasty and limiting the
people's choice of leaders. It is in this context of regular
elections that our obiter dictum in the Lonzanida case,
which petitioners harp on, should be understood. In
that case, we opined that "[a]s finally voted upon, it was
agreed that an elective local government official should
be barred from running for the same post after three
consecutive terms. After a hiatus of at least one term,
he may again run for the same office."17 Indeed,
insofar as regular local elections are concerned, which
were the elections involved in that case, there should
be a hiatus of at least one full term of three years.
On the other hand, in the case of a local official who
assumes office through a recall election - whether after
his first, second, or third consecutive term- there is a
break in his service caused by the election of the
incumbent who was recalled. Even in the case of a local
official who initially assumes office via recall election,
then wins the two succeeding regular elections and
serves two full terms in the same post, he is not
prohibited from seeking another reelection and serving
another full term. This is so because his service of the
remainder of the incumbent's term via recall election is
not, in reality and in law, a full term continuing on to his
three succeeding full terms. Local officials who assume
office via recall election serve only the unexpired
portion of the incumbent's term and this service is not
counted as a full term, despite the Constitutional
mandate that the term of office of elective local officials
is three years. Such is the design because Art. XVIII,
Secs. 2 and 5 of the Constitution also prescribe
synchronization of regular national and local elections
beginning on the second Monday of May 1992,18 which
is accomplished if the local official who assumes office
through recall election serves only the incumbent's
unexpired term.
It is only in the case of Representatives (and Senators)
that "if one is elected Representative to serve the
unexpired term of another, that unexpired term will be
considered one term for purposes of computing the
number of successive terms allowed."19 The election
herein contemplated is a special election thus this
Constitutional intent does not apply to a recall election
which involves only elective local officials. The Record
bear this out, viz:
"MR. SUAREZ. . . May we ask a clarificatory question
regarding the interpretation of the provisions in
Sections 3 and 6 in relation to Section 9 regarding the
disqualification on the part of the Senator to run for
two consecutive terms, and in the case of the Members
of the House of Representatives, for three consecutive
terms. For example, a special election is called for a
Senator, and the Senator newly elected would have to
serve the unexpired portion of the term. Would that
mean that serving the unexpired portion of the term is
already considered one term? So, half a term, which is
actually the correct statement, plus one term would
disqualify the Senator concerned from running? Is that
the meaning of this provision on disqualification,
Madam President?
MR. DAVIDE. Yes, because we speak of "term" and if
there is a special election, he will serve only for the
unexpired portion of that particular term plus one more
term for the Senator and two terms for the Members of
the Lower House."20
As we ruled in the Adormeo case, service of an
unexpired term is considered service of a full term only
with respect to Representatives (and Senators) because
unlike local government officials, Representatives
cannot be recalled. It is continuous prolonged stay in
office that breeds political dynasties. Understandably
therefore, insofar as Representatives who cannot be
recalled are concerned, service of an unexpired term is
strictly counted as service of a full term because the
purpose of the ConCom was to limit the right to run and
be elected in Congress.21
In allowing Hagedorn to participate in the September 24
recall election, we are not unmindful of the intent of
the ConCom to broaden the people's choice of leaders.
The three term limit was adopted to allow the
electorate to choose from other candidates in the
regular election succeeding the incumbent's third
consecutive term. This is clear in the Commissioners'
alternatives for voting on the term limit for
Representatives and the outcome of their voting where
17 voted for "no further election after a total of three
terms" and 26 voted for "no immediate reelection after
three successive terms." A reelection is immediate if a
local official wins in the election succeeding the third
consecutive term.22 This is not the case with Hagedorn
who did not run in the 2001 regular mayoralty election
and left that political arena to other contenders,
thereby upholding the intent of the ConCom to broaden
the choice of the electorate.
The intent of the ConCom to create a hiatus in the
service of elective local officials after three consecutive
full terms cannot be undermined through abuse of the
power of recall. The Local Government Code of 1991
provides limitations on recall in Section 74, viz:
"Section 74. Limitations on Recall. (a) any elective local
official may be the subject of a recall election only once
during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from
the date of the official's assumption to office or one (1)
year immediately preceding a regular local election."
(emphasis supplied)
Thus, an elective local official cannot perpetually hold
on to his office through the mechanism of recall as at
the very least, there will be a hiatus of one year after an
unbroken service of three terms. He could not simply
create, in the words of Commissioner Monsod,
"structures that will perpetuate him (them)" in power
with the assurance that they will not be exposed
because after serving three consecutive full terms, he
will certainly be replaced. Within the one-year period
under Sec. 74, his successor could discover and begin to
dismantle these manipulative structures. This one year
period also provides a reasonable basis for the
electorate to judge the performance of the incumbent
successor, thus obviating fear of political maneuvering
through initiation of recall proceedings by a Preparatory
Recall Assembly dominated by minions of the previous
local official.23 In Claudio v. COMELEC, et al., 24 we
held, viz:
"In the Bower case (in re Bower 41 I11. 777, 242 N.E. 2d
252 [1968]) cited by this Court in Angobung v. COMELEC
(269 SCRA 245, 256 [1997]), it was held that 'The only
logical reason which we can ascribe for requiring the
electors to wait one year before petitioning for recall
election is to prevent premature action on their part in
voting to remove a newly elected official before having
had sufficient time to evaluate the soundness of his
policies and decisions.'"25
If, after one year in office, the incumbent proves himself
to be worthy of his position, then his constituents will
confirm this should a recall election be called, as in the
case of Mayor Reynaldo Malonzo of Caloocan City. If, on
the other hand, the incumbent turns out to be an
ineffective leader, there is no reason why the electorate
should not be allowed to make a Cincinnatus of their
past leader.
The imagined fear of abuse of the power of recall does
not suffice to disqualify private respondent Hagedorn
and should not prevail over the resounding voice of the
people of Puerto Princesa City. They have spoken and
there is no mistaking that Hagedorn is their
overwhelming choice. We cannot subscribe to the
petitioners' position and allow an overly literal reading
of the law to mute the electorate's cry and curtail their
freedom to choose their leaders. This freedom was as
much a concern of the ConCom as was the prevention
of political dynasties and broadening the choice of the
people. This Court has not just once admonished
against a too literal reading of the law as this is apt to
constrict rather than fulfill its purpose and defeat the
intention of the authors.26
In sum, private respondent Hagedorn is not disqualified
from running in the September 24, 2002 recall election
as the disqualification under Art. X, Sec. 8 of the
Constitution applies to the regular mayoralty election
succeeding the third consecutive term served. Nor is he
precluded from serving the unexpired portion of the
2001-2004 mayoralty term as this is not service of a
prohibited fourth consecutive full term.
I vote to deny the petition, giving due consideration to
the tenet of representative democracy that the people
should be allowed to choose whom they wish to govern
them.27 In the end, ". . . more than judgments of courts
of law, the judgment of the tribunal of the people is
final for 'sovereignty resides in the people and all
government authority emanates from them.'"28
Footnotes
1 Filed under Rule 65 in relation to Rule 64 of the 1997
Rules of Civil Procedure with prayers for preliminary
injunction and temporary restraining orders.
Pursuant to the provisions of Republic Act 7160 or the
Local Government Code of 1991, Chapter 5, Sections 69
to 75.
3 Composed of Benjamin S. Abalos, Sr. as Chairman with
Commissioners Luzviminda G. Tancangco, Rufino S.B.
Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion
Z. Borra and Florentino A. Tuason, Jr.
4 With Mehol K. Sadain as Presiding Commissioner and
Luzviminda G. Tancangco and Resurreccion Z. Borra as
Commissioners.
5 269 SCRA 380 (1997).
6 Ricardo J. Romulo, Commissioner of the 1986
Constitutional Convention.
7 Record of the Constitutional Commission, Vol. 2, p.
236.
8 Journal of the Constitutional Commission, Vol. I, p.
420.
9 "MR. ROMULO: Madam President, we are now ready
to vote on the question of the Senators, and the
schemes are as follows: The first scheme is, no further
election after two terms; the second scheme is, no
immediate reelection after two successive terms.
Madam President, inasmuch as the principles applicable
here are the same as those for the House of
Representatives, I move that we go directly to the
voting and forego any further discussions.
THE PRESIDENT: Please distribute the ballots for this
particular item for Senators. Are we ready now? The
Secretary-General will please count the ballots.
COUNTING OF BALLOTS
11 Second paragraph of Section 4, Article VI of the
Constitution.
12 Jose Luis Martin C. Gascon, Commissioner of the
1986 Constitutional Commission.
13 Hilario G. Davide, Jr., Commissioner of the 1986
Constitutional Commission, and now Chief Justice of the
Supreme Court.
14 Record of the Constitutional Commission, Vol. II, p.
590.

THE SECRETARY-GENERAL: We have 43 ballots here, 15 Bernas, The Intent of the 1986 Constitution Writers,
Madam President. We shall now begin to count. p. 341 (1995).

THE PRESIDENT: Please proceed. 16 Hagedorn instead ran for Governor of Palawan in the
2001 elections but lost.
THE SECRETARY-GENERAL, reading:
17 311 SCRA 602 (1999).
Scheme No. I — /////-/////-//
18 G.R. No. 147927, February 4, 2002.
Scheme No. II — /////-/////-/////-/////-/////-/////-//
19 295 SCRA 157 (1998).
THE PRESIDENT: The results show 12 votes for Scheme
No. I and 32 votes for Scheme No. II; Scheme No. II is 20 Jose E. Suarez, Commissioner of the 1986
approved." (Emphasis supplied) Record of the Constitutional Commission.
Constitutional Commission, Vol. 2, pp. 244-245.
21 Record of the Constitutional Commission, Vol. II, p.
10 "MR. GASCON: Is this voting just for Congressmen? 592.

THE PRESIDENT: Yes.

The Secretary-General will now please proceed to count

the votes.

COUNTING OF BALLOTS

THE SECRETARY-GENERAL: Madam President, we have

here 43 ballots cast. We will now start the counting.

Alternative No. 1 — no further election after a total of

three terms: /////-/////-/////-//

Alternative No. 2 — no immediate reelection after three

successive terms: /////-/////-/////-/////-/////-/

THE PRESIDENT: The results show 17 votes for

Alternative No. I and 26 votes for Alternative No. 2;
Alternative No. 2 is approved." (Emphasis supplied)
Record of the Constitutional Commission, Vol. 2, pp.
243-244.
G.R. No. 117040 January 27, 2000
RUBEN SERRANO, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and
ISETANN DEPARTMENT STORE, respondents.
MENDOZA, J.:
This is a Petition seeking review of the resolutions,
dated March 30, 1994 and August 26, 1994, of the
National Labor Relations Commission (NLRC) which
reversed the decision of the Labor Arbiter and
dismissed petitioner Ruben Serrano's complaint for
illegal dismissal and denied his motion for
reconsideration. The facts are as follows:
Petitioner was hired by private respondent Isetann
Department Store as a security checker to apprehend
shoplifters and prevent pilferage of merchandise.1
Initially hired on October 4, 1984 on contractual basis,
petitioner eventually became a regular employee on
April 4, 1985. In 1988, he became head of the Security
Checkers Section of private respondent.2
Sometime in 1991, as a cost-cutting measure, private
respondent decided to phase out its entire security
section and engage the services of an independent
security agency. For this reason, it wrote petitioner the
following memorandum:3
October 11, 1991
MR. RUBEN SERRANO
PRESENT
Dear Mr. Seranno,
In view of the retrenchment program of the company,
we hereby reiterate our verbal notice to you of your
termination as Security Section Head effective October
11, 1991.
Please secure your clearance from this office.
Very truly yours,
[Sgd.] TERESITA A. VILLANUEVA
Human Resources Division Manager
The loss of his employment prompted petitioner to file
a complaint on December 3, 1991 for illegal dismissal,
illegal layoff, unfair labor practice, underpayment of
wages, and nonpayment of salary and overtime pay.4
The parties were required to submit their position
papers, on the basis of which the Labor Arbiter defined
the issues as follows:5
Whether or not there is a valid ground for the dismissal
of the complainant.
Whether or not complainant is entitled to his monetary
claims for underpayment of wages, nonpayment of
salaries, 13th month pay for 1991 and overtime pay.
Whether or not Respondent is guilty of unfair labor
practice.
Thereafter, the case was heard. On April 30, 1993, the
Labor Arbiter rendered a decision finding petitioner to
have been illegally dismissed. He ruled that private
respondent failed to establish that it had retrenched its
security section to prevent or minimize losses to its
business; that private respondent failed to accord due
process to petitioner; that private respondent failed to
use reasonable standards in selecting employees whose
employment would be terminated; that private
respondent had not shown that petitioner and other
employees in the security section were so inefficient so
as to justify their replacement by a security agency, or
that "cost-saving devices [such as] secret video cameras
(to monitor and prevent shoplifting) and secret code
tags on the merchandise" could not have been
employed; instead, the day after petitioner's dismissal,
private respondent employed a safety and security
supervisor with duties and functions similar to those of
petitioner.1âwphi1.nêt
Accordingly, the Labor Arbiter ordered:6
WHEREFORE, above premises considered, judgment is
hereby decreed:
(a) Finding the dismissal of the complainant to be illegal
and concomitantly, Respondent is ordered to pay
complainant full backwages without qualification or
deduction in the amount of P74,740.00 from the time of
his dismissal until reinstatement. (computed till
promulgation only) based on his monthly salary of
P4,040.00/month at the time of his termination but
limited to (3) three years;
(b) Ordering the Respondent to immediately reinstate
the complainant to his former position as security
section head or to a reasonably equivalent supervisorial
position in charges of security without loss of seniority
rights, privileges and benefits. This order is immediately
executory even pending appeal;
(c) Ordering the Respondent to pay complainant unpaid
wages in the amount of P2,020.73 and proportionate
13th month pay in the amount of P3,198.30;
(d) Ordering the Respondent to pay complainant the
amount of P7,995.91, representing 10% attorney's fees
based on the total judgment award of P79,959.12.
All other claims of the complainant whether monetary
or otherwise is hereby dismissed for lack of merit.
SO ORDERED.
Private respondent appealed to the NLRC which, in its
resolution of March 30, 1994; reversed the decision of
the Labor Arbiter and ordered petitioner to be given
separation pay equivalent to one month pay for every
year of service, unpaid salary, and proportionate 13th
month pay. Petitioner filed a motion for
reconsideration, but his motion was denied.
The NLRC held that the phase-out of private
respondent's security section and the hiring of an
independent security agency constituted an exercise by
private respondent of "[a] legitimate business decision
whose wisdom we do not intend to inquire into and for
which we cannot substitute our judgment"; that the
distinction made by the Labor Arbiter between
"retrenchment" and the employment of cost-saving
devices" under Art. 283 of the Labor Code was
insignificant because the company official who wrote
the dismissal letter apparently used the term
"retrenchment" in its "plain and ordinary sense: to
layoff or remove from one's job, regardless of the
reason therefor"; that the rule of "reasonable criteria"
in the selection of the employees to be retrenched did
not apply because all positions in the security section
had been abolished; and that the appointment of a
safety and security supervisor referred to by petitioner
to prove bad faith on private respondent's part was of
no moment because the position had long been in
existence and was separate from petitioner's position as
head of the Security Checkers Section.
Hence this petition. Petitioner raises the following issue:
IS THE HIRING OF AN INDEPENDENT SECURITY AGENCY
BY THE PRIVATE RESPONDENT TO REPLACE ITS
CURRENT SECURITY SECTION A VALID GROUND FOR THE
DISMISSAL OF THE EMPLOYEES CLASSED UNDER THE
LATTER?7
Petitioner contends that abolition of private
respondent's Security Checkers Section and the
employment of an independent security agency do not
fall under any of the authorized causes for dismissal
under Art. 283 of the Labor Code.
Petitioner Laid Off for Cause
Petitioner's contention has no merit. Art. 283 provides:
Closure of establishment and reduction of personnel. —
The employer may also terminate the employment of
any employee due to the installation of labor-saving
devices, redundancy, retrenchment to prevent losses or
the closing or cessation of operations of the
establishment or undertaking unless the closing is for
the purpose of circumventing the provisions of this
Title, by serving a written notice on the, workers and
the Department of Labor and Employment at least one
(1) month before the intended date thereof. In case of
termination due to the installation of labor-saving
devices or redundancy, the worker affected thereby
shall be entitled to a separation pay equivalent to at
least one (1) month pay or to at least one (1) month pay
for every year of service, whichever is higher. In case of
retrenchment to prevent losses and in cases of closure
or cessation of operations of establishment or
undertaking not due to serious business losses or
financial reverses, the separation pay shall be
equivalent to at least one (1) month pay or at least one-
half (1/2) month pay for every year of service,
whichever is higher. A fraction of at least six (6) months
shall be considered as one (1) whole year.
In De Ocampo v. National Labor Relations Commission,8
this Court upheld the termination of employment of
three mechanics in a transportation company and their
replacement by a company rendering maintenance and
repair services. It held:
In contracting the services of Gemac Machineries, as
part of the company's cost-saving program, the services
rendered by the mechanics became redundant and
superfluous, and therefore properly terminable. The
company merely exercised its business judgment or
management prerogative. And in the absence of any
proof that the management abused its discretion or
acted in a malicious or arbitrary manner, the court will
not interfere with the exercise of such prerogative.9

In Asian Alcohol Corporation v. National Labor Relations
Commission,10 the Court likewise upheld the
termination of employment of water pump tenders and
their replacement by independent contractors. It ruled
that an employer's good faith in implementing a
redundancy program is not necessarily put in doubt by
the availment of the services of an independent
contractor to replace the services of the terminated
employees to promote economy and efficiency.
Indeed, as we pointed out in another case, the
"[management of a company] cannot be denied the
faculty of promoting efficiency and attaining economy
by a study of what units are essential for its operation.
To it belongs the ultimate determination of whether
services should be performed by its personnel or
contracted to outside agencies . . . [While there] should
be mutual consultation, eventually deference is to be
paid to what management decides."11 Consequently,
absent proof that management acted in a malicious or
arbitrary manner, the Court will not interfere with the
exercise of judgment by an employer.12
In the case at bar, we have only the bare assertion of
petitioner that, in abolishing the security section,
private respondent's real purpose was to avoid
payment to the security checkers of the wage increases
provided in the collective bargaining agreement
approved in 1990.13 Such an assertion is not sufficient
basis for concluding that the termination of petitioner's
employment was not a bona fide decision of
management to obtain reasonable return from its
investment, which is a right guaranteed to employers
under the Constitution.14 Indeed, that the phase-out of
the security section constituted a "legitimate business
decision" is a factual finding of an administrative agency
which must be accorded respect and even finality by
this Court since nothing can be found in the record
which fairly detracts from such finding.15
Accordingly, we hold that the termination of
petitioner's services was for an authorized cause, i.e.,
redundancy. Hence, pursuant to Art. 283 of the Labor
Code, petitioner should be given separation pay at the
rate of one month pay for every year of service.
Sanctions for Violations of the Notice Requirement
Art. 283 also provides that to terminate the
employment of an employee for any of the authorized
causes the employer must serve "a written notice on
the workers and the Department of Labor and
Employment at least one (1) month before the intended
date thereof." In the case at bar, petitioner was given a
notice of termination on October 11, 1991. On the same
day, his services were terminated. He was thus denied
his right to be given written notice before the
termination of his employment, and the question is the
appropriate sanction for the violation of petitioner's
right.
To be sure, this is not the first time this question has
arisen. In Subuguero v. NLRC,16 workers in a garment
factory were temporarily laid off due to the cancellation
of orders and a garment embargo. The Labor Arbiter
found that the workers had been illegally dismissed and
ordered the company to pay separation pay and
backwages. The NLRC, on the other hand, found that
this was a case of retrenchment due to business losses
and ordered the payment of separation pay without
backwages. This Court sustained the NLRC's finding.
However, as the company did not comply with the 30-
day written notice in Art. 283 of the Labor Code, the
Court ordered the employer to pay the workers
P2,000.00 each as indemnity.
The decision followed the ruling in several cases
involving dismissals which, although based on any of
the just causes under Art. 282,17 were effected without
notice and hearing to the employee as required by the
implementing rules.18 As this Court said: "It is now
settled that where the dismissal of one employee is in
fact for a just and valid cause and is so proven to be but
he is not accorded his right to due process, i.e., he was
not furnished the twin requirements of notice and
opportunity to be heard, the dismissal shall be upheld
but the employer must be sanctioned for non-
compliance with the requirements of, or for failure to
observe, due process."19
The rule reversed a long standing policy theretofore
followed that even though the dismissal is based on a
just cause or the termination of employment is for an
authorized cause, the dismissal or termination is illegal
if effected without notice to the employee. The shift in
doctrine took place in 1989 in Wenphil Corp. v. NLRC.20
In announcing the change, this Court said:21
The Court holds that the policy of ordering the
reinstatement to the service of an employee without
loss of seniority and the payment of his wages during
the period of his separation until his actual
reinstatement but not exceeding three (3) years
without qualification or deduction, when it appears he
was not afforded due process, although his dismissal
was found to be for just and authorized cause in an
appropriate proceeding in the Ministry of Labor and
Employment, should be re-examined. It will be highly
prejudicial to the interests of the employer to impose
on him the services of an employee who has been
shown to be guilty of the charges that warranted his
dismissal from employment. Indeed, it will demoralize
the rank and file if the undeserving, if not undesirable,
remains in the service.
xxx xxx xxx
However, the petitioner must nevertheless be held to
account for failure to extend to private respondent his
right to an investigation before causing his dismissal.
The rule is explicit as above discussed. The dismissal of
an employee must be for just or authorized cause and
after due process. Petitioner committed an infraction of
the second requirement. Thus, it must be imposed a
sanction for its failure to give a formal notice and
conduct an investigation as required by law before
dismissing petitioner from employment. Considering
the circumstances of this case petitioner must
indemnify the private respondent the amount of
P1,000.00. The measure of this award depends on the
facts of each case and the gravity of the omission
committed by the employer.
The fines imposed for violations of the notice
requirement have varied from P1,000.0022 to
P2,000.0023 to P5,000.0024 to P10,000.00.25
Need for Reexamining the Wenphil Doctrine
Today, we once again consider the question of
appropriate sanctions for violations of the notice
experience during the last decade or so with the
Wenphil doctrine. The number of cases involving
dismissals without the requisite notice to the employee,
although effected for just or authorized causes, suggest
that the imposition of fine for violation of the notice
requirement has not been effective in deterring
violations of the notice requirement. Justice Panganiban
finds the monetary sanctions "too insignificant, too
niggardly, and sometimes even too late." On the other
hand, Justice Puno says there has in effect been
fostered a policy of "dismiss now; pay later" which
moneyed employers find more convenient to comply
with than the requirement to serve a 30-day written
notice (in the case of termination of employment for an
authorized cause under Arts. 283-284) or to give notice
and hearing (in the case of dismissals for just causes
under Art. 282).
For this reason, they regard any dismissal or layoff
without the requisite notice to be null and void even
though there are just or authorized cause for such
dismissal or layoff. Consequently, in their view, the
employee concerned should be reinstated and paid
backwages.
Validity of Petitioner's Layoff Not Affected by Lack of
Notice
We agree with our esteemed colleagues, Justices Puno
and Panganiban, that we should rethink the sanction of
fine for an employer's disregard of the notice
requirement. We do not agree, however, that disregard
of this requirement by an employer renders the
dismissal or termination of employment null and void.
Such a stance is actually a reversion to the discredited
pre-Wenphil rule of ordering an employee to be
reinstated and paid backwages when it is shown that he
has not been given notice and hearing although his
dismissal or layoff is later found to be for a just or
authorized cause. Such rule was abandoned in Wenphil
because it is really unjust to require an employer to
keep in his service one who is guilty, for example, of an
attempt on the life of the employer or the latter's
family, or when the employer is precisely retrenching in
order to prevent losses.
The need is for a rule which, while recognizing the
employee's right to notice before he is dismissed or laid
off, at the same time acknowledges the right of the
employer to dismiss for any of the just causes
enumerated in Art. 282 or to terminate employment for
any of the authorized causes mentioned in Arts. 283-
284. If the Wenphil rule imposing a fine on an employer
who is found to have dismissed an employee for cause
without prior notice is deemed ineffective in deterring
employer violations of the notice requirement, the
remedy is not to declare the dismissal void if there are
just or valid grounds for such dismissal or if the
termination is for an authorized cause. That would be to
uphold the right of the employee but deny the right of
the employer to dismiss for cause. Rather, the remedy
is to order the payment to the employee of full
backwages from the time of his dismissal until the court
finds that the dismissal was for a just cause. But,
otherwise, his dismissal must be upheld and he should
not be reinstated. This is because his dismissal is
ineffectual.
For the same reason, if an employee is laid off for any of
the causes in Arts. 283-284, i.e., installation of a labor-
saving device, but the employer did not give him and
the DOLE a 30-day written notice of termination in
advance, then the termination of his employment
should be considered ineffectual and he should be paid
backwages. However, the termination of his
employment should not be considered void but he
should simply be paid separation pay as provided in Art.
283 in addition to backwages.
Justice Puno argues that an employer's failure to
comply with the notice requirement constitutes a denial
of the employee's right to due process. Prescinding
from this premise, he quotes the statement of Chief
Justice Concepcion Vda. de Cuaycong v. Vda. de
Sengbengco26 that "acts of Congress, as well as of the
Executive, can deny due process only under the pain of
nullity, and judicial proceedings suffering from the same
flaw are subject to the same sanction, any statutory
provision to the contrary notwithstanding." Justice
Puno concludes that the dismissal of an employee
without notice and hearing, even if for a just cause, as
provided in Art. 282, or for an authorized cause, as
provided in Arts. 283-284, is a nullity. Hence, even if just
or authorized cause exist, the employee should be
reinstated with full back pay. On the other hand, Justice
Panganiban quotes from the statement in People v.
Bocar27 that "[w]here the denial of the fundamental
right of due process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction."
Violation of Notice Requirement Not a Denial of Due
Process
The cases cited by both Justices Puno and Panganiban
refer, however, to the denial of due process by the
State, which is not the case here. There are three
reasons why, on the other hand, violation by the
employer of the notice requirement cannot be
considered a denial of due process resulting in the
nullity of the employee's dismissal or layoff.
The first is that the Due Process Clause of the
Constitution is a limitation on governmental powers. It
does not apply to the exercise of private power, such as
the termination of employment under the Labor Code.
This is plain from the text of Art. III, §1 of the
Constitution, viz.: "No person shall be deprived of life,
liberty, or property without due process of law. . . ." The
reason is simple: Only the State has authority to take
the life, liberty, or property of the individual. The
purpose of the Due Process Clause is to ensure that the
exercise of this power is consistent with what are
considered civilized methods.
The second reason is that notice and hearing are
required under the Due Process Clause before the
power of organized society are brought to bear upon
the individual. This is obviously not the case of
termination of employment under Art. 283. Here the
employee is not faced with an aspect of the adversary
system. The purpose for requiring a 30-day written
notice before an employee is laid off is not to afford him
an opportunity to be heard on any charge against him,
for there is none. The purpose rather is to give him time
to prepare for the eventual loss of his job and the DOLE
an opportunity to determine whether economic causes
do exist justifying the termination of his employment.
Even in cases of dismissal under Art. 282, the purpose
for the requirement of notice and hearing is not to
comply with Due Process Clause of the Constitution.
The time for notice and hearing is at the trial stage.
Then that is the time we speak of notice and hearing as
the essence of procedural due process. Thus,
compliance by the employer with the notice
requirement before he dismisses an employee does not
foreclose the right of the latter to question the legality
of his dismissal. As Art. 277(b) provides, "Any decision
taken by the employer shall be without prejudice to the
right of the worker to contest the validity or legality of
his dismissal by filing a complaint with the regional
branch of the National Labor Relations Commission."
Indeed, to contend that the notice requirement in the
Labor Code is an aspect of due process is to overlook
the fact that Art. 283 had its origin in Art. 302 of the
Spanish Code of Commerce of 1882 which gave either
party to the employer-employee relationship the right
to terminate their relationship by giving notice to the
other one month in advance. In lieu of notice, an
employee could be laid off by paying him a mesada
equivalent to his salary for one month.28 This provision
was repealed by Art. 2270 of the Civil Code, which took
effect on August 30, 1950. But on June 12, 1954, R.A.
No. 1052, otherwise known as the Termination Pay Law,
was enacted reviving the mesada. On June 21, 1957, the
law was amended by R.A. No. 1787 providing for the
giving of advance notice or the payment of
compensation at the rate of one-half month for every
year of service.29
The Termination Pay Law was held not to be a
substantive law but a regulatory measure, the purpose
of which was to give the employer the opportunity to
find a replacement or substitute, and the employee the
equal opportunity to look for another job or source of
employment. Where the termination of employment
was for a just cause, no notice was required to be given
to the, employee.30 It was only on September 4, 1981
that notice was required to be given even where the
dismissal or termination of an employee was for cause.
This was made in the rules issued by the then Minister
of Labor and Employment to implement B.P. Blg. 130
which amended the Labor Code. And it was still much
later when the notice requirement was embodied in the
law with the amendment of Art. 277(b) by R.A. No. 6715
on March 2, 1989. It cannot be that the former regime
denied due process to the employee. Otherwise, there
should now likewise be a rule that, in case an employee
leaves his job without cause and without prior notice to
his employer, his act should be void instead of simply
making him liable for damages.
The third reason why the notice requirement under Art.
283 can not be considered a requirement of the Due
Process Clause is that the employer cannot really be
expected to be entirely an impartial judge of his own
cause. This is also the case in termination of
employment for a just cause under Art. 282 (i.e., serious
misconduct or willful disobedience by the employee of
the lawful orders of the employer, gross and habitual
neglect of duties, fraud or willful breach of trust of the
employer, commission of crime against the employer or
the latter's immediate family or duly authorized
representatives, or other analogous cases).
Justice Puno disputes this. He says that "statistics in the
DOLE will prove that many cases have been won by
employees before the grievance committees manned
by impartial judges of the company." The grievance
machinery is, however, different because it is
established by agreement of the employer and the
employees and composed of representatives from both
sides. That is why, in Batangas Laguna Tayabas Bus Co.
·v. Court of Appeals,31 which Justice Puno cites, it was
held that "Since the right of [an employee] to his labor
is in itself a property and that the labor agreement
between him and [his employer] is the law between the
parties, his summary and arbitrary dismissal amounted
to deprivation of his property without due process of
law." But here we are dealing with dismissals and
layoffs by employers alone, without the intervention of
any grievance machinery. Accordingly in Montemayor v.
Araneta University Foundation,32 although a professor
was dismissed without a hearing by his university, his
dismissal for having made homosexual advances on a
student was sustained, it appearing that in the NLRC,
the employee was fully heard in his defense.
Lack of Notice Only Makes Termination Ineffectual
Not all notice requirements are requirements of due
process. Some are simply part of a procedure to be
followed before a right granted to a party can be
exercised. Others are simply an application of the
Justinian precept, embodied in the Civil Code,33 to act
with justice, give everyone his due, and observe
honesty and good faith toward one's fellowmen. Such is
the notice requirement in Arts. 282-283. The
consequence of the failure either of the employer or
the employee to live up to this precept is to make him
liable in damages, not to render his act (dismissal or
resignation, as the case may be) void. The measure of
damages is the amount of wages the employee should
have received were it not for the termination of his
employment without prior notice. If warranted, nominal
and moral damages may also be awarded.
We hold, therefore, that, with respect to Art. 283 of the
Labor Code, the employer's failure to comply with the
notice requirement does not constitute a denial of due
process but a mere failure to observe a procedure for
the termination of employment which makes the
termination of employment merely ineffectual. It is
similar to the failure to observe the provisions of Art.
1592, in relation to Art. 1191, of the Civil Code34 in
rescinding a contract for the sale of immovable
property. Under these provisions, while the power of a
party to rescind a contract is implied in reciprocal
obligations, nonetheless, in cases involving the sale of
immovable property, the vendor cannot exercise this
power even though the vendee defaults in the payment
of the price, except by bringing an action in court or
giving notice of rescission by means of a notarial
demand.35 Consequently, a notice of rescission given in
the letter of an attorney has no legal effect, and the
vendee can make payment even after the due date
since no valid notice of rescission has been given.36
Indeed, under the Labor Code, only the absence of a
just cause for the termination of employment can make
the dismissal of an employee illegal. This is clear from
Art. 279 which provides:
Security of Tenure. — In cases of regular employment,
the employer shall not terminate the services of an
employee except for a just cause or when authorized by
this Title. An employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other
benefits or their monetary equivalent computed from
the time his compensation was withheld from him up to
the time of his actual reinstatement.37
Thus, only if the termination of employment is not for
any of the causes provided by law is it illegal and,
therefore, the employee should be reinstated and paid
backwages. To contend, as Justices Puno and
Panganiban do, that even if the termination is for a just
or authorized cause the employee concerned should be
reinstated and paid backwages would be to amend Art.
279 by adding another ground for considering a
dismissal illegal. What is more, it would ignore the fact
that under Art. 285, if it is the employee who fails to
give a written notice to the employer that he is leaving
the service of the latter, at least one month in advance,
his failure to comply with the legal requirement does
not result in making his resignation void but only in
making him liable for damages.38 This disparity in legal
treatment, which would result from the adoption of the
theory of the minority cannot simply be explained by
invoking resident Ramon Magsaysay's motto that "he
who has less in life should have more in law." That
would be a misapplication of this noble phrase originally
from Professor Thomas Reed Powell of the Harvard Law
School.
Justice Panganiban cites Pepsi-Cola Bottling Co. v.
NLRC,39 in support of his view that an illegal dismissal
results not only from want of legal cause but also from
the failure to observe "due process." The Pepsi-Cola
case actually involved a dismissal for an alleged loss of
trust and confidence which, as found by the Court, was
not proven. The dismissal was, therefore, illegal, not
because there was a denial of due process, but because
the dismissal was without cause. The statement that
the failure of management to comply with the notice
requirement "taints the dismissal with illegality" was
merely a dictum thrown in as additional grounds for
holding the dismissal to be illegal.
Given the nature of the violation, therefore, the
appropriate sanction for the failure to give notice is the
payment of backwages for the period when the
employee is considered not to have been effectively
dismissed or his employment terminated. The sanction
is not the payment alone of nominal damages as Justice
Vitug contends.
Unjust Results of Considering Dismissals/Layoffs
Without Prior Notice As Illegal
The refusal to look beyond the validity of the initial
action taken by the employer to terminate employment
either for an authorized or just cause can result in an
injustice to the employer. For not giving notice and
hearing before dismissing an employee, who is
otherwise guilty of, say, theft, or even of an attempt
against the life of the employer, an employer will be
forced to keep in his employ such guilty employee. This
is unjust.
It is true the Constitution regards labor as "a primary
social economic force."40 But so does it declare that it
"recognizes the indispensable role of the private sector,
encourages private enterprise, and provides incentives
to needed investment."41 The Constitution bids the
State to "afford full protection to labor."42 But it is
equally true that "the law, in protecting the right's of
the laborer, authorizes neither oppression nor self-
destruction of the employer."43 And it is oppression to
compel the employer to continue in employment one
who is guilty or to force the employer to remain in
operation when it is not economically in his interest to
do so.
In sum, we hold that if in proceedings for reinstatement
under Art. 283, it is shown that the termination of
employment was due to an authorized cause, then the
employee concerned should not be ordered reinstated
even though there is failure to comply with the 30-day
notice requirement. Instead, he must be granted
separation pay in accordance with Art. 283, to wit:
In case of termination due to the installation of labor-
saving devices or redundancy, the worker affected
thereby shall be entitled to a separation pay equivalent
to at least his one (1) month pay or to at least one
month for every year of service, whichever is higher. In
case of retrenchment to prevent losses and in cases of
closures or cessation of operations of establishment or
undertaking not due to serious business losses or
financial reverses, the separation pay shall be
equivalent to one (1) month pay or at least one-half
(1/2) month pay for every year of service, whichever is
higher. A fraction of at least six months shall be
considered one (1) whole year.
If the employee's separation is without cause, instead of
being given separation pay, he should be reinstated. In
either case, whether he is reinstated or only granted
separation pay, he should be paid full backwages if he
has been laid off without written notice at least 30 days
in advance.
On the other hand, with respect to dismissals for cause
under Art. 282, if it is shown that the employee was
dismissed for any of the just causes mentioned in said
Art. 282, then, in accordance with that article, he should
not be reinstated. However, he must be paid backwages
from the time his employment was terminated until it is
determined that the termination of employment is for a
just cause because the failure to hear him before he is
dismissed renders the termination of his employment
without legal effect.
WHEREFORE, the petition is GRANTED and the
resolution of the National Labor Relations Commission
is MODIFIED by ordering private respondent Isetann
Department Store, Inc. to pay petitioner separation pay
equivalent to one (1) month pay for every year of
service, his unpaid salary, and his proportionate 13th
month pay and, in addition, full backwages from the
time his employment was terminated on October 11,
1991 up to the time the decision herein becomes final.
For this purpose, this case is REMANDED to the Labor
Arbiter for computation of the separation pay,
backwages, and other monetary awards to petitioner.
SO ORDERED.
Davide, Jr., C.J., Melo, Kapunan, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes and De Leon, Jr., JJ.,
concur.
Bellosillo J., Please see Separate Opinion.
Puno, J., Please see Dissenting Opinion.
Vitug, J., Please see Separate opinion.
Panganiban J., Please see Separate Opinion.
Ynares-Santiago, J., I join the dissenting opinion of J.
Puno.
Separate Opinions
BELLOSILLO, J., separate opinion;
We point out at the outset that this Petition for Review
which was filed before the promulgation of St. Martin
Funeral Home v. National Labor Relations Commission,1
is not the proper means by which NLRC decisions are
appealed to this Court. Before St. Martin Funeral Home,
it was only through a Petition for Certiorari under Rule
65 that NLRC decisions could be reviewed and nullified
by us on the ground of lack of jurisdiction or grave
abuse of discretion amounting to lack or excess of
jurisdiction. After St. Martin Funeral Home, petitions
like the one at bar are initially filed in the Court of
Appeals for proper adjudication.
In the interest of justice, however, and in order to write
finis to the instant case which has already dragged on
for so long, we shall treat the petition pro hac vice as
one for certiorari under Rule 65 although it is captioned
Petition for Review on Certiorari; after all, it was filed
within the reglementary period for the filing of a
petition for certiorari under Rule 65.
Briefly, on 4 April 1985 private respondent Isetann
Department Store, Inc. (ISETANN), employed petitioner
Ruben Serrano as Security Checker until his
appointment as Security Section Head. On October
1991 ISETANN through its Human Resource Division
Manager Teresita A. Villanueva sent Serrano a
memorandum terminating his employment effective
immediately "in view of the retrenchment program of
the company," and directing him to secure clearance
from their office.2
Petitioner Serrano filed with the NLRC Adjudication
Office a complaint for illegal dismissal and
underpayment of wages against ISETANN. Efforts at
amicable settlement proved futile. Ms. Cristina Ramos,
Personnel Administration Manager of ISETANN, testified
that the security checkers and their section head were
retrenched due to the installation of a labor saving
device, i.e., the hiring of an independent security
agency.
Finding the dismissal to be illegal, the Labor Arbiter
ordered the immediate reinstatement of Serrano to his
former or to an equivalent position plus payment of
back wages, unpaid wages, 13th month pay and
attorney's fees.
On appeal the NLRC reversed the Labor Arbiter and
ruled that ISETANN acted within its prerogative when it
phased out its Security Section and retained the
services of an independent security agency in order to
cut costs and economize. Upon denial of his motion for
reconsideration3 Serrano filed the instant petition
imputing grave abuse of discretion on the part of the
NLRC.
Art. 282 of the Labor Code enumerates the just causes
for the termination of employment by the employer: (a)
serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or the
latter's representative in connection with the
employee's work; (b) gross and habitual neglect by the
employee of his duties; (c) fraud or willful breach by the
employee of the trust reposed in him by his employer
or his duly authorized representative; (d) commission of
a crime or offense by the employee against the person
of his employer or any immediate member of his family
or his duly authorized representative; and, (e) other
causes analogous to the foregoing.
On the other hand, Arts. 283 and 284 of the same Code
enumerate the so-called authorized causes: (a)
installation of labor saving devices; (b) redundancy: (b)
retrenchment to prevent losses; (d) closure or cessation
of the establishment or undertaking unless the closure
or cessation is for the purpose of circumventing the
provisions of the law; and, (e) disease.
The Just causes enumerated under Art. 282 of the Labor
Code are provided by the employee who causes the
infraction. The authorized causes are provided by the
employer either because of outside factors such as the
general decline in the economy or merely part of its
long range plan for business profitability. Corollarily, in
termination for a just cause, the employee is not
entitled to separation pay unlike in termination for an
authorized cause. In addition, the basis in computing
the amount of separation pay varies depending on
whether the termination is due to the installation of a
labor saving device, or redundancy, in which case, the
employee is entitled to receive separation pay
equivalent to at least one (1) month pay or to at least
one (1) month pay for every year of service. In case the
termination is due to retrenchment in order to prevent
losses or in case of closure or cessation of operation of
the establishment or undertaking not due to serious
business losses or financial reverses, the separation pay
is lower, i.e., equivalent to one (1) month pay or at least
one-half month pay for every year of service, whichever
is higher. As may be gleaned from the foregoing, where
the cause of termination is for the financial advantage
or benefit of the employer, the basis in computing for
separation pay is higher compared to termination
dictated by necessity with no appreciable financial
advantage to the employer.
In the instant case, we agree with the NLRC that the
dismissal of petitioner Serrano was for an authorized
cause, i.e., redundancy, which exists where the services
of an employee are in excess of what are reasonably
demanded by the actual requirements of the
enterprise. A position is redundant where it is
superfluous, and the superfluity may be the outcome of
other factors such as overhiring of workers, decreased
volume of other business, or dropping of a particular
product line or service activity previously manufactured
or undertaken by the enterprise.4
The hiring of an independent security agency is a
business decision properly within the exercise of
management prerogative. As such, this Court is denied
the authority to delve into its wisdom although it is
equipped with the power to determine whether the
exercise of such prerogative is in accordance with law.
Consequently, the wisdom or soundness of the
management decision is not subject to the discretionary
review of the Labor Arbiter nor of the NLRC unless there
is a violation of law or arbitrariness in the exercise
thereof, in which case, this Court will step in.5
Specifically, we held in International Harvester Macleod,
Inc. v. Intermediate Appellate Court6 that the
determination of whether to maintain or phase out an
entire department or section or to reduce personnel lies
with management. The determination of the need for
the phasing out of a department as a labor and cost
saving device because it is no longer economical to
retain its services is a management prerogative.
After having established that the termination of
petitioner Ruben Serrano was for an authorized cause,
we now address the issue of whether proper
procedures were observed in his dismissal.
Since the State affords protection to labor under the
Constitution,7 workers enjoy security of tenure and may
only be removed or terminated upon valid reason and
through strict observance of proper procedure.8 Article
279 of the Labor Code specifically provides —
Art. 279. Security of Tenure. — In cases of regular
employment, the employer shall not terminate the
services of an employee except for a just cause or when
authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and
to his full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent computed
from the time his compensation was withheld from him
up to the time of his actual reinstatement.
Security of tenure however does not guarantee
perpetual employment. If there exists a just or an
authorized cause, the employer may terminate the
services of an employee but subject always to
procedural requirements. The employer cannot be
legally compelled to have in its employ a person whose
continued employment is patently inimical to its
interest. The law, while affording protection to the
employee, does not authorize the oppression or
destruction of his employer.9
Subject then to the constitutional right of workers to
security of tenure and to be protected against dismissal
except for a just or authorized cause, and without
prejudice to the requirement of notice under Art. 283 of
the Labor Code, the employer shall furnish the worker
whose employment is sought to be terminated a
written notice containing a statement of the cause of
termination and shall afford the latter ample
opportunity to be heard and to defend himself with the
assistance of his representative, if he so desires, in
accordance with company rules and regulations
promulgated pursuant to guidelines set by the DOLE.10
As specifically provided in Art. 283 of the Labor Code,
the employer may terminate the employment of any
employee due to redundancy by serving a written
notice on the worker and the DOLE at least one (1)
month before the intended date thereof. In the instant
case, ISETANN clearly violated the provisions of Art. 283
on notice.11 It did not send a written notice to DOLE
which is essential because the right to terminate an
employee is not an absolute prerogative. The lack of
written notice denied DOLE the opportunity to
determine the validity of the termination.
The written notice ISETANN sent to Serrano was dated
11 October 1991 or on the same day the intended
termination was to take effect. This obviously did not
comply with the 30-day mandatory requirement.
Although the cause for discharge may be just or
authorized, it is still necessary and obligatory to afford
the employee concerned his basic and more important
right to notice. Serrano was not given the chance to
make the needed adjustments brought about by his
termination. Significantly, the notice is intended to
enable the employee not only to prepare himself for the
legal battle to protect his tenure of employment, which
can be long, arduous, expensive and complicated by his
own standards, but also to find other means of
employment and ease the impact of the loss of his job
and, necessarily, has income.
We are of the view that failure to send notice of
termination to Serrano is not tantamount to violation of
his constitutional right to due process but merely
constitutes non-compliance with the provision on
notice under Art. 283 of the Labor Code.
The legitimacy of a government is established and its
functions delineated in the Constitution. From the
Constitution flows all the powers of government in the
same manner that it sets the limits for their proper
exercise. In particular, the Bill of Rights functions
primarily as a deterrent to any display of arbitrariness
on the part of the government or any of its
instrumentalities. It serves as the general safeguard, as
is apparent in its first section which states, "No person
shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal
protection of the laws."12 Specifically, due process is a
requirement for the validity of any governmental action
amounting to deprivation of liberty.13 It is a restraint
on state action not only in terms of what it amounts to
but how it is accomplished. Its range thus covers both
the ends sough to be achieved by officialdom as well as
the means for their realization.14
Substantive due process is a weapon that may be
utilized to challenge acts of the legislative body,
whether national or local, and presumably executive
orders of the President and administrative orders and
regulations of a rule-making character. Procedural due
process, on the other hand, is available for the purpose
of assailing arbitrariness or unreasonableness in the
administration of the law by executive department or
the judicial branch. Procedural due process likewise
may aid those appearing before Congressional
committees if the proceedings are arbitrary or
otherwise unfair.13
Procedural due process demands that governmental
acts, more specifically so in the case of the judiciary, not
be affected with arbitrariness.16 The same
disinterestedness required of men on the bench must
characterize the actuations of public officials, not
excluding the President, to satisfy the requirements of
procedural due process.17
In his dissent Mr. Justice Puno states that "the new
majority opinion limiting violations of due process to
government action alone is a throwback to a regime of
law long discarded by more progressive countries." He
opines that "today, private due process is a settled
norm in administrative law," citing Schwartz, an
authority in administrative law.
We beg to disagree. A careful reading of Schwartz
would reveal that requirements of procedural due
process extended from governmental to private action
only in instances where there is "sufficient
governmental involvement" or "the private action was
so saturated with governmental incidents."
The cardinal primary requirements of due process in
administrative proceedings were highlighted in Ang
Tibay v. Court of Industrial Relations:18 (a) the right to a
hearing, which includes the right to present one's case
and submit evidence in support thereof; (b) the tribunal
must consider the evidence presented; (c) the decision
must have something to support itself; (d) the evidence
must be substantial; (e) the decision must be based on
the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties
affected; (f) the tribunal or body or any of its judges
must act on its own independent consideration of the
law and facts of the controversy, and not simply accept
the views of a subordinate; (g) the board or body
should, in all controversial questions, render its decision
in such manner that the parties to the proceeding may
know the various issues involved, and the reason for the
decision rendered.
Also in Lumiqued v. Exevea19 it was held —
In administrative proceedings, the essence of due
process is simply the opportunity to explain one's side.
One may be heard, not solely by verbal presentation
but also, and perhaps even more creditably as it is more
practicable than oral arguments, through pleadings. An
actual hearing is not always an indispensable aspect of
due process. As long as a party was given the
opportunity to defend his interests in due course, he
cannot be said to have been denied due process of law,
for this opportunity to be heard is the very essence of
due process.
From the foregoing, it is clear that the observance of
due process is demanded in governmental acts.
Particularly in administrative proceedings, due process
starts with the tribunal or hearing officer and not with
the employer. In the instant case, what is mandated of
the employer to observe is the 30-day notice
requirement. Hence, non-observance of the notice
requirement is not denial of due process but merely a
failure to comply with a legal obligation for which we
strongly recommend, we impose a disturbance
compensation as discussed hereunder.
In the instant case, we categorically declare that
Serrano was not denied his right to due process.
Instead, his employer did not comply with the 30-day
notice requirement. However, while Serrano was not
given the required 30-day notice, he was nevertheless
given and, in fact, took advantage of every opportunity
to be heard, first, by the Labor Arbiter, second, by the
NLRC, and third, by no less than this Court. Before the
Labor Arbiter and the NLRC, petitioner had the
opportunity to present his side not only orally but
likewise through proper pleadings and position papers.
It is not correct therefore to say that petitioner was
deprived of his right to due process.
We have consistently upheld in the past as valid
although irregular the dismissal of an employee for a
just or authorized cause but without notice and have
imposed a sanction on the erring employers in the form
of damages for their failure to comply with the notice
requirement. We discussed the rationale behind this
ruling in Wenphil Corporation v. NLRC20 thus —
The Court holds that the policy of ordering
reinstatement to the service of an employee without
loss of seniority and the payment of his wages during
the period of his separation until his actual
reinstatement but not exceeding three years without
qualification or deduction, when it appears he was not
afforded due process, although his dismissal was found
to be for just and authorized cause in an appropriate
proceeding in the Ministry of Labor and Employment
should be re-examined. It will be highly prejudicial to
the interests of the employer to impose on him the
services of an employee who has been shown to be
guilty of the charges that warranted his dismissal from
employment. Indeed, it will demoralize the rank and file
if the undeserving, if not undesirable, remains in the
service . . . . However, the petitioner must nevertheless
be held to account for failure to extend to private
respondent his right to an investigation before causing
his dismissal. The rule is explicit as above discussed. The
dismissal of an employee must be for just or authorized
cause and after due process. Petitioner committed an
infraction of the second requirement. Thus, it must be
imposed a sanction for its failure to give a formal notice
and conduct an investigation as required by law before
dismissing petitioner from employment. Considering
the circumstances of this case petitioner must
indemnify private respondent the amount of P1,000.00.
The measure of this award depends on the facts of each
case and the gravity of the omission committed by the
employer (emphasis supplied).
In Sebuguero v. National Labor Relations Commission21
Mr. Justice Davide Jr., now Chief Justice, made this clear
pronouncement —
It is now settled that where the dismissal of an
employee is in fact for a just and valid cause and is so
proven to be but he is not accorded his right to due
process, i.e. he was not furnished the twin
requirements of notice and the opportunity to be
heard, the dismissal shall be upheld but the employer
must be sanctioned for non-compliance with the
requirements of or for failure to observe due process.
The sanction, in the nature of indemnification or
penalty, depends on the facts of each case and the
gravity of the omission committed by the employer.
This ruling was later ably amplified by Mr. Justice Puno
in Nath v. National Labor Relations Commission22
where he wrote —
The rules require the employer to furnish the worker
sought to be dismissed with two written notices before
termination of employment can be legally effected: (1)
notice which apprises the employee of the particular
acts or omissions for which his dismissal is sought; and
(2) the subsequent notice which informs the employee
of the employer's decision to dismiss him. In the instant
case, private respondents have failed to furnish
petitioner with the first of the required two (2) notices
and to state plainly the reasons for the dismissal in the
termination letter. Failure to comply with the
requirements taints the dismissal with illegality.
Be that as it may, private respondent can dismiss
petitioner for just cause . . . . We affirm the finding of
the public respondent that there was just cause to
dismiss petitioner, a probationary employee (emphasis
supplied).
Also, in Camua v. National Labor Relations
Commission23 this Court through Mr. Justice Mendoza
decreed —
In the case at bar, both the Labor Arbiter and the NLRC
found that no written notice of the charges had been
given to petitioner by the respondent company. . . .
Accordingly, in accordance with the well-settled rule,
private respondents should pay petitioner P1,000.00 as
indemnity for violation of his right to due process . . . .
Although an employee validy dismissed for cause he
may nevertheless be given separation pay as a measure
of social justice provided the cause is not serious
misconduct reflecting on his moral character (emphasis
supplied).
Non-observance of this procedural requirement before
would cause the employer to be penalized by way of
paying damages to the employee the amounts of which
fluctuated through the years. Thus, for just cause the
indemnity ranged from P1,000.00 to P10,000.00.24 For
authorized cause, as distinguished from just cause, the
award ranged from P2,000.00 to P5,000.00.25
This Court has also sanctioned the ruling that a
dismissal for a just or authorized cause but without
observance of the mandatory 30-day notice
requirement was valid although considered irregular.
The Court ratiocinated that employers should not be
compelled to keep in their employ undesirable and
undeserving laborers. For the irregularity, i.e., the
failure to observe the 30-day notice of termination, the
employer was made to pay a measly sum ranging from
P1,000.00 to P10,000.00.
With regard to the indemnity or penalty, which we
prefer seriously to be referred to as "disturbance
compensation," the Court has awarded varying
amounts depending on the circumstances of each case
and the gravity of the commission. We now propose
that the amount of the award be uniform and rational
and not arbitrary. The reason for the proposal or
modification is that in their non-compliance with the
30-day notice requirement the erring employers,
regardless of the peculiar circumstances of each case,
commit the infraction only by the single act of not giving
any notice to their workers. It cannot be gainfully said
that the infraction in one case is heavier than in the
other as the non-observance constitutes one single act.
Thus, if the dismissal is illegal, i.e. there is no just or
authorized cause, a disturbance compensation in the
amount of P10,000.00 may be considered reasonable. If
the dismissal is for a just cause but without notice, a
disturbance compensation in the amount P5,000.00
may be given. In termination for an authorized cause
and the notice requirement was not complied with, we
distinguish further: If it is to save the employer from
imminent bankruptcy or business losses, the
disturbance compensation to be given is P5,000.00. If
the authorized cause was intended for the employer to
earn more profits, the amount of disturbance
compensation is P10,000.00. This disturbance
compensation, again we strongly recommend, should
be given to the dismissed employee at the first instance,
the moment it is shown that his employer has
committed the infraction — of not complying with the
30-day written notice requirement — to tide him over
during his economic dislocation.
The right of the laborers to be informed of their
impending termination cannot be taken lightly, and the
award of any amount below P5,000.00 may be too
anemic to satisfy the fundamental protection especially
accorded to labor and the workingman. In fact, it is
hardly enough to sustain a family of three; more so if
the employee has five or more children, which seems to
be the average size of a Filipino family.

Henceforth, if the dismissal is for a just cause but
without observance of the 30-day notice requirement,
the dismissal is deemed improper and irregular. If later
the dismissal is ascertained to be without just cause, the
dismissed employee is entitled to reinstatement, if this
be feasible, otherwise to separation pay and back
wages plus disturbance compensation of P10,000.00
and moral damages, if warranted. On the other hand, if
the dismissal is ascertained to be with just cause, the
dismissed employee is entitled nevertheless to a
disturbance compensation of P5,000.00 if the legal
requirement of the 30-day notice to both employee and
DOLE has not been complied with.
In instances where there is obviously a ground for
dismissal, as when the employee has become violent
and his presence would cause more harm to his co-
workers and the security and serenity of the workplace,
the employee may be suspended in the meantime until
he is heard with proper observance of the 30-day notice
requirement. Likewise, if the dismissal is for an
authorized cause but without the required notice, the
dismissal is improper and irregular and the employee
should be paid separation pay, back wages and
disturbance compensation of P5,000.00 or
P10,000.00.00 depending on the cause. As already
intimated, if the authorized cause is for the purpose of
saving the employer from imminent bankruptcy or
business losses, the disturbance compensation should
be P5,000.00; otherwise, if the authorized cause is for
the employer, in the exercise of management
prerogative, to save and earn more profits, the
disturbance compensation should be P10,000.00.
In the instant case, Serrano was given his walking
papers only on the very same day his termination was
to take effect. DOLE was not served any written notice.
In other words, there was non-observance of the 30-day
notice requirement to both Serrano and the DOLE.
Serrano was thus terminated for an authorized cause
but was not accorded his right to 30-day notice. Thus,
his dismissal being improper and irregular, he is entitled
to separation pay and back wages the amounts of which
to be determined by the Labor Arbiter, plus P10,000.00
as disturbance compensation which, from its very
nature, must be paid immediately to cushion the impact
of his economic dislocation.
One last note. This Separate Opinion is definitely not
advocating a new concept in imposing the so-called
"disturbance compensation." Since Wenphil
Corporation v. NLRC 26 this Court has already
recognized the necessity of imposing a sanction in the
form of indemnity or even damages, when proper, not
specifically provided by any law, upon employers who
failed to comply with the twin-notice requirement. At
the very least, what is being proposed to be adopted
here is merely a change in the terminology used, i.e.,
from "sanction," "indemnity," "damages" or "penalty,"
to "disturbance compensation" as it is believed to be
the more appropriate term to accurately describe the
lamentable situation of our displaced employees.
Indeed, from the time the employee is dismissed from
the service without notice — in this case since 11
October 1991 — to the termination of his case,
assuming it results in his reinstatement, or his being
paid his back wages and separation pay, as the case
may be, how long must he be made to suffer
emotionally and bear his financial burden? Will
reinstating him and/or paying his back wages
adequately make up for the entire period that he was
indistress for want of any means of livelihood?
Petitioner Serrano has been deprived of his only source
of income — his employment — for the past eight (8)
years or so. Will his reinstatement and/or the payment
of his back wages and separation pay enable him to pay
off his debts incurred in abject usury — to which he
must have succumbed — during his long period of
financial distress? Will it be adequate? Will it be just?
Will it be fair? Thus, do we really and truly render
justice to the workingman by simply awarding him full
back wages and separation pay without regard for the
long period during which he was wallowing in financial
difficulty?
FOR ALL THE FOREGOING, the Decision of respondent
National Labor Relations Commission should be
MODIFIED. The termination of petitioner RUBEN
SERRANO being based on an authorized cause should be
SUSTAINED AS VALID although DECLARED IRREGULAR
for having been effected without the mandatory 30-day
notice.
ISETANN DEPARTMENT STORE INC. should PAY
petitioner SERRANO back wages and separation pay the
amounts of which to be determined by the Labor
Arbiter, plus P10,000.00 as disturbance compensation
which must be paid immediately. Consequently, except
as regards the disturbance compensation, the case
should be REMANDED to the Labor Arbiter for the
immediate computation and payment of the back
wages and separation pay due petitioner.
EXCEPT as herein stated, I concur with the majority.

PUNO, J., dissenting opinion;
The rule of audi alteram partem — hear the other side,
is the essence of procedural due process. That a "party
is not to suffer in person or in purse without an
opportunity of being heard" is the oldest established
principle in administrative law.1 Today, the majority is
relies that the all important right of an employee to be
notified before he is dismissed for a just or authorized
cause is not a requirement of due process. This is a blow
on the breadbasket of our lowly employees, a
considerable erosion of their constitutional right to
security of tenure, hence this humble dissenting
opinion.
A review of our law on dismissal is in order.
I. DISMISSAL DUE TO JUST CAUSE
The law allowing dismissal of an employee due to a just
cause is provided in Article 282 of the Labor Code:
Art. 282. Termination by employer. — An employer may
terminate an employment for any of the following
causes:
(a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work;
(b) Gross and habitual neglect by the employee of his
duties;
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
(d) Commission of the crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representative; and
(e) Other causes analogous to the foregoing.
The long established jurisprudence2 is that to justify
dismissal of an employee for a just cause, he must be
given two kinds of notice by his employer, viz: (1) notice
to apprise the employee of the particular acts or
omissions for which the dismissal is sought, and (2)
subsequent notice to inform him of the employer's
decision to dismiss him. Similarly, deeply ingrained is
our ruling that these pre and post notice requirements
are not mere technicalities but are requirements of due
process.3
Then came the case of Wenphil Corporation vs. NLRC
and Mallare in 1989.4 It is the majority view that
Wenphil reversed the long standing policy of this Court
on dismissal. This is too broad a reading of Wenphil. A
careful statement of the facts of Wenphil and the ruling
of this Court is thus proper.
First, the facts. The private respondent Roberto Mallare
is the assistant head of the backroom department of
petitioner Wenphil Corporation. At about 2:30 pm on
May 20, 1985, Mallare had an altercation with his co-
employee, Job Barrameda, about tending the Salad Bar.
He slapped Barrameda's cap, stepped on his foot,
picked up an ice scooper and brandished it against the
latter. He refused to be pacified by another employee
who reported the incident to Delilah Hermosura,
assistant manager. Hermosura summoned Mallare but
the latter refused to see the former. It took a security
guard to bring Mallare to Hermosura. Instead of making
an explanation, Mallare shouted profane words against
Hermosura. He declared that their altercation should
only be settled by him and Barrameda.
The following morning, Mallare was suspended. In the
afternoon, he was dismissed from the service. He
received an official notice of his dismissal four (4) days
later.
Mallare filed with the Labor Arbiter a complaint for
illegal suspension, illegal dismissal and unfair labor
practice. No hearing was conducted in view of the
repeated absence of the counsel of Mallare. The parties
submitted their respective position papers. On
December 3, 1986, the Arbiter denied the complaint as
he found Mallare guilty of grave misconduct and
insubordination, which are just causes for dismissal. The
Arbiter also ruled that Mallare was not denied due
process. On appeal, the NLRC reversed. It held that
Mallare was denied due process before he was
dismissed. It ordered Mallare's reinstatement and the
payment of his one (1) year backwages.
On certiorari to this Court, we reversed the NLRC and
reinstated the decision of the Arbiter with the
modification that petitioner should pay to Mallare an
indemnity of P1,000.00 for dismissing Mallare without
any notice and hearing. We held:
Petitioner insists that private respondent was afforded
due process but he refused to avail of his right to the
same; that when the matter was brought to the labor
arbiter he was able to submit his position paper
although the hearing cannot proceed due to the non-
appearance of his counsel; and that the private
respondent is guilty of serious misconduct in
threatening or coercing a co-employee which is a
ground for dismissal under Article 283 of the Labor
Code.
The failure of petitioner to give private respondent the
benefit of a hearing before he was dismissed
constitutes an infringement of his constitutional right to
due process of law and equal protection of the laws.
The standards of due process in judicial as well as
administrative proceedings have long been established.
In its bare minimum due process of law simply means
giving notice and opportunity to be heard before
judgment is rendered.
The claim of petitioner that a formal investigation was
not necessary because the incident, which gave rise to
the termination of private respondent, was witnessed
by his co-employees and supervisors, is without merit.
The basic requirement of due process is that which
hears before it condemns, which proceeds upon inquiry
and renders judgment only after trial.
However, it is a matter of fact that when the private
respondent filed a complaint against petitioner, he was
afforded the right to an investigation by the labor
arbiter. He presented his position paper as did the
petitioner. If no hearing was had, it was the fault of
private respondent as his counsel failed to appear at the
scheduled hearings. The labor arbiter concluded that
the dismissal of private respondent was for just cause.
He was found guilty of grave misconduct and
insubordination. This is borne by the sworn statements
of witnesses. The Court is bound by this finding of the
labor arbiter.
By the same token, the conclusion of the public
respondent NLRC on appeal that private respondent
was not afforded due process before he was dismissed
is binding on this Court. Indeed, it is well taken and
supported by the records. However, it can not justify a
ruling that private respondent should be reinstated with
back wages as the public respondent NLRC so decreed.
Although belatedly, private respondent was afforded
due process before the labor arbiter wherein the just
cause of his dismissal had been established. With such
finding, it would be arbitrary and unfair to order his
reinstatement with back wages.
Three member of the Court filed concurring and
dissenting opinions. Madam Justice Herrera opined
that: (a) Mallare was dismissed for cause, hence, he is
not entitled to reinstatement and backwages; (b) he
was not denied due process; and (c) he has no right to
any indemnity but to separation pay to cushion the
impact of his loss of employment Mr. Justice Padilla
took the view that: (1) Mallare was not entitled to
reinstatement and backwages as he was guilty of grave
misconduct and insubordination; (2) he was denied
administrative due process; and (3) for making such
denial, Wenphil should pay "separation pay (instead of
indemnity) in the sum of P1,000.00." Madam Justice
Cortes held that: (1) Mallare was not illegally dismissed;
(2) he was not denied due process; (3) he was not
entitled to indemnity; and (4) if P1,000.00 was to be
imposed on Wenphil as an administrative sanction, it
should form part of the public fund of the government.
I shall discuss later that Wenphil did not change our
ruling that violation of the pre-dismissal notice
requirement is an infringement of due process.
II. DISMISSAL DUE TO AUTHORIZED CAUSE
The applicable law on dismissal due to authorized cause
is Article 283 of the Labor Code which provides:
Art. 283. Closure of establishment and reduction of
personnel. — The employer may also terminate the
employment of any employee due to the installation of
labor serving devices, redundancy, retrenchment to
prevent losses or the closing or cessation of operation
of the establishment or undertaking unless the closing is
for the purpose of circumventing the provisions of this
Title, by serving a written notice on the workers and the
[Department] of Labor and Employment at least one (1)
month before the intended date thereof. In case of
termination due to the installation of labor-saving
devices or redundancy, the worker affected thereby
shall be entitled to a separation pay equivalent to at
least his one (1) month pay or to at least one (1) month
pay for every year of service, whichever is higher. In
case of retrenchment to prevent losses and in cases of
closures or cessation of operations of establishment or
undertaking not due to serious business losses or
financial reverses, the separation pay shall be
equivalent to one (1) month pay or at least one-half
(1/2) month pay for every year of service, whichever is
higher. A fraction of at least six (6) months shall be
considered one (1) whole year.
In Sebuguero v. NLRC,5 we held thru our esteemed
Chief Justice Davide that "the requirement of notice to
both the employees concerned and the Department of
Labor and Employment (DOLE) is mandatory and must
be written and given at least one month before the
intended date of retrenchment." We explained that the
"notice to the DOLE is essential because the right to
retrench is not an absolute prerogative of an employer
but is subject to the requirement of law that
retrenchment be proved to prevent losses. The DOLE is
the agency that will determine whether the planned
retrenchment is justified and adequately supported by
fact."6 Nonetheless, we ruled:
The lack of written notice to the petitioners and to the
DOLE does not, however, make the petitioners'
retrenchment illegal such that they are entitled to the
payment of back wages and separation pay in lieu of
reinstatement as they contend. Their retrenchment, for
not having been effected with the required notices, is
merely defective. In those cases where we found the
retrenchment to be illegal and ordered the employees'
reinstatement and the payment of backwages, the
validity of the cruse for retrenchment, that is the
existence of imminent or actual serious or substantial
losses, was not proven. But here, such a cause is
present as found by both the Labor Arbiter and the
NLRC. There is only a violation by GTI of the procedure
prescribed in Article 283 of the Labor Code in effecting
the retrenchment of the petitioners.1âwphi1.nêt
It is now settled that where the dismissal of an
employee is in fact for a just and valid cause and is so
proven to be but he is not accorded his right to due
process, i.e., he was not furnished the twin
requirements of notice and the opportunity to be
heard, the dismissal shall be upheld but the employer
must be sanctioned for non-compliance with the
requirements of or for failure to observe due process.
The sanction, in the nature of indemnification or
penalty, depends on the facts of each case and the
gravity of the omission committed by the employer and
has ranged from P1,000.00 as in the cases of Wenphil
vs. National Labor Relations Commission, Seahorse
Maritime Corp. v. National Labor Relations Commission,
Shoemart, Inc. vs. National Labor Relations Commission,
Rubberworld (Phils.) Inc. vs. National Labor Relations
Commission, Pacific Mills, Inc. vs. Alonzo, and Aurelio
vs. National Labor Relations Commission to P10,000.00
in Reta vs. National Labor Relations Commission and
Alhambra Industries, Inc. vs. National Labor Relations
Commission. More recently, in Worldwide Papermills,
Inc. vs. National Labor Relations Commission, the sum
of P5,000.00 was awarded to the employee as
indemnification for the employer's failure to comply
with the requirements of procedural due process.
Accordingly, we affirm the deletion by the NLRC of the
award of back wages, But because the required notices
of the petitioners' retrenchment were not served upon
the petitioners and the DOLE, GTI must be sanctioned
for such failure and thereby required to indemnify each
of the petitioners the sum of P20,000.00 which we find
to be just and reasonable under the circumstances of
this case.
III. RE-EXAMINATION OF THE WENPHIL DOCTRINE:
FROM BAD TO WORSE
The minority of the Court has asked for a re-
examination of Wenphil because as the majority
correctly observed, "the number of cases involving
dismissals without the requisite notice to the employee
although effected for just or authorized causes suggests
that the imposition of fine for violation of the notice
requirement has not been effective in deterring
violations of the notice requirement."
We must immediately set Wenphil in its proper
perspective as it is a very exceptional case. Its doctrine
must be limited to its distinct facts. Its facts therefore
ought to be carefully examined again. In Wenphil, it was
clearly established that the employee had a violent
temper, caused trouble during office hours and even
defied his superiors as they tried to pacify him. The
employee was working for a fast food chain that served
the public and where violence has no place. These facts
were established only in the proceedings before the
Labor Arbiter after the employee filed a complaint for
illegal dismissal. There were no formal investigation
proceedings before the employer as the employment
was dismissed without any notice by the employer.
Given these facts, we ruled that the pre-dismissal notice
requirement was part of due process; nonetheless, we
held that the employee was given due process as he
was heard by the Labor Arbiter; we found that the
proceedings before the Labor Arbiter proved that the
employer was guilty of grave misconduct and
insubordination; we concluded with the rule that it
would be highly prejudicial to the interest of the
employer to reinstate the employee, but the employer
must indemnify the employee the amount of P1,000.00
for dismissing him without notice. We further held that
"the measure of this award depends on the facts or
each case and the gravity of the omission committed by
the employer."7
At the outset, I wish to emphasize that Wenphil itself
held, and repeatedly held that "the failure of petitioner
to give private respondent the benefit of a hearing
before he was dismissed, constitutes an infringement of
his constitutional right to due process of law and equal
protection of the laws. The standards of due process of
law in judicial as well as administrative proceedings
have long been established. In its bare minimum due
process of law simply means giving notice and
opportunity to be heard before judgment is rendered."8
The Court then satisfied itself with this bare minimum
when it held that the post dismissal hearing before the
Labor Arbiter was enough compliance with demands of
due process and refused to reinstate an eminently
undesirable employee. Heretofore, the Court was far
from satisfied with this bare minimum as it strictly
imposed on an employer compliance with the
requirement of pre-dismissal notice, violation of which
resulted in orders of reinstatement of the dismissed
employee. This is the only wrinkle wrought by Wenphil
in our jurisprudence on dismissal. Nonetheless, it
should be stressed that the Court still punished
Wenphil's violation of the pre-dismissal notice
requirement as it was ordered to pay an indemnity of
P1,000.00 to the employee. The indemnity was based
on the iterated and reiterated rule that "the dismissal of
an employee must be for just or authorized cause and
after due process."9
Our ten (10) years experience with Wenphil is not a
happy one. Unscrupulous employers have abused the
Wenphil ruling. They have dismissed without notice
employees including those who are not as eminently
undesirable as the Wenphil employee. They dismissed
employees without notice as a general rule when it
should be the exception. The purpose of the pre-
dismissal notice requirement was entirely defeated by
employers who were just too willing to pay an
indemnity for its violation. The result, as the majority
concedes, is that the indemnity we imposed has not
been effective to prevent unjust dismissals employees.
To be sure, this is even a supreme understatement. The
ugly truth is that Wenphil is the mother of many unjust
and unauthorized dismissals of employees who are too
weak to challenge their powerful employees.
As the Wenphil indemnity doctrine has proved to be
highly inimical to the interest of our employees, I
humbly submit a return to the pre-Wenphil rule where
a reasonless violation of the pre-dismissal notice
requirement makes the dismissal of an employee illegal
and results in his reinstatement. In fine, we should
strike down as illegal the dismissal of an employee even
if it is for a justified end if it is done thru unjustified
means for we cannot be disciples of the Machiavellian
doctrine of the end justifies the means. With due
respect, the majority decision comes too near this
mischievous doctrine by giving emphasis on the end and
not the means of dismissal of employees. What grates is
that the majority today espouses a doctrine more
pernicious than Wenphil for now it announces that a
violation of the pre-dismissal notice requirement does
not even concern due process. The reasons relied upon
by the majority for this new ruling against the job
security of employees cannot inspire assent.
FIRST. I would like to emphasize that one undesirable
effect of Wenphil is to compel employees to seek relief
against illegal dismissals with the DOLE whereas before,
a remedy can be sought before the employer. In shifting
this burden, an employee's uneven fight against his
employer has become more uneven. Now, an illegally
dismissed employee often goes to the DOLE without an
exact knowledge of the cause of his dismissal. As a
matter of strategy, some employers today dismiss
employees without notice. They know that it is more
advantageous for them to litigate with an employee
who has no knowledge of the cause of dismissal. The
probability is that said employee will fail to prove the
illegality of his dismissal. All that he can prove is that he
was dismissed without notice and the penalty for the
omission is a mere fine, a pittance.
The case at bar demonstrates how disastrous Wenphil
has been to our helpless employees. In holding that the
petitioner failed to prove his cause of action, the
majority held ". . . we have only the bare assertion of
petitioner that, in abolishing the security section,
private respondent's real purpose was to avoid
payment to the security checkers of the wage increases
provided in the collective bargaining agreement
approved in 1990." The bare assertion of the petitioner
is understandable. The notice given to him spoke of a
general ground — retrenchment. No details were given
about the employer's sudden retrenchment program.
Indeed, the employee was dismissed on the day he
received the notice in violation of the 30-day
requirement. He was given no time, no opportunity to
ascertain and verify the real cause of his dismissal. Thus,
he filed with the DOLE a complaint for illegal dismissal
with a hazy knowledge of its real cause. Heretofore, it is
the employer whom we blame and penalize if he does
not notify his employee of the cause of his dismissal.
Today, the majority puts the blame on the employee for
not knowing why he was dismissed when he was not
given any notice of dismissal. In truth, the suspicion of
the petitioner in the case at bar that he was dismissed
to avoid payment of their wage increases is not without
basis. The DOLE itself found that petitioner has unpaid
wages which were ordered to be paid by the employer.
The majority itself affirmed this finding.
What hurts is that while the majority was strict with the
petitioner-employee, it was not so with the employer
ISETANN. Immediately, it validated the finding of the
NLRC that petitioner was dismissed due to the
redundancy of his position. This is inconsistent with the
finding of the Labor Arbiter that the employer failed to
prove retrenchment, the ground it used to dismiss the
petitioner. A perusal of the records will show that Ms.
Cristina Ramos, Personnel Administration Manager of
the employer ISETANN testified on the cause of
dismissal of the petitioner. She declared that petitioner
was retrenched due to the installation of a labor saving
device. Allegedly, the labor saving device was the hiring
of an independent security agency, thus:10
xxx xxx xxx
Atty. Perdigon:
You said that your company decided to phase out the
position of security checkers . . .
Ms. Ramos:
Yes Sir.
Q: And instead hired the services of a security agency?
A: Yes, sir.
xxx xxx xxx
Q: Did you not retrench the position of security
checkers?
A: We installed a labor saving device.
Q: So you did not retrench?
A: No. sir.
Q: How about the position of Section Head of Security
Department?
A: It was abolished in 1991.
xxx xxx xxx
Q: Are you aware of the retrenchment program of the
company as stated in this letter?
A: Actually it's not a retrenchment program. It's an
installation of a labor saving device.
Q: So you are telling this Court now that there was no
retrenchment program?
A: It was actually an installation of a labor saving device
(emphasis supplied).
xxx xxx xxx
Q: . . . What (is) this labor saving device that you are
referring to?
A: The labor saving device is that the services of a
security agency were contracted to handle the services
of the security checkers of our company.
Q: Are you sure of what labor saving means, Madam
witness?
A: Yes, sir.
Q: You said you installed a labor saving device, and you
installed a security agency as a labor saving device?
A: We hired the services of a security agency.
Q: So according to you . . . a security agency is a labor
saving device?
Atty. Salonga:
Already answered, your Honor.
Obviously, Ms. Ramos could not even distinguish
between retrenchment and redundancy. The Labor
Arbiter thus ruled that petitioner's dismissal was illegal.
The NLRC, however, reversed. The majority affirmed the
NLRC ruling that ISETANN's phase out of its security
employees is a legitimate business decision, one that is
necessary to obtain reasonable return from its
investment. To use the phrase of the majority, this is a
"bare assertion." Nothing in the majority decision shows
how the return of ISETANN's investment has been
threatened to justify its so-called business decision as
legitimate.
SECOND. The majority holds that "the need is for a rule
which, while recognizing the employee's right to notice
before he is dismissed or laid off, at the same time
acknowledges the right of the employer to dismiss for
any of the just causes enumerated in Art. 282 or to
terminate employment for any of the authorized causes
mentioned in Arts. 283-284. If the Wenphil rule
imposing a fine on an employer who is found to have
dismissed an employee for cause without prior notice is
deemed ineffective in deterring employer violations of
the notice requirement, the remedy is not to declare
the dismissal void if there are just or valid grounds for
such dismissal or if the termination is for an authorized
cause. That would be to uphold the right of the
employee but deny the right of the employer to dismiss
for cause. Rather, the remedy is to consider the
dismissal or termination to be simply ineffectual for
failure of the employer to comply with the procedure
for dismissal or termination.
With due respect, I find it most difficult to follow the
logic of the majority. Before Wenphil, we protected
employees with the ruling that dismissals without prior
notice are illegal and the illegally dismissed employee
must be reinstated with backwages. Wenphil diluted
that rule when it held that due process is satisfied if the
employee is given the opportunity to be heard by the
Labor Arbiter. It further held that an employee cannot
be reinstated if it is established in the hearing that his
dismissal is for a just cause. The failure of the employer
to give a pre-dismissal notice is only to be penalized by
payment of an indemnity. The dilution of the rule has
been abused by unscrupulous employers who then
followed the "dismiss now, pay later" strategy. This evil
practice of employers was what I expected the majority
to address in re-examining the Wenphil doctrine. At the
very least, I thought that the majority would restore the
balance of rights between an employee and an
employer by giving back the employee's mandatory
right to notice before dismissal. It is disquieting,
however, that the majority re-arranged this balance of
right by tilting it more in favor of the employer's right to
dismiss. Thus, instead of weakening a bit the right to
dismiss of employers, the majority further strengthens
it by insisting that a dismissal without prior notice is
merely "ineffectual" and not illegal.
The stubborn refusal of the majority to appreciate the
importance of pre-dismissal notice is difficult to
understand. It is the linchpin of an employee's right
against an illegal dismissal. The notice tells him the
cause of his dismissal. It gives him a better chance to
contest his dismissal in an appropriate proceeding as
laid down in the parties' collective bargaining
agreement or the rules of employment established by
the employer, as the case may be. In addition, it gives to
both the employee and employer more cooling time to
settle their differences amicably. In fine, the prior notice
requirement and the hearing before the employer give
an employee a distinct, different and effective first level
of remedy to protect his job. In the event the employee
is dismissed, he can still file a complaint with the DOLE
with better knowledge of the cause of his dismissal,
with longer time to prepare his case, and with greater
opportunity to take care of the financial needs of his
family pendente lite. The majority has taken away from
employees this effective remedy. This is not to say that
the pre-dismissal notice requirement equalizes the fight
between an employee and an employer for the fight will
remain unequal. This notice requirement merely gives
an employee a fighting chance but that fighting chance
is now gone.
It is equally puzzling why the majority believes that
restoring the employee's right to pre-dismissal notice
will negate the right of an employer to dismiss for
cause. The pre-Wenphil rule simply requires that before
the right of the employer to dismiss can be exercised,
he must give prior notice to the employee of its cause.
There is nothing strange nor difficult about this
requirement. It is no burden to an employer. He is
bereft of reason not to give the simple notice. If he fails
to give notice, he can only curse himself. He forfeits his
right to dismiss by failing to follow the procedure for
the exercise of his right. Employees in the public sector
cannot be dismissed without prior notice. Equal
protection of law demands similar treatment of
employees in the private sector.
THIRD. The case at bar specifically involves Article 283
of the Labor Code which lays down four (4) authorized
causes for termination of employment.11 These
authorized causes are: (1) installation of labor-saving
devices; (2) redundancy; (3) retrenchment to prevent
losses; and (4) closing or cessation of operation of the
establishment or undertaking unless the closing is for
the purpose of circumventing the law. It also provides
that prior to the dismissal of an employee for an
authorized cause, the employer must send two written
notices at least one month before the intended
dismissal — one notice to the employee and another
notice to the Department of Labor and Employment
(DOLE). We have ruled that the right to dismiss on
authorized causes is not an absolute prerogative of an
employer.12 We explained that the notice to the DOLE
is necessary to enable it to ascertain the truth of the
cause of termination.13 The DOLE is equipped with men
and machines to determine whether the planned
closure or cessation of business or retrenchment or
redundancy or installation of labor saving device is
justified by economic facts.14 For this reason too, we
have held that notice to the employee is required to
enable him to contest the factual bases of the
management decision or good faith of the
retrenchment or redundancy before the DOLE.15 In
addition, this notice requirement gives an employee a
little time to adjust to his joblessness.16
The majority insists that if an employee is laid off for an
authorized cause under Article 283 in violation of the
prior notice requirement, his dismissal should not be
considered void but only ineffectual. He shall not be
reinstated but paid separation pay and some
backwages. I respectfully submit that an employee
under Article 283 has a stronger claim to the right to a
pre-dismissal notice and hearing. To begin with, he is an
innocent party for he has not violated any term or
condition of his employment. Moreover, an employee
in an Article 283 situation may lose his job simply
because of his employer's desire for more profit. Thus,
the installation of a labor saving device is an authorized
cause to terminate employment even if its non-
installation need not necessarily result in an over-all
loss to an employer possessed by his possessions. In an
Article 283 situation, it is easy to see that there is a
greater need to scrutinize the allegations of the
employer that he is dismissing an employee for an
authorized cause. The acts involved here are unilateral
acts of the employer. Their nature requires that they
should be proved by the employer himself. The need for
a labor saving device, the reason for redundancy, the
cause for retrenchment, the necessity for closing or
cessation of business are all within the knowledge of
the employer and the employer alone. They involve a
constellation of economic facts and factors usually
beyond the ken of knowledge of an ordinary employee.
Thus, the burden should be on the employer to
establish and justify these authorized causes. Due to
their complexity, the law correctly directs that notice
should be given to the DOLE for it is the DOLE more
than the lowly employee that has the expertise to
validate the alleged cause in an appropriate hearing. In
fine, the DOLE provides the equalizer to the powers of
the employer in an Article 283 situation. Without the
equalizing influence of DOLE, the employee can be
abused by his employer.
Further, I venture the view that the employee's right to
security of tenure guaranteed in our Constitution calls
for a pre-dismissal notice and hearing rather than a post
facto dismissal hearing. The need for an employee to be
heard before he can be dismissed cannot be
overemphasized. As aforestated, in the case at bar,
petitioner was a regular employee of ISETANN. He had
the right to continue with his employment. The burden
to establish that this right has ceased is with ISETANN,
as petitioner's employer. In fine, ISETANN must be the
one to first show that the alleged authorized cause for
dismissing petitioner is real. And on this factual issue,
petitioner must be heard. Before the validity of the
alleged authorized cause is established by ISETANN, the
petitioner cannot be separated from employment. This
is the simple meaning of security of tenure. With due
respect, the majority opinion will reduce this right of
our employees to a mere illusion. It will allow the
employer to dismiss an employee for a cause that is yet
to be established. It tells the employee that if he wants
to be heard, he can file a case with the labor arbiter,
then the NLRC, and then this Court. Thus, it
unreasonably shifts the burden to the employee to
prove that his dismissal is for an unauthorized cause.
The pernicious effects of the majority stance are self-
evident in the case at bar. For one, petitioner found
himself immediately jobless and without means to
support his family. For another, petitioner was denied
the right to rely on the power of DOLE to inquire
whether his dismissal was for a genuine authorized
cause. This is a valuable right for all too often, a lowly
employee can only rely on DOLE's vast powers to check
employer abuses on illegal dismissals. Without DOLE,
poor employees are preys to the claws of powerful
employers. Last but not the least, it was the petitioner
who was forced to file a complaint for illegal dismissal.
To a jobless employee, filing a complaint is an
unbearable burden due to its economic cost. He has to
hire a lawyer and defray the other expenses of litigation
while already in a state of penury. At this point, the
hapless employee is in a no win position to fight for his
right. To use a local adage, "aanhin pa ang damo kung
patay na ang kabayo."
In the case at bar, the job of the petitioner could have
been saved if DOLE was given notice of his dismissal.
The records show that petitioner worked in ISETANN as
security checker for six (6) years. He served ISETANN
faithfully and well. Nonetheless, in a desire for more
profits, and not because of losses, ISETANN contracted
out the security work of the company. There was no
effort whatsoever on the part of ISETANN to
accommodate petitioner in an equivalent position. Yet
there was the position of Safety and Security Supervisor
where petitioner fitted like a perfect T. Despite
petitioner's long and loyal service, he was treated like
an outsider, made to apply for the job, and given a
stringent examination which he failed. Petitioner was
booted out and given no chance to contest his
dismissal. Neither was the DOLE given the chance to
check whether the dismissal of petitioner was really for
an authorized cause. All these because ISETANN did not
follow the notice and hearing requirement of due
process.
FOURTH. The majority has inflicted a most serious cut
on the job security of employees. The majority did
nothing to restore the pre-Wenphil right of employees
but even expanded the right to dismiss of employer by
holding that the pre-dismissal notice requirement is not
even a function of due process. This seismic shift in our
jurisprudence ought not to pass.
The key to the new majority ruling is that the "due
process clause of the Constitution is a limitation on
governmental powers. It does not apply to the exercise
of private power such as the termination of
employment under the Labor Code." The main reason
alleged is that "only the State has authority to take the
life, liberty, or property of the individual. The purpose
of the Due Process Clause is to ensure that the exercise
of this power is consistent with settled usage of civilized
society."
There can be no room for disagreement on the
proposition that the due process clause found in the Bill
of Rights of the Constitution is a limitation on
governmental powers. Nor can there be any debate
that acts of government violative of due process are null
and void. Thus, former Chief Justice Roberto
Concepcion emphasized in Cuaycong v. Senbengco 17
that ". . . acts of Congress as well as those of the
Executive, can deny due process only under pain of
nullity, and judicial proceedings suffering from the same
flaw are subject to the same sanction, any statutory
provision to the contrary notwithstanding." With due
respect to the majority, however, I part ways with the
majority in its new ruling that the due process
requirement does not apply to the exercise of private
power. This overly restrictive majority opinion will sap
the due process right of employees of its remaining
utility. Indeed, the new majority opinion limiting
violations of due process to government action alone is
a throwback to a regime of law long discarded by more
progressive countries. Today, private due process is a
settled norm in administrative law. Per Schwartz, a
known authority in the field, viz:18
Private Due Process
As already stressed, procedural due process has proved
of an increasingly encroaching nature. Since Goldberg v.
Kelly, the right to be heard has been extended to an
ever-widening area, covering virtually all aspects of
agency action, including those previously excluded
under the privilege concept. The expansion of due
process has not been limited to the traditional areas of
administrative law. We saw how procedural rights have
expanded into the newer field of social welfare, as well
as that of education. But due process expansion has not
been limited to these fields. The courts have extended
procedural protections to cases involving prisoners and
parolees, as well as the use of established adjudicatory
procedures. Important Supreme Court decisions go
further and invalidate prejudgment wage garnishments
and seizures of property under replevin statutes where
no provision is made for notice and hearing. But the
Court has not gone so far as to lay down an inflexible
rule that due process requires an adversary hearing
when an individual may be deprived of any possessory
interest, however brief the dispossession and however
slight the monetary interest in the property. Due
process is not violated where state law requires, as a
precondition to invoking the state's aid to sequester
property of a defaulting debtor, that the creditor
furnish adequate security and make a specific showing
of probable cause before a judge.
In addition, there has been an extension of procedural
due process requirements from governmental to
private action. In Section 5.16 we saw that Goldberg v.
Kelly has been extended to the eviction of a tenant from
a public housing project. The courts have not limited
the right to be heard to tenants who have
governmental agencies as landlords. Due process
requirements also govern acts by "private" landlords
where there is sufficient governmental involvement in
the rented premises. Such an involvement exists in the
case of housing aided by Federal Housing
Administration financing and tax advantages. A tenant
may not be summarily evicted from a building operated
by a "private" corporation where the corporation
enjoyed substantial tax exemption and had obtained an
FHA-insured mortgage, with governmental subsidies to
reduce interest payments. The "private" corporation
was so saturated with governmental incidents as to be
limited in its practices by constitutional process. Hence,
it could not terminate tenancies without notice and an
opportunity to be heard.
But we need nor rely on foreign jurisprudence to
repudiate the new majority ruling that due process
restricts government alone and not private employers
like ISETANN. This Court has always protected
employees whenever they are dismissed for an unjust
cause by private employers. We have consistently held
that before dismissing an employee for a just cause, he
must be given notice and hearing by his private
employer. In Kingsize Manufacturing Corporation vs.
NLRC,19 this Court, thru Mr. Justice Mendoza,
categorically ruled:
. . . (P)etitioners failure to give notice with warning to
the private respondents before their services were
terminated puts in grave doubt petitioners' claim that
dismissal was for a just cause. Section 2 Rule XIV of the
Rules implementing the Labor Code provides:
An employer who seeks to dismiss a worker shall
furnish him a written notice stating the particular acts
or omission constituting the ground for dismissal. In
case of abandonment of work, the notice shall be
served on the worker's last known address.
The notice required, . . ., actually consists of two parts
to be separately served on the employee, to wit: (1)
notice to apprise the employee of the particular acts or
omissions for which the dismissal is sought; and (2)
subsequent notice to inform him of the employer's
decision to dismiss him.
This requirement is not a mere technicality but a
requirement of due process to which every employee is
entitled to insure that the employer's prerogative to
dismiss or lay off is not abused or exercised in an
arbitrary manner. This rule is clear and unequivocal . . .
.20
In other words, we have long adopted in our decisions
the doctrine of private due process. This is as it ought to
be. The 1987 Constitution guarantees the rights of
workers, especially the right to security of tenure in a
separate article — section 3 of Article XIII entitled Social
Justice and Human Rights. Thus, a 20-20 vision of the
Constitution will show that the more specific rights of
labor are not in the Bill of Rights which is historically
directed against government acts alone. Needless to
state, the constitutional rights of labor should be
safeguarded against assaults from both government
and private parties. The majority should not reverse our
settled rulings outlawing violations of due process by
employers in just causes cases.
To prop up its new ruling against our employees, the
majority relates the evolution of our law on dismissal
starting from Article 302 of the Spanish Code of
Commerce, to the New Civil Code of 1950, to R.A. No.
1052 (Termination Pay Law), then to R.A. No. 1787. To
complete the picture, let me add that on May 1, 1974,
the Labor Code (PD 442) was signed into law by former
President Marcos. It took effect on May 1, 1974 or six
months after its promulgation. The right of the
employer to terminate the employment was embodied
in Articles 283,21 284,22 and 285.23 Batas Pambansa
Blg. 130 which was enacted on August 21, 1981
amended Articles 283 and 284, which today are cited as
Arts. 282 and 283 of the Labor Code.24
On March 2, 1989, Republic Act No. 6715 was approved
which amended, among others, Article 277 of the Labor
Code. Presently, Article 277 (b) reads:
Art. 277. Miscellaneous provisions. — (a) . . . .
(b) Subject to the constitutional right of workers to
security of tenure and their right to be protected
against dismissal except for a just or authorized cause
and without prejudice to the requirement of notice
under Article 283 of this Code, the employer shall
furnish the worker whose employment is sought to be
terminated a written notice containing a statement of
the causes for termination and shall afford the latter
ample opportunity to be heard and to defend himself
with the assistance of his representative if he so desires
in accordance with company rules and regulations
promulgated pursuant to the guidelines set by the
Department of Labor and Employment. Any decision
taken by the employer shall be without prejudice to the
right of the worker to contest the validity or legality of
his dismissal by filing a complaint with the regional
branch of the National Labor Relations Commission. The
burden of proving that the termination was for a valid
or authorized cause shall rest on the employer. . . . .
Previous to the amendment, Article 277 (b) read:
Art. 277. Miscellaneous provisions. — (a) . . . .
(b) With or without a collective agreement, no
employer may shut down his establishment or dismiss
or terminate the employment of employees with at
least one year of service during the last two years,
whether such service is continuous or broken, without
prior written authority issued in accordance with the
rules and regulations as the Secretary may promulgate.
Rule XIV, Book V of the 1997 Omnibus Rules
Implementing the Labor Code provides:
Termination of Employment
Sec. 1. Security of tenure and due process. — No worker
shall be dismissed except for a just or authorized cause
provided by law and after due process.
Sec. 2. Notice of dismissal. — Any employer who seeks
to dismiss a worker shall furnish him a written notice
stating the particular acts or omissions constituting the
grounds for his dismissal. . . .
xxx xxx xxx
Sec. 5. Answer and hearing. — The worker may answer
the allegations stated against him in the notice of
dismissal within a reasonable period from receipt of
such notice. The employer shall afford the worker
ample opportunity to be heard and to defend himself
with the assistance of his representative, if he so
desires.
These laws, rules and regulations should be related to
our decisions interpreting them. Let me therefore
emphasize our rulings holding that the pre-dismissal
notice requirement is part of due process. In Batangas
Laguna Tayabas Bus Co. vs. Court of Appeals,25 which
was decided under the provisions of RA No. 1052 as
amended by RA No. 1787, this Court ruled that "the
failure of the employer to give the [employee] the
benefit of a hearing before he was dismissed constitute
an infringement on his constitutional right to due
process of law and not to be denied the equal
protection of the laws. . . . Since the right of [an
employee] to his labor is in itself a property and that the
labor agreement between him and [his employer] is the
law between the parties, his summary and arbitrary
dismissal amounted to deprivation of his property
without due process." Since then, we have consistently
held that before dismissing an employee for a just
cause, he must be given notice and hearing by his
private employer as a matter of due process.
I respectfully submit that these rulings are more in
accord with the need to protect the right of employees
against illegal dismissals. Indeed, our laws and our
present Constitution are more protective of the rights
and interests of employees than their American
counterpart. For one, to justify private due process, we
need not look for the factors of "sufficient
governmental involvement" as American courts do.
Article 1700 of our Civil Code explicitly provides:
Art. 1700. The relation between capital and labor are
not merely contractual. They are so impressed with
public interest that labor contracts must yield to the
common good. Therefore, such contracts are subject to
the special laws on labor unions, collective bargaining,
strikes and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.
Nor do we have to strain on the distinction made by
American courts between property and privilege and
follow their ruling that due process will not apply if
what is affected is a mere privilege. It is our hoary ruling
that labor is property within the contemplation of the
due process clause of the Constitution. Thus, in
Philippine Movie Pictures Workers Association vs.
Premiere Productions, Inc.,26 private respondent-
employer filed with the Court of Industrial Relations
(CIR) a petition seeking authority to lay off forty-four of
its employees. On the date of the hearing of the
petition, at the request of the counsel of the private
respondent, the judge of the CIR conducted an ocular
inspection in the premises of the employer. He
interrogated fifteen laborers. On the basis of the ocular
inspection, the judge concluded that the petition for lay
off was justified. We did not agree and we ruled that
"the right of a person to his labor is deemed to he
property within the meaning of constitutional
guarantees. That is his means of livelihood. He can not
be deprived of his labor or work without due process of
law. . . . (T)here are certain cardinal primary rights
which the Court of Industrial Relations must respect in
the trial of every labor case. One of them is the right to
a hearing which includes the right of the party
interested to present his own case and to submit
evidence in support thereof."
I wish also to stress that the 1999 Rules and Regulations
implementing the Labor Code categorically characterize
this pre-dismissal notice requirement as a requirement
of due process. Rule XXIII provides:
Sec. 2. Standards of due process: requirements of
notice. — In all cases of termination of employment,
the following standards of due process shall be
substantially observed.
I. For termination of employment based on just causes
as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying
the ground or grounds for termination, and giving to
said employee reasonable opportunity within which to
explain his side;
(b) A hearing or conference during which the employee
concerned, with the assistance of counsel if the
employee so desires, is given opportunity to respond to
the charge, present his evidence or rebut the evidence
presented against him; and
(c) A written notice of termination served on the
employee indicating that upon due consideration of all
the circumstance, grounds have been established to
justify his termination.
In case of termination, the foregoing notices shall be
served on the employee's last known address.
II. For termination of employment as based on
authorized causes defined in Article 283 of the Code,
the requirements of due process shall be deemed
complied with upon service of a written notice to the
employee and the appropriate Regional Office of the
Department at least thirty (30) days before the
effectivity of the termination, specifying the ground or
grounds for termination.
The new ruling of the majority is not in consonance with
this Rule XXIII.
If we are really zealous of protecting the rights of labor
as called for by the Constitution, we should guard
against every violation of their rights regardless of
whether the government or a private party is the
culprit. Section 3 of Article XIII of the Constitution
requires the State to give full protection to labor. We
cannot be faithful to this duty if we give no protection
to labor when the violator of its rights happens to be
private parties like private employers. A private person
does not have a better right than the government to
violate an employee's right to due process. To be sure,
violation of the particular right of employees to security
of tenure comes almost always from their private
employers. To suggest that we take mere geriatric steps
when it comes to protecting the rights of labor from
infringement by private parties is farthest from the
intent of the Constitution. We trivialize the right of the
employee if we adopt the rule allowing the employer to
dismiss an employee without any prior hearing and say
let him be heard later on. To a dismissed employee that
remedy is too little and too late. The new majority
ruling is doubly to be regretted because it comes at a
time when deregulation and privatization are
buzzwords in the world being globalized. In such a
setting, the new gods will not be governments but non-
governmental corporations. The greater need of the day
therefore is protection from illegal dismissals sans due
process by these non-governmental corporations.
The majority also holds that the "third reason why the
notice requirement under Art. 283 is not a requirement
of due process is that the employer cannot really be
expected to be entirely an impartial judge of his own
cause. This is also the case in termination of
employment for a just cause under Art. 282." Again,
with due respect, I beg to disagree. In an Article 283
situation, dismissal due to an authorized cause, the
employer is not called upon to act as an impartial judge.
The employer is given the duty to serve a written notice
on the worker and the DOLE at least one month before
the intended date of lay-off. It is the DOLE, an impartial
agency that will judge whether or not the employee is
being laid off for an authorized caused.27 It is not the
employer who will adjudge whether the alleged
authorized cause for dismissing the employee is fact or
fiction. On the other hand, in an Article 282 situation,
dismissal for a just cause, it is also incorrect to hold that
an employer cannot be an impartial judge. Today, the
procedure on discipline and dismissal of employees is
usually defined in the parties' collective bargaining
agreement or in its absence, on the rules and
regulations made by the employer himself. This
procedure is carefully designed to be bias free for it is to
the interest of both the employee and the employer
that only a guilty employee is disciplined or dismissed.
Hence, where the charge against an employee is
serious, it is standard practice to include in the
investigating committee an employee representative to
assure the integrity of the process. In addition, it is
usual practice to give the aggrieved employee an
appellate body to review an unfavorable decision.
Stated otherwise, the investigators are mandated to act
impartially for to do otherwise can bring havoc less to
the employee but more to the employer. For one, if the
integrity of the grievance procedure becomes suspect,
the employees may shun it and instead resort to
coercive measures like picketing and strikes that can
financially bleed employers. For another, a wrong,
especially a biased judgment can always be challenged
in the DOLE and the courts and can result in awards of
huge damages against the company. Indeed, the
majority ruling that an employer cannot act as an
impartial judge has no empirical evidence to support
itself. Statistics in the DOLE will prove the many cases
won by employees before the grievance committees
manned by impartial judges of the company.
Next, the majority holds that "the requirement to hear
an employee before he is dismissed should be
considered simply as an application of the Justinian
precept, embodied in the Civil Code, to act with justice,
give everyone his due, and observe honesty and good
faith toward one's fellowmen." It then rules that
violation of this norm will render the employer liable for
damages but will not render his act of dismissal void.
Again, I cannot join the majority stance. The faultline of
this ruling lies in the refusal to recognize that employer-
employee relationship is governed by special labor laws
and not by the Civil Code. The majority has disregarded
the precept that relations between capital and labor are
impressed with public interest. For this reason, we have
the Labor Code that specially regulates the relationship
between employer-employee including dismissals of
employees. Thus, Article 279 of the Labor Code
specifically provides that "in cases of regular
employment, the employer shall not terminate the
services of an employee except for a just cause or when
authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to instatement
without loss of seniority rights and other privileges and
to his full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent computed
from the time his compensation was withheld from him
up to the time of his actual reinstatement." This
provision of the Labor Code clearly gives the remedies
that an unjustly dismissed employee deserves. It is not
the Civil Code that is the source of his remedies.
The majority also holds that lack of notice in an Article
283 situation merely makes an employee dismissal
"ineffectual" but not illegal. Again, the ruling is sought
to be justified by analogy and our attention is called to
Article 1592, in relation to Article 1191 of the Civil Code.
It is contended that "under these provisions, while the
power to rescind is implied in reciprocal obligations,
nonetheless, in cases involving the sale of immovable
property, the vendor cannot rescind the contract even
though the vendee defaults in the payment of the price,
except by bringing an action in court or giving notice of
rescission by means of a notarial demand." The analogy
of the majority cannot be allowed both in law and in
logic. The legal relationship of an employer to his
employee is not similar to that of a vendor and a
vendee. An employee suffers from a distinct
disadvantage in his relationship with an employer,
hence, the Constitution and our laws give him extra
protection. In contrast, a vendor and a vendee in a sale
of immovable property are at economic par with each
other. To consider an employer-employee relationship
as similar to a sale of commodity is an archaic
abomination. An employer-employee relationship
involves the common good and labor cannot be treated
as a mere commodity. As well-stated by former
Governor General Leonard Wood in his inaugural
message before the 6th Philippine Legislature on
October 27, 1922, "it is opportune that we strive to
impress upon all the people that labor is neither a
chattel nor a commodity, but human and must be dealt
with from the standpoint of human interests."
Next, the majority holds that under the Labor Code,
only the absence of a just cause for the termination of
employment can make the dismissal of an employee
illegal. Quoting Article 279 which provides:
Security of Tenure. — In cases of regular employment,
the employer shall not terminate the services of an
employee except for a just cause or when authorized by
this Title. An employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other
benefits or their monetary equivalent computed from
the time his compensation was withheld from him up to
the time of his actual reinstatement.
it is then rationalized that "to hold that the employer's
failure to give notice before dismissing an employee . . .
results in the nullity of the dismissal would, in effect, be
to amend Article 279 by adding another ground, for
considering a dismissal illegal." With due respect, the
majority has misread Article 279. To start with, the
article is entitled "Security of Tenure" and therefore
protects an employee against dismissal not only for an
unjust cause but also for an unauthorized cause. Thus,
the phrase "unjustly dismissed" refers to employees
who are dismissed without just cause and to employees
who are laid off without any authorized cause. As
heretofore shown, we have interpreted dismissals
without prior notice as illegal for violating the right to
due process of the employee. These rulings form part of
the law of the land and Congress was aware of them
when it enacted the Labor Code and when its
implementing rules and regulations were promulgated
especially the rule ordering employers to follow due
process when dismissing employees. Needless to state,
it is incorrect for the majority to urge that we are in
effect amending Article 279.
In further explication of its ruling, the majority contends
"what is more, it would ignore the fact that under Art.
285, if it is the employee who fails to give a written
notice to the employer that he is leaving the service of
the latter, at least one month in advance, his failure to
comply with the legal requirement does not result in
making his resignation void but only in making him
liable for damages." Article 285(a) states: "An employee
may terminate without just cause the employee-
employer relationship by serving a written notice on the
employer at least one (1) month in advance. The
employer upon whom no such notice was served may
hold the employee liable for damages."
In effect, the majority view is that its new ruling puts at
par both the employer and the employee — under
Article 285, the failure of an employee to pre-notify in
writing his employer that he is terminating their
relationship does not make his walk-out void; under its
new ruling, the failure of an employer to pre-notify an
employee before his dismissal does not also render the
dismissal void. By this new ruling, the majority in a short
stroke has rewritten the law on dismissal and tampered
its pro-employee philosophy. Undoubtedly, Article 285
favors the employee as it does not consider void his act
of terminating his employment relationship before
giving the required notice. But this favor given to an
employee just like the other favors in the Labor Code
and the Constitution are precisely designed to level the
playing field between the employer and the employee.
It cannot be gainsaid that employees are the special
subject of solicitous laws because they have been and
they continue to be exploited by unscrupulous
employers. Their exploitation has resulted in labor
warfare that has broken industrial peace and slowed
down economic progress. In the exercise of their
wisdom, the founding fathers of our 1935, 1973 and
1987 Constitutions as well as the members our past and
present Congresses, have decided to give more legal
protection and better legal treatment to our employees
in their relationship with their employer. Expressive of
this policy is President Magsaysay's call that "he who
has less in life should have more in law." I respectfully
submit that the majority cannot revise our laws nor
shun the social justice thrust of our Constitution in the
guise of interpretation especially when its result is to
favor employers and disfavor employees. The majority
talks of high nobility but the highest nobility it to stoop
down to reach the poor.
IV. NO UNJUST RESULTS OF CONSIDERING DISMISSALS
WITHOUT PRIOR NOTICE AS ILLEGAL
The majority further justifies its new ruling by holding:
The refusal to look beyond the validity of the initial
action taken by the employer to terminate employment
either for an authorized or just cause can result in an
injustice to the employer. For not having been given
notice and hearing before dismissing an employee, who
is otherwise guilty of, say, theft, or even of an attempt
against the life of the employer, an employer will be
forced to keep in his employ such guilty employee. This
is unjust.
It is true the Constitution regards labor as "a primary
social economic force." But so does it declare that it
"recognizes the indispensable role of the private sector,
encourages private enterprise, and provides incentives
to needed investment." The Constitution bids the State
to "afford full protection to labor." But it is equally true
that "the law, in protecting the rights of the laborer,
authorizes neither oppression nor self-destruction of
the employer." And it is oppression to compel the
employer to continue in employment one who is guilty
or to force the employer to remain in operation when it
is not economically in his interest to do so.
With due respect, I cannot understand this total turn
around of the majority on the issue of the unjustness of
lack of pre-dismissal notice to an employee. Heretofore,
we have always considered this lack of notice as unjust
to the employee. Even under Article 302 of the Spanish
Code of Commerce of 1882 as related by the majority,
an employer who opts to dismiss an employee without
any notice has to pay a mesada equivalent to his salary
for one month because of its unjustness. This policy was
modified by our legislators in favor of a more liberal
treatment of labor as our country came under the
influence of the United States whose major labor laws
became the matrix of our own laws like R.A. 875,
otherwise known as the Industrial Peace Act. In accord
with these laws, and as aforediscussed, we laid down
the case law that dismissals without prior notice offend
due process. This is the case law when the Labor Code
was enacted on May 1, 1974 and until now despite its
amendments. The 1935 and the 1973 Constitutions did
not change this case law. So with the 1987 Constitution
which even strengthened the rights of employees,
especially their right to security of tenure. Mr. Justice
Laurel in his usual inimitable prose expressed this shift
in social policy in favor of employees as follows:
It should be observed at the outset that our
Constitution was adopted in the midst of surging unrest
and dissatisfaction resulting from economic and social
distress which was threatening the stability of
governments the world over. Alive to the social and
economic forces at work, the framers of our
Constitution boldly met the problems and difficulties
which faced them and endeavored to crystallize, with
more or less fidelity, the political, social and economic
propositions of their age, and this they did, with the
consciousness that the political and philosophical
aphorism of their generation will, in the language of a
great jurist, "be doubted by the next and perhaps
entirely discarded by the third." (Chief Justice Winslow
in Gorgnis v. Falk Co., 147 Wis., 327; 133 N. W., 209).
Embodying the spirit of the present epoch, general
provisions were inserted in the Constitution which are
intended to bring about the needed social and
economic equilibrium between component elements of
society through the application of what may be termed
as the justitia communis advocated by Grotius and
Leibnitz many years ago to be secured through the
counter-balancing of economic and social forces and
employers or landlords, and employees or tenants,
respectively; and by prescribing penalties for the
violation of the orders" and later, Commonwealth Act
No. 213, entitled "An Act to define and regulate
legitimate labor organizations."28
This ingrained social philosophy favoring employees has
now been weakened by the new ruling of the majority.
For while this Court has always considered lack of pre-
dismissal notice as unjust to employees, the new ruling
of the majority now declares it is unjust to employers as
if employers are the ones exploited by employees. In
truth, there is nothing unjust to employers by requiring
them to give notice to their employees before denying
them their jobs. There is nothing unjust to the duty to
give notice for the duty is a reasonable duty. If the duty
is reasonable, then it is also reasonable to demand its
compliance before the right to dismiss on the part of an
employer can be exercised. If it is reasonable for an
employer to comply with the duty, then it can never be
unjust if non-compliance therewith is penalized by
denying said employer his right to dismiss. In fine, if the
employer's right to dismiss an employee is forfeited for
his failure to comply with this simple, reasonable duty
to pre-notify his employee, he has nothing to blame but
himself. If the employer is estopped from litigating the
issue of whether or not he is dismissing his employee
for a just or an authorized cause, he brought the
consequence on to himself. The new ruling of the
majority, however, inexplicably considers this
consequence as unjust to the employer and it merely
winks at his failure to give notice.
V. A LAST WORD
The new ruling of the majority erodes the sanctity of
the most important right of an employee, his
constitutional right to security of tenure. This right will
never be respected by the employer if we merely honor
the right with a price tag. The policy of "dismiss now
and pay later" favors monied employers and is a
mockery of the right of employees to social justice.
There is no way to justify this pro-employer stance
when the 1987 Constitution is undeniably more pro-
employee than our previous fundamental laws. Section
18 of Article II (State Policies) provides that "the State
affirms labor as a primary social economic force. It shall
protect the rights of workers and promote their
welfare." Section 1, Article XIII (Social Justice and
Human Rights) calls for the reduction of economic
inequalities. Section 3, Article XIII (Labor) directs the
State to accord full protection to labor and to guaranty
security of tenure. These are constitutional polestars
and not mere works of cosmetology. Our odes to the
poor will be meaningless mouthfuls if we cannot
protect the employee's right to due process against the
power of the peso of employers.
To an employee, a job is everything. Its loss involves
terrible repercussions — stoppage of the schooling of
children, ejectment from leased premises, hunger to
the family, a life without any safety net. Indeed, to
many employees, dismissal is their lethal injection.
Mere payment of money by way of separation pay and
backwages will not secure food on the mouths of
employees who do not even have the right to choose
what they will chew.
I vote to grant the petition.
VITUG, J., separate (concurring and dissenting) opinion;
The lawful severance by an employer of an employer-
employee relationship would require a valid cause.
There are, under the Labor Code, two groups of valid
causes, and these are the just causes under Article 2821
and the authorized causes under Article 2832 and
Article 284.3
An employee whose employment is terminated for a
just cause is not entitled to the payment of separation
benefits.4 Separation pay would be due, however,
when the lay-off is on account of an authorized cause.
The amount of separation pay would depend on the
ground for the termination of employment. A lay-off
due to the installation of a labor saving device,
redundancy (Article 283) or disease (Article 284),
entitles the worker to a separation pay equivalent to
"one (1) month pay or at least one (1) month pay for
every year of service, whichever is higher." When the
termination of employment is due to retrenchment to
prevent losses, or to closure or cessation of operations
of an establishment or undertaking not due to serious
business losses or financial reverses, the separation pay
is only an equivalent of "one (1) month pay or at least
one-half (1/2) month pay for every year of service,
whichever is higher." In the above instances, a fraction
of at least six (6) months is considered as one (1) whole
year.
Due process of law, in its broad concept, is a principle in
our legal system that mandates due protection to the
basic rights, inherent or accorded, of every person
against harm or transgression without an intrinsically
just and valid law, as well as an opportunity to be heard
before an impartial tribunal, that can warrant such an
impairment. Due process guarantees against
arbitrariness and bears on both substance and
procedure. Substantive due process concerns itself with
the law, its essence, and its concomitant efficacy;
procedural due process focuses on the rules that are
established in order to ensure meaningful adjudications
appurtenant thereto.
In this jurisdiction, the right to due process is
constitutional and statutory.
Due process in the context of a termination of
employment, particularly, would be two-fold, i.e.,
substantive due process which is complied with when
the action of the employer is predicated on a just cause
or an authorized cause, and procedural due process
which is satisfied when the employee has the
opportunity to contest the existence of the ground
invoked by the employer in terminating the contract of
employment and to be heard thereon. I find it difficult
to ascribe either a want of wisdom or a lack of legal
basis to the early pronouncements of this Court that
sanction the termination of employment when a just or
an authorized cause to warrant the termination is
clearly extant. Regrettably, the Court in some of those
pronouncements has used, less than guarded in my
view, the term "due process" when referring to the
notices prescribed in the Labor Code5 and its
implementing rules6 that could, thereby, albeit
unintendedly and without meaning to, confuse the
latter with the notice requirement in adjudicatory
proceedings. It is not seldom when the law puts up
various conditions in the juridical relations of parties; it
would not be accurate to consider, I believe, an
infraction thereof to ipso-facto raise a problem of due
process. The mere failure of notice of the dismissal or
lay-off does not foreclose the right of an employee from
disputing the validity, in general, of the termination of
his employment, or the veracity, in particular, of the
cause that has been invoked in order to justify that
termination. In assailing the dismissal or lay-off, an
employee is entitled to be heard and to be given the
corresponding due notice of the proceedings. It would
be when this right is withheld without cogent reasons
that, indeed, it can rightly be claimed that the
fundamental demands of procedural due process have
been unduly discarded.
I do appreciate the fact that the prescribed notices can
have consequential benefits to an employee who is
dismissed or laid off, as the case may be; its non-
observance by an employer, therefore, can verily entitle
the employee to an award of damage but, to repeat,
not to the extent of rendering outrightly illegal that
dismissal or lay-off predicated on valid grounds. I would
consider the indemnification to the employee not a
penalty or a fine against the employer, the levy of either
of which would require an appropriate legislative
enactment; rather, I take the grant of indemnity as
justifiable as an award of nominal damages in
accordance with the provisions of Articles 2221-2223 of
the Civil Code, viz:
Art. 2221. Nominal damages are adjudicated in order
that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered by him.
Art. 2222. The court may award nominal damages in
every obligation arising from any source enumerated in
article 1157, or in every case where any property right
has been invaded.
Art. 2223. The adjudication of nominal damages shall
preclude further contest upon the right involved and all
accessory questions, as between the parties to the suit,
or their respective heirs and assigns.
There is no fixed formula for determining the precise
amount of nominal damages. In fixing the amount of
nominal damages to be awarded, the circumstances of
each case should thus be taken into account, such as, to
exemplify, the —
(a) length of service or employment of the dismissed
employee;
(b) his salary or compensation at the time termination
of employment vis-a-vis the capability of the employer
to pay;
(c) question of whether the employer has deliberately
violated the requirements for termination of
employment or has attempted to comply, at least
substantially, therewith; and/or
(d) reasons for the termination of employment.
I might stress the rule that the award of nominal
damages is not for the purpose of indemnification for a
loss but for the recognition and vindication of a right.
The degree of recovery therefor can depend, on the one
hand, on the constitution of the right, and, upon the
other hand, on the extent and manner by which that
right is ignored to the prejudice of the holder of that
right.
In fine7 —
A. A just cause or an authorized cause and a written
notice of dismissal or lay-off, as the case may be, are
required concurrently but not really equipollent in their
consequence, in terminating an employer-employee
relationship.
B. Where there is neither just cause nor authorized
cause, the reinstatement of the employee and the
payment of back salaries would be proper and should
be decreed. If the dismissal or lay-off is attended by bad
faith or if the employer acted in wanton or oppressive
manner, moral and exemplary damages might also be a
warded. In this respect, the Civil Code provides:
Art. 2220. Willful injury to property may be a legal
ground for awarding moral damages if the court should
find that, under the circumstances, such damages are
just due. The same rule applies to breaches of contract
where the defendant acted fraudulently or in bad faith.
Art. 2232. In contracts and quasi-contracts, the court
may award exemplary damages if the defendant acted
in a wanton, fraudulent, reckless, oppressive, or
malevolent manner (Civil Code).
Separation pay can substitute for reinstatement if such
reinstatement is not feasible, such as in case of a clearly
strained employer-employee relationship (limited to
managerial positions and contracts of employment
predicated on trust and confidence) or when the work
or position formerly held by the dismissed employee
plainly has since ceased to be available.
C. Where there is just cause or an authorized cause for
the dismissal or lay-off but the required written notices
therefor have not been properly observed by an
employer, it would neither be light and justifiable nor
likely intended by law to order either the reinstatement
of the dismissed or laid-off employee or the payment of
back salaries to him simply for the lack of such notices
if, and so long as, the employee is not deprived of an
opportunity to contest that dismissal or lay-off and to
accordingly be heard thereon. In the termination of
employment for an authorized cause (this cause being
attributable to the employer), the laid-off employee is
statutorily entitled to separation pay, unlike a dismissal
for a just cause (a cause attributable to an employee)
where no separation pay is due. In either case, if an
employer fails to comply with the requirements of
notice in terminating the services of the employee, the
employer must be made to pay, as so hereinabove
expressed, corresponding damages to the employee.
WHEREFORE, I vote to hold (a) that the lay-off in the
case at bar is due to redundancy and that, accordingly,
the separation pay to petitioner should be increased to
one month, instead of one-half month, pay for every
year of service, and (b) that petitioner is entitled to his
unpaid wages, proportionate 13th-month pay, and an
indemnity of P10,000.00 in keeping with the nature and
purpose of, as well as the rationale behind, the grant of
nominal damages.
PANGANIBAN, J., separate opinion;
In the case before us, the Court is unanimous in at least
two findings: (1) petitioner's dismissal was due to an
authorized cause, redundancy; and (2) petitioner was
notified of his dismissal only on the very day his
employment was terminated. The contentious issue
arising out of these two findings is as follows: What is
the legal effect and the corresponding sanction for the
failure of the employer to give the employee and the
Department of Labor and Employment (DOLE) the 30-
day notice of termination required under Article 283 of
the Labor Code?
During the last ten (10) years, the Court has answered
the foregoing question by ruling that the dismissal
should be upheld although the employee should be
given "indemnity or damages" ranging from P1,000 to
P10,000 depending on the circumstances.
The present ponencia of Mr. Justice Mendoza holds that
"the termination of his employment should be
considered ineffectual and the [employee] should be
paid back wages" from the time of his dismissal until the
Court finds that the dismissal was for a just cause.
Reexamination of the "Indemnity Only" Rule
I am grateful that the Court has decided to reexamine
our ten-year doctrine on this question and has at least,
in the process, increased the monetary award that
should go to the dismissed employee — from a nominal
sum in the concept "indemnity or damages" to "full
back wages." Shortly after my assumption of office on
October 10, 1995, I already questioned this practice of
granting "indemnity only" to employees who were
dismissed for cause but without due process.1 I formally
registered reservations on this rule in my ponencia in
MGG Marine Services v. NLRC2 and gave it full
discussion in my Dissents in Better Buildings v. NLRC3
and in Del Val v. NLRC.4
Without in any way diminishing my appreciation of this
reexamination and of the more financially-generous
treatment the Court has accorded labor, I write to take
issue with the legal basis of my esteemed colleague, Mr.
Justice Mendoza, in arriving at his legal conclusion that
"the employer's failure to comply with the notice
requirement does not constitute a denial of due process
but a mere failure to observe a procedure for the
termination of employment which makes the
termination of employment merely ineffectual." In
short, he believes that (1) the 30-day notice
requirement finds basis only in the Labor Code, and (2)
the sanction for its violation is only "full back wages."
With due respect, I submit the following counter-
arguments:
(1) The notice requirement finds basis not only in the
Labor Code but, more important, in the due process
clause of the Constitution.
(2) Consequently, when the employee is dismissed
without due process, the legal effect is an illegal
dismissal and the appropriate sanction is full back
wages plus reinstatement, not merely full back wages. It
is jurisprudentially settled, as I will show presently, that
when procedural due process is violated, the
proceedings — in this case, the dismissal — will be
voided, and the parties will have to be returned to their
status quo ante; that is, the employee will have to be
given back his old job and paid all benefits as if he were
never dismissed.
(3) In any event, contrary to Mr. Justice Mendoza's
premise, even the Labor Code expressly grants the
dismissed employee not only the right to be notified but
also the right to be heard.
In short, when an employee is dismissed without notice
and hearing, the effect is an illegal dismissal and the
appropriate reliefs are reinstatement and full back
wages. In ruling that the dismissal should be upheld, the
Court majority has virtually rendered nugatory the
employee's right to due process as mandated by law
and the Constitution. It implicitly allows the employer to
simply ignore such right and to just pay the employee.
While it increases the payment to "full back wages," it
doctrinally denigrates his right to due process to a mere
statutory right to notice.
Let me explain the foregoing by starting with a short
background of our jurisprudence on the right to due
process.
Without Due Process, the Proceedings Are Illegal
In the past, this Court has untiringly reiterated that
there are two essential requisites for an employer's
valid termination of an employee's services: (1) a just5
or authorized6 cause and (2) due process.7 During the
last ten years, the Court has been quite firm in this
doctrinal concept, but it has been less than consistent in
declaring the illegality of a dismissal when due process
has not been observed. This is particularly noticeable in
the relief granted. Where there has been no just or
authorized cause, the employee is awarded
reinstatement or separation pay, and back wages.8 If
only the second requisite (due process) has not been
fulfilled, the employee, as earlier stated, is granted
indemnity or damages amounting to a measly P1,000 up
to P10,000.9
I respectfully submit that illegal dismissal results not
only from the absence of a legal cause (enumerated in
Arts. 282 to 284 of the Labor Code), but likewise from
the failure to observe due process. Indeed, many are
the cases, labor or otherwise, in which acts violative of
due process are unequivocally voided or declared illegal
by the Supreme Court. In Pepsi-Cola Bottling Co. v.
NLRC,10 the Court categorically ruled that the failure of
management to comply with the requirements of due
process made its judgment of dismissal "void and non-
existent."
This Court in People v. Bocar 11 emphatically made the
following pronouncement, which has been reiterated in
several cases:12
The cardinal precept is that where there is a violation of
basis constitutional rights, courts are ousted of their
jurisdiction. Thus the violation of the State's right to due
process raises a serious jurisdictional issue (Gumabon
vs. Director of the Bureau of Prisons, L-30026, 37 SCRA
420 [Jan. 30, 1971]) which cannot be glossed over or
disregarded at will. Where the denial of the
fundamental right of due process is apparent, a decision
rendered in disregarded of the right is void for lack of
jurisdiction (Aducayen vs. Flores, L-30370, [May 25,
1973] 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49
SCRA 416 [Feb. 27, 1973]). Any judgment or decision
rendered notwithstanding such violation may be
regarded as a "lawless thing, which can be treated as an
outlaw and slain at sight, or ignored wherever it exhibits
its head" (Aducayen vs. Flores, supra).
In the earlier case Bacus v. Ople,13 this Court also
nullified the then labor minister's clearance to
terminate the employment of company workers who
had supposedly staged an illegal strike. The reason for
this ruling was the denial of sufficient opportunity for
them to present their evidence and prove their case.
The Court explained:14
A mere finding of the illegality of a strike should not be
automatically followed by a wholesale dismissal of the
strikers from their employment. What is more, the
finding of the illegality of the strike by respondent
Minister of Labor and Employment is predicated on the
evidence ascertained through an irregular procedure
conducted under the semblance of summary methods
and speedy disposition of labor disputes involving
striking employees.
While it is true that administrative agencies exercising
quasi-judicial functions are free from the rigidities of
procedure, it is equally well-settled in this jurisdiction
that avoidance of such technicalities of law or
procedure in ascertaining objectively the facts in each
case should not, however, cause a denial of due
process. The relative freedom of the labor arbiter from
the rigidities of procedure cannot be invoked to evade
what was clearly emphasized in the landmark case of
Ang Tibay v. Court of Industrial Relations that all
administrative bodies cannot ignore or disregard the
fundamental and essential requirements of due
process.
In the said case, the respondent company was ordered
to reinstate the dismissed workers, pending a hearing
"giving them the opportunity to be heard and present
their evidence."
In Philippine National Bank v. Apalisok,15 Primitivo
Virtudazo, an employee of PNB, was served a
Memorandum stating the finding against him of a prima
facie case for dishonesty and violation of bank rules and
regulations. He submitted his Answer denying the
charges and explaining his defenses.
Later, two personnel examiners of the bank conducted
a fact-finding investigation. They stressed to him that a
formal investigation would follow, in which he could
confront and examine the witnesses for the bank, as
well as present his own. What followed, however, was a
Memorandum notifying him that he had been found
guilty of the charges and that he was being dismissed.
After several futile attempts to secure a copy of the
Decision rendered against him, he instituted against
PNB a Complaint for illegal dismissal and prayed for
reinstatement and damages.
The trial court held that Virtudazo had been deprived of
his rights to be formally investigated and to cross-
examine the witnesses. This Court sustained the trial
court, stating resolutely: "The proceedings having been
conducted without according to Virtudazo the "cardinal
primary rights of due process" guaranteed to every
party in an administrative or quasi-judicial proceeding,
said proceedings must be pronounced null and void."16
Also in Fabella v. Court of Appeals,17 this Court
declared the dismissal of the schoolteachers illegal,
because the administrative body that heard the charges
against them had not afforded them their right to
procedural due process. The proceedings were declared
void, and the orders for their dismissal set aside. We
unqualifiedly reinstated the schoolteachers, to whom
we awarded all monetary benefits that had accrued to
them during the period of their unjustified suspension
or dismissal.
In People v. San Diego,18 People v. Sola,19 People v.
Dactrdao,20 People v. Calo Jr.21 and People v.
Burgos,22 this Court similarly voided the trial court's
grant of bail to the accused upon a finding that the
prosecution had been deprived of procedural due
process.
In People v. Sevilleno,23 the Court noted that the trial
judge "hardly satisfied the requisite searching inquiry"
due the accused when he pleaded guilty to the capital
offense he had been charged with. We thus concluded
that "the accused was not properly accorded his
fundamental right to be informed of the precise nature
of the accusation leveled against him." Because of the
nonobservance of "the fundamental requirements of
fairness and due process," the appealed Decision was
annulled and set aside, and the case was remanded for
the proper arraignment and trial of the accused.
Recently, the Court vacated its earlier Decision24 in
People v. Parazo25 upon realizing that the accused — "a
deaf-mute, a mental retardate, whose mental age [was]
only seven (7) years and nine (9) months, and with low
IQ of 60 only" — had not been ably assisted by a sign
language expert during his arraignment and trial. Citing
People v. Crisologo,26 we ruled that the accused had
been deprived of "a full and fair trial and a reasonable
opportunity to defend himself." He had in effect been
denied his fundamental right to due process of law.
Hence, we set aside the trial proceedings and granted
the accused a re-arraignment and a retrial.
Of late, we also set aside a Comelec Resolution
disallowing the use by a candidate of a certain
nickname for the purpose of her election candidacy.
The Resolution was issued pursuant to a letter-petition
which was passed upon by the Comelec without
affording the candidate the opportunity to explain her
side and to counter the allegations in said letter-
petition. In invalidating the said Resolution, we again
underscored the necessity of the observance of the twin
requirements of notice and hearing before any decision
can be validly rendered in a case.27
Clearly deducible from our extant jurisprudence is that
the denial of a person's fundamental right to due
process amounts to the illegality of the proceedings
against him. Consequently, he is brought back to his
status quo ante, not merely awarded nominal damages
or indemnity.
Our labor force deserves no less. Indeed, the State
recognizes it as its primary social economic force,28 to
which it is constitutionally mandated to afford full
protection.29 Yet, refusing to declare the illegality of
dismissals without due process, we have continued to
impose upon the erring employer the simplistic penalty
of paying indemnity only. Hence, I submit that it is time
for us to denounce these dismissals as null and void and
to grant our workers these proper reliefs: (1) the
declaration that the termination or dismissal is illegal
and unconstitutional and (2) the reinstatement of the
employee plus full back wages. The present ruling of the
Court is manifestly inconsistent with existing prudence
which holds that proceedings held without notice and
hearing are null and void, since they amount to a
violation of due process, and therefore bring back the
parties to the status quo ante.
Exception: When Due Process Is Impractical and Futile
I am fully aware that in a long line of cases starting with
Wenphil v. NLRC,30 the Court has held: where there is
just cause for the dismissal of an employee but the
employer fails to follow the requirements of procedural
due process, the former is not entitled to back wages,
reinstatement (or separation pay in case reinstatement
is no longer feasible) or other benefits. Instead, the
employee is granted an indemnity (or penalty or
damages) ranging from P1,00031 to as much as
P10,000,32 depending on the circumstances of the case
and the gravity of the employer's omission. Since then,
Wenphil has perfunctorily been applied in most
subsequent cases33 involving a violation of due process
(although just cause has been duly proven), without
regard for the peculiar factual milieu of each case.
Indemnity or damages has become an easy substitute
for due process.
Be it remembered, however, that the facts in Wenphil
clearly showed the impracticality and the futility of
observing the procedure laid down by law and by the
Constitution for terminating employment. The
employee involved therein appeared to have exhibited
a violent temper and caused trouble during office
hours. In an altercation with a co-employee, he
"slapped [the latter's] cap, stepped on his foot and
picked up the ice scooper and brandished it against
[him]." When summoned by the assistant manager, the
employee "shouted and uttered profane words" instead
of giving an explanation. He was caught virtually in
flagrante delicto in the presence of many people. Under
the circumstances action was necessary to preserve
order and discipline, as well as to safeguard the
customers' confidence in the employer's business — a
fastfood chain catering to the general public where
courtesy is a prized virtue.
However, in most of the succeeding cases, including the
present one before us in which the petitioner was
dismissed on the very day he was served notice, there
were ample opportunities for the employers to observe
the requisites of due process. There were no exigencies
that called for immediate response. And yet, Wenphil
was instantly invoked and due process brushed aside.
I believe that the price that the Court has set for the
infringement of the fundamental right to due process is
too insignificant, too niggardly, and sometimes even too
late. I believe that imposing a stiffer sanction is the only
way to emphasize to employers the extreme
importance of the right to due process in our
democratic system. Such right is too sacred to be taken
for granted or glossed over in a cavalier fashion. To hold
otherwise, as by simply imposing an indemnity or even
"full back wages," is to allow the rich and powerful to
virtually purchase and to thereby stifle a constitutional
right granted to the poor and marginalized.
It may be asked: If the employee is guilty anyway, what
difference would it make if he is fired without due
process? By the same token, it may be asked: If in the
end, after due hearing, a criminal offender is found
guilty anyway, what difference would it make if he is
simply penalized immediately without the trouble and
the expense of trial? The absurdity of this argument is
too apparent to deserve further discourse.34
Worker's Right to Notice Is Constitutional, Not Merely
Statutory
According to the ponencia of Mr. Justice Mendoza, the
"violation of the notice requirement cannot be
considered a denial of due process resulting in the
nullity of the employee's dismissal or lay-off." He argues
that the due process clause of the Constitution may be
used against the government only. Since the Labor Code
does not accord employees the right to a hearing, ergo,
he concludes, they do not have the right to due process.
I disagree. True, as pointed out by Mr. Justice Mendoza,
traditional doctrine holds that constitutional rights may
be invoked only against the State. This is because in the
past, only the State was in a position to violate these
rights, including the due process clause. However, with
the advent of liberalization, deregulation and
privatization, the State tended to cede some of its
powers to the "market forces." Hence, corporate
behemoths and even individuals may now be sources of
abuses and threats to human rights and liberties. I
believe, therefore, that such traditional doctrine should
be modified to enable the judiciary to cope with these
new paradigms and to continue protecting the people
from new forms of abuses.34 -a
Indeed the employee is entitled to due process not
because of the Labor code, but because of the
Constitution. Elementary is the doctrine that
constitutional provisions are deemed written into every
statute, contract or undertaking. Worth noting is that
"[o]ne's employment, profession, trade or calling is a
property right within the protection of the
constitutional guaranty of due process of law."35
In a long line of cases involving judicial, quasi-judicial
and administrative proceedings, some of which I
summarized earlier, the Court has held that the twin
requirements of notice and hearing (or, at the very
least, an opportunity to be heard) constitute the
essential elements of due process. In labor proceedings,
both are the conditio sine qua non for a dismissal to be
validly effected.36 The perceptive Justice Irene Cortes
has aptly stated: "One cannot go without the other, for
otherwise the termination would, in the eyes of the law,
be illegal."37
Even the Labor Code Grants the Right to a Hearing
Besides, it is really inaccurate to say that the Labor Code
grants "notice alone" to employees being dismissed due
to an authorized cause. Article 277 (b)38 of the said
Code explicitly provides that the termination of
employment by the employer is "subject to the
constitutional right of workers to security of tenure[;] . .
. without prejudice to the requirement of notice under
Article 283 of this Code, the employer shall furnish the
worker whose employment is sought to be terminated a
written notice containing a statement of the causes for
termination and shall afford the latter ample
opportunity to be heard . . . ." Significantly, the
provision requires the employer "to afford [the
employee] ample opportunity to be heard" when the
termination is due to a "just and authorized cause." I
submit that this provision on "ample opportunity to be
heard" applies to dismissals under Articles 282, 283 and
284 of the Labor Code.
In addition, to say that the termination is "simply
ineffectual" for failure to comply with the 30-day
written notice and, at the same time, to conclude that it
has "legal effect" appears to be contradictory.
Ineffectual means "having no legal force."39 If a
dismissal has no legal force or effect, the consequence
should be the reinstatement of the dismissed employee
and the grant of full back wages thereto, as provided by
law — not the latter only. Limiting the consequence
merely to the payment of full back wages has no legal
or statutory basis. No provision in the Labor Code or any
other law authorizes such limitation of sanction, which
Mr. Justice Mendoza advocates.
The majority contends that it is not fair to reinstate the
employee, because the employer should not be forces
to accommodate an unwanted worker. I believe
however that it is not the Court that forces the
employer to rehire the worker. By violating the latter's
constitutional right to due process, the former brings
this sanction upon itself. Is it unfair to imprison a
criminal? No! By violating the law, one brings the penal
sanction upon oneself. There is nothing unfair or
unusual about this inevitable chain of cause and effect,
of crime and punishment, of violation and sanction.
Due Process Begins With Each of Us
To repeat, due process begins with the employer, not
with the labor tribunals. An objective reading of the Bill
of Rights clearly shows that the due process protection
is not limited to government action alone. The
Constitution does not say that the right cannot be
claimed against private individuals and entities. Thus, in
PNB v. Apalisok, which I cited earlier, this Court voided
the proceedings conducted by petitioner bank because
of its failure to observe Apalisok's right to due process.
Truly, justice is dispensed not just by the courts and
quasi-judicial bodies like public respondent here. The
administration of justice begins with each of us, in our
everyday dealings with one another and, as in this case,
in the employers' affording their employees the right to
be heard. If we, as a people and as individuals, cannot
or will not deign to act with justice and render unto
everyone his or her due in little, everyday things, can
we honestly hope and seriously expect to do so when
monumental, life-or-death issues are at stake? Unless
each one is committed to a faithful observance of day-
to-day fundamental rights, our ideal of a just society can
never be approximated, not to say attained.
In the final analysis, what is involved here is not simply
the amount of monetary award, whether insignificant
or substantial; whether termed indemnity, penalty or
"full back wages." Neither is it merely a matter of
respect for workers' rights or adequate protection of
labor. The bottom line is really the constitutionally
granted right to due process. And due process is the
very essence of justice itself. Where the rule of law is
the bedrock of our free society, justice is its very
lifeblood. Denial of due process is thus no less than a
denial of justice itself.
In Addition to Reinstatement and Back Wages, Damages
May Be Awarded
One last point. Justice Vitug argues in his Separate
Opinion that the nonobservance of the prescribed
notices "can verily entitle the employee to an award of
damages but . . . not to the extent of rendering
outrightly illegal that dismissal or lay-off . . . ." I, of
course, disagree with him insofar as he denies the
illegality of the dismissal, because as I already
explained, a termination without due process is
unconstitutional and illegal. But I do agree that, where
the employee proves the presence of facts showing
liability for damages (moral, exemplary, etc.) as
provided under the Civil Code, the employee could be
entitled to such award in addition to reinstatement and
back wages. For instance, where the illegal dismissal has
caused the employee "physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation and
similar injury" due to the bad faith of the employer, an
award for moral damages would be proper, in addition
to reinstatement and back wages.
Summary
To conclude, I believe that even if there may be a just or
an authorized cause for termination but due process is
absent, the dismissal proceedings must be declared null
and void. The dismissal should still be branded as illegal.
Consequently, the employee must be reinstated and
given full back wages.
On the other hand, there is an exception. The employer
can adequately prove that under the peculiar
circumstances of the case, there was no opportunity to
comply with due process requirements; or doing so
would have been impractical or gravely adverse to the
employer, as when the employee is caught in flagrante
delicto. Under any of these circumstances, the dismissal
will not be illegal and no award may properly be
granted. Nevertheless, as a measure of compassion, the
employee may be given a nominal sum depending on
the circumstances, pursuant to Article 2221 of the Civil
Code.
Depending on the facts of each case, damages as
provided under applicable articles of the Civil Code may
additionally be awarded.
WHEREFORE, I vote to GRANT the petition. Ruben
Serrano should be REINSTATED and PAID FULL BACK
WAGES from date of termination until actual
reinstatement, plus all benefits he would have received
as if he were never dismissed.
Footnotes
1 TSN of testimony of petitioner, pp. 24, 76-78, April 24,
1992.
2 Petitioner's Position Paper, Annex C; Records, p. 19.
3 Id., Annex B; id., p. 21.
4 Records, p. 2.
5 Decision, dated April 30, 1993, of Labor Arbiter Pablo
C. Espiritu. Petition, Annex A; Rollo, p. 30.
6 Id., pp. 35-36.
7 Petition, p. 10; id., p. 16.
8 21 SCRA 652 (1992).
9 Id., at 662.
10 G.R. No. 131108, March 25, 1999.
11 Shell Oil Workers Union v. Shell Company of the
Philippines, Ltd., 39 SCRA 276, 284-285 (1971).
12 Asian Alcohol Corporation v. National Labor
Relations Commission, G.R. No. 131108, March 25,
1999.
13 TSN, p. 61, April 24, 1992.
14 CONST., ART. XIII, §3.
15 E.g., Aurora Land Projects Corporation v. NLRC., 266
SCRA 48 (1997).
16 248 SCRA 532 (1995).
17 This provision reads:
Termination by employer. — An employer may
terminate an employment for any of the following
causes.
(a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work:
(b) Gross and habitual neglect by the employee of his
duties;
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
(d) Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representative; and
(e) Other causes analogous to the foregoing.
18 Bk. VI, Rule 1, of the Omnibus Rules and Regulations
to Implement the Labor Code provides in pertinent
parts:
Sec. 2. Security of tenure . . . .
(d) In all cases of termination of employment, the
following standards of due process shall be substantially
observed.
For termination of employment based on just causes as
defined in Article 282 of the Labor Code:
(i) A written notice served on the employee specifying
the ground or grounds for termination, and giving said
employee reasonable opportunity within which to
explain his side.
(ii) A hearing or conference during which the employee
concerned, with the assistance of counsel if he so
desires, is given opportunity to respond to the charge,
present his evidence, or rebut the evidence presented
against him.
(iii) A written notice of termination served on the
employee, indicating that upon due consideration of all
the circumstances, grounds have been established to
justify his termination.
For termination of employment as defined in Article 283
of the Labor Code, the requirement of due process shall
be deemed complied with upon service of a written
notice to the employee and the appropriate Regional
Office of the Department of Labor and Employment at
least thirty days before effectivity of the termination,
specifying the ground or grounds for termination . . .
xxx xxx xxx
19 Sebuguero v. NLRC, 248 SCRA at 547.
20 170 SCRA 69 (1989).
21 Id., at 75-76.
22 E.g., Aurelio v. NLRC, 221 SCRA 432 (1993) (dismissal
of a managerial employee for breach of trust);
Rubberworld (Phils.), Inc. v. NLRC, 183 SCRA 421 (1990)
(dismissal for absenteeism, leaving the work place
without notice, tampering with machines); Shoemart,
Inc. v. NLRC, 176 SCRA 385 (1989) (dismissal for
abandonment of work).
23 Sebuguero v. NLRC, 248 SCRA 536 (1995)
(termination of employment due to retrenchment).
24 E.g., Worldwide papermills, Inc. v. NLRC, 244 SCRA
125 (1995) (dismissal for gross and habitual neglect of
duties).
25 E.g., Reta v. NLRC, 232 SCRA 613 (1994) (dismissal for
negligence and insubordination).
26 110 Phil. 113, 118 (1960).
27 138 SCRA 166, 170 (1985).
28 Art. 302 of the Code of Commerce provided:
In cases in which no special time is fixed in the contracts
of service, any one of the parties thereto may dissolve
it, advising the other party thereof one month in
advance.
The factory or shop clerk shall be entitled, in such case,
to the salary due for said month.
29 R.A. No. 1052, as amended by R.A. No. 1787,
provide:
Sec. 1. In cases of employment without a determine
period, in a commercial, industrial, or agricultural
establishment or enterprises, the employer or the
employee may terminate at any time the employment
with just cause; or without just cause in the case of an
employee by serving written notice on the employer at
least one month in advance, or in the case of an
employer by serving such notice to the employee at
least one month in advance or one-half month for every
year of service of the employee, whichever is longer, a
fraction of at least six months being considered as one
whole year.
The employer, upon whom no such notice was served in
case of termination of employment without just cause
shall be entitled to compensation from the date of
termination of his employment in an amount equivalent
to his salaries or wages corresponding to the required
period of notice.
30 Abe v. Foster Wheeler Corp. 110 Phil. 198 (1960);
Malate Taxicab and Garage, Inc. v. CIR, 99 Phil. 41
(1956).
31 71 SCRA 470, 480 (1976).
32 77 SCRA 321 (1977).
33 CIVIL CODE, ART. 19.
34 Art. 1191: "The power to rescind obligations is
implied in reciprocal ones, in case one of the obligors
should not comply with what is incumbent upon him. . .
..
Art. 1592: "In the sale of immovable property, even
though it may have been stipulated that upon failure to
pay the price at the time agreed upon the rescission of
the contract shall of right take place, the vendee may
pay, even after the expiration of the period, as long as
no demand for rescission of the contract has been made
upon him either judicially or by a notarial act. After the
demand, the court may not grant him a new term.
35 De la Cruz v. Legaspi, 98 Phil. 43 (1955); Taguba v.
Vda. de Leon, 132 SCRA 722 (1984).
36 See Maximo v. Fabian, G.R. No. L-8015, December
23, 1955, (unpub.), 98 Phil. 989.
37 Emphasis added.
38 Art. 285 reads:
Termination by employee. — (a) An employee may
terminate without just cause the employee-employer
relationship by serving a written notice on the employer
at least one (1) month in advance. The employer upon
whom no such notice was served may hold the
employee liable for damages.
(b) An employee may put an end to the relationship
without serving any notice on the employer for any of
the following just causes:

1. Serious insult by the employer of his representative

on the honor and person of the employee;

2. Inhuman and unbearable treatment accorded the

employee by the employer or his representative;

3. Commission of a crime or offense by the employer or

his representative against the person of the employee
or any of the immediate members of his family; and

4. Other causes analogous to any of the foregoing.

39 210 SCRA 277 (1992).

40 Art, II, §18.

41 Id., §20.

42 Art. XIII, §3.

43 Manila Trading and Supply Co. v. Zulueta, 69 Phil,

485, 487 (1940) (per Laurel, J.) Accord, Villanueva v.
NLRC, 293 SCRA 259 (1998); DI Security and General
Services, Inc. v. NLRC, 264 SCRA 458 (1996); Flores v.
NLRC, 256 SCRA 735 (1996); San Miguel Corporation v.
NLRC, 218 SCRA 293 (1993); Colgate Palmolive
Philippines, Inc. v. Ople, 163 SCRA 323 (1988).
G.R. No. 158693 November 17, 2004
JENNY M. AGABON and VIRGILIO C. AGABON,
petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION (NLRC),
RIVIERA HOME IMPROVEMENTS, INC. and VICENTE
ANGELES, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review seeks to reverse the decision1
of the Court of Appeals dated January 23, 2003, in CA-
G.R. SP No. 63017, modifying the decision of National
Labor Relations Commission (NLRC) in NLRC-NCR Case
No. 023442-00.
Private respondent Riviera Home Improvements, Inc. is
engaged in the business of selling and installing
ornamental and construction materials. It employed
petitioners Virgilio Agabon and Jenny Agabon as
gypsum board and cornice installers on January 2,
19922 until February 23, 1999 when they were
dismissed for abandonment of work.
Petitioners then filed a complaint for illegal dismissal
and payment of money claims3 and on December 28,
1999, the Labor Arbiter rendered a decision declaring
the dismissals illegal and ordered private respondent to
pay the monetary claims. The dispositive portion of the
decision states:
WHEREFORE, premises considered, We find the
termination of the complainants illegal. Accordingly,
respondent is hereby ordered to pay them their
backwages up to November 29, 1999 in the sum of:
1. Jenny M. Agabon - P56, 231.93
2. Virgilio C. Agabon - 56, 231.93
and, in lieu of reinstatement to pay them their
separation pay of one (1) month for every year of
service from date of hiring up to November 29, 1999.
Respondent is further ordered to pay the complainants
their holiday pay and service incentive leave pay for the
years 1996, 1997 and 1998 as well as their premium pay
for holidays and rest days and Virgilio Agabon's 13th
month pay differential amounting to TWO THOUSAND
ONE HUNDRED FIFTY (P2,150.00) Pesos, or the
aggregate amount of ONE HUNDRED TWENTY ONE
THOUSAND SIX HUNDRED SEVENTY EIGHT & 93/100
(P121,678.93) Pesos for Jenny Agabon, and ONE
HUNDRED TWENTY THREE THOUSAND EIGHT HUNDRED
TWENTY EIGHT & 93/100 (P123,828.93) Pesos for
Virgilio Agabon, as per attached computation of Julieta
C. Nicolas, OIC, Research and Computation Unit, NCR.
SO ORDERED.4
On appeal, the NLRC reversed the Labor Arbiter because
it found that the petitioners had abandoned their work,
and were not entitled to backwages and separation pay.
The other money claims awarded by the Labor Arbiter
were also denied for lack of evidence.5
Upon denial of their motion for reconsideration,
petitioners filed a petition for certiorari with the Court
of Appeals.
The Court of Appeals in turn ruled that the dismissal of
the petitioners was not illegal because they had
abandoned their employment but ordered the payment
of money claims. The dispositive portion of the decision
reads:
WHEREFORE, the decision of the National Labor
Relations Commission is REVERSED only insofar as it
dismissed petitioner's money claims. Private
respondents are ordered to pay petitioners holiday pay
for four (4) regular holidays in 1996, 1997, and 1998, as
well as their service incentive leave pay for said years,
and to pay the balance of petitioner Virgilio Agabon's
13th month pay for 1998 in the amount of P2,150.00.
SO ORDERED.6
Hence, this petition for review on the sole issue of
whether petitioners were illegally dismissed.7
Petitioners assert that they were dismissed because the
private respondent refused to give them assignments
unless they agreed to work on a "pakyaw" basis when
they reported for duty on February 23, 1999. They did
not agree on this arrangement because it would mean
losing benefits as Social Security System (SSS) members.
Petitioners also claim that private respondent did not
comply with the twin requirements of notice and
hearing.8
Private respondent, on the other hand, maintained that
petitioners were not dismissed but had abandoned
their work.9 In fact, private respondent sent two letters
to the last known addresses of the petitioners advising
them to report for work. Private respondent's manager
even talked to petitioner Virgilio Agabon by telephone
sometime in June 1999 to tell him about the new
assignment at Pacific Plaza Towers involving 40,000
square meters of cornice installation work. However,
petitioners did not report for work because they had
subcontracted to perform installation work for another
company. Petitioners also demanded for an increase in
their wage to P280.00 per day. When this was not
granted, petitioners stopped reporting for work and
filed the illegal dismissal case.10
It is well-settled that findings of fact of quasi-judicial
agencies like the NLRC are accorded not only respect
but even finality if the findings are supported by
substantial evidence. This is especially so when such
findings were affirmed by the Court of Appeals.11
However, if the factual findings of the NLRC and the
Labor Arbiter are conflicting, as in this case, the
reviewing court may delve into the records and examine
for itself the questioned findings.12
Accordingly, the Court of Appeals, after a careful review
of the facts, ruled that petitioners' dismissal was for a
just cause. They had abandoned their employment and
were already working for another employer.
To dismiss an employee, the law requires not only the
existence of a just and valid cause but also enjoins the
employer to give the employee the opportunity to be
heard and to defend himself.13 Article 282 of the Labor
Code enumerates the just causes for termination by the
employer: (a) serious misconduct or willful
disobedience by the employee of the lawful orders of
his employer or the latter's representative in
connection with the employee's work; (b) gross and
habitual neglect by the employee of his duties; (c) fraud
or willful breach by the employee of the trust reposed
in him by his employer or his duly authorized
representative; (d) commission of a crime or offense by
the employee against the person of his employer or any
immediate member of his family or his duly authorized
representative; and (e) other causes analogous to the
foregoing.
Abandonment is the deliberate and unjustified refusal
of an employee to resume his employment.14 It is a
form of neglect of duty, hence, a just cause for
termination of employment by the employer.15 For a
valid finding of abandonment, these two factors should
be present: (1) the failure to report for work or absence
without valid or justifiable reason; and (2) a clear
intention to sever employer-employee relationship,
with the second as the more determinative factor which
is manifested by overt acts from which it may be
deduced that the employees has no more intention to
work. The intent to discontinue the employment must
be shown by clear proof that it was deliberate and
unjustified.16
In February 1999, petitioners were frequently absent
having subcontracted for an installation work for
another company. Subcontracting for another company
clearly showed the intention to sever the employer-
employee relationship with private respondent. This
was not the first time they did this. In January 1996,
they did not report for work because they were working
for another company. Private respondent at that time
warned petitioners that they would be dismissed if this
happened again. Petitioners disregarded the warning
and exhibited a clear intention to sever their employer-
employee relationship. The record of an employee is a
relevant consideration in determining the penalty that
should be meted out to him.17
In Sandoval Shipyard v. Clave,18 we held that an
employee who deliberately absented from work
without leave or permission from his employer, for the
purpose of looking for a job elsewhere, is considered to
have abandoned his job. We should apply that rule with
more reason here where petitioners were absent
because they were already working in another
company.
The law imposes many obligations on the employer
such as providing just compensation to workers,
observance of the procedural requirements of notice
and hearing in the termination of employment. On the
other hand, the law also recognizes the right of the
employer to expect from its workers not only good
performance, adequate work and diligence, but also
good conduct19 and loyalty. The employer may not be
compelled to continue to employ such persons whose
continuance in the service will patently be inimical to
his interests.20
After establishing that the terminations were for a just
and valid cause, we now determine if the procedures
for dismissal were observed.
The procedure for terminating an employee is found in
Book VI, Rule I, Section 2(d) of the Omnibus Rules
Implementing the Labor Code:
Standards of due process: requirements of notice. – In
all cases of termination of employment, the following
standards of due process shall be substantially
observed:
I. For termination of employment based on just causes
as defined in Article 282 of the Code:
(a) A written notice served on the employee specifying
the ground or grounds for termination, and giving to
said employee reasonable opportunity within which to
explain his side;
(b) A hearing or conference during which the employee
concerned, with the assistance of counsel if the
employee so desires, is given opportunity to respond to
the charge, present his evidence or rebut the evidence
presented against him; and
(c) A written notice of termination served on the
employee indicating that upon due consideration of all
the circumstances, grounds have been established to
justify his termination.
In case of termination, the foregoing notices shall be
served on the employee's last known address.
Dismissals based on just causes contemplate acts or
omissions attributable to the employee while dismissals
based on authorized causes involve grounds under the
Labor Code which allow the employer to terminate
employees. A termination for an authorized cause
requires payment of separation pay. When the
termination of employment is declared illegal,
reinstatement and full backwages are mandated under
Article 279. If reinstatement is no longer possible where
the dismissal was unjust, separation pay may be
granted.
Procedurally, (1) if the dismissal is based on a just cause
under Article 282, the employer must give the
employee two written notices and a hearing or
opportunity to be heard if requested by the employee
before terminating the employment: a notice specifying
the grounds for which dismissal is sought a hearing or
an opportunity to be heard and after hearing or
opportunity to be heard, a notice of the decision to
dismiss; and (2) if the dismissal is based on authorized
causes under Articles 283 and 284, the employer must
give the employee and the Department of Labor and
Employment written notices 30 days prior to the
effectivity of his separation.
From the foregoing rules four possible situations may
be derived: (1) the dismissal is for a just cause under
Article 282 of the Labor Code, for an authorized cause
under Article 283, or for health reasons under Article
284, and due process was observed; (2) the dismissal is
without just or authorized cause but due process was
observed; (3) the dismissal is without just or authorized
cause and there was no due process; and (4) the
dismissal is for just or authorized cause but due process
was not observed.
In the first situation, the dismissal is undoubtedly valid
and the employer will not suffer any liability.
In the second and third situations where the dismissals
are illegal, Article 279 mandates that the employee is
entitled to reinstatement without loss of seniority rights
and other privileges and full backwages, inclusive of
allowances, and other benefits or their monetary
equivalent computed from the time the compensation
was not paid up to the time of actual reinstatement.
In the fourth situation, the dismissal should be upheld.
While the procedural infirmity cannot be cured, it
should not invalidate the dismissal. However, the
employer should be held liable for non-compliance with
the procedural requirements of due process.
The present case squarely falls under the fourth
situation. The dismissal should be upheld because it was
established that the petitioners abandoned their jobs to
work for another company. Private respondent,
however, did not follow the notice requirements and
instead argued that sending notices to the last known
addresses would have been useless because they did
not reside there anymore. Unfortunately for the private
respondent, this is not a valid excuse because the law
mandates the twin notice requirements to the
employee's last known address.21 Thus, it should be
held liable for non-compliance with the procedural
requirements of due process.
A review and re-examination of the relevant legal
principles is appropriate and timely to clarify the various
rulings on employment termination in the light of
Serrano v. National Labor Relations Commission.22
Prior to 1989, the rule was that a dismissal or
termination is illegal if the employee was not given any
notice. In the 1989 case of Wenphil Corp. v. National
Labor Relations Commission,23 we reversed this long-
standing rule and held that the dismissed employee,
although not given any notice and hearing, was not
entitled to reinstatement and backwages because the
dismissal was for grave misconduct and
insubordination, a just ground for termination under
Article 282. The employee had a violent temper and
caused trouble during office hours, defying superiors
who tried to pacify him. We concluded that reinstating
the employee and awarding backwages "may encourage
him to do even worse and will render a mockery of the
rules of discipline that employees are required to
observe."24 We further held that:
Under the circumstances, the dismissal of the private
respondent for just cause should be maintained. He has
no right to return to his former employment.
However, the petitioner must nevertheless be held to
account for failure to extend to private respondent his
right to an investigation before causing his dismissal.
The rule is explicit as above discussed. The dismissal of
an employee must be for just or authorized cause and
after due process. Petitioner committed an infraction of
the second requirement. Thus, it must be imposed a
sanction for its failure to give a formal notice and
conduct an investigation as required by law before
dismissing petitioner from employment. Considering
the circumstances of this case petitioner must
indemnify the private respondent the amount of
P1,000.00. The measure of this award depends on the
facts of each case and the gravity of the omission
committed by the employer.25
The rule thus evolved: where the employer had a valid
reason to dismiss an employee but did not follow the
due process requirement, the dismissal may be upheld
but the employer will be penalized to pay an indemnity
to the employee. This became known as the Wenphil or
Belated Due Process Rule.
On January 27, 2000, in Serrano, the rule on the extent
of the sanction was changed. We held that the violation
by the employer of the notice requirement in
termination for just or authorized causes was not a
denial of due process that will nullify the termination.
However, the dismissal is ineffectual and the employer
must pay full backwages from the time of termination
until it is judicially declared that the dismissal was for a
just or authorized cause.
The rationale for the re-examination of the Wenphil
doctrine in Serrano was the significant number of cases
involving dismissals without requisite notices. We
concluded that the imposition of penalty by way of
damages for violation of the notice requirement was
not serving as a deterrent. Hence, we now required
payment of full backwages from the time of dismissal
until the time the Court finds the dismissal was for a
just or authorized cause.
Serrano was confronting the practice of employers to
"dismiss now and pay later" by imposing full backwages.
We believe, however, that the ruling in Serrano did not
consider the full meaning of Article 279 of the Labor
Code which states:
ART. 279. Security of Tenure. – In cases of regular
employment, the employer shall not terminate the
services of an employee except for a just cause or when
authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and
to his full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent computed
from the time his compensation was withheld from him
up to the time of his actual reinstatement.
This means that the termination is illegal only if it is not
for any of the justified or authorized causes provided by
law. Payment of backwages and other benefits,
including reinstatement, is justified only if the employee
was unjustly dismissed.
The fact that the Serrano ruling can cause unfairness
and injustice which elicited strong dissent has prompted
us to revisit the doctrine.
To be sure, the Due Process Clause in Article III, Section
1 of the Constitution embodies a system of rights based
on moral principles so deeply imbedded in the
traditions and feelings of our people as to be deemed
fundamental to a civilized society as conceived by our
entire history. Due process is that which comports with
the deepest notions of what is fair and right and just.26
It is a constitutional restraint on the legislative as well
as on the executive and judicial powers of the
government provided by the Bill of Rights.
Due process under the Labor Code, like Constitutional
due process, has two aspects: substantive, i.e., the valid
and authorized causes of employment termination
under the Labor Code; and procedural, i.e., the manner
of dismissal. Procedural due process requirements for
dismissal are found in the Implementing Rules of P.D.
442, as amended, otherwise known as the Labor Code
of the Philippines in Book VI, Rule I, Sec. 2, as amended
by Department Order Nos. 9 and 10.27 Breaches of
these due process requirements violate the Labor Code.
Therefore statutory due process should be
differentiated from failure to comply with constitutional
due process.
Constitutional due process protects the individual from
the government and assures him of his rights in
criminal, civil or administrative proceedings; while
statutory due process found in the Labor Code and
Implementing Rules protects employees from being
unjustly terminated without just cause after notice and
hearing.
In Sebuguero v. National Labor Relations
Commission,28 the dismissal was for a just and valid
cause but the employee was not accorded due process.
The dismissal was upheld by the Court but the employer
was sanctioned. The sanction should be in the nature of
indemnification or penalty, and depends on the facts of
each case and the gravity of the omission committed by
the employer.
In Nath v. National Labor Relations Commission,29 it
was ruled that even if the employee was not given due
process, the failure did not operate to eradicate the just
causes for dismissal. The dismissal being for just cause,
albeit without due process, did not entitle the employee
to reinstatement, backwages, damages and attorney's
fees.
Mr. Justice Jose C. Vitug, in his separate opinion in MGG
Marine Services, Inc. v. National Labor Relations
Commission,30 which opinion he reiterated in Serrano,
stated:
C. Where there is just cause for dismissal but due
process has not been properly observed by an
employer, it would not be right to order either the
reinstatement of the dismissed employee or the
payment of backwages to him. In failing, however, to
comply with the procedure prescribed by law in
terminating the services of the employee, the employer
must be deemed to have opted or, in any case, should
be made liable, for the payment of separation pay. It
might be pointed out that the notice to be given and
the hearing to be conducted generally constitute the
two-part due process requirement of law to be
accorded to the employee by the employer.
Nevertheless, peculiar circumstances might obtain in
certain situations where to undertake the above steps
would be no more than a useless formality and where,
accordingly, it would not be imprudent to apply the res
ipsa loquitur rule and award, in lieu of separation pay,
nominal damages to the employee. x x x.31
After carefully analyzing the consequences of the
divergent doctrines in the law on employment
termination, we believe that in cases involving
dismissals for cause but without observance of the twin
requirements of notice and hearing, the better rule is to
abandon the Serrano doctrine and to follow Wenphil by
holding that the dismissal was for just cause but
imposing sanctions on the employer. Such sanctions,
however, must be stiffer than that imposed in Wenphil.
By doing so, this Court would be able to achieve a fair
result by dispensing justice not just to employees, but
to employers as well.
The unfairness of declaring illegal or ineffectual
dismissals for valid or authorized causes but not
complying with statutory due process may have far-
reaching consequences.
This would encourage frivolous suits, where even the
most notorious violators of company policy are
rewarded by invoking due process. This also creates
absurd situations where there is a just or authorized
cause for dismissal but a procedural infirmity invalidates
the termination. Let us take for example a case where
the employee is caught stealing or threatens the lives of
his co-employees or has become a criminal, who has
fled and cannot be found, or where serious business
losses demand that operations be ceased in less than a
month. Invalidating the dismissal would not serve public
interest. It could also discourage investments that can
generate employment in the local economy.
The constitutional policy to provide full protection to
labor is not meant to be a sword to oppress employers.
The commitment of this Court to the cause of labor
does not prevent us from sustaining the employer when
it is in the right, as in this case.32 Certainly, an employer
should not be compelled to pay employees for work not
actually performed and in fact abandoned.
The employer should not be compelled to continue
employing a person who is admittedly guilty of
misfeasance or malfeasance and whose continued
employment is patently inimical to the employer. The
law protecting the rights of the laborer authorizes
neither oppression nor self-destruction of the
employer.33
It must be stressed that in the present case, the
petitioners committed a grave offense, i.e.,
abandonment, which, if the requirements of due
process were complied with, would undoubtedly result
in a valid dismissal.
An employee who is clearly guilty of conduct violative of
Article 282 should not be protected by the Social Justice
Clause of the Constitution. Social justice, as the term
suggests, should be used only to correct an injustice. As
the eminent Justice Jose P. Laurel observed, social
justice must be founded on the recognition of the
necessity of interdependence among diverse units of a
society and of the protection that should be equally and
evenly extended to all groups as a combined force in
our social and economic life, consistent with the
fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all persons,
and of bringing about "the greatest good to the greatest
number."34
This is not to say that the Court was wrong when it
ruled the way it did in Wenphil, Serrano and related
cases. Social justice is not based on rigid formulas set in
stone. It has to allow for changing times and
circumstances.
Justice Isagani Cruz strongly asserts the need to apply a
balanced approach to labor-management relations and
dispense justice with an even hand in every case:
We have repeatedly stressed that social justice – or any
justice for that matter – is for the deserving, whether he
be a millionaire in his mansion or a pauper in his hovel.
It is true that, in case of reasonable doubt, we are to tilt
the balance in favor of the poor to whom the
Constitution fittingly extends its sympathy and
compassion. But never is it justified to give preference
to the poor simply because they are poor, or reject the
rich simply because they are rich, for justice must
always be served for the poor and the rich alike,
according to the mandate of the law.35
Justice in every case should only be for the deserving
party. It should not be presumed that every case of
illegal dismissal would automatically be decided in favor
of labor, as management has rights that should be fully
respected and enforced by this Court. As
interdependent and indispensable partners in nation-
building, labor and management need each other to
foster productivity and economic growth; hence, the
need to weigh and balance the rights and welfare of
both the employee and employer.
Where the dismissal is for a just cause, as in the instant
case, the lack of statutory due process should not nullify
the dismissal, or render it illegal, or ineffectual.
However, the employer should indemnify the employee
for the violation of his statutory rights, as ruled in Reta
v. National Labor Relations Commission.36 The
indemnity to be imposed should be stiffer to discourage
the abhorrent practice of "dismiss now, pay later,"
which we sought to deter in the Serrano ruling. The
sanction should be in the nature of indemnification or
penalty and should depend on the facts of each case,
taking into special consideration the gravity of the due
process violation of the employer.
Under the Civil Code, nominal damages is adjudicated in
order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by
him.37
As enunciated by this Court in Viernes v. National Labor
Relations Commissions,38 an employer is liable to pay
indemnity in the form of nominal damages to an
employee who has been dismissed if, in effecting such
dismissal, the employer fails to comply with the
requirements of due process. The Court, after
considering the circumstances therein, fixed the
indemnity at P2,590.50, which was equivalent to the
employee's one month salary. This indemnity is
intended not to penalize the employer but to vindicate
or recognize the employee's right to statutory due
process which was violated by the employer.39
The violation of the petitioners' right to statutory due
process by the private respondent warrants the
payment of indemnity in the form of nominal damages.
The amount of such damages is addressed to the sound
discretion of the court, taking into account the relevant
circumstances.40 Considering the prevailing
circumstances in the case at bar, we deem it proper to
fix it at P30,000.00. We believe this form of damages
would serve to deter employers from future violations
of the statutory due process rights of employees. At the
very least, it provides a vindication or recognition of this
fundamental right granted to the latter under the Labor
Code and its Implementing Rules.
Private respondent claims that the Court of Appeals
erred in holding that it failed to pay petitioners' holiday
pay, service incentive leave pay and 13th month pay.
We are not persuaded.

We affirm the ruling of the appellate court on
petitioners' money claims. Private respondent is liable
for petitioners' holiday pay, service incentive leave pay
and 13th month pay without deductions.
As a general rule, one who pleads payment has the
burden of proving it. Even where the employee must
allege non-payment, the general rule is that the burden
rests on the employer to prove payment, rather than on
the employee to prove non-payment. The reason for
the rule is that the pertinent personnel files, payrolls,
records, remittances and other similar documents –
which will show that overtime, differentials, service
incentive leave and other claims of workers have been
paid – are not in the possession of the worker but in the
custody and absolute control of the employer.41
In the case at bar, if private respondent indeed paid
petitioners' holiday pay and service incentive leave pay,
it could have easily presented documentary proofs of
such monetary benefits to disprove the claims of the
petitioners. But it did not, except with respect to the
13th month pay wherein it presented cash vouchers
showing payments of the benefit in the years
disputed.42 Allegations by private respondent that it
does not operate during holidays and that it allows its
employees 10 days leave with pay, other than being
self-serving, do not constitute proof of payment.
Consequently, it failed to discharge the onus probandi
thereby making it liable for such claims to the
petitioners.
Anent the deduction of SSS loan and the value of the
shoes from petitioner Virgilio Agabon's 13th month pay,
we find the same to be unauthorized. The evident
intention of Presidential Decree No. 851 is to grant an
additional income in the form of the 13th month pay to
employees not already receiving the same43 so as "to
further protect the level of real wages from the ravages
of world-wide inflation."44 Clearly, as additional
income, the 13th month pay is included in the definition
of wage under Article 97(f) of the Labor Code, to wit:
(f) "Wage" paid to any employee shall mean the
remuneration or earnings, however designated, capable
of being expressed in terms of money whether fixed or
ascertained on a time, task, piece , or commission basis,
or other method of calculating the same, which is
payable by an employer to an employee under a written
or unwritten contract of employment for work done or
to be done, or for services rendered or to be rendered
and includes the fair and reasonable value, as
determined by the Secretary of Labor, of board, lodging,
or other facilities customarily furnished by the employer
to the employee…"
from which an employer is prohibited under Article
11345 of the same Code from making any deductions
without the employee's knowledge and consent. In the
instant case, private respondent failed to show that the
deduction of the SSS loan and the value of the shoes
from petitioner Virgilio Agabon's 13th month pay was
authorized by the latter. The lack of authority to deduct
is further bolstered by the fact that petitioner Virgilio
Agabon included the same as one of his money claims
against private respondent.
The Court of Appeals properly reinstated the monetary
claims awarded by the Labor Arbiter ordering the
private respondent to pay each of the petitioners
holiday pay for four regular holidays from 1996 to 1998,
in the amount of P6,520.00, service incentive leave pay
for the same period in the amount of P3,255.00 and the
balance of Virgilio Agabon's thirteenth month pay for
1998 in the amount of P2,150.00.
WHEREFORE, in view of the foregoing, the petition is
DENIED. The decision of the Court of Appeals dated
January 23, 2003, in CA-G.R. SP No. 63017, finding that
petitioners' Jenny and Virgilio Agabon abandoned their
work, and ordering private respondent to pay each of
the petitioners holiday pay for four regular holidays
from 1996 to 1998, in the amount of P6,520.00, service
incentive leave pay for the same period in the amount
of P3,255.00 and the balance of Virgilio Agabon's
thirteenth month pay for 1998 in the amount of
P2,150.00 is AFFIRMED with the MODIFICATION that
private respondent Riviera Home Improvements, Inc. is
further ORDERED to pay each of the petitioners the
amount of P30,000.00 as nominal damages for non-
compliance with statutory due process.
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-
Nazario, and Garcia, JJ., concur.