[G.R. No. 152259. July 29, 2004] ALFREDO T. ROMUALDEZ, petitioner, vs.

The Honorable SANDIGANBAYAN (Fifth Division) and the PEOPLE of the PHILIPPINES,respondents. DECISION PANGANIBAN, J.: Repetitive motions to invalidate or summarily terminate a criminal indictment prior to plea and trial, however they may be named or identified -- whether as a motion to quash or motion to dismiss or by any other nomenclature -- delay the administration of justice and unduly burden the court system. Grounds not included in the first of such repetitive motions are generally deemed waived and can no longer be used as bases of similar motions subsequently filed. Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives who intervene, directly or indirectly, in any business, transaction, contract or application with the Government. This provision is not vague or impermissibly broad, because it can easily be understood with the use of simple statutory construction. Neither may the constitutionality of a criminal statute such as this be challenged on the basis of the overbreadth and the void-for-vagueness doctrines, which apply only to free speech cases.

brother-in-law of Ferdinand E. Marcos, former President of the Philippines, and therefore, related to the latter by affinity within the third civil degree, did then and there wil[l]fully and unlawfully, and with evident bad faith, for the purpose of promoting his self-interested [sic] and/or that of others, intervene directly or indirectly, in a contract between the National Shipyard and Steel Corporation (NASSCO), a government-owned and controlled corporation and the Bataan Shipyard and Engineering Company (BASECO), a private corporation, the majority stocks of which is owned by former President Ferdinand E. Marcos, whereby the NASSCO sold, transferred and conveyed to the BASECO its ownership and all its titles and interests over all equipment and facilities including structures, buildings, shops, quarters, houses, plants and expendable and semiexpendable assets, located at the Engineer Island known as the Engineer Island Shops including some of its equipment and machineries from Jose Panganiban, Camarines Norte needed by BASECO in its shipbuilding and ship repair program for the amount of P5,000,000.00. Contrary to law. On December 27, 1996, the accused filed his first MOTION TO DISMISS AND TO DEFER ARRAIGNMENT claiming that no valid preliminary investigation was conducted in the instant case. He asserts that if a preliminary investigation could be said to have been conducted, the same was null and void having been undertaken by a biased and partial investigative body. On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order giving the accused fifteen days to file a Motion for Reinvestigation with the Office of the Special Prosecutor. [Petitioner] questioned said order before the Supreme Court via a petition for Certiorari and Prohibition with prayer for temporary restraining order. On January 21, 1998, the Supreme Court dismissed the petition for failure to show that [the Sandiganbayan] committed grave abuse of discretion in issuing the assailed order. On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor a Motion to Quash. On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U. Tabanguil, manifested that the prosecution had already concluded the reinvestigation of the case. He recommended the dismissal of the instant case. Both the Deputy Special Prosecutor and the Special Prosecutor approved the recommendation. However, Ombudsman Aniano A. Desierto disagreed and directed the prosecutors to let the [petitioner] present his evidence in Court. Subsequently, [petitioner] filed on October 8, 1999 his second MOTION TO QUASH AND TO DEFER ARRAIGNMENT. On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit.

The Case Before us is a Petition for Certiorari[1] under Rule 65 of the Rules of Court, seeking to set aside the November 20, 2001[2] and the March 1, 2002[3] Resolutions of the Sandiganbayan in Criminal Case No. 13736. The first Resolution disposed thus: WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The arraignment of the accused and the pre-trial of the case shall proceed as scheduled.[4] The second Resolution denied reconsideration.

The Facts

The facts of the case are narrated by the Sandiganbayan as follows: [The People of the Philippines], through the Presidential Commission on Good Government (PCGG), filed on July 12, 1989 an information before [the anti-graft court] charging the accused [with] violation of Section 5, Republic Act No. 3019, [5] as amended. The Information reads: That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro Manila, Philippines, and within the jurisdiction of [the Sandiganbayan], said [petitioner],

On June 19, 2001, [the] accused filed a MOTION FOR LEAVE TO FILE MOTION TO DISMISS. On June 29, 2001, the [Sandiganbayan] admitted the motion and admitted the attached (third) Motion to Dismiss. The [Motion to Dismiss] raise[d] the following grounds: I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF [PETITIONER] WAS VIOLATED DURING THE PRELIMINARY INVESTIGATION STAGE IN THE FOLLOWING WAYS: A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE INSTANT CASE; AND B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED AND PARTIAL INVESTIGATOR II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS VIOLATED III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION, [PETITIONER] IS IMMUNE FROM CRIMINAL PROSECUTION IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY PRESCRIPTION[6] B.

The Issues

In his Memorandum, petitioner assigns the following errors for our consideration: Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion amounting to lack of, or in excess of jurisdiction I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and incontrovertible evidence that: A. Section 5 of Republic Act No. 3019 is unconstitutional because its vagueness violates the due process right of an individual to be informed of the nature and the cause of the accusation against him; Section 5 of Republic Act No. 3019 is unconstitutional because it violates the due process right of an individual to be presumed innocent until the contrary is proved; The constitutional right of petitioner x x x to be informed of the nature and the cause of the accusation against him was violated; The constitutional right to due process of law of petitioner x x x was violated during the preliminary investigation stage in the following ways: [i] No valid preliminary investigation was con-ducted for Criminal Case No. 13736; and The preliminary investigation was conducted by a biased and partial investigator.

C.

D.

Ruling of the Sandiganbayan

The Sandiganbayan explained that all the grounds invoked by petitioner, except the third one, had already been raised by him and passed upon in its previous Resolutions.[7] In resolving the third ground, the anti-graft court pointed out that Section 17 of the 1973 Constitution became effective only in 1981 when the basic law was amended. Since his alleged illegal intervention had been committed on or about 1975, the amended provision was inapplicable to him.[8] In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed upon the other grounds he had raised. It ruled that his right to a preliminary investigation was not violated, because he had been granted a reinvestigation.[9] It further held that his right to be informed of the nature and cause of the accusation was not trampled upon, either, inasmuch as the Information had set forth the essential elements of the offense charged.[10] Hence, this Petition.[11] II.

[ii]

E.

The criminal action or liability has been extinguished by prescription; and Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x is immune from criminal prosecution. And

F.

In light of the foregoing, in denying petitioner[s] x x x right to equal protection of the laws.[12]

Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is unconstitutional; (2) whether the Information is vague; (3) whether there was a valid preliminary investigation; (4) whether the criminal action or liability has been extinguished by prescription; and (5) whether petitioner is immune from criminal prosecution under then Section 17 of Article VII of the 1973 Constitution.

In the present case, however, both the Motion to Quash and the Motion to Dismiss are anchored on basically the same grounds and pray for the same relief. The hairsplitting distinction posited by petitioner does not really make a difference. By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to quash. A party is not permitted to raise issues, whether similar or different, by installment. The Rules abhor repetitive motions. Otherwise, there would be no end to preliminary objections, and trial would never commence. A second motion to quash delays the administration of justice and unduly burdens the courts. Moreover, Rule 117 provides that grounds not raised in the first motion to quash are generally deemed waived.[19] Petitioners Motion to Dismiss violates this rule.

The Courts Ruling

The Petition has no merit. Constitutionality of the Challenged Provision

First Issue: Constitutionality of Section 5, Republic Act 3019

Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his December 7, 2001 Motion for Reconsideration of the Order denying his Motion to Dismiss was this Supplemental Motion which was, in effect, his third motion to quash.[13] We note that the Petition for Certiorari before us challenges the denial of his original, not his Supplemental, Motion to Dismiss. Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have filed a motion for reconsideration of the denial. Had reconsideration been turned down, the next proper remedy would have been either (1) a petition for certiorari[14] -- if there was grave abuse of discretion -- which should be filed within 60 days from notice of the assailed order;[15] or (2) to proceed to trial without prejudice to his right, if final judgment is rendered against him, to raise the same questions before the proper appellate court.[16] But instead of availing himself of these remedies, he filed a Motion to Dismiss on June 19, 2001.

If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright. However, given the importance of this case in curtailing graft and corruption, the Court will nevertheless address the other issues on their merit. Petitioner challenges the validity of Section 5 of Republic Act 3019, a penal statute, on the ground that the act constituting the offense is allegedly vague and impermissibly broad. It is best to stress at the outset that the overbreadth [20] and the vagueness[21] doctrines have special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes. Mr. Justice Vicente V. Mendoza explained the reason as follows: A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible chilling effect upon protected speech. The theory is that [w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity. The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. xxx xxx xxx

Impropriety of Repetitive Motions There is no substantial distinction between a motion to quash and a motion to dismiss. Both pray for an identical relief, which is the dismissal of the case. Such motions are employed to raise preliminary objections, so as to avoid the necessity of proceeding to trial. A motion to quash is generally used in criminal proceedings to annul a defective indictment. A motion to dismiss, the nomenclature ordinarily used in civil proceedings, is aimed at summarily defeating a complaint. Thus, our Rules of Court use the term motion to quash in criminal,[17] and motion to dismiss in civil, proceedings.[18]

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing on their faces statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. As has been pointed out, vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] as applied to a particular defendant.[22] (underscoring supplied) To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity.[23] While mentioned in passing in some cases, the void-forvagueness concept has yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad,[24] the Bookkeeping Act was found unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v. Comelec[25] decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec[26] held that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not because of vagueness. Indeed, an on-its-face invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of actual case and controversy and permit decisions to be made in a sterile abstract context having no factual concreteness. InYounger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words:[27]

The questioned provision reads as follows: Section 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession. Petitioner also claims that the phrase to intervene d irectly or indirectly, in any business, transaction, contract or application with the Government is vague and violates his right to be informed of the cause and nature of the accusation against him. [29] He further complains that the provision does not specify what acts are punishable under the term intervene, and thus transgresses his right to be presumed innocent. [30] We disagree. Every statute is presumed valid.[31] On the party challenging its validity weighs heavily the onerous task of rebutting this presumption.[32] Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality. [33] To doubt is to sustain, as tersely put by Justice George Malcolm. In Garcia v. Executive Secretary,[34] the rationale for the presumption of constitutionality was explained by this Court thus: The policy of the courts is to avoid ruling on constitutional que stions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.[35] In the instant case, petitioner has miserably failed to overcome such presumption. This Court has previously laid down the test for determining whether a statute is vague, as follows: x x x [A] statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that species of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction.

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a manifestly strong medicine to be employed sparingly and only as a last resort. In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged.[28] As conduct -- not speech -- is its object, the challenged provision must be examined only as applied to the defendant, herein petitioner, and should no t be declared unconstitutional for overbreadth or vagueness.

A statute or act may be said to be vague when it lacks comprehensible sta ndards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.[36] But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be saved by proper construction, while no challenge may be mounted as against the second whenever directed against such activities.[37] With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.[38] It must be stressed, however, that the vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes.[39] A simpler test was decreed in Dans v. People,[40] in which the Court said that there was nothing vague about a penal law that adequately answered the basic query What is the violation?[41] Anything beyond -- the hows and the whys -- are evidentiary matters that the law itself cannot possibly disclose, in view of the uniqueness of every case. [42] The question What is the violation? is sufficiently answered by Section 5 of RA 3019, as follows: 1. The offender is a spouse or any relative by consanguinity or affinity within the third civil degree of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives; and The offender intervened directly or indirectly in any business, transaction, contract or application with the government.

statutory construction. The absence of a statutory definition of a term used in a statute will not render the law void for vagueness, if the meaning can be determined through the judicial function of construction.[43] Elementary is the principle that words should be construed in their ordinary and usual meaning. x x x. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; [44] much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act x x x. x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, [45] unless it is evident that the legislature intended a technical or special legal meaning to those words.[46] The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. [47] The term intervene should therefore be understood in its ordinary acceptation, which is to to come between.[48] Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019 -- any person who intervenes in any manner in any business, transaction, contract or application with the government. As we have explained, it is impossible for the law to provide in advance details of how such acts of intervention could be performed. But the courts may pass upon those details once trial is concluded. Thus, the alleged vagueness ofintervene is not a ground to quash the information prior to the commencement of the trial. In sum, the Court holds that the challenged provision is not vague, and that in any event, the overbreath and void for vagueness doctrines are not applicable to this case.

Second Issue: Allegedly Vague Information

2.

Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further contends that the Information itself is also unconstitutionally vague, because it does not specify the acts of intervention that he supposedly performed. [49] Again, we disagree. When allegations in the information are vague or indefinite, the remedy of the accused is not a motion to quash, but a motion for a bill of particulars. [50] The pertinent provision in the Rules of Court is Section 9 of Rule 116, which we quote: Section 9. Bill of particulars. -- The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired.

Applicability of Statutory Construction As to petitioners claim that the term intervene is vague, this Court agrees with the Office of the Solicitor General that the word can easily be understood through simple

The rule merely requires the information to describe the offense with sufficient particularity as to apprise the accused of what they are being charged with and to enable the court to pronounce judgment. [51] The particularity must be such that persons of ordinary intelligence may immediately know what is meant by the information. [52] While it is fundamental that every element of the offense must be alleged in the information,[53] matters of evidence -- as distinguished from the facts essential to the nature of the offense -- need not be averred.[54] Whatever facts and circumstances must necessarily be alleged are to be determined by reference to the definition and the essential elements of the specific crimes.[55] In the instant case, a cursory reading of the Information shows that the elements of a violation of Section 5 of RA 3019 have been stated sufficiently. Likewise, the allegations describe the offense committed by petitioner with such particularity as to enable him to prepare an intelligent defense. Details of the acts he committed are evidentiary matters that need not be alleged in the Information.

Fourth Issue: Prescription

The issue of prescription was the principal basis of the Motion to Quash filed by petitioner with the Sandiganbayan on October 8, 1999. [62] Such issue should be disregarded at this stage, since he failed to challenge its ruling debunking his Motion within the 60-day period for the filing of a petition for certiorari. A party may not circumvent this rule by filing a subsequent motion that raises the same issue and the same arguments. Furthermore, it is easy to see why this argument being raised by petitioner is utterly unmeritorious. He points out that according to the Information, the offense was committed during the period from July 16, 1975 to July 29, 1975. He argues that when the Information was filed on July 12, 1989,[63] prescription had already set in, because the prescriptive period for a violation of Republic Act No. 3019 is only ten (10) years from the time the offense was allegedly committed. The increase of this prescriptive period to fifteen (15) years took effect only on March 16, 1982, upon the enactment of Batas Pambansa Blg. 195.[64] Act No. 3326, as amended,[65] governs the prescription of offenses penalized by special laws. Its pertinent provision reads: Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same not be known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted a gainst the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. Consistent with the provision quoted above, this Court has previously reckoned the prescriptive period of cases involving RA 3019 (committed prior to the February 1986 EDSA Revolution) from the discovery of the violation.[66] In Republic v. Desierto, the Court explained: This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto. In the said recent case, the Board of Directors of the Philippine Seeds, Inc. and Development Bank of the Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of RA No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by then President Fidel V. Ramos to investigate and to recover the so-called Behest Loans, where the Philippine Government guaranteed several foreign loans to corporations and entities connected with the former President Marcos. x x x In holding that the case had not yet prescribed, this Court ruled that: In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of RA No. 3019 at the time the questioned transactions were

Third Issue: Preliminary Investigation

Clearly, petitioner already brought the issue of lack of preliminary investigation when he questioned before this Court in GR No. 128317 the Sandiganbayans Order giving him 15 days to file a Motion for Reinvestigation with the Office of the Special Prosecutor.[56] Citing Cojuangco v. Presidential Commission on Good Government,[57] he undauntedly averred that he was deprived of his right to a preliminary investigation, because the PCGG acted both as complainant and as investigator. [58] In the case cited above, this Court declared that while PCGG had the power to conduct a preliminary investigation, the latter could not do so with the cold neutrality of an impartial judge in cases in which it was the agency that had gathered evidence and subsequently filed the complaint.[59] On that basis, this Court nullified the preliminary investigation conducted by PCGG and directed the transmittal of the records to the Ombudsman for appropriate action. It is readily apparent that Cojuangco does not support the quashal of the Information against herein petitioner. True, the PCGG initiated the present Complaint against him; hence, it could not properly conduct the preliminary investigation. However, he was accorded his rights -- the Sandiganbayan suspended the trial and afforded him a reinvestigation by the Ombudsman. The procedure outlined in Cojuangco was thus followed. The Sandiganbayans actions are in accord also with Raro v. Sandiganbayan,[60] which held that the failure to conduct a valid preliminary investigation would not warrant the quashal of an information. If the information has already been filed, the proper procedure is for the Sandiganbayan to hold the trial in abeyance while the preliminary investigation is being conducted or completed. [61]

made because, as alleged, the public officials concerned connived or conspired with the beneficiaries of the loans. Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission. xxx xxx xxx

exhaustive investigations that the alleged crime was discovered. This led to the initiation on November 29, 1988 of a Complaint against former President Marcos and petitioner for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the filing of the Information on July 12, 1989 was well within the prescriptive period of ten years from the discovery of the offense.

People v. Duque is more in point, and what was stated there stands reiteration: In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. (Italics supplied) There are striking parallelisms between the said Behest Loans Case and the present one which lead us to apply the ruling of the former to the latter. First, both cases arose out of seemingly innocent business transactions; second, both were discovered only after the government created bodies to investigate these anomalous transactions; third, both involve prosecutions for violations of RA No. 3019; and, fourth,in both cases, it was sufficiently raised in the pleadings that the respondents conspired and connived with one another in order to keep the alleged violations hidden from public scrutiny. This Courts pronouncement in the case of Domingo v. Sandiganbayan is quite relevant and instructive as to the date when the discovery of the offense should be reckoned, thus: In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known the violations committed at the time the questioned transactions were made because both parties to the transactions were allegedly in conspiracy to perpetuate fraud against the government. The alleged anomalous transactions could only have been discovered after the February 1986 Revolution when one of the original respondents, then President Ferdinand Marcos, was ousted from office. Prior to said date, no person would have dared to question the legality or propriety of those transactions. Hence, the counting of the prescriptive period would commence from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was filed.[67] The above pronouncement is squarely applicable to the present case. The general rule that prescription shall begin to run from the day of the commission of the crime cannot apply to the present case. It is not legally prudent to charge the State, the aggrieved party, with knowledge of the violation of RA 3019 at the time the alleged intervention was made. The accused is the late President Ferdinand E. Marcos brother in-law. He was charged with intervening in a sale involving a private corporation, the majority stocks of which was allegedly owned by President Marcos. Prior to February 1986, no person was expected to have seriously dared question the legality of the sale or would even have thought of investigating petitioners alleged involvement in the transaction. It was only after the creation[68] of PCGG[69] and its

Fifth Issue Immunity from Prosecution

Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking naval officer -- specifically, as naval aide-de-camp -- of former President Marcos.[70] He relies on Section 17 of Article VII of the 1973 Constitution, as amended, which we quote: The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. x x x xxx x x x

As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because the immunity amendment became effective only in 1981 while the alleged crime happened in 1975. In Estrada v. Desierto,[71] this Court exhaustively traced the origin of executive immunity in order to determine the extent of its applicability. We explained therein that executive immunity applied only during the incumbency of a President. It could not be used to shield a non-sitting President from prosecution for alleged criminal acts done while sitting in office. The reasoning of petitioner must therefore fail, since he derives his immunity from one who is no longer sitting as President. Verily, the felonious acts of public officials and their close relatives are not acts of the State, and the officer who acts illegally is not acting as such but stands on the same footing as any other trespasser. In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion in issuing the assailed Resolutions.[72] On the contrary, it acted prudently, in accordance with law and jurisprudence. WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the Sandiganbayan AFFIRMED. Costs against petitioner. SO ORDERED.

SECOND DIVISION [G.R. No. 127718. March 2, 2000] NATIONAL FEDERATION OF LABOR, ABELARDO SANGADAN, LUCIANO RAMOS, NESTOR TILASAN, GREGORIO TILASAN, JOAQUIN GARCIA, ROGELIO SABAITAN, CASTRO LEONARDO, PILARDO POTENCIANO, RONILLO POTENCIANO, SANTIAGO SABAITAN, JOVENCIO BARTOLOME, JUANITO CONCERMAN, GEORGE TUMILAS, PATROCINIO DOMINGO, AVELINO FRANCISCO, MELITON SANGADAN, ALEXANDER GERONIMO, JOAQUIN GERONIMO, RAMIL MACASO, LAMBERTO JOVEN, CRISTINO GARINA, SAMMY GANTAAN, NACIAL USTALAN, EDWIN USTALAN, ROLAND POTENCIANO, RODY CONCERMAN, ELMER DOMINGO, ARNAGUEZ SANGADAN, UNDING BOLENG, EDUARDO BOLENG, ROBERTO PANEO and HENRY SANGADAN, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION (5th Division), PATALON COCONUT ESTATE and/or CHARLIE REITH as General Manager and SUSIE GALLE REITH, as owner, respondents. DECISION DE LEON, JR., J.: Before us is a special civil action for certiorari to set aside and annul two (2) resolutions of the National Labor Relations Commission[1] promulgated on April 24, 1996[2] and August 29, 1996[3] denying the award of separation pay to petitioners. The pertinent facts are as follows: Petitioners are bona fide members of the National Federation of Labor (NFL), a legitimate labor organization duly registered with the Department of Labor and Employment. They were employed by private respondents Charlie Reith and Susie Galle Reith, general manager and owner, respectively, of the 354-hectare Patalon Coconut Estate located at Patalon, Zamboanga City. Patalon Coconut Estate was engaged in growing agricultural products and in raising livestock. In 1988, Congress enacted into law Republic Act (R.A.) No. 6657, otherwise known as the Comprehensive Agrarian Reform Law (CARL), which mandated the compulsory acquisition of all covered agricultural lands for distribution to qualified farmer beneficiaries under the so-called Comprehensive Agrarian Reform Programme (CARP). Pursuant to R.A. No. 6657, the Patalon Coconut Estate was awarded to the Patalon Estate Agrarian Reform Association (PEARA), a cooperative accredited by the Department of Agrarian Reform (DAR), of which petitioners are members and co-owners.

As a result of this acquisition, private respondents shut down the operation of the Patalon Coconut Estate and the employment of the petitioners was severed on July 31, 1994. Petitioners did not receive any separation pay. On August 1, 1994, the cooperative took over the estate. A certain Abelardo Sangadan informed respondents of such takeover via a letter which was received by the respondents on July 26, 1994. Being beneficiaries of the Patalon Coconut Estate pursuant to the CARP, the petitioners became part-owners of the land.[4] On April 25, 1995, petitioners filed individual complaints before the Regional Arbitration Branch (RAB) of the National Labor Relations Commission (NLRC) in Zamboanga City, praying for their reinstatement with full backwages on the ground that they were illegally dismissed. The petitioners were represented by their labor organization, the NFL. On December 12, 1995, the RAB rendered a decision, the dispositive portion of which provides: "WHEREFORE, in view of the foregoing, judgment is hereby rendered dismissing complainants charge for illegal dismissal for lack of merit, but ordering respondents thru [sic] its owner-manager or its duly authorized representative to pay complainants separation pay in view of the latters cessation of operations or forced sale, and for 13th month differential pay in the amount, as follows, for: Names Diff. Separation Pay Total Non 13th Mo. Pay

Abelardo Sangadan P23,879.06 e P23,879.06 Luciano Ramos ,316.49 Nestor Tilasan 20,127.64 Gregorio Tilasan e Joaquin Garcia 478.79

43,605.24

P711.25

44

19,726.18

401.46

25,955.50 25,955.50

Non

7,267.54

1,211.25

8,

Rogelio Sabaitan 25

21,798.00

1,211.25

23,009.

Joaquin Geronimo 3 Ramil Macaso 7,090.57 Lamberto Joven 2.77

24,917.28

1,211.25

26,128.5

Castro Leonardo, Jr. 25,955.50 Pilardo Potenciano 6,102.35

63.10

26,018.60

6,229.32

861.25

5,191.10

911.25

16,611.62

1,011.25

17,62

Ronillo Potenciano e Jovencio Bartolome ,783.01 Santiago Sabaitan Juanito Concerman 7,928.79 George Tumilas 7,622.77 Patrocinio Domingo 9 Avelino Francisco 1 Meliton Sangadan 965.80

7,267.54 7,267.54

Non Cristino Garina 36,149.13 477.25 8 Sammy Gantaan 6.33 14,535.08 961.25 15,49 35,299.48 849.65

8,305.76

4,152.88

1,011.25

5,164.13 Nacial Ustalan 38,494.09 Edwin Ustalan 8.79 Roland Potenciano 102.35 Rody Concerman 958.79 Elmer Domingo 325.91 Aranquez Sangada 2.93 Unding Boleng e 38,414.14 79.95

7,267.54

611.25

7,267.54

1,011.25

8,27

16,611.52

1,011.25

5,191.10

911.25

6,

2,076.44

1,011.25

3,087.6

7,267.54

691.25

7,

3,114.66

1,211.25

4,325.9

3,114.66

1,211.25

4,

15,573.30

392.50

15,

Alexander Geronimo 15,573.00 e 15,573.30

Non

45,681.68

711.25

46,39

31,146.60 31,146.60

Non

Eduardo Boleng 36,058.78 Roberto Paneo 24,787.31 Henry Sangadan

35,299.48

759.30

The issue is whether or not an employer that was compelled to cease its operation because of the compulsory acquisition by the government of its land for purposes of agrarian reform, is liable to pay separation pay to its affected employees. The petition is bereft of merit.

23,876.06

911.25 Petitioners contend that they are entitled to separation pay citing Article 283 of the Labor Code which reads:

16,611.52 Total P586,774.22

1,011.25

17,622.77

Benefits

"FURTHER, complainants claim for Muslim Holiday, ove rtime pay and rest day pay should be dismissed for lack of merit, too." [5] Appeal was taken by private respondents to public respondent NLRC. [6] On April 24, 1996, the NLRC issued a resolution, the dispositive portion of which provides: "WHEREFORE, the decision appealed from is hereby modified in favor of the following findings: 1) Respondents are not guilty of illegally dismissing complainants. Respondents cessation of operation was not due to a unilateral action on their part resulting in the cutting off of the employment relationship between the parties. The severance of employer-employee relationship between the parties came about INVOLUNTARILY, as a result of an act of the State. Consequently, complainants are not entitled to any separation pay. 2) The award of 13th month pay differential is, however, Set Aside. Any award of 13th month pay differentials to complainants should be computed strictly based on their reduced pay, equivalent to six (6) hours work, Monday to Friday, pursuant to what the parties agreed in the November 18, 1991 Compromise Agreement." SO ORDERED.[7] Petitioners filed a motion for reconsideration which was denied by the NLRC in its resolution[8] dated August 29, 1996. Hence, this petition.

"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 saving 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 Ministry 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 () 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." It is clear that Article 283 of the Labor Code applies in cases of closures of establishment and reduction of personnel. The peculiar circumstances in the case at bar, however, involves neither the closure of an establishment nor a reduction of personnel as contemplated under the aforesaid article. When the Patalon Coconut Estate was closed because a large portion of the estate was acquired by DAR pursuant to CARP, the ownership of that large portion of the estate was precisely transferred to PEARA and ultimately to the petitioners as members thereof and as agrarian lot beneficiaries. Hence, Article 283 of the Labor Code is not applicable to the case at bench. Even assuming, arguendo, that the situation in this case were a closure of the business establishment called Patalon Coconut Estate of private respondents, still the petitioners/employees are not entitled to separation pay. The closure contemplated under Article 283 of the Labor Code is a unilateral and voluntary act on the part of the employer to close the business establishment as may be gleaned from the wording of the said legal provision that "The employer may also terminate the employment of any employee due to...".[9]The use of the word "may," in a statute, denotes that it is directory in nature and generally permissive only.[10] The "plain meaning rule" or verba legis in statutory construction is thus applicable in this case. Where the words of a statute are clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.[11]

In other words, Article 283 of the Labor Code does not contemplate a situation where the closure of the business establishment is forced upon the employer and ultimately for the benefit of the employees. As earlier stated, the Patalon Coconut Estate was closed down because a large portion of the said estate was acquired by the DAR pursuant to the CARP. Hence, the closure of the Patalon Coconut Estate was not effected voluntarily by private respondents who even filed a petition to have said estate exempted from the coverage of RA 6657. Unfortunately, their petition was denied by the Department of Agrarain Reform. Since the closure was due to the act of the government to benefit the petitioners, as members of the Patalon Estate Agrarian Reform Association, by making them agrarian lot beneficiaries of said estate, the petitioners are not entitled to separation pay. The termination of their employment was not caused by the private respondents. The blame, if any, for the termination of petitioners employment can even be laid upon the petitioner employees themselves inasmuch as they formed themselves into a cooperative, PEARA, ultimately to take over, as agrarian lot beneficiaries, of private respondents landed estate pursuant to RA 6657. The resulting closure of the business establishment, Patalon Coconut Estate, when it was placed under CARP, occurred through no fault of the private respondents. While the Constitution provides that "the State x x x shall protect the rights of workers and promote their welfare", that constitutional policy of providing full protection to labor is not intended to oppress or destroy capital and management. Thus, the capital and management sectors must also be protected under a regime of justice and the rule of law. WHEREFORE, the petition is DISMISSED. The Resolutions of the National Labor Relations Commission dated April 24, 1996 and August 29, 1996 are hereby AFFIRMED. No costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-14859 March 31, 1962

work accorded to citizens and aliens alike. The lower court issued a writ of preliminary injunction ex parte upon petitioners' filing a bond in the amount of P5,000.00.1wph1.t Respondents filed an answer setting up certain affirmative and special defenses tending to show that the petition does not allege facts sufficient to constitute a cause of action. With regard to the declaratory relief, respondents claim that such remedy is not available to petitioners because they have already committed a breach of the statute which is apparent on the face of the petition, meaning that the employment of the three Chinese as salesmen and purchaser in the store of Macario King is a violation of the Section 1 of the Retail Trade Act which provides that only citizens of the Philippines can engage in retail trade, as well as of Section 2-A of the Anti-Dummy Law which prohibits Chinese citizens to intervene in the management, operation, administration or control of such business, whether as an officer, employee or laborer with or without remuneration. Respondents further claim that the three Chinese employees are not technical men who are exempted from the operation of the law, and even if they are, they need the authorization of the President which they failed to obtain in their case. With regard to the petition for preliminary injunction, respondents contend that the requisites for its issuance have not been satisfied. And with regard to the petition for mandamus, respondents alleged that petitioners have failed to show that respondents have unlawfully neglected any duty which they are called upon to perform and which would make them liable for such relief. Hence, respondents prayed that the petition be dismissed and that the writ of preliminary injunction issued by the court ex parte be lifted. To this answer, petitioners filed a reply, which was followed by a rejoinder and surrejoinder, with a detailed discussion of the arguments advanced in support thereof. And because the motion to dismiss filed by respondents had been denied for lack of merit, trial proceeded, after which the lower court entered judgment holding "that petitioner Macario King may employ any person, although not a citizen of the Philippines or of the United States of America, including the three petitioners herein as purchaser and salesmen, in any position in his retail business not involving participation, or intervention in the management, operation, administration or control of said business; that petitioners Lim Pin, Chang Pak and Ng See Keng are entitled to continue as purchaser and salesmen, respectively, in Macario King's Import Meat and Produce or in any other retail establishment; that the writ of preliminary injunction issued against respondents ordering the to desist from interfering by criminal and/or administrative action with the rights of the petitioners as above defined, is hereby declared final; and, finally, respondents are hereby ordered to allow and permit petitioners to enjoy and exercise their rights in the manner and to the extent aforestated." Respondents took the present appeal before this Court. The center of controversy between petitioners-appellees and respondents-appellants hinges on the interpretation be given to Section 1, Republic Act No. 1180, in relation to Section 2-A, Commonwealth Act 108, as amended by Republic Act No. 134. For ready reference we quote the pertinent provisions: .

MACARIO KING, ET AL., petitioners-appellees, vs. PEDRO S. HERNAEZ, ETC., ET AL., respondents-appellants. Sycip, Salazar and Associates for petitioners-appellees. Office of the Solicitor General for respondents-appellants. BAUTISTA ANGELO, J.: On January 1, 1957, Macario King, a naturalized Filipino citizen, became the owner of the business establishment known as "Import Meat and Produce", a grocery wholesale and retail business, previously owned by the Philippine Cold Stores, Inc. In the business 15 persons were employed 12 of whom are Filipinos and the other 3 Chinese. The three Chinese were old employees of the previous owner, the Philippine Cold Stores, Inc., one having been employed as purchaser and the other two as salesmen. Three weeks after King had acquired the business as aforesaid, he sought permission from the President of the Philippines to retain the services of the three Chinese employees pursuant to Section 2-A of Commonwealth Act 108, coursing his letter thru the Secretary of Commerce and Industry. This official recommended to the President the disapproval of King's request on the ground that aliens may not be appointed to operate or administer a retail business under Section 1 of Republic Act No. 1180 which requires that its capital be wholly owned by citizens of the Philippines, the only exception thereto being the employment of technical personnel which may be allowed after securing to that effect an authorization from the President. The President approved the recommendation of the Secretary of Commerce and Industry since the positions of purchaser and salesmen occupied by the three Chinese employees are not technical positions within the meaning of Section 2-A of Commonwealth Act 108, as amended by Republic Act No. 134. As a result of such adverse ruling, Macario King and his three Chinese employees filed a petition for declaratory relief, injunction and mandamus on August 25, 1958 against the Secretary of Commerce and Industry and the Executive Secretary before the Court of First Instance of Manila praying that they be given relief because they are "uncertain and in doubt as to their rights and duties under Republic Act No. 1180 and Commonwealth Act No. 108, as amended by Republic Act No. 134, in view of the aforesaid rulings of the Department of Commerce and Industry and of the Executive Secretary." They alleged that said rulings are illegal in view of the respective situations and positions of petitioners in the retail establishment, the purpose and language of the laws abovementioned, and the constitutional guarantee of the rights of an employer to employ and of an employee to

SECTION 1. No person who is not a citizen of the Philippines, and no association, partnership, or corporation the capital of which is not wholly owned by citizens of the Philippines, shall engage directly or indirectly in the retail business: ... (Emphasis supplied) . SEC. 2-A. Any person, corporation, or association which, having in its name or under its control, a right, franchise, privilege, property or business, the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines, or of any other specific country, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, permits or allows the use, exploitation or enjoyment thereof by a person, corporation or association not possessing the requisites prescribed by the Constitution or the laws of the Philippines; or leases, or in any other way transfers or conveys said right, franchise, privilege, property or business to a person, corporation or association not otherwise qualified under the Constitution, or the provisions of the existing laws; or in any manner permits or allows any person, not possessing the qualifications required by the Constitution or existing laws to acquire, use, exploit or enjoy a right, franchise, privilege, property or business, the exercise and enjoyment of which are expressly reserved by the Constitution or existing laws to citizens of the Philippines or of any other specific country, to intervene in the management, operation, administration or control thereof, whether as an officer, employee or laborer therein, with or without remuneration except technical personnel whose employment may be specifically authorized by the President of the Philippines upon recommendation of the Department Head concerned.... (emphasis supplied) . With regard to the Retail Trade Law, this Court had already occasion to rule on its constitutionality. We held that the same is valid and that its purpose is to completely nationalize the retail trade in the Philippines. In other words, its primordial purpose is to confine the privilege to engage in retail trade to Filipino citizens by prohibiting any person who is not a Filipino citizen or any entity whose capital is not wholly owned by citizens of the Philippines from engaging, directly or indirectly, in the retail business. The nationalization of retail trade is, therefore, complete in the sense that it must be wholly owned by a Filipino citizen or Filipino controlled entity in order that it may be licensed to operate. The law seeks a complete ban to aliens who may not engage in it directly or indirectly. And the reasons behind such ban are the pernicious and intolerable practices of alien retailers who in the past have either individually or in organized groups contrived in many dubious ways to control the trade and dominate the distribution of goods vital to the life of our people thereby resulting not only in the increasing dominance of alien control in retail trade but at times in the strangle hold on our economic life. These reasons were well expressed by Mr. Justice Labrador in the following wise: . "But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act in such complete unison and concert on such vital matters as

the fixing of prices, the determination of the amount of goods or articles to be made available in the market, and even the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation of the national economy and of the complete subservience of national retailers and of the producers and consumers alike, can be placed completely at their mercy... "... Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there exists a general feeling on the part of the public that alien participation in the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of which would suffice for our purposes; that at some time or other they have cornered the market of essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of the consuming public, so much so that the Government has had to establish the National Rice and Corn Corporation to save the public from their continuous hoarding practices and tendencies; that they have violated price control laws, especially on foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation for price control convictions; that they have secret combinations among themselves to control prices, cheating the operation of the law of supply and demand; that they have connived to boycott honest merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated import and export prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the Government and by their own lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of many of the above practices. The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a potential source of danger on occasions of war or other calamity. We do not have here in this country isolated groups of harmless aliens retailing goods among nationals; what we have are well organized and powerful groups that dominate the distribution of goods and commodities in the communities and big centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and his property subject to the needs of his country, the alien may even become the potential enemy of the State. (Lao H. Ichong v. Hernandez, et al., G.R. No. L7995, May 31, 1957).

The purpose of the enactment of the Retail Trade Law, therefore, is clear. As expressed by this Court, it is to translate the general preoccupation of the Filipinos against the threat and danger to our national economy caused by alien dominance and control of the retail business by weeding out such threat and danger and thus prevent aliens from having a strangle hold upon our economic life. But in so doing the legislature did not intend to deprive aliens of their means of livelihood. This is clearly pointed out in the explanatory note of the law: . This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of our economic life are those who owe no allegiance to this Republic, who have no profound devotion to our free institutions and who have no permanent state in our people's welfare, we are not really the masters of our own country. All aspects of our life, even our national security, will be at the mercy of other people. In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life and endanger our national security, it respects existing rights. It is in the light of this view of the Retail Trade Law that the issue was posed whether the prohibition to aliens from engaging in such trade is intended merely to ban them from its ownership and not from its management control or operation. However, from the context of the law as well as from the decision of this Court in the Ichong case, it may be safely inferred that the nationalization of the retail trade is merely confined to its ownership and not its management, control, or operation. Nevertheless, this apparent flaw in the Retail Trade Law cannot be availed of by an unscrupulous alien as a convenient pretext to employ in the management of his business persons of his ilk to flout the law or subvert its nationalistic purpose, for in pari materia with such law we have the Anti-Dummy Law (Commonwealth Act No. 108, as amended by Republic Act No. 134), which seeks "to punish acts of evasion of the laws of nationalization of certain rights, franchises or privileges." Read in connection with the Retail Trade Law, the Anti-Dummy Law would punish acts intended to circumvent the provisions of the former law which nationalize the retail business. The question that now arises is: Is the employment of aliens in non-control positions in a retail establishment or trade prohibited by the Anti-Dummy Law? Petitioners contend that their employment is not prohibited either by the Retail Trade Law or the Anti-Dummy Law. The three Chinese petitioners testified that they had nothing to do with the management and control of the business, nor do they participate in its profits outside of their monthly salaries. They had been employed long before the enactment of Republic Act No. 1180. They only wait for customers and sell according to the prices appearing on the tags previously fixed by their manager Macario King. They desire to continue in the employ of Macario King in his business and their job is their only means of earning support for themselves and their families. Lim Pin who is

employed as buyer declared that his duties include no more than buying the groceries appearing in a list prepared and given to him from time to time by Macario King, and at no more than the prices indicated in said list. Respondents did not present any evidence to contradict these facts, as they merely relied their motion to dismiss. It is evident that petitioners' theory is that since they do not intervene in the management, operation, administration or control of the retail establishment of Macario King they are not covered by the Anti-Dummy Law. Indeed, they contend, Section 1 of Republic Act No. 1180 mirrors the legislative intent to nationalize the retail trade merely thru the ownership by Filipinos of the business, and as stated by this Court in the Ichong case, the ownership of the retail business by non-citizens lies at the foundation of the prohibition, and since there is nothing in the Retail Trade Law which prohibits a Filipino-owned retail enterprise from employing an alien and the dummy law merely limits the prohibition to any position that relates to management, operation, administration or control, petitioners contend that they may be allowed to continue in their positions without doing violence to both the Retail Trade Law and the Anti-Dummy Law. In other words, they draw a line of distinction between one class of alien employees occupying positions of control and another class occupying non-control positions. Respondents, on the other hand, sustain a different view. They hold that the language of the Anti-Dummy Law bans aliens' employment in both control and non-control positions. They contend that the words management, operation, administration and control, followed by and blended with the words "whether as an officer, employee or laborer therein", signify the legislative intent to cover the entire scale of personnel activity so that even laborers are excluded from employment, the only exemption being technical personnel whose employment may be allowed with the previous authorization of the President. This contention, according to respondents, results from the application of the rule known in statutory construction as redendo singula singulis. This means that the antecedents "management, operation, administration and control" and the consequents "officer, employee, and laborer" should be read distributively to the effect that each word is to be applied to the subject to which it appears by context most properly relate and to which it is most applicable (Vol. 2, Sutherland, Statutory Construction, Section 4819). We agree to this contention of respondents not only because the context of the law seems to be clear on what its extent and scope seem to prohibit but also because the same is in full accord with the main objective that permeates both the Retail Trade Law and the Anti-Dummy Law. The one advocates the complete nationalization of the retail trade by denying its ownership to any alien, while the other limits its management, operation, administration and control to Filipino citizens. The prevailing idea is to secure both ownership and management of the retail business in Filipino hands. It prohibits a person not a Filipino from engaging in retail trade directly or indirectly while it limits the management, operation, administration and control to Filipino citizens. These words may be technically synonymous in the sense that they all refer to the exercise of a directing, restraining or governing influence over an affair or business to which they relate, but it cannot be denied that by reading them in connection with the positions therein enumerated one cannot draw any other conclusion than that they cover the entire range of employment regardless of whether they involve control or non-control activities. When the law says that you cannot employ an alien in any position pertaining to management,

operation, administration and control, "whether as an officer, employee, or laborer therein", it only means one thing: the employment of a person who is not a Filipino citizen even in a minor or clerical or non-control position is prohibited. The reason is obvious: to plug any loophole or close any avenue that an unscrupulous alien may resort to flout the law or defeat its purpose, for no one can deny that while one may be employed in a non-control position who apparently is harmless he may later turn out to be a mere tool to further the evil designs of the employer. It is imperative that the law be interpreted in a manner that would stave off any attempt at circumvention of this legislative purpose. In this respect, we agree with the following remark of the Solicitor General: "Summing up, there is no point in distinguishing employments in positions of control from employments in non-control positions except to facilitate violations of the Anti-Dummy Law. It does not require ingenuity to realize that the law is framed up the way we find it so that no difficulties will be encountered in its enforcement. This is not the first time to use the words of the United States Supreme Court ... that a government wants to know, without being put to a search, that what it forbids is carried out effectively." . There is an intimation in the decision of the trial court that if the employment of aliens in non-control positions is prohibited as respondents so advocate, it may impair the right of a citizen under our Constitution to select, pick and employ any one who in his opinion may be amenable to his business provided he is not a criminal, a communist, or affected by a contagious disease, in the same manner as one may not be deprived of his right to associate with people of his own choice because those are rights that are guaranteed by our Constitution. The language of the trial court on this matter follows: . There is no question that a Filipino citizen has a right under the Constitution and the laws of this Republic to engage in any lawful business, to select, pick and employ anyone who in his opinion may be amenable, congenial, friendly, understanding and profitable to his business provided that they are not originals, say communists, or affected by some contagious disease or morally unfit. The right to associate with our friends or people of our choice cannot be seriously contested in a democratic form of government. This is one of the most cherished privileges of a citizen. Nullify it and it will produce a communist control of action in our free movement and intercourse with our fellow citizens as now prevails in Russia and other Soviet satellites History has amply demonstrated that in countries where personal liberties are limited, curtailed or hampered, communism thrives; while in the lands where personal liberties are protected, democracy lives. We need but look at the horizon and see terrible and sinister shadows of some catastrophic events threatening to annihilate all our hopes and love for liberty if we are to traffic with our rights as citizens like any other ordinary commodities. It is our sacred and bounden duty to protect individual rights so that by their benign influence real democracy may be nurtured to full maturity. xxx xxx xxx

There is no need of any lengthy discussion as to the rights of a Filipino citizen to employ any person in his business provided the latter is not a criminal, affected with some contagious disease, or a recognized human derelict. The right to employ is the same as the right to associate. The right to associate is admittedly one of the most sacred privileges of a Filipino citizen. If a Filipino citizen has the right to employ any person in his business, has a naturalized citizen the same rights? We hold and sustain that under the Constitution and laws of this country, there is no difference between a natural-born citizen and a naturalized citizen, with the possible exception, as provided by the Constitution, that while the former can be President, Vice-President or member of Congress, the latter cannot. But outside of these exceptions, they have the same rights and privileges. It is hard to see how the nationalization of employment in the Philippines can run counter to any provision of our Constitution considering that its aim is not exactly to deprive citizen of a right that he may exercise under it but rather to promote enhance and protect those that are expressly accorded to a citizen such as the right to life, liberty and pursuit of happiness. The nationalization of an economic measure when founded on grounds of public policy cannot be branded as unjust, arbitrary or oppressive or contrary to the Constitution because its aim is merely to further the material progress and welfare of the citizens of a country. This is what we expressed in no uncertain terms in the Ichong Case when we declared constitutional the nationalization of the retail trade. Indeed, we said there that it is a law "clearly in the interest of the public, nay of the national security itself, and indisputability falls within the scope police power, thru which and by which the State insures its existence and security and the supreme welfare of its citizens." True, this fundamental policy was expressed in a decision the subject of which concerns the constitutionality of the Retail Trade Act, but since the Anti-Dummy Law is but a mere complement of the former in the sense that it is designed to make effective its aims and purposes and both tend to accomplish the same objective either by excluding aliens from owning any retail trade or by banning their employment if the trade is owned by Filipinos, and the target of both is "the removal and eradication of the shackles of foreign economic control and domination" thru the nationalization of the retail trade both in ownership and employment, the pronouncement made in one regarding its constitutionality applies equally if not with greater reason to the other both being complementary one to the other. Indeed, in nationalizing employment in retail trade the right of choice of an employer is not impaired but its sphere is merely limited to the citizens to the exclusion of those of other nationalities. We note that the case cited by the trial court to substantiate its conclusion that freedom to employ is guaranteed by our Constitution is Meyer v. Nebraska, 67 Law Ed. 1042, which is also the same case relied upon by petitioners in support of their proposition that "the liberty guaranteed by the Constitution includes the right to engage in any of the common occupations of life". We also note that this is the same case cited by counsel for Lao Itchong to support the same proposition in his advocacy of the unconstitutionality of the nationalization of the Retail Trade Law which did not deserve favorable consideration by this Court in the Itchong case. To refute counsel's argument that the retail trade is a common occupation the pursuit of which cannot be impaired and consequently the right to employ therein is guaranteed by our Constitution, suffice it to state that we brushed

aside such theory in the Itchong case in view of the monopolistic control exercised by aliens in the retail business and their "deadly strangle hold on the national economy endangering the national security in times of crisis and emergency". The circumstances surrounding the enforcement of the Retail Trade Law being the very foundation of the Anti-Dummy Law the same circumstances that justify the rejection of counsel's proposition in the Itchong case should also apply with regard to the application of the Meyer case in the consideration of the constitutionality of the Anti-Dummy Law. The thinking of the lower court that the nationalization of employment in retail trade produces communistic control or impairs a right guaranteed by the Constitution to a citizen seems to have as basis its pronouncement that "the right to employ is the same as the right to associate". This promise has no foundation in law for it confuses the right of employment with the right of association embodied in the Bill of Rights of our Constitution. Section 1, paragraph 6, of said Bill of Rights, provides that "the right to form associations or societies for purposes not contrary to law, shall not be abridged", and this has as its main purpose "to encourage the formation of voluntary associations so that thru the cooperative activities of individuals the welfare of the nation may be advanced."1Petitioners have never been denied the right to form voluntary associations. In fact, they can so organize to engage in any business venture of their own choosing provided that they comply with the limitations prescribed by our regulatory laws. These laws cannot be assailed as abridging our Constitution because they were adopted in the exercise of the police power of the State (Lao Itchong case, supra). Against the charge that this nationalization movement initiated by Congress in connection with several measures that affect the economic life of our people places the Philippines in a unique position in the free world, we have only to cite the cases of Commonwealth v. Hans, 81 N.E. 149, and Bloomfield v. State, 99 N.E. 309, which this Court considered as basic authorities for nationalization of legislative measures in the Lao Ichong case. Similar laws had been declared constitutional by the Supreme Court of California and the United States Supreme Court in a series of cases involving contracts under the Alien Land Law, and because of the similarities of the facts and laws involved therein we can consider the decisions rendered in said cases of persuasive force and effect in the determination of the present case.2 We wish to add one word with regard to the procedural aspect raised in respondents' brief. It is respondents' theory that a complaint for declaratory relief will not prosper if filed after a contract or statute has been breached. The law does not even require that there shall be an actual pending case. It is sufficient that there is a breach of the law, or an actionable violation, to bar a complaint for declaratory judgment (Vol. 2, Moran, Comments on the Rules of Court, 1957 Ed., 145). The pertinent provisions of the AntiDummy Law postulate that aliens cannot be employed by Filipino retailers except for technical positions with previous authority of the President, and it is contended that Macario King had in his employ his Chinese co-petitioners for a period of more than 2 years in violation of Section 2-A of Republic Act No. 134. Hence, respondents contend, due to their breach of the law petitioners have forfeited their right to file the present action for declaratory relief.

It appears, however, that alien petitioners were already in the employ of the establishment known as "Import Meat and Produce" previously owned by the Philippine Cold Stores, Inc. when Macario King acquired the ownership of said establishment and because of the doubt he entertained as regards the scope of the prohibition of the law King wrote the President of the Philippines to request permission to continue said petitioners in his employment, and immediately after the request was denied, he instituted the present petition for declaratory relief. It cannot, therefore, be said that King has already breached the law when he filed the present action.. WHEREFORE, the decision appealed from is reversed. This preliminary injunction issued by the trial court on December 6, 1958 is hereby lifted. The petition for mandamus is dismissed, with costs against appellees. Bengzon, C.J., Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon and De Leon, JJ., concur. Padilla, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC

B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO. 14, respondents. No. 97454 August 2, 1991

G.R. No. 93177 August 2, 1991 B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO, CAPT. DANILO PIZARRO, CAPT. MANUEL ISON, COL. LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON, LTC. RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO LIGOT LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA PERA, MAJ. LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO, CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ. FELIX V. BALDONADO and MAJ. ESTELITO L. PORNEA and GENERAL COURT-MARTIAL NO. 14 COMPOSED OF: B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents. No. 95020 August 2, 1991 B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN, petitioners, vs. HON. MIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C., LTC. JACINTO LIGOT PA., respondents. No. 96948 August 2, 1991 B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT. DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC. ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC. RAFAEL GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC. JACINTO LIGOT PA, LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ. CESAR DE LA PENA PN (M): MAJ. LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA, CAPT. DANILO LIM PA, CAPT. ELMER AMON PAF CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT. COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP Detention Center/Jail, petitioners, vs. HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court, Quezon City, Branch 86, CAPTAIN REYNALDO S. RAFAEL, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO JIMENEZ PAF 1 LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT JONAS CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT MEMEL ROJAS PN(M) and 2LT HERMINIO L. CANTACO PC, respondents. Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio Fusillero, Ericson Aurelio, Levino Valencia, Danilo Arnon Vergel Nacino, Florencio Flores, Benigno Junio and Joey Sarroza. Manuel Q. Malvar for Rafael Galvez and Danny Lim. Manuel E. Valenzuela for Arsenio Tecson Mariano R. Santiago for Alfredo Oliveros. Ricardo J.M. Rivera for Manuel Ison. Castillo, Laman, Tan and Pantaleon for Danilo Pizarro. Alfredo Lazaro for Romelino Gojo. Manuel A. Barcelona, Jr. for Jose Comendador. Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando. Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio. Efren C. Moncupa for All Tecson. M.M. Lazaro & Associates for respondents Ligot and Ison . Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot. Salvador B. Britanico for Cesar de la Pena. Gilbert R.T. Reyes for Danilo Pizarro. Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177. The Solicitor General for respondents. CRUZ, J.:p These four cases have been consolidated because they involve practically the same parties and related issues arising from the same incident. The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the failed coup d' etat that took place on December 1 to 9, 1989.

The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder). In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the conduct of the Pre-Trial Investigation PTI Panel constituted to investigate the charges against them and the creation of the General Court Martial GCM convened to try them. In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408. In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are assailed oncertiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to set aside its ruling denying bail to the private respondents. In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are likewise raised as in G.R. No. 95020. I Before the charges were referred to GCM No. 14, a Pre-Trial Investigation PTI Panel had been constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R. Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to the petitioners, to wit: You are hereby directed to appear in person before the undersigned Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to submit your counter-affidavit and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you for violence of AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS. Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of your right to submit controverting evidence. On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements of witnesses, and death and medical certificates of victims of the rebellion.

At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting the PTI Panel to grant them 10 days within which to file their objections in writing This was done through a Motion for Summary Dismissal dated February 21, 1990. In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners 5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses. On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14,1990. The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71, which provides: Art. 71. Charges Action upon. Charges and specifications must be signed by a person subject to military law, and under the oath either that he has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief. No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides . (Emphasis supplied.) They also allege that the initial hearing of the charges consisted merely of a roll call and that no prosecution witnesses were presented to reaffirm their affidavits. while the motion for summary dismissal was denied, the motion for reconsideration remains unresolved to date and they have not been able to submit their counter-affidavits. At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising their right to raise peremptory challenges against the president and members of GCM No.14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory challenges had been discontinued under P.D. No. 39.

In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No.14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot. On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He later also complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the appeal to be taken" to this Court. After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison. On August 22, 1990, the trial court rendered judgment inter alia: (a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly, the assailed orders of General Court- Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14. Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson. On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpuson the ground that they were being detained in Camp Crame without charges. The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release. II The Court has examined the records of this case and rules as follows.

It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration which they were again asked to submit in writing. This they did on March 13, 1990. The motion was in effect denied when the PTI Panel resolved to recommend that the charges be referred to the General Court Martial for trial. The said petitioners cannot now claim they have been denied due process because the investigation was resolved against them owing to their own failure to submit their counter-affidavits. They had been expressly warned In the subpoena sent them that "failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of (their) right to submit controverting evidence." They chose not to heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without waiting for the petitioners to submit their defense. Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violation of the Bill of Rights. There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now settled that "even a failure to conduct a pre-trial investigation does not deprive a general court- martial of jurisdiction." We so held in Arula v. Espino, 1 thus: xxx xxx xxx But even a failure to conduct a pre-trial investigation does not deprive a general court-martial of jurisdiction. The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no way affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said: We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counterpart is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable prerequisite to the exercise of the Army General court martial jurisdiction.. The Article does serve important functions in the administration of courtmartial procedures and does provide safeguards to an accused. Its language is clearly such that a defendant could object to trial in the absence of the required investigation. In that event the courtmartial could itself postpone trial pending the

investigation. And the military reviewing authorities could consider the same contention, reversing a court- martial conviction where failure to comply with Article 70 has substantially injured an accused. But we are not persuaded that Congress intended to make otherwise valid court-martial judgments wholly void because pre-trial investigations fall short of the standards prescribed by Article 70. That Congress has not required analogous pre-trial procedure for Navy courtmartial is an indication that the investigatory plan was not intended to be exalted to the jurisdictional level. xxx xxx xxx Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But this holding has been expressly repudiated in later holdings of the Judge Advocate General. This later interpretation has been that the pre-trial requirements of Article 70 are directory, not mandatory, and in no way effect the jurisdiction of a court-martial. The War Department's interpretation was pointedly called to the attention of Congress in 1947 after which Congress amended Article 70 but left unchanged the language here under consideration. compensable pre-requisite to the exercise of Army general court-martial jurisdiction A trial before a general court-martial convened without any pretrial investigation under article of war 71 would of course be altogether irregular but the court-martial might nevertheless have jurisdiction. Significantly, this rule is similar to the one obtaining in criminal procedure in the civil courts to the effect that absence of preliminary investigation does not go into the jurisdiction of the court but merely to the regularity of the proceedings. As to what law should govern the conduct of the preliminary investigation, that issue was resolved more than two years ago in Kapunan v. De Villa, 2 where we declared: The Court finds that, contrary to the contention of petitioners, there was substantial compliance with the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The amended charge sheets, charging petitioners and their co-

respondents with mutiny and conduct unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to military law, after he had investigated the matter through an evaluation of the pertinent records, including the reports of respondent AFP Board of Officers, and was convinced of the truth of the testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the manner provided under Art. 71 of the Articles of War. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact that the charge sheets were not certified in the manner provided under said decrees, i.e., that the officer administering the oath has personally examined the affiant and that he is satisfied that they voluntarily executed and understood its affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required to file their counter-affidavit. However, instead of doing so, they filed an untitled pleading seeking the dismissal of the charges against them. That petitioners were not able to confront the witnesses against them was their own doing, for they never even asked Maj. Baldonado to subpoena said witnesses so that they may be made to answer clarificatory questions in accordance with P. D, No. 77, as amended by P.D. No. 911. The petitioners also allege that GCM No. 14 has not been constitute in accordance with Article 8 of the Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by Gen. Renato de Villa as Chief of Staff. Article of War No. 8 reads: Art. 8. General Courts-Martial. The President of the Philippines, the Chief of Staff of the Armed Forces of the Philippines, the Chief of Constabulary and, when empowered by the President, the commanding officer of a major command or task force, the commanding officer of a division, the commanding officer of a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority. ... While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he authorized it because the order itself said it was issued "By Command of General De Villa" and it has not been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president and members. It is significant that General De Villa has not disauthorized or revoked or in any way disowned the said order, as he would certainly have done if his authority had been

improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M 6 in the Comment filed for him and the other respondents by the Solicitor General. Coming now to the right to peremptory challenge, we note that this was originally provided for under Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to wit: Art. 18. Challenges. Members of general or special courts-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to the peremptory challenge, but the law member of the court shall not be challenged except for cause. The history of peremptory challenge was traced in Martelino v. Alejandro, 3 thus: In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and graduates of the United States military and naval academies who were on duty with the Philippine Army, there was a complete dearth of officers learned in military law, its aside from the fact that the officer corps of the developing army was numerically made equate for the demands of the strictly military aspects of the national defense program. Because of these considerations it was then felt that peremptory challenges should not in the meanwhile be permitted and that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by either the trial judge advocate of a court- martial or by the accused. After December 17,1958, when the Manual for Courts-Martial of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a continuing and intensive program of training and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak of World War 11 in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12,1948 to entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for cause.

On September 27,1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them. On November 7,1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction, Procedure, and other matters relevant to military Tribunals). This decree disallowed the peremptory challenge, thus: No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality and good faith. Challenges shall immediately be heard and determined by a majority of the members excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully challenged member shall be immediately replaced. On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which was a compilation and codification of decrees, general orders, LOI and policies intended "to meet the continuing threats to the existence, security and stability of the State." The modified rule on challenges under P.D. No. 39 was embodied in this decree. On January 17,1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the dissolution of the military tribunals created pursuant thereto upon final determination of the cases pending therein. P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned therein. With the termination of martial law and the dissolution of the military tribunals created thereunder, the reason for the existence of P.D. No. 39 ceased automatically. It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases.Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima: the reason of law is its soul. Applying these rules, we hold that the withdrawal of the right to peremptory challenge in L P.D. No. 39 became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation No. 2045, As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived and now again allows the right to peremptory challenge. We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer operative, having been cast out under the new dispensation as, in the words of the Freedom Constitution, one of the "iniquitous vestiges of the previous regime.

The military tribunal was one of the most oppressive instruments of martial law. It is curious that the present government should invoke the rules of that discredited body to justify its action against the accused officers. The Court realizes that the recognition of the right to peremptory challenge may be exploited by a respondent in a court-martial trial to delay the proceedings and defer his deserved Punishment. It is hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the law-makers and not to this Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on their adverse effects. This is a problem only the political departments can resolve. The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the court-martial proceedings. The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals 4 where this Court held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of Appeals. It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the remedies employed by the accused officers before the respondent courts. In Martelino, we observed as follows: It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courts-martial, and that mere errors in their proceedings are not open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courts-martial may commit such an abuse of discretion what in the language of Rule 65 is referred to as "grave abuse of discretion" as to give rise to a defect in their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition ... . The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on petitions forhabeas corpus and quo warranto. 5 In the absence of a law providing that the decisions, orders and ruling of a court-martial or the

Office of the Chief of Staff can be questioned only before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction. We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist. The justification for this exception was well explained by the Solicitor General as follows: The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. xxx xxx xxx National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25,1990 Order were sustained, on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians. On the contention of the private respondents in G.R. No. 97454 that they had not been charged after more than one year from their arrest, our finding is that there was

substantial compliance with the requirements of due process and the right to a speedy trial. The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26, 1991, by the respondent court, where the petitioners submitted the charge memorandum and specifications against the private respondents dated January 30, 1991. On February 12, 1991, pursuant to Office Order No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the charges, charge sheets and specifications and were required to submit their counteraffidavits on or before April 11, 1991. There was indeed a delay of more than one year in the investigation and preparation of the charges against the private respondents. However, this was explained by the Solicitor General thus: ... The AFP Special Investigating Committee was able to complete it pre-charge investigation only after one (1) year because hundreds of officers and thousands of enlisted men were involved in the failed coup. All of them, as well as other witnesses, had to be interviewed or investigated, and these inevitably took months to finish. The precharge investigation was rendered doubly difficult by the fact that those involved were dispersed and scattered throughout the Philippines. In some cases, command units, such as the Scout Rangers, have already been disbanded. After the charges were completed, the same still had to pass review and approval by the AFP Chief of Staff. While accepting this explanation, the Court nevertheless must reiterate the following admonition: This Court as protector of the rights of the people, must stress the point that if the participation of petitioner in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be established and no charges can be filed against him or the existence of a prima facie case warranting trial before a military commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now General) to release petitioner. Respondents must also be reminded that even if a military officer is arrested pursuant to Article 70 of then Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof mandates that immediate steps must be taken to try the person accused or to dissmiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion may even be punished as a court martial may direct. 6 It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was ultimately denied, after hearing, on March 4, 1991. The 48- hour period for appeal under Rule 41, Section 18, of the Rules of Court did not run

until after notice of such denial was received by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore, the decision had not yet become final and executory when the special civil action in G.R. No. 97454 was filed with this Court on March 12, 1991. III Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the Court in Arula: The referral of charges to a court-martial involves the exercise of judgment and discretion (AW 71). A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ ofcertiorari. As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where we find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered released. ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and the orders of the respondent courts for the release of the private respondents are hereby REVERSED and SET ASIDE. No costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

SARMIENTO, J., concurring: I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he would deny bail to accused military personnel. The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong." 1 The Charter also states that "[T]he right to bail shall not be impaired even if the writ of habeas corpus is suspended." 2 To deny the military officers here concerned of the right to bail is to circumscribe the inclusive meaning of "all persons" the coverage of the right. I believe that military officers fall within "persons". The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice." 3 But would a scenario of 1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to bail? Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally dangerous" elements of society? We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not be granted the same right. The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we are a government of laws, not tradition. If there are precedents that attest to the contrary, I submit that a reexamination is in order.

The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong." 1 The Charter also states that "[T]he right to bail shall not be impaired even if the writ of habeas corpus is suspended." 2 To deny the military officers here concerned of the right to bail is to circumscribe the inclusive meaning of "all persons" the coverage of the right. I believe that military officers fall within "persons". The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice." 3 But would a scenario of 1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to bail? Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally dangerous" elements of society? We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not be granted the same right. The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we are a government of laws, not tradition. If there are precedents that attest to the contrary, I submit that a reexamination is in order.

Separate Opinions SARMIENTO, J., concurring: I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he would deny bail to accused military personnel.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

A.M. No. RTJ-93-956 September 27, 1995 PANFILO S. AMATAN, complainant, vs. JUDGE VICENTE AUJERIO, respondent. RESOLUTION

Upon arraignment, however, the parties, with the acquiescence of the Public Prosecutor and the consent of the offended party, entered into plea bargaining where it was agreed that the accused would plead guilty to the lesser offense of Attempted Homicide instead of homicide as originally charged in the information, and would incur the penalty of "four (4) years, two (2) months and one (1) day of prision correccional as minimum to six (6) year ofprision correccional maximum as maximum." 2 Consequently, in his decision promulgated on the 27th of June 1990, respondent judge found the accused, Rodrigo Umpad, guilty beyond reasonable doubt of the lesser crime of Attempted Homicide and sentenced him to suffer imprisonment of four years, two months and one day of prision correccional maximum, as minimum to six years of prision correccional maximum, as the maximum period, exactly in accordance with the plea bargaining agreement. 3 On October 16, 1992, a letter-complaint addressed to the Chief Justice and signed by Pedro S. Amatan, a brother-in-law of the deceased, accused Judge Vicente Aujero of gross incompetence, gross ignorance of the law and gross misconduct, relative to his disposition of Crim. Case No. H-223 entitled People v. Rodrigo Umpad alias "Meon." In said letter-complaint, complainant contends that the sentence of respondent judge finding the accused guilty beyond reasonable doubt of the lesser offense of Attempted Homicide and not Homicide as charged is proof indicative, "on its face, of gross incompetence, gross ignorance of the law or gross misconduct. Responding to the complaint, respondent Judge asserts that he relied on Sec. 2, Rule 116 of the 1985 Revised Rules of Criminal Procedure, as amended, which allows an accused individual with the consent of the offended party to plead guilty to a lesser offense, regardless of whether or not such offense is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction. He explains that during the May 3, 1990 hearing, accused and his counsel, with the acquiescence and in the presence of the prosecutor, informed the Court of the defendant's desire to plea bargain pursuant to the aforestated rule. Moreover, he avers that in a conference on June 27, 1990, the wife of the victim herself agreed to the accused's plea of guilty to attempted homicide, instead of homicide as she needed the monetary indemnity to raise her two orphaned children. In a Memorandum dated February 5, 1993, the Deputy Court Administrator recommended that the complaint be dismissed, explaining that: Section 2 116 is more liberalized as it allows the accused to plead guilty to a lesser offense whether or not it is included in the offense charged in the complaint or information, with the consent of the offended party and the fiscal. In this regard, it is inferred that the fiscal consented to abbreviate the proceedings and in order not to run the risk of the accused being acquitted, because there was no conclusive evidence to obtain the conviction of the accused to the offense charged in the complaint of information. It may be stated in this connection that unlike in the crime of murder where the accused may plead to the lesser offense of homicide, in homicide a misinterpretation may arise, as in this case, when the accused pleads guilty to attempted homicide, because here the fact of the death of the victim, which is the principal element of the crime is

KAPUNAN, J.: A criminal complaint accusing Rodrigo Umpad, alias "Meon" of the crime of murder under Article 248 of the Revised Penal Code was filed by the Philippine National Police Station Commander in Bato, Leyte for the fatal shooting of Genaro Tagsip in the afternoon of September 14, 1987. 1 After preliminary investigation by the office of the provincial fiscal, an information charged Umpad with the crime of Homicide as follows: The undersigned Assistant Provincial Fiscal of Leyte accused Rodrigo Umpad alias "Meon" of the crime of Homicide committed as follows: That on or about the 14th day of September 1987, in the Island of Dawahon, Municipality of Bato, Province of Leyte, Philippines and within the preliminary jurisdiction of this Honorable Court, the above-named accused, with deliberate intent, with intent to kill did then and there willfully, unlawfully and feloniously shot one GENARO TAGSIP, with a revolver .38 Cal. Snub Nose Smith and Wesson (Paltik) which the accused had provided himself for the purpose, thereby causing and inflicting upon the victim fatal gunshot wound on his head which was the direct and immediate cause of the death of Genaro Tagsip. CONTRARY TO LAW. Hilongos, Leyte, October 20, 1987.

obliterated. This is specially so because the decision/sentence does not contain findings of fact and conclusions of law but merely an account that the accused pleaded guilty to a lesser offense and the penalty imposed. 4 Section 2, Rule, 116 of the 1985 Revised Rules of Criminal Procedure, as amended, allows the accused in criminal case to plead guilty "to lesser offense regardless of whether or not it is necessarily included in the crime charged." The fact of death of the victim for which the accused Rodrigo Umpad was criminally liable, cannot by simple logic and plain common sense be reconciled with the plea of guilty to the lower offense of attempted homicide. The crime of homicide as defined in Article 249 of the Revised Penal Code necessarily produces death; attempted homicide does not. Concededly, hiatus in the law exists in the case before us, which could either lead to a misapprehension of Section 2 of Rule 116 or to outright confusion. Such a result was itself recognized by the Deputy Court Administrator when he recommended an amendment to the provision in his Memorandum. However, the law is not entirely bereft of solutions in such cases. In instances where a literal application of a provision of law would lead to injustice or to a result so directly in opposition with the dictates of logic and everyday common sense as to be unconscionable, the Civil Code 5 admonishes judges to take principles of right and justice at heart. In case of doubt the intent is to promote right and justice. Fiat justice ruat coelum. Stated differently, when a provision of law is silent or ambiguous, judges ought to invoke a solution responsive to the vehement urge of conscience. These are fundamental tenets of law. In the case at bench, the fact of the victim's death, a clear negation of frustrated or attempted homicide, ought to have alerted the judge not only to a possibly inconsistent result but to an injustice. The failure to recognize such principles so cardinal to our body of laws amounts to ignorance of the law and reflects respondent judge's lack of prudence, if not competence, in the performance of his duties. While it is true, as respondent judge contends, that he merely applied the rule to the letter, the palpably incongruous result ought to have been a "red flag" alerting him of the possibility of injustice. The death of an identified individual, the gravamen of the charge against the defendant in the criminal case, cannot and should not be ignored in favor of a more expedient plea of either attempted or frustrated homicide. We have held before that if the law is so elementary, not to know it or to act as if one does not know it, constitutes gross ignorance of the law.6 Finally, every judge must be the embodiment of competence, integrity and independence. 7 A judge should not only be aware of the bare outlines of the law but also its nuances and ramifications, otherwise, he would not be able to come up with decisions which are intrinsically fair. In failing to exercise even ordinary common sense, a judge could be held administratively liable for a verdict that could in no way be legally or factually sustained or justified. We note, however, that under the circumstances of the case, respondent judge's erroneous exercise of his judicial prerogative was neither tainted with malice nor bad faith. The phraseology of Sec. 2, Rule 116 is not crafted with such precision as to entirely eliminate

possible misinterpretation. This observation is bolstered by the fact that the same provision prompted the Department of Justice, on July 31, 1990, or three months after respondent judge took cognizance of the case on April 17, 1990, to issue Circular No. 35, 8 later amended by Circular No. 55 dated December 11, 1990, clarifying and setting limitations on the application of Sec. 2, Rule 116. The fact also that respondent reached compulsory retirement age on April 5, 1995 after a long period of service in the judiciary entitles him to a certain measure of leniency. Nonetheless, the case at bench stands unique because of the potently absurd result of respondent's application of the law. ACCORDINGLY, we are constrained to find the respondent judge GUILTY of gross ignorance of the law for which he is hereby REPRIMANDED na FINED ONE THOUSAND (P1,000.00) PESOS. Let this decision appear in respondent's record of service. SO ORDERED. Padilla, Davide, Jr. and Bellosillo, JJ., concur. Hermosisima, Jr., J., is on leave. Footnotes

FIRST DIVISION [G.R. No. 112170. April 10, 1996] CESARIO URSUA, petitioner, vs. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents. SYLLABUS STATUTORY CONSTRUCTION; STATUTES; CONSTRUED WITH REFERENCE TO THE INTENDED SCOPE AND PURPOSE. - Time and again we have decreed that statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Thus in construing a statute the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers. 2. ID.; COMMONWEALTH ACT 142, AS AMENDED (AN ACT TO REGULATE THE USE OF ALIASES); PURPOSE IS TO REGULATE THE USE OF ALIASES IN BUSINESS TRANSACTION. - The objective and purpose of C.A. No. 142 have their origin and basis in Act No. 3883, An Act to Regulate the Use in Business Transactions of Names other than True Names, Prescribing the Duties of the Director of the Bureau of Commerce and Industry in its Enforcement, Providing Penalties for Violations thereof, and for other purposes, which was approved on 14 November 1931 and amended by Act No. 4147, approved on 28 November 1934. The enactment of C.A. No. 142 as amended was made primarily to curb the common practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. C.A. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register. 3. CRIMINAL LAW; COMMONWEALTH ACT 142, AS AMENDED (AN ACT TO REGULATE THE USE OF ALIASES); ALIAS, DEFINED. - An alias is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A mans name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and thse are known as aliases. 4. ID.; ID.; USE OF FICTITIOUS NAME IN A SINGLE TRANSACTION WITHOUT INTENDING TO BE KNOWN BY THIS NAME IN ADDITION TO HIS REAL NAME, NOT A VIOLATION THEREOF. - The use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. 5. ID.; ID.; ID.; CASE AT BAR. - This is so in the case at bench. It is not disputed that petitioner introduced himself in the Office of the Ombudsman as Oscar Perez, 1.

which was the name of the messenger of his lawyer who should have brought the letter to that office in the first place instead of petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question then that Oscar Perez is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name. The use of the name Oscar Perez was made by petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances. While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him. Wherefore, the questioned decision of the Court of Appeals affirming that of the Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the crime charged. 6. STATUTORY CONSTRUCTION; A PENAL STATUTE LIKE COMMONWEALTH ACT 142, AS AMENDED, CONSTRUED STRICTLY AGAINST THE STATE AND IN FAVOR OF THE ACCUSED. - As C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused. The reason for this principle is the tenderness of the law for the rights of individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. APPEARANCES OF COUNSEL Ceferino Padua Law Office for petitioner. The Solicitor General for respondents. DECISION BELLOSILLO, J.: This is a petition for a review of the decision of the Court of Appeals which affirmed the conviction of petitioner by the Regional Trial Court of Davao City for violation of Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085, otherwise known as An Act to Regulate the Use of Alliases.[1] Petitioner Cesario Ursua was a Community Environment and Natural Resources Officer assigned in Kidapawan, Cotabato. On 9 May 1989 the Provincial Governor of Cotabato requested the Office of the Ombudsman in Manila to conduct an investigation on a complaint for bribery, dishonesty, abuse of authority and giving of unwarranted benefits by petitioner and other officials of the Department of Environment and Natural

Resources. The complaint was initiated by the Sangguniang Panlalawigan of Cotabato through a resolution advising the Governor to report the involvement of petitioner and others in the illegal cutting of mahogany trees and hauling of illegally-cut logs in the area.[2] On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the Office of the Ombudsman in Davao City requesting that he be furnished copy of the complaint against petitioner. Atty. Palmones then asked his client Ursua to take his letter-request to the Office of the Ombudsman because his law firms messenger, Oscar Perez, had to attend to some personal matters. Before proceeding to the Office of the Ombudsman petitioner talked to Oscar Perez and told him that he was reluctant to personally ask for the document since he was one of the respondents before the Ombudsman. However, Perez advised him not to worry as he could just sign his (Perez) name if ever he would be required to acknowledge receipt of the complaint.[3] When petitioner arrived at the Office of the Ombudsman in Davao City he was instructed by the security officer to register in the visitors logbook. Instead of writing down his name petitioner wrote the name Oscar Perez after which he was told to proceed to the Administrative Division for the copy of the complaint he needed. He handed the letter of Atty. Palmones to the Chief of the Administrative Division, Ms. Loida Kahulugan, who then gave him a copy of the complaint, receipt of which he acknowledged by writing the name Oscar Perez.[4] Before petitioner could leave the premises he was greeted by an acquaintance, Josefa Amparo, who also worked in the same office. They conversed for a while then he left. When Loida learned that the person who introduced himself as Oscar Perez was actually petitioner Cesario Ursua, a customer of Josefa Amparo in her gasoline station, Loida reported the matter to the Deputy Ombudsman who recommended that petitioner be accordingly charged. On 18 December 1990, after the prosecution had completed the presentation of its evidence, petitioner without leave of court filed a demurrer to evidence alleging that the failure of the prosecution to prove that his supposed alias was different from his registered name in the local civil registry was fatal to its cause. Petitioner argued that no document from the local civil registry was presented to show the registered name of accused which according to him was a condition sine qua non for the validity of his conviction. The trial court rejected his contentions and found him guilty of violating Sec. 1 of C.A. No. 142 as amended by R. A. No. 6085. He was sentenced to suffer a prison term of one (1) year and one (1) day of prision correccional minimum as minimum, to four (4) years of prision correccional medium as maximum, with all the accessory penalties provided for by law, and to pay a fine of P4,000.00 plus costs. Petitioner appealed to the Court of Appeals. On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but modified the penalty by imposing an indeterminate term of one (1) year as minimum to three (3) years as maximum and a fine of P5,000.00. Petitioner now comes to us for review of his conviction as. he reasserts his innocence. He contends that he has not violated C.A. No. 142 as amended by R. A. No. 6085 as he never used any alias name; neither is Oscar Perez his alias. An alias, according to him, is a term which connotes the habitual use of another name by which a person is also known. He claims that he has never been known as Oscar Perez and that he only used such name on one occ asion and it was with the express consent of Oscar Perez himself. It is his position that an essential requirement for

a conviction under C.A. No. 142 as amended by R. A. No. 6085 has not been complied with when the prosecution failed to prove that his supposed alias was different from his registered name in the Registry of Births. He further argues that the Court of Appeals erred in not considering the defense theory that he was charged under the wrong law. [5] Time and again we have decreed that statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Thus in construing a statute the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose.[6] The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers. [7] For a clear understanding of the purpose of C.A. No. 142 as amended, which was allegedly violated by petitioner, and the surrounding circumstances under which the law was enacted, the pertinent provisions thereof, its amendments and related statutes are herein cited. C.A. No. 142, which was approved on 7 November 1936, and before its amendment by R. A. No. 6085, is entitled An Act to Regulate the Use of Aliases. It provides as follows: Section 1. Except as a pseudonym for literary purposes, no person shall use any name different from the one with which he was christened or by which he has been known since his childhood, or such substitute name as may have been authorized by a competent court. The name shall comprise the patronymic name and one or two surnames. Section 2. Any person desiring to use an alias or aliases shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name. Separate proceedings shall be had for each alias, and each new petition shall set forth the original name and the alias or aliases for the use of which judicial authority has been obtained, specifying the proceedings and the date on which such authority was granted. Judicial authorities for the use of aliases shall be recorded in the proper civil register x x x. The above law was subsequently amended by R. A. No. 6085, approved on 4 August 1969. As amended, C.A. No. 142 now reads: Section 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was registered at birth in the office of the local civil registry or with which he was baptized for the first time, or in case of an alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons whose births have not been registered in any local civil registry and who have not been baptized, have one year from the approval of this act within which to register their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames. Sec. 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the persons baptismal and family name and the name recorded in the civil registry, if different, his immigrants name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the desired alias. The judicial authority for the use of alias, the christian name and the alien immigrants name shall be recorded in the proper local civil registry, and no person shall use any name or names other than his original or real name unless the same is or are duly recorded in the proper local civil registry.

The objective and purpose of C. A. No. 142 have their origin and basis in Act No. 3883, An Act to Regulate the Use in Business Transactions of Names other than True Names, Prescribing the Duties of the Director of the Bureau of Commerce And Industry in its Enforcement, Providing Penalties for Violations thereof, and for other purposes, which was approved on 14 November 1931 and amended by Act No. 4147, approved on 28 November 1934.[8] The pertinent provisions of Act No. 3883 as amended follow Section 1. It shall be unlawful for any person to use or sign, on any written or printed receipt including receipt for tax or business or any written or printed contract not verified by a notary public or on any written or printed evidence of any agreement or business transactions, any name used in connection with his business other than his true name, or keep conspicuously exhibited in plain view in or at the place where his business is conducted, if he is engaged in a business, any sign announcing a firm name or business name or style without first registering such other name, or such firm name, or business name or style in the Bureau of Commerce together with his true name and that of any other person having a joint or common interest with him in such contract agreement, business transaction, or business x x x. For a bit of history, the enactment of C.A. No. 142 as amended was made primarily to curb the common practice among the Chinese of adopting scores of different names andaliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons could not be successfully maintained against the Chinese who, rightly or wrongly, claimed they possessed a thousand and one names. CA. No. 142 thus penalized the act of using an alias name, unless such alias was duly authorized by proper judicial proceedings and recorded in the civil register.[9] In Yu Kheng Chiau v. Republic[10] the Court had occasion to explain the meaning, concept and ill effects of the use of an alias within the purview of C.A. No. 142 when we ruled There can hardly be any doubt that petitioners use of alias Kheng Chiau Young in addition to his real name Yu Cheng Chiau would add to more confusion. That he is known in his business, as manager of the Robert Reid, Inc., by the former name, is not sufficient reason to allow him its use. After all, petitioner admitted that he is known to his associates by both names. In fact, the Anselmo Trinidad, Inc., of which he is a customer, knows him by his real name. Neither would the fact that he had encountered certain difficulties in his transactions with government offices which required him to explain why he bore two names, justify the grant of his petition, for petitioner could easily avoid said difficulties by simply using and sticking only to his real name Yu Cheng Chiau. The fact that petitioner intends to reside permanently in the Philippines, as shown by his having filed a petition for naturalization in Branch V of the abovementioned court, argues the more against the grant of his petition, because if naturalized as a Filipino citizen, there would then be no necessity for his further using said alias, as it would be contrary to the usual Filipino way and practice of using only one name in ordinary as well as business transactions. And, as the lower court correctly observed, if he believes (after he is naturalized) that it would be better for him to write his name following the Occidental method, he can easily file a petition for change of name, so that in lieu of the name Yu Kheng Chian, he can, abandoning the same, ask for authority to adopt the name Kheng Chiau Young. All things considered, we are of the opinion and so hold, that petitioner has not shown satisfactory proper and reasonable grounds under the aforequoted provisions of

Commonwealth Act No. 142 and the Rules of Court, to warrant the grant of his petition for the use of an alias name. Clearly therefore an alias is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is registered at birth or baptized the first time or substitute name authorized by a competent authority. A mans name is simply the sound or sounds by which he is commonly designated by his fellows and by which they distinguish him but sometimes a man is known by several different names and these are known as aliases.[11] Hence, the use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. This is so in the case at bench. It is not disputed that petitioner introduced himself in the Office of the Ombudsman as Oscar Perez, which was the name of the messenger of his lawyer who should have brought the letter to that office in the first place instead of petitioner. He did so while merely serving the request of his lawyer to obtain a copy of the complaint in which petitioner was a respondent. There is no question then that Oscar Perez is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name. The use of the name Oscar Perez was made by petitioner in an isolated transaction where he was not even legally required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of public records hence open to inspection and examination by anyone under the proper circumstances. While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 as amended under which he is prosecuted. The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences.[12] Moreover, as C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused.[13] The reason for this principle is the tenderness of the law for the rights of individuals and the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited.[14]Indeed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him. WHEREFORE, the questioned decision of the Court of Appeals affirming that of the Regional Trial Court of Davao City is REVERSED and SET ASIDE and petitioner CESARIO URSUA is ACQUITTED of the crime charged. SO ORDERED. Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

EN BANC [G.R. No. 94723. August 21, 1997] KAREN E. SALVACION, minor, thru Federico N. Salvacion, Jr., father and Natural Guardian, and Spouses FEDERICO N. SALVACION, JR., and EVELINA E. SALVACION, petitioners, vs. CENTRAL BANK OF THE PHILIPPINES, CHINA BANKING CORPORATION and GREG BARTELLI y NORTHCOTT, respondents. DECISION TORRES, JR., J.: In our predisposition to discover the original intent of a statute, courts become the unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of tune and irrelevant to our day. The petition is for declaratory relief. It prays for the following reliefs: a.) Immediately upon the filing of this petition, an Order be issued restraining the respondents from applying and enforcing Section 113 of Central Bank Circular No. 960; b.) After hearing, judgment be rendered: 1.) Declaring the respective rights and duties of petitioners and respondents; 2.) Adjudging Section 113 of Central Bank Circular No. 960 as contrary to the provision of the Constitution, hence void; because its provision that Foreign currency deposits shall be exempt from attachment, garnishment, or any other order to process of any court, legislative body, government agency or any administrative body whatsoever i.) has taken away the right of petitioners to have the bank deposit of defendant Greg Bartelli y Northcott garnished to satisfy the judgment rendered in petitioners favor in violation of substantive due process guaranteed by the Constitution; ii.) has given foreign currency depositors an undue favor or a class privilege in violation of the equal protection clause of the Constitution; iii.) has provided a safe haven for criminals like the herein respondent Greg Bartelli y Northcott since criminals could escape civil liability for their wrongful acts by merely converting their money to a foreign currency and depositing it in a foreign currency deposit account with an authorized bank. The antecedents facts:

On February 4, 1989, Greg Bartelli y Northcott, an American tourist, coaxed and lured petitioner Karen Salvacion, then 12 years old to go with him to his apartment. Therein, Greg Bartelli detained Karen Salvacion for four days, or up to February 7, 1989 and was able to rape the child once on February 4, and three times each day on February 5, 6, and 7, 1989. On February 7, 1989, after policemen and people living nearby, rescued Karen, Greg Bartelli was arrested and detained at the Makati Municipal Jail. The policemen recovered from Bartelli the following items: 1.) Dollar Check No. 368, Control No. 021000678-1166111303, US 3,903.20; 2.) COCOBANK Bank Book No. 104-108758-8 (Peso Acct.); 3.) Dollar Account China Banking Corp., US $/A#54105028-2; 4.) ID-122-30-8877; 5.) Philippine Money (P234.00) cash; 6.) Door Keys 6 pieces; 7.) Stuffed Doll (Teddy Bear) used in seducing the complainant. On February 16, 1989, Makati Investigating Fiscal Edwin G. Condaya filed against Greg Bartelli, Criminal Case No. 801 for Serious Illegal Detention and Criminal Cases Nos. 802, 803, 804, and 805 for four (4) counts of Rape. On the same day, petitioners filed with the Regional Trial Court of Makati Civil Case No. 89-3214 for damages with preliminary attachment against Greg Bartelli. On February 24, 1989, the day there was a scheduled hearing for Bartellis petition for bail the latter escaped from jail. On February 28, 1989, the court granted the fiscals Urgent Ex-Parte Motion for the Issuance of Warrant of Arrest and Hold Departure Order. Pending the arrest of the accused Greg Bartelli y Northcott, the criminal cases were archived in an Order dated February 28, 1989. Meanwhile, in Civil Case No. 89-3214, the Judge issued an Order dated February 22, 1989 granting the application of herein petitioners, for the issuance of the writ of preliminary attachment. After petitioners gave Bond No. JCL (4) 1981 by FGU Insurance Corporation in the amount P100,000.00, a Writ of Preliminary Attachment was issued by the trial court on February 28, 1989. On March 1, 1989, the Deputy Sheriff of Makati served a Notice of Garnishment on China Banking Corporation. In a letter dated March 13, 1989 to the Deputy Sheriff of Makati, China Banking Corporation invoked Republic Act No. 1405 as its answer to the notice of garnishment served on it. On March 15, 1989, Deputy Sheriff of Makati Armando de Guzman sent his reply to China Banking Corporation saying that the garnishment did not violate the secrecy of bank deposits since the disclosure is merely incidental to a garnishment properly and legally made by virtue of a court order which has placed the subject deposits in custodia legis. In answer to this letter of the Deputy Sheriff of Makati, China Banking Corporation, in a letter dated March 20, 1989, invoked Section 113 of Central Bank Circular No. 960 to the effect that the dollar deposits of defendant Greg Bartelli are exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body, whatsoever. This prompted the counsel for petitioners to make an inquiry with the Central Bank in a letter dated April 25, 1989 on whether Section 113 of CB Circular No. 960 has any exception or whether said section has been repealed or amended since said section has rendered nugatory the substantive right of the plaintiff to have the claim sought to be enforced by the civil action secured by way of the writ of preliminary attachment as

granted to the plaintiff under Rule 57 of the Revised Rules of Court. The Central Bank responded as follows: May 26, 1989 Ms. Erlinda S. Carolino 12 Pres. Osmea Avenue South Admiral Village Paranaque, Metro Manila Dear Ms. Carolino: This is in reply to your letter dated April 25, 1989 regarding your inquiry on Section 113, CB Circular No. 960 (1983). The cited provision is absolute in application. It does not admit of any exception, nor has the same been repealed nor amended. The purpose of the law is to encourage dollar accounts within the countrys banking system which would help in the development of the economy. There is no intention to render futile the basic rights of a person as was suggested in your subject letter. The law may be harsh as some perceive it, but it is still the law. Compliance is, therefore, enjoined. Very truly yours, (SGD) AGAPITO S. FAJARDO D irector[1] Meanwhile, on April 10, 1989, the trial court granted petitioners motion for leave to serve summons by publication in the Civil Case No. 89-3214 entitled Karen Salvacion. et al. vs. Greg Bartelli y Northcott. Summons with the complaint was published in the Manila Times once a week for three consecutive weeks. Greg Bartelli failed to file his answer to the complaint and was declared in default on August 7, 1989. After hearing the case ex-parte, the court rendered judgment in favor of petitioners on March 29, 1990, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against defendant, ordering the latter: 1. To pay plaintiff Karen E. Salvacion the amount of P500,000.00 as moral damages; 2. To pay her parents, plaintiffs spouses Federico N. Salvacion, Jr., and Evelina E. Salvacion the amount of P150,000.00 each or a total of P300,000.00 for both of them; 3. To pay plaintiffs exemplary damages of P100,000.00; and

4. To pay attorneys fees in an amount equivalent to 25% of the total amount of damages herein awarded; 5. To pay litigation expenses of P10,000.00; plus 6. Costs of the suit. SO ORDERED. The heinous acts of respondents Greg Bartelli which gave rise to the award were related in graphic detail by the trial court in its decision as follows: The defendant in this case was originally detained in the municipal jail of Makati but was able to escape therefrom on February 24, 1989 as per report of the Jail Warden of Makati to the Presiding Judge, Honorable Manuel M. Cosico of the Regional Trial Court of Makati, Branch 136, where he was charged with four counts of Rape and Serious Illegal Detention (Crim. Cases Nos. 802 to 805). Accordingly, upon motion of plaintiffs, through counsel, summons was served upon defendant by publication in the Manila Times, a newspaper of general circulation as attested by the Advertising Manager of the Metro Media Times, Inc., the publisher of the said newspaper. Defendant, however, failed to file his answer to the complaint despite the lapse of the period of sixty (60) days from the last publication; hence, upon motion of the plaintiffs through counsel, defendant was declared in default and plaintiffs were authorized to present their evidence ex parte. In support of the complaint, plaintiffs presented as witness the minor Karen E. Salvacion, her father, Federico N. Salacion, Jr., a certain Joseph Aguilar and a certain Liberato Mandulio, who gave the following testimony: Karen took her first year high school in St. Marys Academy in Pasay City but has recently transferred to Arellano University for her second year. In the afternoon of February 4, 1989, Karen was at the Plaza Fair Makati Cinema Square, with her friend Edna Tangile whiling away her free time. At about 3:30 p.m. while she was finishing her snack on a concrete bench in front of Plaza Fair, an American approached her. She was then alone because Edna Tangile had already left, and she was about to go home. (TSN, Aug. 15, 1989, pp. 2 to 5) The American asked her name and introduced himself as Greg Bartelli. He sat beside her when he talked to her. He said he was a Math teacher and told her that he has a sister who is a nurse in New York. His sister allegedly has a daughter who is about Karens age and who was with him in his house along Kalayaan Avenue. (TSN, Aug. 15, 1989, pp. 45). The American asked Karen what was her favorite subject and she told him its Pilipino. He then invited her to go with him to his house where she could teach Pilipino to his niece. He even gave her a stuffed toy to persuade her to teach his niece. (Id., pp.56)

They walked from Plaza Fair along Pasong Tamo, turning right to reach the defendants house along Kalayaan Avenue. (Id., p.6) When they reached the apartment house, Karen notices that defendants alleged niece was not outside the house but defendant told her maybe his niece was inside. When Karen did not see the alleged niece inside the house, defendant told her maybe his niece was upstairs, and invited Karen to go upstairs. (Id., p. 7) Upon entering the bedroom defendant suddenly locked the door. Karen became nervous because his niece was not there. Defendant got a piece of cotton cord and tied Karens hands with it, and then he undressed her. Karen cried for help but defendant strangled her. He took a packing tape and he covered her mouth with it and he circled it around her head. (Id., p. 7) Then, defendant suddenly pushed Karen towards the bed which was just near the door. He tied her feet and hands spread apart to the bed posts. He knelt in front of her and inserted his finger in her sex organ. She felt severe pain. She tried to shout but no sound could come out because there were tapes on her mouth. When defendant withdrew his finger it was full of blood and Karen felt more pain after the withdrawal of the finger. (Id., p.8) He then got a Johnsons Baby Oil and he applied it to his sex organ as well as to her sex organ. After that he forced his sex organ into her but he was not able to do so. While he was doing it, Karen found it difficult to breathe and she perspired a lot while feeling severe pain. She merely presumed that he was able to insert his sex organ a little, because she could not see. Karen could not recall how long the defendant was in that position. (Id., pp. 8-9) After that, he stood up and went to the bathroom to wash. He also told Karen to take a shower and he untied her hands. Karen could only hear the sound of the water while the defendant, she presumed, was in the bathroom washing his sex organ. When she took a shower more blood came out from her. In the meantime, defendant changed the mattress because it was full of blood. After the shower, Karen was allowed by defendant to sleep. She fell asleep because she got tired crying. The incident happened at about 4:00 p.m. Karen had no way of determining the exact time because defendant removed her watch. Defendant did not care to give her food before she went to sleep. Karen woke up at about 8:00 oclock the following morning. (Id., pp. 9-10) The following day, February 5, 1989, a Sunday, after breakfast of biscuit and coke at about 8:30 to 9:00 a.m. defendant raped Karen while she was still bleeding. For lunch, they also took biscuit and coke. She was raped for the second time at about 12:00 to 2:00 p.m. In the evening, they had rice for dinner which defendant had stored downstairs; it was he who cooked the rice that is why it looks like lugaw. For the third time, Karen was raped again during the night. During those three times defendant succeeded in inserting his sex organ but she could not say whether the organ was inserted wholly.

Karen did not see any firearm or any bladed weapon. The defendant did not tie her hands and feet nor put a tape on her mouth anymore but she did not cry for help for fear that she might be killed; besides, all those windows and doors were closed. And even if she shouted for help, nobody would hear her. She was so afraid that if somebody would hear her and would be able to call a police, it was still possible that as she was still inside the house, defendant might kill her. Besides, the defendant did not leave that Sunday, ruling out her chance to call for help. At nighttime he slept with her again. (TSN, Aug. 15, 1989, pp. 12-14) On February 6, 1989, Monday, Karen was raped three times, once in the morning for thirty minutes after breakfast of biscuits; again in the afternoon; and again in the evening. At first, Karen did not know that there was a window because everything was covered by a carpet, until defendant opened the window for around fifteen minutes or less to let some air in, and she found that the window was covered by styrofoam and plywood. After that, he again closed the window with a hammer and he put the styrofoam, plywood, and carpet back. (Id., pp. 14-15) That Monday evening, Karen had a chance to call for help, although defendant left but kept the door closed. She went to the bathroom and saw a small window covered by styrofoam and she also spotted a small hole. She stepped on the bowl and she cried for help through the hole. She cried: Maawa na po kayo sa akin. Tulungan nyo akong makalabas dito. Kinidnap ako! Somebody heard her. It was a woman, probably a neighbor, but she got angry and said she was istorbo. Karen pleaded for help and the woman told her to sleep and she will call the police. She finally fell asleep but no policeman came. (TSN, Aug. 15, 1989, pp. 15-16) She woke up at 6:00 oclock the following morning, and she saw defendant in bed, this time sleeping. She waited for him to wake up. When he woke up, he again got some food but he always kept the door locked. As usual, she was merely fed with biscuit and coke. On that day, February 7, 1989, she was again raped three times. The first at about 6:30 to 7:00 a.m., the second at about 8:30 9:00, and the third was after lunch at 12:00 noon. After he had raped her for the second time he left but only for a short while. Upon his return, he caught her shouting for help but he did not understand what she was shouting about. After she was raped the third time, he left the house. (TSN, Aug. 15, 1989, pp. 16-17) She again went to the bathroom and shouted for help. After shouting for about five minutes, she heard many voices. The voices were asking for her name and she gave her name as Karen Salvacion. After a while, she heard a voice of a woman saying they will just call the police. They were also telling her to change her clothes. She went from the bathroom to the room but she did not change her clothes being afraid that should the neighbors call the police and the defendant see her in different clothes, he might kill her. At that time she was wearing a T-shirt of the American bacause the latter washed her dress. (Id., p. 16) Afterwards, defendant arrived and opened the door. He asked her if she had asked for help because there were many policemen outside and she denied it. He told her to change her clothes, and she did change to the one she was wearing on Saturday. He instructed her to tell the police that she left home and willingly; then he went downstairs but he

locked the door. She could hear people conversing but she could not understand what they were saying. (Id., p. 19) When she heard the voices of many people who were conversing downstairs, she knocked repeatedly at the door as hard as she could. She heard somebody going upstairs and when the door was opened, she saw a policeman. The policeman asked her name and the reason why she was there. She told him she was kidnapped. Downstairs, he saw about five policemen in uniform and the defendant was talking to them. Nakikipagareglo po sa mga pulis, Karen added. The policeman told him to just explain at the precinct. (Id., p. 20) They went out of the house and she saw some of her neighbors in front of the house. They rode the car of a certain person she called Kuya Boy together with defendant, the policeman, and two of her neighbors whom she called Kuya Bong Lacson and one Ate Nita. They were brought to Sub-Station I and there she was investigated by a policeman. At about 2:00 a.m., her father arrived, followed by her mother together with some of their neighbors. Then they were brought to the second floor of the police headquarters. (Id., p. 21) At the headquarters, she was asked several questions by the investigator. The written statement she gave to the police was marked Exhibit A. Then they proceeded to the National Bureau of Investigation together with the investigator and her parents. At the NBI, a doctor, a medico-legal officer, examined her private parts. It was already 3:00 in early morning, of the following day when they reached the NBI, (TSN, Aug. 15, 1989, p. 22) The findings of the medico-legal officer has been marked as Exhibit B. She was studying at the St. Marys Academy in Pasay City at the time of the Incident but she subsequently transferred to Apolinario Mabini, Arellano University, situated along Taft Avenue, because she was ashamed to be the subject of conversation in the school. She first applied for transfer to Jose Abad Santos, Arellano University along Taft Avenue near the Light Rail Transit Station but she was denied admission after she told the school the true reason for her transfer. The reason for their denial was that they might be implicated in the case. (TSN, Aug. 15, 1989, p. 46) xxx xxx xxx

Bartellis dollar deposit with China Banking Corporation. Likewise, the bank invoked Section 113 of Central Bank Circular No. 960. Thus, petitioners decided to seek relief from this Court. The issues raised and the arguments articulated by the parties boil down to two: May this Court entertain the instant petition despite the fact that original jurisdiction in petitions for declaratory relief rests with the lower court? She Section 113 of Central Bank Circular No. 960 and Section 8 of R.A. 6426, as amended by P.D. 1246, otherwise known as the Foreign Currency Deposit Act be made applicable to a foreign transient? Petitioners aver as heretofore stated that Section 113 of Central Bank Circular No. 960 providing that Foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. should be adjudged as unconstitutional on the grounds that: 1.) it has taken away the right of petitioners to have the bank deposit of defendant Greg Bartelli y Northcott garnished to satisfy the judgment rendered in petitioners favor in violation of substantive due process guaranteed by the Constitution; 2.) it has given foreign currency depositors an undue favor or a class privilege n violation of the equal protection clause of the Constitution; 3.) it has provided a safe haven for criminals like the herein respondent Greg Bartelli y Northcott since criminal could escape civil liability for their wrongful acts by merely converting their money to a foreign currency and depositing it in a foreign currency deposit account with an authorized bank; and 4.) The Monetary Board, in issuing Section 113 of Central Bank Circular No. 960 has exceeded its delegated quasi- legislative power when it took away: a.) the plaintiffs substantive right to have the claim sought to be enforced by the civil action secured by way of the writ of preliminary attachment as granted by Rule 57 of the Revised Rules of Court; b.) the plaintiffs substantive right to have the judgment credit satisfied by way of the writ of execution out of the bank deposit of the judgment debtor as granted to the judgment creditor by Rule 39 of the Revised Rules of Court, which is beyond its power to do so. On the other hand, respondent Central Bank, in its Comment alleges that the Monetary Board in issuing Section 113 of CB Circular No. 960 did not exceed its power or authority because the subject Section is copied verbatim from a portion of R.A. No. 6426 as amended by P.D. 1246. Hence, it was not the Monetary Board that grants exemption from attachment or garnishment to foreign currency deposits, but the law (R.A. 6426 as amended) itself; that it does not violate the substantive due process guaranteed by the Constitution because a.) it was based on a law; b.) the law seems to be reasonable; c.) it is enforced according to regular methods of procedure; and d.) it applies to all members of a class. Expanding, the Central Bank said; that one reason for exempting the foreign currency deposits from attachment, garnishment or any other order process of any court, is to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines; that another reason is to encourage the inflow of foreign currency deposits into the banking institutions thereby placing such institutions more in a position to properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country; that the subject section is being enforced according to the regular methods of procedure;

After the incident, Karen has changed a lot. She does not play with her brother and sister anymore, and she is always in a state of shock; she has been absent-minded and is ashamed even to go out of the house. (TSN, Sept. 12, 1989, p. 10) She appears to be restless or sad. (Id., p. 11) The father prays for P500,000.00 moral damages for Karen for this shocking experience which probably, she would always recall until she reaches old age, and he is not sure if she could ever recover from this experience. (TSN, Sept. 24, 1989, pp. 10-11) Pursuant to an Order granting leave to publish notice of decision, said notice was published in the Manila Bulletin once a week for three consecutive weeks. After the lapse of fifteen (15) days from the date of the last publication of the notice of judgment and the decision of the trial court had become final, petitioners tried to execute on

and that it applies to all currency deposits made by any person and therefore does not violate the equal protection clause of the Constitution. Respondent Central Bank further avers that the questioned provision is needed to promote the public interest and the general welfare; that the State cannot just stand idly by while a considerable segment of the society suffers from economic distress; that the State had to take some measures to encourage economic development; and that in so doing persons and property may be subjected to some kinds of restraints or burdens to secure the general welfare or public interest. Respondent Central Bank also alleges that Rule 39 and Rule 57 of the Revised Rules of Court provide that some properties are exempted from execution/attachment especially provided by law and R.A. No. 6426 as amended is such a law, in that it specifically provides, among others, that foreign currency deposits shall be exempted from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. For its part, respondent China Banking Corporation, aside from giving reasons similar to that of respondent Central Bank, also stated that respondent China Bank is not unmindful of the inhuman sufferings experienced by the minor Karen E. Salvacion from the beastly hands of Greg Bartelli; that it is not only too willing to release the dollar deposit of Bartelli which may perhaps partly mitigate the sufferings petitioner has undergone; but it is restrained from doing so in view of R.A. No. 6426 and Section 113 of Central Bank Circular No. 960; and that despite the harsh effect to these laws on petitioners, CBC has no other alternative but to follow the same. This court finds the petition to be partly meritorious. Petitioner deserves to receive the damages awarded to her by the court. But this petition for declaratory relief can only be entertained and treated as a petition for mandamus to require respondents to honor and comply with the writ of execution in Civil Case No. 89-3214. The Court has no original and exclusive jurisdiction over a petition for declatory relief.[2] However, exceptions to this rule have been recognized. Thus, where the petition has far-reaching implications and raises questions that should be resolved, it may be treated as one for mandamus.[3] Here is a child, a 12-year old girl, who in her belief that all Americans are good and in her gesture of kindness by teaching his alleged niece the Filipino language as requested by the American, trustingly went with said stranger to his apartment, and there she was raped by said American tourist Greg Bartelli. Not once, but ten times. She was detained therein for four (4) days. This American tourist was able to escape from the jail and avoid punishment. On the other hand, the child, having received a favorable judgment in the Civil Case for damages in the amount of more than P1,000,000.00, which amount could alleviate the humiliation, anxiety, and besmirched reputation she had suffered and may continue to suffer for a long, long time; and knowing that this person who had wronged her has the money, could not, however get the award of damages because of this unreasonable law. This questioned law, therefore makes futile the favorable judgment and award of damages that she and her parents fully deserve. As stated by the trial court in its decision,

Indeed, after hearing the testimony of Karen, the Court believes that it was indoubtedly a shocking and traumatic experience she had undergone which could haunt her mind for a long, long time, the mere recall of which could make her feel so humiliated, as in fact she had been actually humiliated once when she was refused admission at the Abad Santos High School, Arellano University, where she sought to transfer from another school, simply because the school authorities of the said High School learned about what happened to her and allegedly feared that they might be implicated in the case. xxx The reason for imposing exemplary or corrective damages is due to the wanton and bestial manner defendant had committed the acts of rape during a period of serious illegal detention of his hapless victim, the minor Karen Salvacion whose only fault was in her being so naive and credulous to believe easily that defendant, an American national, could not have such a bestial desire on her nor capable of committing such heinous crime. Being only 12 years old when that unfortunate incident happened, she has never heard of an old Filipino adage that in every forest there is a snake, xxx.[4] If Karens sad fate had happened to anybodys own kin, it would be difficult for him to fathom how the incentive for foreign currency deposit could be more important than his childs right to said award of damages; in this case, the victims claim for damages from this alien who had the gall to wrong a child of tender years of a country where he is mere visitor. This further illustrates the flaw in the questioned provisions. It is worth mentioning that R.A. No. 6426 was enacted in 1983 or at a time when the countrys economy was in a shambles; when foreign investments were minimal and presumably, this was the reason why said statute was enacted. But the realities of the present times show that the country has recovered economically; and even if not, the questioned law still denies those entitled to due process of law for being unreasonable and oppressive. The intention of the questioned law may be good when enacted. The law failed to anticipate the inquitous effects producing outright injustice and inequality such as as the case before us. It has thus been said thatBut I also know,[5] that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths are disclosed and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. In his comment, the Solicitor General correctly opined, thus: "The present petition has far-reaching implications on the right of a national to obtain redress for a wrong committed by an alien who takes refuge under a law and regulation promulgated for a purpose which does not contemplate the application thereof envisaged by the allien. More specifically, the petition raises the question whether the protection against attachment, garnishment or

other court process accorded to foreign currency deposits PD No. 1246 and CB Circular No. 960 applies when the deposit does not come from a lender or investor but from a mere transient who is not expected to maintain the deposit in the bank for long. The resolution of this question is important for the protection of nationals who are victimized in the forum by foreigners who are merely passing through. xxx xxx Respondents China Banking Corporation and Central Bank of the Philippines refused to honor the writ of execution issued in Civil Case No. 893214 on the strength of the following provision of Central Bank Circular No. 960: Sec. 113 Exemption from attachment. Foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. Central Bank Circular No. 960 was issued pursuant to Section 7 of Republic Act No. 6426: Sec. 7. Rules and Regulations. The Monetary Board of the Central Bank shall promulgate such rules and regulations as may be necessary to carry out the provisions of this Act which shall take effect after the publication of such rules and regulations in the Official Gazette and in a newspaper of national circulation for at least once a week for three consecutive weeks. In case the Central Bank promulgates new rules and regulations decreasing the rights of depositors, the rules and regulations at the time the deposit was made shall govern. The aforecited Section 113 was copied from Section 8 of Republic Act No. 6426. As amended by P.D. 1246, thus: Sec. 8. Secrecy of Foreign Currency Deposits. -- All foreign currency deposits authorized under this Act, as amended by Presidential Decree No. 1035, as well as foreign currency deposits authorized under Presidential Decree No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall such foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative or any other entity whether public or private: Provided, however, that said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever.

The purpose of PD 1246 in according protection against attachment, garnishment and other court process to foreign currency deposits is stated in its whereases, viz.: WHEREAS, under Republic Act No. 6426, as amended by Presidential Decree No. 1035, certain Philippine banking institutions and branches of foreign banks are authorized to accept deposits in foreign currency; WHEREAS, under provisions of Presidential Decree No. 1034 authorizing the establishment of an offshore banking system in the Philippines, offshore banking units are also authorized to receive foreign currency deposits in certain cases; WHEREAS, in order to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines, certain incentives were provided for under the two Systems such as confidentiality subject to certain exceptions and tax exemptions on the interest income of depositors who are nonresidents and are not engaged in trade or business in the Philippines; WHEREAS, making absolute the protective cloak of confidentiality over such foreign currency deposits, exempting such deposits from tax, and guaranteeing the vested right of depositors would better encourage the inflow of foreign currency deposits into the banking institutions authorized to accept such deposits in the Philippines thereby placing such institutions more in a position to properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country; Thus, one of the principal purposes of the protection accorded to foreign currency deposits is to assure the development and speedy growth of the Foreign Currency Deposit system and the Offshore Banking in the Philippines (3rd Whereas). The Offshore Banking System was established by PD No. 1034. In turn, the purposes of PD No. 1034 are as follows: WHEREAS, conditions conducive to the establishment of an offshore banking system, such as political stability, a growing economy and adequate communication facilities, among others, exist in the Philippines; WHEREAS, it is in the interest of developing countries to have as wide access as possible to the sources of capital funds for economic development; WHEREAS, an offshore banking system based in the Philippines will be advantageous and beneficial to the country by increasing our links with foreign lenders, facilitating the flow of desired

investments into the Philippines, creating employment opportunities and expertise in international finance, and contributing to the national development effort. WHEREAS, the geographical location, physical and human resources, and other positive factors provide the Philippines with the clear potential to develop as another financial center in Asia; On the other hand, the Foreign Currency Deposit system was created by PD No. 1035. Its purpose are as follows: WHEREAS, the establishment of an offshore banking system in the Philippines has been authorized under a separate decree; WHEREAS, a number of local commercial banks, as depository bank under the Foreign Currency Deposit Act (RA No. 6426), have the resources and managerial competence to more actively engage in foreign exchange transactions and participate in the grant of foreign currency loans to resident corporations and firms; WHEREAS, it is timely to expand the foreign currency lending authority of the said depository banks under RA 6426 and apply to their transactions the same taxes as would be applicable to transaction of the proposed offshore banking units; It is evident from the above [Whereas clauses] that the Offshore Banking System and the Foreign Currency Deposit System were designed to draw deposits from foreign lenders and investors (Vide second Whereas of PD No. 1034; third Whereas of PD No. 1035). It is these depositors that are induced by the two laws and given protection and incentives by them. Obviously, the foreign currency deposit made by a transient or a tourist is not the kind of deposit encourage by PD Nos. 1034 and 1035 and given incentives and protection by said laws because such depositor stays only for a few days in the country and, therefore, will maintain his deposit in the bank only for a short time. Respondent Greg Bartelli, as stated, is just a tourist or a transient. He deposited his dollars with respondent China Banking Corporation only for safekeeping during his temporary stay in the Philippines. For the reasons stated above, the Solicitor General thus submits th at the dollar deposit of respondent Greg Bartelli is not entitled to the protection of Section 113 of Central Bank Circular No. 960 and PD No. 1246 against attachment, garnishment or other court processes.[6] In fine, the application of the law depends on the extent of its justice. Eventually, if we rule that the questioned Section 113 of Central Bank Circular No. 960 which exempts from attachment, garnishment, or any other order or process of any court. Legislative body, government agency or any administrative body whatsoever, is applicable to a foreign transient, injustice would result especially to a citizen aggrieved by a foreign guest like accused Greg Bartelli. This would negate Article 10 of the New Civil Code

which provides that in case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail . Ninguno non deue enriquecerse tortizerzmente con damo de otro. Simply stated, when the statute is silent or ambiguous, this is one of those fundamental solutions that would respond to the vehement urge of conscience. (Padilla vs. Padilla, 74 Phil. 377) It would be unthinkable, that the questioned Section 113 of Central Bank No. 960 would be used as a device by accused Greg Bartelli for wrongdoing, and in so doing, acquitting the guilty at the expense of the innocent. Call it what it may but is there no conflict of legal policy here? Dollar against Peso? Upholding the final and executory judgment of the lower court against the Central Bank Circular protecting the foreign depositor? Shielding or protecting the dollar deposit of a transient alien depositor against injustice to a national and victim of a crime? This situation calls for fairness legal tyranny. We definitely cannot have both ways and rest in the belief that we have served the ends of justice. IN VIEW WHEREOF, the provisions of Section 113 of CB Circular No. 960 and PD No. 1246, insofar as it amends Section 8 of R.A. 6426 are hereby held to be INAPPLICABLE to this case because of its peculiar circumstances. Respondents are hereby REQUIRED to COMPLY with the writ of execution issued in Civil Case No. 893214, Karen Salvacion, et al. vs. Greg Bartelli y Northcott, by Branch CXLIV, RTC Makati and to RELEASE to petitioners the dollar deposit of respondent Greg Bartelli y Northcott in such amount as would satisfy the judgment. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, and Panganiban, JJ., concur. Padilla, J., no part. Mendoza, and Hermosisima, Jr., JJ., on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-4606 May 30, 1952

4. Four days afterwards, Emma Imperial addressed a letter to the Board of Judges protesting the verdict, and alleging that one of the Judges had committed a mathematical mistake, resulting in her second place only, instead of the first, which she therefore claimed. 5. Upon refusal of the Board to amend their award, she filed a complaint in the court of first instance. 6. At the contest the five judges were each furnished a blank form wherein he give the participants grades according to his estimate of their abilities, giving number 1 to the best, number 2 to the second best etc., down to number 8. Then the grades were added, and the contestant receiving the lowest number got first prize, the next second prize, etc. 7. The sums for the first four winners were: Nosce 10; Imperial 10; Benevides 17, General 17, the Board of judges having voted as follows: Judge Felipe Sr. ......... Obias .............. Rodriguez .......... Prado .............. Moll ............... Nosce 3 1 1 3 2 10 Imperial 1 2 4 2 1 10 Buenavides General 2 4 5 1 5 17 4 3 3 3 4 17

RAMON B. FELIPE, SR., as Chairman, Board of Judges, petitioner, vs. HON. JOSE N. LEUTERIO, Judge, Court of First Instance of Camarines Sur, EMMA IMPERIAL, represented by her guardian-ad-litem JUSTO V. IMPERIAL, and SOUTHERN LUZON COLLEGE,respondents. Ramon Felipe, Jr., and L. B. Karingal for petitioner. Ezequiel S. Grageda and Victoriano Yamson for respondents Judge Leuterio and Emma Imperial. Padilla and San Juan for respondent Southern Luzon College. BENGZON, J.: Statement of the case. The issue in the litigation is whether the courts have the authority to reverse the award of the board of judges of an oratorical competition. In an oratorical contest held in Naga, Camarines Sur, first honor was given by the board of five judges to Nestor Nosce, and second honor to Emma Imperial. Six days later, Emma asked the court of the first instance of that province to reversed that award, alleging that one of the judges had fallen to error in grading her performance. After a hearing, and over the objection of the other four judges of the contest, the court declared Emma Imperial winner of the first place. Hence this special civil action challenging the court's power to modify the board's verdict. The facts. There is no dispute about the facts: 1. On March 12, 1950 a benefit inter-collegiate oratorical contest was held in Naga City. The contestants were eight, among them Nestor Nosce, Emma Imperial, and Luis General, Jr. 2. There were five judges of the competition, the petitioner Ramon B. Felipe, Sr. being the Chairman. 3. After the orators had delivered their respective pieces, and after the judges had expressed their votes, the Chairman publicly announced their decision awarding first price to Nestor Nosce, second price to Emma Imperial, third price to Menandro Benavides and fourth place to Luis General, Jr.

8. It appearing that Nestor Nosce and Emma Imperial had tied for the first place, the Chairman, apparently with the consent of the board, broke the tie awarding first honors to Nosce and second honors to Imperial. 9. For the convenience of the judges the typewritten forms contained blank spaces in which, after the names of the rival orators and their respective orations, the judge could not jot down the grades he thought the contestants deserved according to "Originality", "Timeliness", "English", "Stage Personality", "Pronunciation and Enunciation" and "Voice". From such data he made up his vote. 10. It was discovered later that the form filed by Delfin Rodriguez, one of the Judges, gave Imperial and General the following ratings under the above headings; Imperial 1915-15-18-14-14 Total 94-Place 4th General 19-15-15 or 14-19-14-14 Total 95-Place 3rd. 11. Imperial asserts that her total should be 95 instead of 94 and therefore should rank 3rd place in Rodriguez' vote. And if she got 3 from Rodriguez, her total vote should have been 9 instead of ten, with the result that she copped first place in the speaking joust. 12. Rodriguez testified that he made a mistake in adding up Imperial's ratings; that she should have been given a total of 95, or placed No. 3, the same as General; that he was

not disposed to break the tie between her and General and insisted that he wanted to give rank 3 to Imperial and rank 3 also to General. Discussion. Although it would seem anomalous for one judge to give the same rank to two contestants, we will concede for the moment that Delfin Rodriguez could have given 3 to Imperial to General. However if deductions are to be made from his recorded vote (Exhibit 3) one may infer that after the contest and before submitting his vote he decided to give General an edge over Imperial. How? Under the caption "English" General was given by himself at first "14", later increased to "15". Evidently because after he had added the ratings of Imperial and (erroneously) reached the sum of 94, he added the ratings of General (which were the same as Imperial with 14 under "English") and (mistakenly) reached 94 also. So what did he also? He raised the 14 to 15 and thus gave general 95 to place him over Imperial's 94. (Mistakingly again, because with 15 General got 96 instead of 95). But to us the important thing is Rodriguez' vote during and immediately after the affair. His vote in Exhibit 3 definitely gave General place No. 3 and Imperial place No. 4. His calculations recorded on Exhibit 3 were not material. In fact the Chairman did not bother to fill out the blank spaces in his own form, and merely set down his conclusions giving one to Imperial, 2 to Benavides etc. without specifying the ratings for "Voice", "English", "Stage Personality" etc. In other words what counted was the vote. Probably for the above reasons the board refused to "correct" the alleged error. The situation then is this: Days after a contest has been conducted and the winners announced, one of the judges confesses he made a mistake, that the ratings he gave the second place winner should have been such as would entitle her to first place. The other judges refuse to alter their verdict. May the matter be brought to the court to obtain a new award, reversing the decision of the board of judges? For more than thirty years oratorical tilts have been held periodically by schools and colleges in these islands. Inter-collegiate oratorical competitions are of more recent origin. Members of this court have taken part in them either as contestants in their school days1, or as members of the board of judges afterwards. They know some (few) verdicts did not reflect the audience's preference and that errors have sometimes been ascribed to the award of the judges. Yet no party ever presumed to invoke judicial intervention; for it is unwritten law in such contests that the board's decision is final and unappealable. Like the ancient tournaments of the Sword, these tournaments of the Word apply the highest tenets of sportmanship: finally of the referee's verdict. No alibis, no murmurs of protest. The participants are supposed to join the competition to contribute to its success by striving their utmost: the prizes are secondary. No rights to the prizes may be asserted by the contestants, because their's was merely the privilege to compete for the prize, and that privilege did not ripen into a demandable right

unless and until they were proclaimed winners of the competition by the appointed arbiters or referees or judges. Incidentally, these school activities have been imported from the United States. We found in American jurisprudence no litigation questioning the determination of the board of judges. Now, the fact that a particular action has had no precedent during a long period affords some reason for doubting the existence of the right sought to be enforced, especially where occasion for its assertion must have often arisen; and courts are cautious before allowing it, being loath to establish a new legal principle not in harmony with the generally accepted views thereon. (See C.J.S. Vol. 1, p. 1012). We observe that in assuming jurisdiction over the matter, the respondent judge reasoned out that where there is a wrong there is a remedy and that courts of first instance are courts of general jurisdiction. The flaw in his reasoning lies in the assumption that Imperial suffered some wrong at the hands of the board of judges. If at all, there was error on the part of one judge, at most. Error and wrong do not mean the same thing. "Wrong" as used in the aforesaid legal principle is the deprivation or violation of a right. As stated before, a contestant has no right to the prize unless and until he or she is declared winner by the board of referees or judges. Granting that Imperial suffered some loss or injury, yet in law there are instances of "damnum absque injuria". This is one of them. If fraud or malice had been proven, it would be a different proposition. But then her action should be directed against the individual judge or judges who fraudulently or maliciously injured her. Not against the other judges. By the way what is here in stated must not be understood as applying to those activities which the government has chosen to regulate with the creation of the Games and Amusements Board in Executive Order No. 392, Series 1950. Judgment. In view of all the foregoing, we are of the opinion and so declare, that the judiciary has no power to reverse the award of the board of judges of an oratorical contest. For that matter it would not interfere in literary contests, beauty contests and similar competitions. Wherefore the order in controversy is hereby set aside. No costs. Paras, C.J., Pablo, Tuason, Montemayor, Bautista Angelo and Ladrador, JJ., concur. Feria, J., concurs in the result.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 115245 July 11, 1995 JUANITO C. PILAR, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

Statement of Contributions and Expenditures: Effect of Failure to File Statement. Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election. No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required. The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act. Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures as required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos ( P1,000.00) to Thirty Thousand Pesos (P30,000.00), in the discretion of the Commission. The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures. For the commission of a second or subsequent offense under this Section, the administrative fine shall be from Two Thousand Pesos (P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office (Emphasis supplied). To implement the provisions of law relative to election contributions and expenditures, the COMELEC promulgated on January 13, 1992 Resolution No. 2348 (Re: Rules and Regulations Governing Electoral Contributions and Expenditures in Connection with the National and Local Elections on May 11, 1992). The pertinent provisions of said Resolution are: Sec. 13. Statement of contributions and expenditures: Reminders to candidates to file statements. Within five (5) days from the day of the election, the Law Department of the Commission, the regional election

QUIASON, J.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing the Resolution dated April 28, 1994 of the Commission on Elections (COMELEC) in UND No. 94-040. I On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy for the position of member of the Sangguniang Panlalawigan of the Province of Isabela. On March 25, 1992, petitioner withdrew his certificate of candidacy. In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and February 13, 1994 respectively, the COMELEC imposed upon petitioner the fine of Ten Thousand Pesos (P10,000.00) for failure to file his statement of contributions and expenditures. In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied the motion for reconsideration of petitioner and deemed final M.R. Nos. 93-2654 and 94-0065 (Rollo, p. 14). Petitioner went to the COMELEC En Banc (UND No. 94-040), which denied the petition in a Resolution dated April 28, 1994 (Rollo, pp. 10-13). Hence, this petition for certiorari. We dismiss the petition. II Section 14 of R.A. No. 7166 entitled "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" provides as follows:

director of the National Capital Region, the provincial election supervisors and the election registrars shall advise in writing by personal delivery or registered mail all candidates who filed their certificates of candidacy with them to comply with their obligation to file their statements of contributions and expenditures in connection with the elections. Every election registrar shall also advise all candidates residing in his jurisdiction to comply with said obligation (Emphasis supplied). Sec. 17. Effect of failure to file statement. (a) No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required. The same prohibition shall apply if the political party which nominated the winning candidates fails to file the statement required within the period prescribed by law. (b) Except candidates for elective barangay office, failure to file statements or reports in connection with the electoral contributions and expenditures as required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos (P1,000) to Thirty Thousand Pesos (P30,000), in the discretion of the Commission. The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two Thousand Pesos (P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office. Petitioner argues that he cannot be held liable for failure to file a statement of contributions and expenditures because he was a "non-candidate," having withdrawn his certificates of candidacy three days after its filing. Petitioner posits that "it is . . . clear from the law that candidate must have entered the political contest, and should have either won or lost" (Rollo, p. 39). Petitioner's argument is without merit. Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his statement of contributions and expenditures.

Well-recognized is the rule that where the law does not distinguish, courts should not distinguish, Ubi lex non distinguit nec nos distinguere debemos (Philippine British Assurance Co. Inc. v. Intermediate Appellate Court, 150 SCRA 520 [1987]; cf Olfato v. Commission on Elections, 103 SCRA 741 [1981]). No distinction is to be made in the application of a law where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636 [1946]). In the case at bench, as the law makes no distinction or qualification as to whether the candidate pursued his candidacy or withdrew the same, the term "every candidate" must be deemed to refer not only to a candidate who pursued his campaign, but also to one who withdrew his candidacy. The COMELEC, the body tasked with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall (The Constitution of the Republic of the Philippines, Art. IX(C), Sec. 2[1]), issued Resolution No. 2348 in implementation or interpretation of the provisions of Republic Act No. 7166 on election contributions and expenditures. Section 13 of Resolution No. 2348 categorically refers to "all candidates who filed their certificates of candidacy." Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use of the word "shall" in a statute implies that the statute is mandatory, and imposes a duty which may be enforced , particularly if public policy is in favor of this meaning or where public interest is involved. We apply the general rule (Baranda v. Gustilo, 165 SCRA 757 [1988]; Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608 [1952]). The state has an interest in seeing that the electoral process is clean, and ultimately expressive of the true will of the electorate. One way of attaining such objective is to pass legislation regulating contributions and expenditures of candidates, and compelling the publication of the same. Admittedly, contributions and expenditures are made for the purpose of influencing the results of the elections (B.P. Blg. 881, Sec. 94; Resolution No. 2348, Sec. 1). Thus, laws and regulations prescribe what contributions are prohibited (B.P. Blg. 881, Sec. 95, Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg. 881, Sec. 96), and what expenditures are authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution No. 2348, Sec. 7) or lawful (Resolution No. 2348, Sec. 8). Such statutes are not peculiar to the Philippines. In "corrupt and illegal practices acts" of several states in the United States, as well as in federal statutes, expenditures of candidates are regulated by requiring the filing of statements of expenses and by limiting the amount of money that may be spent by a candidate. Some statutes also regulate the solicitation of campaign contributions (26 Am Jur 2d, Elections 287). These laws are designed to compel publicity with respect to matters contained in the statements and to prevent, by such publicity, the improper use of moneys devoted by candidates to the furtherance of their ambitions (26 Am Jur 2d, Elections 289). These statutes also enable voters to evaluate the influences exerted on behalf of candidates by the contributors, and to furnish evidence of corrupt practices for annulment of elections (Sparkman v. Saylor [Court of Appeals of Kentucky], 180 Ky. 263, 202 S.W. 649 [1918]).

State courts have also ruled that such provisions are mandatory as to the requirement of filing (State ex rel. Butchofsky v. Crawford [Court of Civil Appeals of Texas], 269 S.W. 2d 536 [1954]; Best v. Sidebottom, 270 Ky. 423,109 S.W. 2d 826 [1937]; Sparkman v. Saylor, supra.) It is not improbable that a candidate who withdrew his candidacy has accepted contributions and incurred expenditures, even in the short span of his campaign. The evil sought to be prevented by the law is not all too remote. It is notesworthy that Resolution No. 2348 even contemplates the situation where a candidate may not have received any contribution or made any expenditure. Such a candidate is not excused from filing a statement, and is in fact required to file a statement to that effect. Under Section 15 of Resolution No. 2348, it is provided that "[i]f a candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact." Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election Code of the Philippines, it is provided that "[t]he filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred." Petitioner's withdrawal of his candidacy did not extinguish his liability for the administrative fine. WHEREFORE, the petition is DISMISSED. Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Puno, Vitug, Mendoza and Francisco, JJ., concur. Kapunan, J., is on leave. Separate Opinions

our election (Santos vs. Miranda, 35 Phil. 643, 648 (1916) citing State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84) Certainly, one who withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted for at an election. And considering the shortness of the period of 3 days from the filing to the withdrawal of the certificate of candidacy, petitioner cannot be accused, as indeed there is no such charge, of utilizing his aborted candidacy for purposes to raise funds or to extort money from other candidates in exchange for the withdrawal. I, therefore, vote to grant the petition. Padilla, J., concurs.

Separate Opinions MELO, J., dissenting: The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate of candidacy, is obliged to file his statement of contributions and expenditures in line with Section 14 of Republic Act No. 7166 vis-a-vis the pertinent portions of Comelec Resolution No. 2348. I must concede that the use of the word "shall" in the main statute as well as the implementing rules generally suggest mandatoriness as to cover all candidates. But is an aspirant for public office who had a sudden change of heart, so to speak, still considered a candidate to begin with? I am of the impression that he is not and is thus not bound to render an accounting subsequent to election for the simple reason that the term 'candidate' is used to designate a person who actually submits himself and is voted for at our election (Santos vs. Miranda, 35 Phil. 643, 648 (1916) citing State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84) Certainly, one who withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted for at an election. And considering the shortness of the period of 3 days from the filing to the withdrawal of the certificate of candidacy, petitioner cannot be accused, as indeed there is no such charge, of utilizing his aborted candidacy for purposes to raise funds or to extort money from other candidates in exchange for the withdrawal. I, therefore, vote to grant the petition. Padilla, J., concurs.

MELO, J., dissenting: The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate of candidacy, is obliged to file his statement of contributions and expenditures in line with Section 14 of Republic Act No. 7166 vis-a-vis the pertinent portions of Comelec Resolution No. 2348. I must concede that the use of the word "shall" in the main statute as well as the implementing rules generally suggest mandatoriness as to cover all candidates. But is an anspirant for public office who had a sudden change of heart, so to speak, still considered a candidate to begin with? I am of the impression that he is not and is thus not bound to render an accounting subsequent to election for the simple reason that the term 'candidate' is used to designate a person who actually submits himself and is voted for at

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 108747 April 6, 1995 PABLO C. FRANCISCO, petitioner, vs. COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.

filed against him, i.e., Crim. Cases Nos. 105206, 105207, 105209 and 105210, sentenced him to a prison term of one (1) year and one (l) day to one (1) year and eight (8) months of prision correccional "in each crime committed on each date of each case, as alleqed in the information(s)," ordered him to indemnify each of the offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus costs of suit. 1 He was however acquitted in Crim. Case No. 105208 for persistent failure of the offended party, Edgar Colindres, to appear and testify. Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his case to the Regional Trial Court. On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated in his favor a mitigating circumstance analogous to passion or obfuscation. Thus . . . (he) was angry and shouting when he uttered the defamatory words complained of . . . . he must have been angry and worried "about some missing documents . . . as well as the letter of the Department of Tourism advising ASPAC about its delinquent tax of P1.2 million . . . . " the said defamatory words must have been uttered in the heat of anger which is a mitigating circumstance analogous to passion or obfuscation. 2 Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment . . . . " 3 After he failed to interpose an appeal therefrom the decision.of the RTC became final. The case was then set for execution of judgment by the MeTC which, as a consequence, issued a warrant of arrest. Butbefore he could be arrested petitioner filed an application for probation which the MeTC denied "in the light of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ." 4 Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition on the following grounds Initially, the Court notes that the petitioner has failed to comply with the provisions of Supreme Court Circular No. 28-91 of September 4, 1991. Violation of the circular is sufficient cause for dismissal of the petition. Secondly, the petitioner does not allege anywhere in the petition that he had asked the respondent court to reconsider its above order; in fact, he had failed to give the court an.opportunity to correct itself if it had, in fact, committed any error on the matter. He is, however, required to move for reconsideration of the questioned order before filing a petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a ground for dismissal of

BELLOSILLO, J.: Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state of time, effort and expenses to jettison an appeal. The law expressly requires that an accused must not have appealed his conviction before he can avail of probation. This outlaws the element of speculation on the part of the accused to wager on the result of his appeal that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an "escape hatch" thus rendering nugatory the appellate court's affirmance of his conviction. Consequently, probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated, who manifest spontaneity, contrition and remorse. As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by P.D. 1257 and P.D. 1990? Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he failed to control his outburst and blurted You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo walang utak . . . .Mga anak ng puta . . . . Magkano ba kayo . . . God damn you all. Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5) separate Informations instituted by five (5) of his employees, each Information charging him with gravely maligning them on four different days, i.e., from 9 to 12 April 1980. On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found petitioner guilty of grave oral defamation in four (4) of the five (5) cases

his petition (Santos v. Vda. de Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v. Public Service Commission, 31-SCRA 372). Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary, despotic or whimsical exercise of power in denying the petitioner's application for probation . . . . Fourthly, the petition for probation was filed by the petitioner out of time . . . . Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after conviction, upon an application by the defendant within the period of appeal, upon terms and conditions and period appropriate to each case, but expressly rules out probation where an appeal has been taken . . . . 5 The motion for reconsideration was likewise denied. In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in dispensing with the minor technicalities which may militate against his petition as he now argues before us that he has not yet lost his right to avail of probation notwithstanding his appeal from the MeTC to the RTC since "[t]he reason for his appeal was precisely to enable him to avail himself of the benefits of the Probation Law because the original Decision of the (Metropolitan) Trial Court was such that he would not then be entitled to probation." 6 He contends that "he appealed from the judgment of the trial court precisely for the purpose of reducing the penalties imposed upon him by the said court to enable him to qualify for probation." 7 The central issue therefore is whether petitioneris still qualified to avail of probation even after appealing his conviction to the RTC which affirmed the MeTC except with regard to the duration of the penalties imposed. Petitioner is no longer eligible for probation. First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly included. Probation is not a right of an accused, but rather an act of grace and clemency or immunity conferred by the state which may be granted by the court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands convicted. 9 It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by all. Accordingly, the grant of probation rests solely upon the discretion of the court which is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused. 10 The Probation Law should not therefore be permitted to divest the state or its government of any of the latter's prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly expressed, and no person should benefit from the terms of the law who is not clearly within them.

Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction," nor Llamado v. Court of Appeals 11 which interprets the quoted provision, offers any ambiguity or qualification. As such, the application of the law should not be subjected to any to suit the case of petitioner. While the proposition that an appeal should not bar the accused from applying for probation if the appealis solely to reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this interpretation under existing law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the Court en banc in Llamado v. Court of Appeals . . . we note at the outset that Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any statutory language that appears to favor the accused in acriminal case should be given.a "liberal interpretation." Courts . . . have no authority to invoke "liberal interpretation" or "the spirit of the law" where the words of the statute themselves, andas illuminated by the history of that statute, leave no room for doubt or interpretation. We do not believe that "the spirit ofthe law" may legitimately be invoked to set at naught words which have a clear and definite meaning imparted to them by our procedural law. The "true legislative intent" must obviously be given effect by judges and all others who are charged with the application and implementation of a statute. It is absolutely essential to bear in mind, however, that the spirit of the law and the intent that is to be given effect are derived from the words actually used by the law-maker, and not from some external, mystical or metajuridical source independent of and transcending the words of the legislature. The Court is not here to be understood as giving a "strict interpretation" rather than a "liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too frequently impede a disciplined and principled search for the meaning which the law-making authority projected when it promulgated the language which we must apply. That meaning is clearly visible in the text of Section 4, as plain and unmistakable as the nose on a man's face. The Courtis simplyreading Section 4 as it is in fact written. There is no need for the involved process of construction that petitioner invites us to engage in, a process made necessary only because petitioner rejects the conclusion or meaning which shines through the words of the statute. The first duty of the judge is to take and apply a statute as he finds it, not as he would likeit to be. Otherwise, as this Court in Yangco v. Court of First Instance warned, confusion and uncertainty will surely follow, making, we might add, stability and continuity in the law much more difficult to achieve:

. . . [w]here language is plain, subtle refinements which tinge words as to give them the color of a particular judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the law, which has made it so difficult for the public to understand and know what the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial tribunals with the English language as found in statutes and contracts, cutting the words here and inserting them there, making them fit personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings which they do not ordinarily have cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their clients as to the meaning of a given statute or contract until it has been submitted to some court for its interpretation and construction. The point in this warning may be expected to become sharper as our people's grasp of English is steadily attenuated. 12 Therefore, that an appeal should notbar the accused from applying for probation if the appeal is taken solely to reduce the penalty is simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as amended, which opens with a negativeclause, "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." In Bersabal v. Salvador, 13 we said By its very language, the Rule is mandatory. Under the rule of statutory construction. negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory. . . . the use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced. And where the law does not distinguish the courts should not distinguish; where the law does not make exception the court should not except. Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there was no need to appeal if only to reduce the penalties to within the probationable period. Multiple prison terms imposed against an accused found guilty of several offenses in one decision are not, and should not be, added up. And, the sum of the multiple prison terms imposed against an applicant should not be determinative of his eligibility for, nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he

is otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he was charged with.having defamed the four (4) private complainants on four (4) different, separate days, he was stilleligible for probation, as each prison term imposed on petitioner was probationable. Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrong doing but because of the gravity and serious consequences of the offense they might further commit. 14 The Probation Law, as amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, 15 and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally considered callous, hard core criminals, and thus may avail of probation. To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say, thirteen (13) counts of grave oral defamation (for having defamed thirteen [13] individuals in one outburst) and sentenced to atotal prison term of thirteen (13) years, and another who has been found guilty of mutilation and sentenced to six (6) years and one (l) day of prision mayor minimum as minimum to twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin. Obviously, the latter offender is more perverse and is disqualified from availing of probation. Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not have availed of the benefits of probation. Since he could have, although he did not, his appeal now precludes him from applying for probation. And, even if we go along with the premise of petitioner, however erroneous it may be, that the penalties imposed against him should be summed up, still he would not have qualified under the Decision rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty would be ten (10) years and eight (8) months, which is still way beyond the limit of not more than six (6) years provided for in the Probation Law, as amended. To illustrate: 8 months multiplied by 16 cases = 128 months; 128 months divided by 12 months (in a year) = 10 years and 8 months, hence, following his

argument, petitioner cannot still be eligible for probation as the total of his penalties exceeds six (6) years. The assertion that the Decision of the RTC should be multiplied only four (4) times since there are only four (4) Informations thereby allowing petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult to understand. The penalties imposed by the MeTC cannot be any clearer "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional, in each crime committed on each date of each case, as alleged in the information(s). "Hence, petitioner should suffer the imposed penalties sixteen (16) times. On the other hand, the RTC affirmed, the judgment of conviction and merely reduced the duration of each penalty imposed by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on account of a mitigating circumstance for each case, count or incident of grave oral defamationThere is no valid reason therefore why the penalties imposed by the RTC should be multiplied only four (4) times, and not sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of petitioner in each of the sixteen (16) cases and reducing only the duration of the penalties imposed therein. Thus Premises considered, the judgment of conviction rendered by the trial court is AFFIRMED with modification, as follows: WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY beyond reasonable doubt in each of the above entitled cases and appreciating in his favor the mitigating circumstance which is analogous to passion or obfuscation, the Court hereby sentences the said accused in each case to a straight penalty of EIGHT (8) MONTHS imprisonment, with the accessory penalties prescribed by law; and to pay the costs. 16 Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in any of the four (4) counts under each of the four (4) Informatfons, or that any part of thejudgment of conviction was reversed, or that any of the cases, counts or incidents was dismissed. Otherwise, we will have to account for the twelve (12) other penalties imposed by the MeTC. Can we? What is clear is that the judgment of conviction rendered by the was affirmed with the sole modification on the duration of the penalties. In fine, considering that the multiple prison terms should not be summed up but taken separately as the totality of all the penalties is not the test, petitioner should have immediately filed an application for probation as he was already qualified after being convicted by the MeTC, if indeed thereafter he felt humbled, was ready to unconditionally accept the verdict of the court and admit his liability. Consequently, in appealing the Decision of the MeTC to the RTC, petitioner lost his right to probation. For, plainly, the law considers appeal and probation mutually exclusive remedies. 17 Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to assert his innocence. Nothing more. The cold fact is that petitioner

appealed his conviction to the RTC not for the sole purpose of reducing his penalties to make him eligible for probation since he was already qualified under the MeTC Decision but rather to insist on his innocence. The appeal record is wanting of any other purpose. Thus, in his Memorandum before the RTC, he raised only three (3) statements of error purportedly committed by the MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been established because of his positive identification by the witness for the prosecution; (b) in giving full faith and credence to the bare statements of the private complainants despite the absence of corroborating testimonies; and, (c)in not acquitting him in all the cases," 18 Consequently, petitioner insisted that the trial court committed an error in relying on his positive identification considering that private complainants could not have missed identifying him who was their President and General Manager with whom they worked for a good number of years. Petitioner further argued that although the alleged defamatory words were uttered in the presence of other persons, mostly private complainants, co-employees and clients, not one of them was presented as a witness. Hence, according to petitioner, the trial court could not have convicted him on the basis of the uncorroborative testimony of private complainants. 19 Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence, and do not simply put in issue the propriety of the penalties imposed. For sure, the accused never manifested that he was appealing only for the purpose of correcting a wrong penalty to reduce it to within the probationable range. Hence, upon interposing an appeal, more so after asserting his innocence therein, petitioner should be precluded from seeking probation. By perfecting his appeal, petitioner ipso facto relinquished his alternative remedy of availing of the Probation Law the purpose of which is simply to prevent speculation or opportunism on the part of an accused who although already eligible does not at once apply for probation, but doing so only after failing in his appeal. The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of Appeals does not necessarily mean that his appeal to the RTC was solely to reduce his penalties. Conversely, he was afraid that the Court of Appeals would increase his penalties, which could be worse for him. Besides, the RTC Decision had already become final and executory because of the negligence, according to him, of his former counsel who failed to seek possible remedies within the period allowed by law. Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule 117 of the Rules of Court, 20 should have moved to quash as each of the four (4) Informations filed against him charged four (4) separate crimes of grave oral defamation, committed on four (4) separate days. His failure to do so however may now be deemed a waiver under Sec. 8 of the same Rule 21 and he can be validly convicted, as in the instant case, of as many crimes charged in the Information. Fourth. The application for probation was filed way beyond the period allowed by law. This is vital way beyond the period allowed by law and crucial. From the records it is clear that the application for probation was filed "only after a warrant for the arrest of petitioner had been issued . . . (and) almost two months after (his) receipt of the Decision" 22 of the RTC. This is a significant fact which militates against the instant

petition. We quote with affirmance the well-written, albeit assailed, ponencia of now Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific issue . . . the petition for probation was filed by the petitioner out of time. The law in point, Section 4 of P.D. 968, as amended, provides thus: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal. . . . place the defendant on probation . . . . Going to the extreme, and assuming that an application for probation from one who had appealed the trial court's judgment is allowed by law, the petitioner's plea for probation was filed out of time. In the petition is a clear statement that the petitioner was up for execution of judgment before he filed his application for probation. P.D. No. 968 says that the application for probation must be filed "within the period for perfecting an appeal;" but in this case, such period for appeal had passed, meaning to say that the Regional Trial Court's decision had attained finality, and no appeal therefrom was possible under the law. Even granting that an appeal from the appellate court's judgment is contemplated by P.D. 968, in addition to the judgment rendered by the trial court, that appellate judgment had become final and was, in fact, up for actual execution before the application for probation was attempted by the petitioner. The petitioner did not file his application for probation before the finality of the said judgment; therefore, the petitioner's attempt at probation was filed too late. Our minds cannot simply rest easy on. the proposition that an application for probation may yet be granted even if it was filed only after judgment has become final, the conviction already set for execution and a warrant of arrest issued for service of sentence. The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had become final, for him to file the application for probation with the trial court, is to stretch the law beyond comprehension. The law, simply, does not allow probation after an appeal has been perfected. Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive remedies, and petitioner appealed from his conviction by the MeTC although the imposed penalties were already probationable, and in his appeal, he asserted only his innocence and did not even raise the issue of the propriety of the penalties imposed on him, and finally, he filed an application for probation outside the period for perfecting an appeal granting he was otherwise eligible for probation, the instant petition for review should be as it is hereby DENIED.

SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.

Separate Opinions

MENDOZA, J., dissenting: I vote to reverse the judgment of the Court of Appeals in this case. I. The principal basis for the affirmance of the decision of the Court of Appeals denying probation is the fact that petitioner had appealed his sentence before filing his application for probation. Reliance is placed on the literal application of 4 of the Probation Law of 1976 ,as amended, which provides as follows: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only probation shall be filed with the trial court application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. Thus, under 4 the accused is given the choice of appealing his sentence or applying for probation. If he appeals, he cannot later apply for probation. If he opts for probation, he can not appeal. Implicit in the choice, however, is that the accused is not disqualified for probation under any of the cases mentioned in 9, to wit:

Sec. 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those: (a) sentenced to serve a maximum term of imprisonment of more than six years; (b) convicted of subversion or any crime against the national security or the public order; (c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos. (d) who have been once on probation under the provisions of this Decree; and (e) who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. Consequently, if under the sentence given to him an accused is not qualified for probation, as when the penalty imposed on him by the court singly or in their totality exceeds six (6) years but on appeal the sentence is modified so that he becomes qualified, I believe that the accused should not be denied the benefit of probation. Before its amendment by P.D. No. 1990, the law allowed even encouraged speculation on the outcome of appeals by permitting the accused to apply for probation after he had appealed and failed to obtain an acquittal. 1It was to change this that 4 was amended by P.D. No. 1990 by expressly providing that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." For an accused, despite the fact that he is eligible for probation, may be tempted to appeal in the hope of obtaining an acquittal if he knows he can any way apply for probation in the event his conviction is affirmed. 2 There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the choice of either appealing from the decision of the trial court or applying for probation, the purpose is to deny him the right to probation in cases like the one at bar where he becomes eligible for probation only because on appeal his sentence is reduced. The purpose of the amendment, it bears repeating, is simply to prevent speculation or opportunism on the part of an accused who; although eligible for probation, does not at once apply for probation, doing so only after failing in his appeal. In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was principally motivated by a desire to be acquitted. While acquittal might have been an alluring prospect for him, what is clear is that he had a reason for appealing because under the sentence given to him he was disqualified to apply for probation. The MeTC

had originally sentenced him to 1 year and 1 day to 1 year and 8 months of prision correccional for "each crime committed on each date of each case, as alleged in the information[s]." This meant, as the majority opinion points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8 months sixteen times, since he was found guilty of four crimes of grave oral defamation in each of four cases. The totality of the penalties imposed on petitioner (26 years and 8 months) thus exceeded the limit of six (6) years of imprisonment allowed by 9(a) and disqualified him for probation. It was only after this penalty was reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total term of 2 years and 8 months in the four cases that petitioner became eligible for probation. Then he did not appeal further although he could have done so. The Court of Appeals, while acknowledging that "there may be some space not covered by the present law on probation . . . where in its original state, the petitioner was disqualified from applying for probation under Sec. 9 of the Decree, becoming eligible for probation only under the terms of the judgment on appeal," nevertheless felt bound by the letter of 4: "No application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." The majority opinion, affirming the ruling, states that to allow probation in this case would be to go against the "clear and express mandate of sec. 4 of the Probation Law, as amended." (p. 9) To regard probation, however, as a mere privilege, to be given to the accused only where it clearly appears he comes within its letter is to disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law it is not but to achieve its beneficent purpose. (Santos To v. Pao, 120 SCRA 8, 14 (1983)). The niggardly application of the law would defeat its purpose to "help the probationer develop into a law-abiding and self-respecting individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without the stigma of a prison record, to save government funds that may otherwise be spent for his food and maintenance while incarcerated, and to decongest the jails of the country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.) The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985) instead commends itself to me: Regarding this, it suffices to state that the Probation Law was never intended to limit the right of an accused person to present all relevant evidence he can avail of in order to secure a verdict of acquittal or a reduction of the penalty. Neither does the law require a plea of guilty on the part of the accused to enable him to avail of the benefits of probation. A contrary view would certainly negate the constitutional right of an accused to be presumed innocent until the contrary is proved. As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after the penalty imposed on him by the MeTC had been reduced by the RTC so that

he thereby became qualified for probation, he did not appeal further. The majority says that this was because he was afraid that if he did the penalty could be increased. That possibility, however, was also there when he appealed from the MeTC to the RTC. For by appealing the sentence of the MeTC, petitioner took as much risk that the penalty would be raised as the chance that he would he acquitted. It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not simply questioned the propriety of his sentence, but no more so does an accused who, upon being arraigned, pleads, "Not Guilty." And yet the latter cannot be denied probation if he is otherwise eligible for probation. It is argued that there is a difference because an accused who pleads "not guilty'' in the beginning, later acknowledges his guilt and shows contrition after he is found guilty. So does an accused who appeals a sentence because under it he is not qualified for probation, but after the penalty is reduced, instead of appealing further, accepts the new sentence and applies for probation. This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which it was held that because the petitioner had appealed his sentence, he could not subsequently apply for probation. For, unlike petitioner in the case at bar, the accused in that case could have applied for probation as his original sentence of one year of prision correccional did not disqualify him for probation. That case fell squarely within the ambit of the prohibition in 4 that one who applies for probation must not "have perfected an appeal from the judgment of conviction." II. It is contended that petitioner did not have to appeal because under the original sentence meted out to him he was not disqualified for probation. The issue here is whether the multiple prison terms imposed on petitioner are to be considered singly or in their totality for the purpose of 9(a) which disqualifies from probation those "sentenced to serve a maximum term of imprisonment of more than six years." I submit that they should be taken in their totality. As the sentence originally imposed on petitioner was for "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional in each crime committed on each date of each case" and as there are four offenses of grave oral defamation against petitioner in each of the four cases, the total prison term which he would have to serve was 26 years and 8 months. This is clearly beyond the probationable maximum allowed by law. It is said, however, that even if the totality of the prison terms is the test, the modified sentence imposed by the RTC would not qualify the petitioner for probation because he has to suffer imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the said accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means eight (8) months times four (4), since there are four cases, or 32 months or 2 years and 8 months.

The policy of the law indeed appears to be to treat as only one multiple sentences imposed in cases which are jointly tried and decided. For example, 9(c) disqualifies from probation persons "who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA 121 (1985) that the accused, who had been found guilty of estafa in five criminal cases, was qualified for probation because although the crimes had been committed on different dates he was found guilty of each crime on the same day. As this Court noted, "Rura was sentenced to a total prison term of seventeen (l7) months and twenty-five (25) days. In each criminal case the sentence was three (3) months and fifteen (15) days. That the duration of a convict's sentence is determined by considering the totality of several penalties for different offenses committed is also implicit in the provisions of the Revised Penal Code on the accumulation of penalties. (See e.g., arts. 48 and 70) It is said that the basis of disqualification under 9 is the gravity of the offense committed and the penalty imposed. I agree. That is why I contend that a person who is convicted of multiple grave oral defamation for which the total prison term is, say, 6 years and 8 months, is guilty of a graver offense than another who is guilty of only offense of grave oral defamation and sentenced to a single penalty of 1 year and 8 months. The relevant comparison is between an accused convicted of one offense of grave oral defamation and another one convicted of the same offense, say four or more times. The relevant comparison is not, as the majority says, between an accused found guilty of grave oral defamation four or more times and another one found guilty of mutilation and sentenced to an indeterminate term of 6 years and 1 day of prision mayor to 12 years and 1 day of reclusion temporal. III. Finally, it is said that there is a more fundamental reason for denying probation in this case and that is that petitioner applied for probation only after his case had been remanded to the MeTC for the execution of its decision as modified. But that is because 4 provides that "an application for probation shall be filed with the trial court." In the circumstances of this case, petitioner had to await the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had become final. The decision of the Court of Appeals should be REVERSED and respondent judge of the Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT petitioner's application for probation. VITUG, J., concurring: While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting opinion that an accused, who originally is not qualified for probation because the penalty imposed on him by a court a quoexceeds six (6) years, should not be denied that benefit of probation if on appeal the sentence is ultimately reduced to within the prescribed limit, I am unable, however, to second the other proposition that multiple

prison terms imposed by a court should be taken in their totality for purposes of Section 9 (a), P.D. No. 968. In this respect, I concur with Mr. Justice Josue Bellosillo in his ponencia that in determining the eligibility or disqualification of an applicant for probation charged with, and sentenced to serve multiple prison terms for, several offenses, "the number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period." The use of the word maximum instead of the word total in Section 9, paragraph (a) of P.D. 968, as amended, should be enough to reveal that such has been the legislative intent. Thus, I still must vote for the denial of the petition.

can not appeal. Implicit in the choice, however, is that the accused is not disqualified for probation under any of the cases mentioned in 9, to wit: Sec. 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those: (a) sentenced to serve a maximum term of imprisonment of more than six years; (b) convicted of subversion or any crime against the national security or the public order; (c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos.

Separate Opinions MENDOZA, J., dissenting: I vote to reverse the judgment of the Court of Appeals in this case. I. The principal basis for the affirmance of the decision of the Court of Appeals denying probation is the fact that petitioner had appealed his sentence before filing his application for probation. Reliance is placed on the literal application of 4 of the Probation Law of 1976 ,as amended, which provides as follows: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only probation shall be filed with the trial court application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. Thus, under 4 the accused is given the choice of appealing his sentence or applying for probation. If he appeals, he cannot later apply for probation. If he opts for probation, he (d) who have been once on probation under the provisions of this Decree; and (e) who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. Consequently, if under the sentence given to him an accused is not qualified for probation, as when the penalty imposed on him by the court singly or in their totality exceeds six (6) years but on appeal the sentence is modified so that he becomes qualified, I believe that the accused should not be denied the benefit of probation. Before its amendment by P.D. No. 1990, the law allowed even encouraged speculation on the outcome of appeals by permitting the accused to apply for probation after he had appealed and failed to obtain an acquittal. 1It was to change this that 4 was amended by P.D. No. 1990 by expressly providing that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." For an accused, despite the fact that he is eligible for probation, may be tempted to appeal in the hope of obtaining an acquittal if he knows he can any way apply for probation in the event his conviction is affirmed. 2 There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the choice of either appealing from the decision of the trial court or applying for probation, the purpose is to deny him the right to probation in cases like the one at bar where he becomes eligible for probation only because on appeal his sentence is reduced. The purpose of the amendment, it bears repeating, is simply to prevent speculation or opportunism on the part of an accused who; although eligible for probation, does not at once apply for probation, doing so only after failing in his appeal.

In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was principally motivated by a desire to be acquitted. While acquittal might have been an alluring prospect for him, what is clear is that he had a reason for appealing because under the sentence given to him he was disqualified to apply for probation. The MeTC had originally sentenced him to 1 year and 1 day to 1 year and 8 months of prision correccional for "each crime committed on each date of each case, as alleged in the information[s]." This meant, as the majority opinion points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8 months sixteen times, since he was found guilty of four crimes of grave oral defamation in each of four cases. The totality of the penalties imposed on petitioner (26 years and 8 months) thus exceeded the limit of six (6) years of imprisonment allowed by 9(a) and disqualified him for probation. It was only after this penalty was reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total term of 2 years and 8 months in the four cases that petitioner became eligible for probation. Then he did not appeal further although he could have done so. The Court of Appeals, while acknowledging that "there may be some space not covered by the present law on probation . . . where in its original state, the petitioner was disqualified from applying for probation under Sec. 9 of the Decree, becoming eligible for probation only under the terms of the judgment on appeal," nevertheless felt bound by the letter of 4: "No application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." The majority opinion, affirming the ruling, states that to allow probation in this case would be to go against the "clear and express mandate of sec. 4 of the Probation Law, as amended." (p. 9) To regard probation, however, as a mere privilege, to be given to the accused only where it clearly appears he comes within its letter is to disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law it is not but to achieve its beneficent purpose. (Santos To v. Pao, 120 SCRA 8, 14 (1983)). The niggardly application of the law would defeat its purpose to "help the probationer develop into a law-abiding and self-respecting individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without the stigma of a prison record, to save government funds that may otherwise be spent for his food and maintenance while incarcerated, and to decongest the jails of the country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.) The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985) instead commends itself to me: Regarding this, it suffices to state that the Probation Law was never intended to limit the right of an accused person to present all relevant evidence he can avail of in order to secure a verdict of acquittal or a reduction of the penalty. Neither does the law require a plea of guilty on the part of the accused to enable him to avail of the benefits of probation. A contrary view would certainly negate the constitutional

right of an accused to be presumed innocent until the contrary is proved. As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after the penalty imposed on him by the MeTC had been reduced by the RTC so that he thereby became qualified for probation, he did not appeal further. The majority says that this was because he was afraid that if he did the penalty could be increased. That possibility, however, was also there when he appealed from the MeTC to the RTC. For by appealing the sentence of the MeTC, petitioner took as much risk that the penalty would be raised as the chance that he would he acquitted. It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not simply questioned the propriety of his sentence, but no more so does an accused who, upon being arraigned, pleads, "Not Guilty." And yet the latter cannot be denied probation if he is otherwise eligible for probation. It is argued that there is a difference because an accused who pleads "not guilty'' in the beginning, later acknowledges his guilt and shows contrition after he is found guilty. So does an accused who appeals a sentence because under it he is not qualified for probation, but after the penalty is reduced, instead of appealing further, accepts the new sentence and applies for probation. This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which it was held that because the petitioner had appealed his sentence, he could not subsequently apply for probation. For, unlike petitioner in the case at bar, the accused in that case could have applied for probation as his original sentence of one year of prision correccional did not disqualify him for probation. That case fell squarely within the ambit of the prohibition in 4 that one who applies for probation must not "have perfected an appeal from the judgment of conviction." II. It is contended that petitioner did not have to appeal because under the original sentence meted out to him he was not disqualified for probation. The issue here is whether the multiple prison terms imposed on petitioner are to be considered singly or in their totality for the purpose of 9(a) which disqualifies from probation those "sentenced to serve a maximum term of imprisonment of more than six years." I submit that they should be taken in their totality. As the sentence originally imposed on petitioner was for "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional in each crime committed on each date of each case" and as there are four offenses of grave oral defamation against petitioner in each of the four cases, the total prison term which he would have to serve was 26 years and 8 months. This is clearly beyond the probationable maximum allowed by law. It is said, however, that even if the totality of the prison terms is the test, the modified sentence imposed by the RTC would not qualify the petitioner for probation because he

has to suffer imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the said accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means eight (8) months times four (4), since there are four cases, or 32 months or 2 years and 8 months. The policy of the law indeed appears to be to treat as only one multiple sentences imposed in cases which are jointly tried and decided. For example, 9(c) disqualifies from probation persons "who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA 121 (1985) that the accused, who had been found guilty of estafa in five criminal cases, was qualified for probation because although the crimes had been committed on different dates he was found guilty of each crime on the same day. As this Court noted, "Rura was sentenced to a total prison term of seventeen (l7) months and twenty-five (25) days. In each criminal case the sentence was three (3) months and fifteen (15) days. That the duration of a convict's sentence is determined by considering the totality of several penalties for different offenses committed is also implicit in the provisions of the Revised Penal Code on the accumulation of penalties. (See e.g., arts. 48 and 70) It is said that the basis of disqualification under 9 is the gravity of the offense committed and the penalty imposed. I agree. That is why I contend that a person who is convicted of multiple grave oral defamation for which the total prison term is, say, 6 years and 8 months, is guilty of a graver offense than another who is guilty of only offense of grave oral defamation and sentenced to a single penalty of 1 year and 8 months. The relevant comparison is between an accused convicted of one offense of grave oral defamation and another one convicted of the same offense, say four or more times. The relevant comparison is not, as the majority says, between an accused found guilty of grave oral defamation four or more times and another one found guilty of mutilation and sentenced to an indeterminate term of 6 years and 1 day of prision mayor to 12 years and 1 day of reclusion temporal. III. Finally, it is said that there is a more fundamental reason for denying probation in this case and that is that petitioner applied for probation only after his case had been remanded to the MeTC for the execution of its decision as modified. But that is because 4 provides that "an application for probation shall be filed with the trial court." In the circumstances of this case, petitioner had to await the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had become final. The decision of the Court of Appeals should be REVERSED and respondent judge of the Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT petitioner's application for probation. VITUG, J., concurring:

While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting opinion that an accused, who originally is not qualified for probation because the penalty imposed on him by a court a quoexceeds six (6) years, should not be denied that benefit of probation if on appeal the sentence is ultimately reduced to within the prescribed limit, I am unable, however, to second the other proposition that multiple prison terms imposed by a court should be taken in their totality for purposes of Section 9 (a), P.D. No. 968. In this respect, I concur with Mr. Justice Josue Bellosillo in his ponencia that in determining the eligibility or disqualification of an applicant for probation charged with, and sentenced to serve multiple prison terms for, several offenses, "the number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period." The use of the word maximum instead of the word total in Section 9, paragraph (a) of P.D. 968, as amended, should be enough to reveal that such has been the legislative intent. Thus, I still must vote for the denial of the petition.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-8238 May 25, 1955

law (Reports of the Code Commission, pp. 46-47). But respondents argue that the term "physical injuries" is used to designate a specific crime defined in the Revised Penal Code, and therefore said term should be understood in its peculiar and technical sense, in accordance with the rules statutory construction (Sec. 578, 59 C. J. 979). In the case at bar, the accused was charged with and convicted of the crime of frustrated homicide, and while it was found in the criminal case that a wound was inflicted by the defendant on the body of the petitioner herein Cesar Carandang, which wound is bodily injury, the crime committed is not physical injuries but frustrated homicide, for the reason that the infliction of the wound is attended by the intent to kill. So the question arises whether the term "physical injuries" used in Article 33 means physical injuries in the Revised Penal Code only, or any physical injury or bodily injury, whether inflicted with intent to kill or not. The Article in question uses the words "defamation", "fraud" and "physical injuries." Defamation and fraud are used in their ordinary sense because there are no specific provisions in the Revised Penal Code using these terms as means of offenses defined therein, so that these two terms defamation and fraud must have been used not to impart to them any technical meaning in the laws of the Philippines, but in their generic sense. With this apparent circumstance in mind, it is evident that the term "physical injuries" could not have been used in its specific sense as a crime defined in the Revised Penal Code, for it is difficult to believe that the Code Commission would have used terms in the same article some in their general and another in its technical sense. In other words, the term "physical injuries" should be understood to mean bodily injury, not the crime of physical injuries, because the terms used with the latter are general terms. In any case the Code Commission recommended that the civil for assault and battery in American Law, and this recommendation must have been accepted by the Legislature when it approved the article intact as recommended. If the intent has been to establish a civil action for the bodily harm received by the complainant similar to the civil action for assault and battery, as the Code Commission states, the civil action should lie whether the offense committed is that of physical injuries, or frustrated homicide, or attempted homicide, or even death. A parallel case arose in that of Bixby vs Sioux City, 164 N. W. 641, 643. In that case, the appellant sought to take his case from the scope of the statute by pointing out that inasmuch as notice is required where the cause of action is founded on injury to the person, it has no application when the damages sought are for the death of the person. The court ruled that a claim to recover for death resulting from personal injury is as certainly "founded on injury to the person" as would be a claim to recover damages for a non-fatal injury resulting in a crippled body. For the foregoing considerations, we find that the respondent judge committed an error in suspending the trial of the civil case, and his order to that affect is hereby revoked, and he is hereby ordered to proceed with the trial of said civil case without awaiting the result of the pending criminal case. With costs against the defendant-appellees. Pablo, Acting C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion and Reyes, J.B.L., JJ.,concur.

CESAR M. CARANDANG, petitioner, vs. VICENTE SANTIAGO, in his capacity as Judge of the Court of First Instance of Manila and TOMAS VALENTON, Sr. and TOMAS VALENTON, Jr., respondents. S. Mejia-Panganiban for petitioner. Evangelista and Valenton for respondents. LABRADOR, J.: This is a petition for certiorari against Honorable Vicente Santiago, Judge of the Court of First Instance of Manila, to annul his order in Civil Case No. 21173, entitled Cesar M. Carandang vs. Tomas Valenton, Sr. et al., suspending the trial of said civil case to await the result of the criminal Case No. 534, Court of First Instance of Batangas. In this criminal case, Tomas Valenton, Jr. was found guilty of the crime of frustrated homicide committed against the person of Cesar Carandang, petitioner herein. Tomas Valenton, Jr. appealed the decision to the Court of Appeals where the case is now pending. The decision of the Court of First Instance of Batangas in the criminal case was rendered on September 1, 1953 and petitioner herein filed a complaint in the Court of First Instance of Manila to recover from the defendant Tomas Valenton, Jr. and his parents, damages, both actual and moral, for the bodily injuries received by him on occasion of the commission of the crime of frustrated homicide by said accused Tomas Valenton Jr. After the defendants submitted their answer, they presented a motion to suspend the trial of the civil case, pending the termination of the criminal case against Tomas Valenton, Jr. in the Court of Appeals. The judge ruled that the trial of the civil action must await the result of the criminal case on appeal. A motion for reconsideration was submitted, but the court denied the same; hence this petition for certiorari. Petitioner invokes Article 33 of the new Civil Code, which is as follows: In cases of defamation, fraud and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. The Code Commission itself states that the civil action allowed (under Article 33) is similar to the action in tort for libel or slander and assault and battery under American

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-17663 May 30, 1962 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ISAURO SANTIAGO, defendant-appellee. Office of the Solicitor General for plaintiff-appellant. Roces, Alidio and Ceguera for defendant-appellee. CONCEPCION, J.: The information herein alleges that defendant Isauro Santiago has committed the crime of "libel" as follows: That on or about the 5th day of October 1959, in the City of Manila, Philippines, the said accused, for the evident purpose of injuring the name and reputation of Arsenio H. Lacson, and of impeaching and besmirching the latter's virtue, honesty, honor and reputation, and with the malicious intent of exposing him to public hatred, contempt and ridicule, did then and there wilfully, feloniously, maliciously and publicly call said Mayor Arsenio H. Lacson, in the course of a political speech delivered at 392 Fraternal, Quiapo, in said city, thru the medium of an amplifier system and before a crowd of around a hundred persons, the following, to wit: "Arsenio Hayop Lacson, pinakawalang hiyang Alkalde, Mayor Lacson raped a woman at the Aroma Cafe and another City Hall employee in Shellborne Hotel", which are false, malicious and highly defamatory statements against Mayor Arsenio H. Lacson, delivered with no good intentions or justifiable motive, but solely for the purpose of injuring the name and reputation of said Mayor Arsenio H. Lacson and to expose him to public hatred, contempt and ridicule. Defendant moved to quash this information upon the ground that the crime charged therein is, not libel, but oral defamation, which has already prescribed, it having been allegedly committed on October 5, 1959, or more than six (6) months prior to the filing of the information on August 11, 1960. The Court of First Instance of Manila granted this motion and, accordingly, quashed the information, with costs de oficio. Hence, this appeal by the prosecution. The only issue in this case is whether the crime charged in the information is oral defamation, under Article 358 of the Revised Penal Code, or libel, under Article 355, in relation to Article 353, of the same Code. Said provisions read: ART. 358. Slander. Oral defamation shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise the penalty shall be arresto menor or a fine not exceeding 200 pesos". ART. 355. Libel by means of writings or similar means. A libel committed by means of writing, printing, lithography, engraving, radio, phonograph,

painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party. ART. 353. Definition of libel. A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. The prosecution maintains that "the medium of an amplifier system", thru which the defamatory statements imputed to the accused were allegedly made, falls within the purview of the terms "writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means", appearing in said Article 355, in the sense, at least, that in "amplifier system" is a means "similar" to "radio". This pretense is untenable. To begin with, as correctly stated in defendant's brief, "radio as a means of publication is "the transmission and reception of electromagnetic waves without conducting wires intervening between transmitter and receiver" (Library of Universal Knowledge)" (see, also, 18 Encyclopedia Britanica, p. 285), "while transmission of words by means of an amplifier system", such as the one mentioned in the information, "is not thru "electromagnetic waves" and is with the use of "conducting wires" intervening between the transmitter . . . and the receiver . . . . Secondly, even the word "radio" used in said Article 355, should be considered in relation to the terms with which it is associated "writing, printing, lithography, engraving . . . phonograph, painting, theatrical exhibition or cinematographical exhibition" all of which have a common characteristic, namely, their permanent nature as a means of publication, and this explains the graver penalty for libel than that prescribed for oral defamation. Thus, it has been held that slanderous statements forming part of a manuscript read by a speaker over the radio constitute libel (Sorensen vs. Wood, 243 N.W. 82, 82 A.L.R. 1109; Nules vs. Wasner, 20 P. [2d] 487, 104 A.L.R. 877), whereas the rules governing such offense were declared inapplicable to extemporaneous remarks of scurrilous nature, made ad libitum in the course of a radio broadcast by a person hired to read a prepared text, but not appearing thereon (Summit Hotel Co. vs. National Broadcasting Co., PA-124 A.L.R. 963).1wph1.t IN SHORT, the facts alleged in the information constitute the crime of oral defamation punished in Article 358 of the Revised Penal Code, which prescribed six (6) months after its commission, or on April 5, 1960 (Articles 90 and 91, Revised Penal Code), over four (4) months before the filing of said information, in view of which the order appealed from is affirmed, without special pronouncement as to costs. It is so ordered. Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur. Bengzon, C.J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-32717 November 26, 1970 AMELITO R. MUTUC, petitioner, vs. COMMISSION ON ELECTIONS, respondent. Amelito R. Mutuc in his own behalf. Romulo C. Felizmena for respondent.

forth in the petition, but the justification for the prohibition was premised on a provision of the Constitutional Convention Act, 2which made it unlawful for candidates "to purchase, produce, request or distribute sample ballots, or electoral propaganda gadgets such as pens, lighters, fans (of whatever nature), flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, cigarettes, and the like, whether of domestic or foreign origin." 3It was its contention that the jingle proposed to be used by petitioner is the recorded or taped voice of a singer and therefore a tangible propaganda material, under the above statute subject to confiscation. It prayed that the petition be denied for lack of merit. The case was argued, on November 3, 1970, with petitioner appearing in his behalf and Attorney Romulo C. Felizmena arguing in behalf of respondent. This Court, after deliberation and taking into account the need for urgency, the election being barely a week away, issued on the afternoon of the same day, a minute resolution granting the writ of prohibition, setting forth the absence of statutory authority on the part of respondent to impose such a ban in the light of the doctrine ofejusdem generis as well as the principle that the construction placed on the statute by respondent Commission on Elections would raise serious doubts about its validity, considering the infringement of the right of free speech of petitioner. Its concluding portion was worded thus: "Accordingly, as prayed for, respondent Commission on Elections is permanently restrained and prohibited from enforcing or implementing or demanding compliance with its aforesaid order banning the use of political jingles by candidates. This resolution is immediately executory." 4 1. As made clear in our resolution of November 3, 1970, the question before us was one of power. Respondent Commission on Elections was called upon to justify such a prohibition imposed on petitioner. To repeat, no such authority was granted by the Constitutional Convention Act. It did contend, however, that one of its provisions referred to above makes unlawful the distribution of electoral propaganda gadgets, mention being made of pens, lighters, fans, flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, and cigarettes, and concluding with the words "and the like." 5 For respondent Commission, the last three words sufficed to justify such an order. We view the matter differently. What was done cannot merit our approval under the well-known principle of ejusdem generis, the general words following any enumeration being applicable only to things of the same kind or class as those specifically referred to. 6 It is quite apparent that what was contemplated in the Act was the distribution of gadgets of the kind referred to as a means of inducement to obtain a favorable vote for the candidate responsible for its distribution. The more serious objection, however, to the ruling of respondent Commission was its failure to manifest fealty to a cardinal principle of construction that a statute should be interpreted to assure its being in consonance with, rather than repugnant to, any constitutional command or prescription. 7 Thus, certain Administrative Code provisions were given a "construction which should be more in harmony with the tenets of the fundamental law." 8 The desirability of removing in that fashion the taint of constitutional infirmity from legislative enactments has always commended itself. The judiciary may even strain the ordinary meaning of words to avert any collision between what a statute provides and what the Constitution requires. The objective is to reach an interpretation rendering it free from constitutional defects. To paraphrase Justice Cardozo, if at all

FERNANDO, J.: The invocation of his right to free speech by petitioner Amelito Mutuc, then a candidate for delegate to the Constitutional Convention, in this special civil action for prohibition to assail the validity of a ruling of respondent Commission on Elections enjoining the use of a taped jingle for campaign purposes, was not in vain. Nor could it be considering the conceded absence of any express power granted to respondent by the Constitutional Convention Act to so require and the bar to any such implication arising from any provision found therein, if deference be paid to the principle that a statute is to be construed consistently with the fundamental law, which accords the utmost priority to freedom of expression, much more so when utilized for electoral purposes. On November 3, 1970, the very same day the case was orally argued, five days after its filing, with the election barely a week away, we issued a minute resolution granting the writ of prohibition prayed for. This opinion is intended to explain more fully our decision. In this special civil action for prohibition filed on October 29, 1970, petitioner, after setting forth his being a resident of Arayat, Pampanga, and his candidacy for the position of delegate to the Constitutional Convention, alleged that respondent Commission on Elections, by a telegram sent to him five days previously, informed him that his certificate of candidacy was given due course but prohibited him from using jingles in his mobile units equipped with sound systems and loud speakers, an order which, according to him, is "violative of [his] constitutional right ... to freedom of speech." 1 There being no plain, speedy and adequate remedy, according to petitioner, he would seek a writ of prohibition, at the same time praying for a preliminary injunction. On the very next day, this Court adopted a resolution requiring respondent Commission on Elections to file an answer not later than November 2, 1970, at the same time setting the case for hearing for Tuesday November 3, 1970. No preliminary injunction was issued. There was no denial in the answer filed by respondent on November 2, 1970, of the factual allegations set

possible, the conclusion reached must avoid not only that it is unconstitutional, but also grave doubts upon that score. 9 2. Petitioner's submission of his side of the controversy, then, has in its favor obeisance to such a cardinal precept. The view advanced by him that if the above provision of the Constitutional Convention Act were to lend itself to the view that the use of the taped jingle could be prohibited, then the challenge of unconstitutionality would be difficult to meet. For, in unequivocal language, the Constitution prohibits an abridgment of free speech or a free press. It has been our constant holding that this preferred freedom calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. What respondent Commission did, in effect, was to impose censorship on petitioner, an evil against which this constitutional right is directed. Nor could respondent Commission justify its action by the assertion that petitioner, if he would not resort to taped jingle, would be free, either by himself or through others, to use his mobile loudspeakers. Precisely, the constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but not perpetuating what is uttered by him through tape or other mechanical contrivances. If this Court were to sustain respondent Commission, then the effect would hardly be distinguishable from a previous restraint. That cannot be validly done. It would negate indirectly what the Constitution in express terms assures. 10 3. Nor is this all. The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. To be more specific, the competence entrusted to respondent Commission was aptly summed up by the present Chief Justice thus: "Lastly, as the branch of the executive department although independent of the President to which the Constitution has given the 'exclusive charge' of the 'enforcement and administration of all laws relative to the conduct of elections,' the power of decision of the Commission is limited to purely 'administrative questions.'"11 It has been the constant holding of this Court, as it could not have been otherwise, that respondent Commission cannot exercise any authority in conflict with or outside of the law, and there is no higher law than the Constitution.12 Our decisions which liberally construe its powers are precisely inspired by the thought that only thus may its responsibility under the Constitution to insure free,

orderly and honest elections be adequately fulfilled. 13 There could be no justification then for lending approval to any ruling or order issuing from respondent Commission, the effect of which would be to nullify so vital a constitutional right as free speech. Petitioner's case, as was obvious from the time of its filing, stood on solid footing. WHEREFORE, as set forth in our resolution of November 3, 1970, respondent Commission is permanently restrained and prohibited from enforcing or implementing or demanding compliance with its aforesaid order banning the use of political taped jingles. Without pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Barredo and Villamor, JJ., concur. Dizon and Makasiar, JJ., are on leave. Separate Opinions TEEHANKEE, J., concurring: In line with my separate opinion in Badoy vs. Ferrer 1 on the unconstitutionality of the challenged provisions of the 1971 Constitutional Convention Act, I concur with the views of Mr. Justice Fernando in the main opinion that "there could be no justification .... for lending approval to any ruling or order issuing from respondent Commission, the effect of which would be to nullify so vital a constitutional right as free speech." I would only add the following observations: This case once again calls for application of the constitutional test of reasonableness required by the due process clause of our Constitution. Originally, respondent Commission in its guidelines prescribed summarily that the use by a candidate of a "mobile unit roaming around and announcing a meeting and the name of the candidate ... is prohibited. If it is used only for a certain place for a meeting and he uses his sound system at the meeting itself, there is no violation." 2Acting upon petitioner's application, however, respondent Commission ruled that "the use of a sound system by anyone be he a candidate or not whether stationary or part of a mobile unit is not prohibited by the 1971 Constitutional Convention Act" but imposed the condition "provided that there are no jingles and no streamers or posters placed in carriers." Respondent Commission's narrow view is that "the use of a 'jingle,' a verbally recorded form of election propaganda, is no different from the use of a 'streamer' or 'poster,' a printed form of election propaganda, and both forms of election advertisement fall under the prohibition contained in sec. 12 of R.A. 6132," and "the record disc or tape where said 'jingle' has been recorded can be subject of confiscation by the respondent Commission under par. (E) of sec. 12 of R.A. 6132." In this modern day and age of the electronically recorded or taped voice which may be easily and inexpensively disseminated through a mobile sound system throughout the candidate's district, respondent Commission would outlaw "recorded or taped voices" and would exact of the candidate that he make use of the mobile sound system only by personal

transmission and repeatedly personally sing his "jingle" or deliver his spoken message to the voters even if he loses his voice in the process or employ another person to do so personally even if this should prove more expensive and less effective than using a recorded or taped voice. Respondent Commission's strictures clearly violate, therefore, petitioner's basic freedom of speech and expression. They cannot pass the constitutional test of reasonableness in that they go far beyond a reasonable relation to the proper governmental object and are manifestly unreasonable, oppressive and arbitrary. Insofar as the placing of the candidate's "streamers" or posters on the mobile unit or carrier is concerned, respondent Commission's adverse ruling that the same falls within the prohibition of section 12, paragraphs (C) and (E) has not been appealed by petitioner. I would note that respondent Commission's premise that "the use of a 'jingle' ... is no different from the use of a 'streamer' or 'poster' "in that these both represent forms of election advertisements to make the candidate and the fact of his candidacy known to the voters is correct, but its conclusion is not. The campaign appeal of the "jingle" is through the voters' ears while that of the "streamers" is through the voters' eyes. But if it be held that the Commission's ban on "jingles" abridges unreasonably, oppressively and arbitrarily the candidate's right of free expression, even though such "jingles" may occasionally offend some sensitive ears, the Commission's ban on "streamers" being placed on the candidate's mobile unit or carrier, which "streamers" are less likely to offend the voters' sense of sight should likewise be held to be an unreasonable, oppressive and arbitrary curtailment of the candidate's same constitutional right. The intent of the law to minimize election expenses as invoked by respondent Commission, laudable as it may be, should not be sought at the cost of the candidate's constitutional rights in the earnest pursuit of his candidacy, but is to be fulfilled in the strict and effective implementation of the Act's limitation in section 12(G) on the total expenditures that may be made by a candidate or by another person with his knowledge and consent. # Separate Opinions TEEHANKEE, J., concurring: In line with my separate opinion in Badoy vs. Ferrer 1 on the unconstitutionality of the challenged provisions of the 1971 Constitutional Convention Act, I concur with the views of Mr. Justice Fernando in the main opinion that "there could be no justification .... for lending approval to any ruling or order issuing from respondent Commission, the effect of which would be to nullify so vital a constitutional right as free speech." I would only add the following observations: This case once again calls for application of the constitutional test of reasonableness required by the due process clause of our Constitution. Originally, respondent Commission in its guidelines prescribed summarily that the use by a candidate of a "mobile unit roaming around and announcing a meeting and the name of the candidate

... is prohibited. If it is used only for a certain place for a meeting and he uses his sound system at the meeting itself, there is no violation." 2Acting upon petitioner's application, however, respondent Commission ruled that "the use of a sound system by anyone be he a candidate or not whether stationary or part of a mobile unit is not prohibited by the 1971 Constitutional Convention Act" but imposed the condition "provided that there are no jingles and no streamers or posters placed in carriers." Respondent Commission's narrow view is that "the use of a 'jingle,' a verbally recorded form of election propaganda, is no different from the use of a 'streamer' or 'poster,' a printed form of election propaganda, and both forms of election advertisement fall under the prohibition contained in sec. 12 of R.A. 6132," and "the record disc or tape where said 'jingle' has been recorded can be subject of confiscation by the respondent Commission under par. (E) of sec. 12 of R.A. 6132." In this modern day and age of the electronically recorded or taped voice which may be easily and inexpensively disseminated through a mobile sound system throughout the candidate's district, respondent Commission would outlaw "recorded or taped voices" and would exact of the candidate that he make use of the mobile sound system only by personal transmission and repeatedly personally sing his "jingle" or deliver his spoken message to the voters even if he loses his voice in the process or employ another person to do so personally even if this should prove more expensive and less effective than using a recorded or taped voice. Respondent Commission's strictures clearly violate, therefore, petitioner's basic freedom of speech and expression. They cannot pass the constitutional test of reasonableness in that they go far beyond a reasonable relation to the proper governmental object and are manifestly unreasonable, oppressive and arbitrary. Insofar as the placing of the candidate's "streamers" or posters on the mobile unit or carrier is concerned, respondent Commission's adverse ruling that the same falls within the prohibition of section 12, paragraphs (C) and (E) has not been appealed by petitioner. I would note that respondent Commission's premise that "the use of a 'jingle' ... is no different from the use of a 'streamer' or 'poster' "in that these both represent forms of election advertisements to make the candidate and the fact of his candidacy known to the voters is correct, but its conclusion is not. The campaign appeal of the "jingle" is through the voters' ears while that of the "streamers" is through the voters' eyes. But if it be held that the Commission's ban on "jingles" abridges unreasonably, oppressively and arbitrarily the candidate's right of free expression, even though such "jingles" may occasionally offend some sensitive ears, the Commission's ban on "streamers" being placed on the candidate's mobile unit or carrier, which "streamers" are less likely to offend the voters' sense of sight should likewise be held to be an unreasonable, oppressive and arbitrary curtailment of the candidate's same constitutional right. The intent of the law to minimize election expenses as invoked by respondent Commission, laudable as it may be, should not be sought at the cost of the candidate's constitutional rights in the earnest pursuit of his candidacy, but is to be fulfilled in the strict and effective implementation of the Act's limitation in section 12(G) on the total expenditures that may be made by a candidate or by another person with his knowledge and consent.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-33693-94 May 31, 1979 MISAEL P. VERA, as Commissioner of Internal Revenue, and THE FAIR TRADE BOARD, petitioner, vs. HON. SERAFIN R. CUEVAS, as Judge of the Court of First Instance of Manila, Branch IV, INSTITUTE OF EVAPORATED FILLED MILK MANUFACTURERS OF THE PHILIPPINES, INC., CONSOLIDATED MILK COMPANY (PHIL.) INC., and MILK INDUSTRIES, INC., respondents. Solicitor General Felix Q. Antonio and Solicitor Bernardo P. Pardo for petitioners. Sycip, Salazar, Luna, Manalo & Feliciano for private respondents. DE CASTRO, J.: This is a petition for certiorari with preliminary injunction to review the decision rendered by respondent judge, in Civil Case No. 52276 and in Special Civil Action No. 52383 both of the Court of First Instance of Manila. Plaintiffs, in Civil Case No. 52276 private respondents herein, are engaged in the manufacture, sale and distribution of filled milk products throughout the Philippines. The products of private respondent, Consolidated Philippines Inc. are marketed and sold under the brand Darigold whereas those of private respondent, General Milk Company (Phil.), Inc., under the brand "Liberty;" and those of private respondent, Milk Industries Inc., under the brand "Dutch Baby." Private respondent, Institute of Evaporated Filled Milk Manufacturers of the Philippines, is a corporation organized for the principal purpose of upholding and maintaining at its highest the standards of local filled milk industry, of which all the other private respondents are members. Civil Case No. 52276 is an action for declaratory relief with ex-parte petition for preliminary injunction wherein plaintiffs pray for an adjudication of their respective rights and obligations in relation to the enforcement of Section 169 of the Tax Code against their filled milk products. The controversy arose from the order of defendant, Commissioner of Internal Revenue now petitioner herein, requiring plaintiffs- private respondents to withdraw from the market all of their filled milk products which do not bear the inscription required by Section 169 of the Tax Code within fifteen (15) days from receipt of the order with the explicit warning that failure of plaintiffs' private respondents to comply with said order will result in the institution of the necessary action against any violation of the aforesaid order. Section 169 of the Tax Code reads as follows: Section 169. Inscription to be placed on skimmed milk. All condensed skimmed milk and all milk in whatever form, from which the fatty part has been removed totally or in part, sold or put on sale in the Philippines shall be clearly and legibly marked on its immediate containers, and in all the language in which such containers are

marked, with the words, "This milk is not suitable for nourishment for infants less than one year of age," or with other equivalent words. The Court issued a writ of preliminary injunction dated February 16, 1963 restraining the Commissioner of Internal Revenue from requiring plaintiffs' private respondents to print on the labels of their rifled milk products the words, "This milk is not suitable for nourishment for infants less than one year of age or words of similar import, " as directed by the above quoted provision of Law, and from taking any action to enforce the above legal provision against the plaintiffs' private respondents in connection with their rifled milk products, pending the final determination of the case, Civil Case No. 52276, on the merits. On July 25, 1969, however, the Office of the Solicitor General brought an appeal from the said order by way of certiorari to the Supreme Court. 1 In view thereof, the respondent court in the meantime suspended disposition of these cases but in view of the absence of any injunction or restraining order from the Supreme Court, it resumed action on them until their final disposition therein. Special Civil Action No. 52383, on the other hand, is an action for prohibition and injunction with a petition for preliminary injunction. Petitioners therein pray that the respondent Fair Trade Board desist from further proceeding with FTB I.S. No. I . entitled "Antonio R. de Joya vs. Institute of Evaporated Milk Manufacturers of the Philippines, etc." pending final determination of Civil Case No. 52276. The facts of this special civil action show that on December 7, 1962, Antonio R. de Joya and Sufronio Carrasco, both in their individual capacities and in their capacities as Public Relations Counsel and President of the Philippine Association of Nutrition, respectively, filed FTB I.S. No. 1 with Fair Trade Board for misleading advertisement, mislabeling and/or misbranding. Among other things, the complaint filed include the charge of omitting to state in their labels any statement sufficient to Identify their filled milk products as "imitation milk" or as an imitation of genuine cows milk. and omitting to mark the immediate containers of their filled milk products with the words: "This milk is not suitable for nourishment for infants less than one year of age or with other equivalent words as required under Section 169 of the Tax Code. The Board proceeded to hear the complaint until it received the writ of preliminary injunction issued by the Court of First Instance on March 19, 1963. Upon agreement of the parties, Civil Case No. 52276 and Special Civil Action No. 52383 were heard jointly being intimately related with each other, with common facts and issues being also involved therein. On April 16, 1971, the respondent court issued its decision, the dispositive part of which reads as follows: Wherefore, judgment is hereby rendered: In Civil Case No. 52276: (a) Perpetually restraining the defendant, Commissioner of Internal Revenue, his agents, or employees from requiring plaintiffs to print on the labels of their filled milk products the words: "This milk is not

suitable for nourishment for infants less than one year of age" or words with equivalent import and declaring as nun and void and without authority in law, the order of said defendant dated September 28, 1961, Annex A of the complaint, and the Ruling of the Secretary of Finance, dated November 12, 1962, Annex G of the complaint; and In Special Civil Action No. 52383: (b) Restraining perpetually the respondent Fair Trade Board, its agents or employees from continuing in the investigation of the complaints against petitioners docketed as FTB I.S. No. 2, or any charges related to the manufacture or sale by the petitioners of their filled milk products and declaring as null the proceedings so far undertaken by the respondent Board on said complaints. (pp. 20- 21, Rollo). From the above decision of the respondent court, the Commissioner of Internal Revenue and the Fair Trade Board joined together to file the present petition for certiorari with preliminary injunction, assigning the following errors: I. THE LOWER COURT ERRED IN RULING THAT SEC. TION 169 OF THE TAX CODE HAS BEEN REPEALED BY IMPLICATION. II. THE LOWER COURT ERRED IN RULING THAT SECTION 169 OF THE TAX CODE HAS LOST ITS TAX PURPOSE, AND THAT COMMISSIONER NECESSARILY LOST HIS AUTHORITY TO ENFORCE THE SAME AND THAT THE PROPER AUTHORITY TO PROMOTE THE HEALTH OF INFANTS IS THE FOOD AND DRUG ADMINISTRATION, THE SECRETARY OF HEALTH AND THE SECRETARY OF JUSTICE, AS PROVIDED FOR IN RA 3720, NOT THE COMMISSIONER OF INTERNAL REVENUE. III. THE LOWER COURT ERRED IN RULING THAT THE POWER TO INVESTIGATE AND TO PROSECUTE VIOLATIONS OF FOOD LAWS IS ENTRUSTED TO THE FOOD AND DRUG INSPECTION, THE FOOD AND DRUG ADMINISTRATION, THE SECRETARY OF HEALTH AND THE SECRETARY OF JUSTICE, AND THAT THE FAIR TRADE BOARD IS WITHOUT JURISDICTION TO INVESTIGATE AND PROSECUTE ALLEGED MISBRANDING, MISLABELLING AND/OR MISLEADING ADVERTISEMENT OF FILLED MILK PRODUCTS. (pp, 4-5, Rollo). The lower court did not err in ruling that Section 169 of the Tax Code has been repealed by implication. Section 169 was enacted in 1939, together with Section 141 (which imposed a Specific tax on skimmed milk) and Section 177 (which penalized the sale of

skimmed milk without payment of the specific tax and without the legend required by Section 169). However, Section 141 was expressly repealed by Section 1 of Republic Act No. 344, and Section 177, by Section 1 of Republic Act No. 463. By the express repeal of Sections 141 and 177, Section 169 became a merely declaratory provision, without a tax purpose, or a penal sanction. Moreover, it seems apparent that Section 169 of the Tax Code does not apply to filled milk. The use of the specific and qualifying terms "skimmed milk" in the headnote and "condensed skimmed milk" in the text of the cited section, would restrict the scope of the general clause "all milk, in whatever form, from which the fatty pat has been removed totally or in part." In other words, the general clause is restricted by the specific term "skimmed milk" under the familiar rule of ejusdem generis that general and unlimited terms are restrained and limited by the particular terms they follow in the statute. Skimmed milk is different from filled milk. According to the "Definitions, Standards of Purity, Rules and Regulations of the Board of Food Inspection," skimmed milk is milk in whatever form from which the fatty part has been removed. Filled milk, on the other hand, is any milk, whether or not condensed, evaporated concentrated, powdered, dried, dessicated, to which has been added or which has been blended or compounded with any fat or oil other than milk fat so that the resulting product is an imitation or semblance of milk cream or skim milk." The difference, therefore, between skimmed milk and filled milk is that in the former, the fatty part has been removed while in the latter, the fatty part is likewise removed but is substituted with refined coconut oil or corn oil or both. It cannot then be readily or safely assumed that Section 169 applies both to skimmed milk and filled milk. The Board of Food Inspection way back in 1961 rendered an opinion that filled milk does not come within the purview of Section 169, it being a product distinct from those specified in the said Section since the removed fat portion of the milk has been replaced with coconut oil and Vitamins A and D as fortifying substances (p. 58, Rollo). This opinion bolsters the Court's stand as to its interpretation of the scope of Section 169. Opinions and rulings of officials of the government called upon to execute or implement administrative laws command much respect and weight. (Asturias Sugar Central Inc. vs. Commissioner of Customs, G. R. No. L-19337, September 30, 1969, 29 SCRA 617; Tan, et. al. vs. The Municipality of Pagbilao et. al., L-14264, April 30, 1963, 7 SCRA 887; Grapilon vs. Municipal Council of Carigara L-12347, May 30, 1961, 2 SCRA 103). This Court is, likewise, induced to the belief that filled milk is suitable for nourishment for infants of all ages. The Petitioners themselves admitted that: "the filled milk products of the petitioners (now private respondents) are safe, nutritious, wholesome and suitable for feeding infants of all ages" (p. 44, Rollo) and that "up to the present, Filipino infants fed since birth with filled milk have not suffered any defects, illness or disease attributable to their having been fed with filled milk." (p. 45, Rollo). There would seem, therefore, to be no dispute that filled milk is suitable for feeding infants of all ages. Being so, the declaration required by Section 169 of the Tax Code that filled milk is not suitable for nourishment for infants less than one year of age would, in effect, constitute a deprivation of property without due. process of law.

Section 169 is being enforced only against respondent manufacturers of filled milk product and not as against manufacturers, distributors or sellers of condensed skimmed milk such as SIMILAC, SMA, BREMIL, ENFAMIL, OLAC, in which, as admitted by the petitioner, the fatty part has been removed and substituted with vegetable or corn oil. The enforcement of Section 169 against the private respondents only but not against other persons similarly situated as the private respondents amounts to an unconstitutional denial of the equal pro petition of the laws, for the law, equally enforced, would similarly offend against the Constitution. Yick Wo vs. Hopkins, 118 U.S. 356,30 L. ed. 220). As stated in the early part of this decision, with the repeal of Sections 141 and 177 of the Tax Code, Section 169 has lost its tax purpose. Since Section 169 is devoid of any tax purpose, petitioner Commissioner necessarily lost his authority to enforce the same. This was so held by his predecessor immediately after Sections 141 and 177 were repealed in General Circular No. V-85 as stated in paragraph IX of the Partial Stipulation of facts entered into by the parties, to wit: ... As the act of sewing skimmed milk without first paying the specific tax thereon is no longer unlawful and the enforcement of the requirement in regard to the placing of the proper legend on its immediate containers is a subject which does not come within the jurisdiction of the Bureau of Internal Revenue, the penal provisions of Section 177 of the said Code having been repealed by Republic Act No. 463. (p. 102, Rollo). Petitioner's contention that he still has jurisdiction to enforce Section 169 by virtue of Section 3 of the Tax Code which provides that the Bureau of Internal Revenue shall also "give effect to and administer the supervisory and police power conferred to it by this Code or other laws" is untenable. The Bureau of Internal Revenue may claim police power only when necessary in the enforcement of its principal powers and duties consisting of the "collection of all national internal revenue taxes, fees and charges, and the enforcement of all forfeitures, penalties and fines connected therewith." The enforcement of Section 169 entails the promotion of the health of the nation and is thus unconnected with any tax purpose. This is the exclusive function of the Food and Drug Administration of the Department of Health as provided for in Republic Act No. 3720. In particular, Republic Act No. 3720 provides: Section 9. ... It shall be the duty of the Board (Food and Drug Inspection), conformably with the rules and regulations, to hold hearings and conduct investigations relative to matters touching the Administration of this Act, to investigate processes of food, drug and cosmetic manufacture and to subject reports to the Food and Drug Administrator, recommending food and drug standards for adoption. Said Board shall also perform such additional functions, properly within the scope of the administration thereof, as maybe assigned to it by the Food and Drug Administrator. The decisions of the Board shall be advisory to the Food and Drug Administrator. Section 26. ...

xxx xxx xxx (c) Hearing authorized or required by this Act shall be conducted by the Board of Food and Drug Inspection which shall submit recommendation to the Food and Drug Administrator. (d) When it appears to the Food and Drug Administrator from the reports of the Food and Drug Laboratory that any article of food or any drug or cosmetic secured pursuant to Section 28 of this Act is adulterated or branded he shall cause notice thereof to be given to the person or persons concerned and such person or persons shall be given an opportunity to subject evidence impeaching the correctness of the finding or charge in question. (e) When a violation of any provisions of this Act comes to the knowledge of the Food and Drug Administrator of such character that a criminal prosecution ought to be instituted against the offender, he shall certify the facts to the Secretary of Justice through the Secretary of Health, together with the chemists' report, the findings of the Board of Food and Drug Inspection, or other documentary evidence on which the charge is based. (f) Nothing in this Act shall be construed as requiring the Food and Drug Administrator to certify for prosecution pursuant to subparagraph (e) hereof, minor violations of this Act whenever he believes that public interest will be adequately served by a suitable written notice or warning. The aforequoted provisions of law clearly show that petitioners, Commissioner of Internal Revenue and the Fair Trade Board, are without jurisdiction to investigate and to prosecute alleged misbranding, mislabeling and/or misleading advertisements of filled milk. The jurisdiction on the matters cited is vested upon the Board of Food and Drug inspection and the Food and Drug Administrator, with the Secretary of Health and the Secretary of Justice, also intervening in case criminal prosecution has to be instituted. To hold that the petitioners have also jurisdiction as would be the result were their instant petition granted, would only cause overlapping of powers and functions likely to produce confusion and conflict of official action which is neither practical nor desirable. WHEREFORE, the decision appealed from is hereby affirmed en toto. No costs. SO ORDERED. Teehankee, (Chairman), Fernandez, Melencio-Herrera, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 78413 November 8, 1989 CAGAYAN VALLEY ENTERPRISES, INC., Represented by its President, Rogelio Q. Lim, petitioner, vs. THE HON. COURT OF APPEALS and LA TONDEA, INC., respondents. Efren M. Cacatian for petitioners. San Jose, Enrique, Lacas, Santos and Borje for private respondent.

1. LTI has no cause of action due to its failure to comply with Section 21 of Republic Act No. 166 which requires the giving of notice that its aforesaid marks are registered by displaying and printing the words "Registered in the Phil. Patent Office" or "Reg Phil. Pat. Off.," hence no suit, civil or criminal, can be filed against Cagayan; 2. LTI is not entitled to any protection under Republic Act No. 623, as amended by Republic Act No. 5700, because its products, consisting of hard liquor, are not among those contemplated therein. What is protected under said law are beverages like Coca-cola, Royal TruOrange, Lem-o-Lime and similar beverages the bottles whereof bear the words "Reg Phil. Pat. Off.;" 3. No reservation of ownership on its bottles was made by LTI in its sales invoices nor does it require any deposit for the retention of said bottles; and 4. There was no infringement of the goods or products of LTI since Cagayan uses its own labels and trademark on its product. In its subsequent pleadings, Cagayan contended that the bottles they are using are not the registered bottles of LTI since the former was using the bottles marked with "La Tondea, Inc." and "Ginebra San Miguel" but without the words "property of" indicated in said bottles as stated in the sworn statement attached to the certificate of registration of LTI for said bottles. On December 18, 1981, the lower court issued a writ of preliminary injunction, upon the filing of a bond by LTI in the sum of P50,000.00, enjoining Cagayan, its officers and agents from using the aforesaid registered bottles of LTI. 6 After a protracted trial, which entailed five (5) motions for contempt filed by LTI against Cagayan, the trial court rendered judgment 7 in favor of Cagayan, ruling that the complaint does not state a cause of action and that Cagayan was not guilty of contempt. Furthermore, it awarded damages in favor of Cagayan. LTI appealed to the Court of Appeals which, on December 5, 1986 rendered a decision in favor of said appellant, the dispositive portion whereof reads: WHEREFORE, the decision appealed from is hereby SET ASIDE and judgment is rendered permanently enjoining the defendant, its officers and agents from using the 350 c.c. white flint bottles with the marks of ownership "La Tondea, Inc." and "Ginebra San Miguel", blown-in or stamped on said bottles as containers for defendant's products. The writ of preliminary injunction issued by the trial court is therefore made permanent.

REGALADO, J.: This petition for review on certiorari seeks the nullification of the decision of the Court of Appeals of December 5, 1986 in CA-G.R. CV No. 06685 which reversed the decision of the trial court, and its resolution dated May 5, 1987 denying petitioner's motion for reconsideration. The following antecedent facts generative of the present controversy are not in dispute. Sometime in 1953, La Tondea, Inc. (hereafter, LTI for short) registered with the Philippine Patent Office pursuant to Republic Act No. 623 1 the 350 c.c. white flint bottles it has been using for its gin popularly known as "Ginebra San Miguel". This registration was subsequently renewed on December 4, 1974. 2 On November 10, 1981, LTI filed Civil Case No. 2668 for injunction and damages in the then Branch 1, Court of First Instance of Isabela against Cagayan Valley Enterprises, Inc. (Cagayan, for brevity) for using the 350 c.c., white flint bottles with the mark "La Tondea Inc." and "Ginebra San Miguel" stamped or blown-in therein by filling the same with Cagayan's liquor product bearing the label "Sonny Boy" for commercial sale and distribution, without LTI's written consent and in violation of Section 2 of Republic Act No. 623, as amended by Republic Act No. 5700. On the same date, LTI further filed an ex parte petition for the issuance of a writ of preliminary injunction against the defendant therein. 3 On November 16, 1981, the court a quo issued a temporary restraining order against Cagayan and its officers and employees from using the 350 c.c. bottles with the marks "La Tondea" and "Ginebra San Miguel." 4 Cagayan, in its answer, 5 alleged the following defenses:

Defendant is ordered to pay the amounts of: (1) P15,000.00 as nominal or temperate damages; (2) P50,000.00 as exemplary damages; (3) P10,000.00 as attorney's fees; and (4) Costs of suit. 8 On December 23, 1986, Cagayan filed a motion for reconsideration which was denied by the respondent court in its resolution dated May 5, 1987, hence the present petition, with the following assignment of errors: I. The Court of Appeals gravely erred in the decision granting that "there is, therefore, no need for plaintiff to display the words "Reg. Phil. Pat. Off." in order for it to succeed in bringing any injunction suit against defendant for the illegal use of its bottles. Rep. Act No. 623, as amended by Rep. Act No. 5700 simply provides and requires that the marks or names shall be stamped or marked on the containers." II. The Court of Appeals gravely erred in deciding that "neither is there a reason to distinguish between the two (2) sets of marked bottles-those which contain the marks "Property of La Tondea, Inc., Ginebra San Miguel," and those simply marked La Tondea Inc., Ginebra San Miguel'. By omitting the words "property of" plaintiff did not open itself to violation of Republic Act No. 623, as amended, as having registered its marks or names it is protected under the law." III. The Honorable Court of Appeals gravely erred in deciding that the words "La Tondea, Inc. and Ginebra San Miguel" are sufficient notice to the defendant which should have inquired from the plaintiff or the Philippine Patent Office, if it was lawful for it to re-use the empty bottles of the plaintiff. IV. The Honorable Court of Appeals gravely erred in deciding that defendant-appellee cannot claim good faith from using the bottles of plaintiff with

marks "La Tondea, Inc." alone, short for the description contained in the sworn statement of Mr. Carlos Palanca, Jr., which was a requisite of its original and renewal registrations. V. The Honorable Court of Appeals gravely erred in accommodating the appeal on the dismissals of the five (5) contempt charges. VI. The Honorable Court of Appeals gravely erred in deciding that the award of damages in favor of the defendant-appellee, petitioner herein, is not in order. Instead it awarded nominal or temperate, exemplary damages and attorney's fees without proof of bad faith. 9 The pertinent provisions of Republic Act No. 623, as amended by Republic Act No. 5700, provides: SECTION 1. Persons engaged or licensed to engage in the manufacture, bottling, or selling of soda water, mineral or aerated waters, cider, milk, cream or other lawful beverages in bottles, boxes, casks, kegs, or barrels and other similar containers, or in the manufacturing, compressing or selling of gases such as oxygen, acytelene, nitrogen, carbon dioxide ammonia, hydrogen, chloride, helium, sulphur, dioxide, butane, propane, freon, melthyl chloride or similar gases contained in steel cylinders, tanks, flasks, accumulators or similar containers, with the name or the names of their principals or products, or other marks of ownership stamped or marked thereon, may register with the Philippine Patent Office a description of the names or marks, and the purpose for which the containers so marked and used by them, under the same conditions, rules, and regulations, made applicable by law or regulation to the issuance of trademarks. SEC. 2. It shall be unlawful for any person, without the written consent of the manufacturer, bottler, or seller, who has succesfully registered the marks of ownership in accordance with the provisions of the next preceding section, to fill such bottles, boxes, kegs, barrels, steel cylinders, tanks, flasks, accumulators or other similar containers so marked or stamped, for the purpose of sale, or to sell, disposed of, buy or traffic in, or wantonly destroy the same, whether filled or not, to use the same, for drinking vessels or glasses or drain pipes, foundation pipes, for any other purpose than that registered by the manufacturer, bottler or seller. Any violation of this section shall be punished by a fine of not more than one thousand pesos or imprisonment of not more than one year or both.

SEC. 3. The use by any person other than the registered manufacturer, bottler or seller, without written permission of the latter of any such bottle, cask, barrel, keg, box, steel cylinders, tanks, flask, accumulators, or other similar containers, or the possession thereof without written permission of the manufacturer, by any junk dealer or dealer in casks, barrels, kegs boxes, steel cylinders, tanks, flasks, accumulators or other similar containers, the same being duly marked or stamped and registered as herein provided, shall give rise to a prima facie presumption that such use or possession is unlawful. The above-quoted provisions grant protection to a qualified manufacturer who successfully registered with the Philippine Patent Office its duly stamped or marked bottles, boxes, casks and other similar containers. The mere use of registered bottles or containers without the written consent of the manufacturer is prohibited, the only exceptions being when they are used as containers for "sisi," bagoong," "patis" and similar native products. 10 It is an admitted fact that herein petitioner Cagayan buys from junk dealers and retailers bottles which bear the marks or names La Tondea Inc." and "Ginebra San Miguel" and uses them as containers for its own liquor products. The contention of Cagayan that the aforementioned bottles without the words "property of" indicated thereon are not the registered bottles of LTI, since they do not conform with the statement or description in the supporting affidavits attached to the original registration certificate and renewal, is untenable. Republic Act No. 623 which governs the registration of marked bottles and containers merely requires that the bottles, in order to be eligible for registration, must be stamped or marked with the names of the manufacturers or the names of their principals or products, or other marks of ownership. No drawings or labels are required but, instead, two photographs of the container, duly signed by the applicant, showing clearly and legibly the names and other marks of ownership sought to be registered and a bottle showing the name or other mark or ownership, irremovably stamped or marked, shall be submitted. 11 The term "Name or Other Mark of Ownership" 12 means the name of the applicant or the name of his principal, or of the product, or other mark of ownership. The second set of bottles of LTI without the words "property of" substantially complied with the requirements of Republic Act No. 623, as amended, since they bear the name of the principal, La Tondea Inc., and of its product, Ginebra San Miguel. The omitted words "property of" are not of such vital indispensability such that the omission thereof will remove the bottles from the protection of the law. The owner of a trade-mark or tradename, and in this case the marked containers, does not abandon it by making minor modifications in the mark or name itself. 13 With much more reason will this be true where what is involved is the mere omission of the words "property of" since even without said words the ownership of the bottles is easily Identifiable. The words "La Tondea Inc." and "Ginebra San Miguel" stamped on the bottles, even without the words "property of," are sufficient notice to the public that those bottles so marked are owned by LTI.

The claim of petitioner that hard liquor is not included under the term "other lawful beverages" as provided in Section I of Republic Act No. 623, as amended by Republic Act No. 5700, is without merit. The title of the law itself, which reads " An Act to Regulate the Use of Duly Stamped or Marked Bottles, Boxes, Casks, Kegs, Barrels and Other Similar Containers" clearly shows the legislative intent to give protection to all marked bottles and containers of all lawful beverages regardless of the nature of their contents. The words "other lawful beverages" is used in its general sense, referring to all beverages not prohibited by law. Beverage is defined as a liquor or liquid for drinking. 14 Hard liquor, although regulated, is not prohibited by law, hence it is within the purview and coverage of Republic Act No. 623, as amended. Republic Act No. 623, as amended, has for its purpose the protection of the health of the general public and the prevention of the spread of contagious diseases. It further seeks to safeguard the property rights of an important sector of Philippine industry. 15 As held by this Court in Destileria Ayala, Inc. vs. Tan Tay & Co., 16 the purpose of then Act 3070, was to afford a person a means of Identifying the containers he uses in the manufacture, preservation, packing or sale of his products so that he may secure their registration with the Bureau of Commerce and Industry and thus prevent other persons from using them. Said Act 3070 was substantially reenacted as Republic Act No. 623. 17 The proposition that Republic Act No. 623, as amended, protects only the containers of the soft drinks enumerated by petitioner and those similar thereto, is unwarranted and specious. The rule of ejusdem generiscannot be applied in this case. To limit the coverage of the law only to those enumerated or of the same kind or class as those specifically mentioned will defeat the very purpose of the law. Such rule of ejusdem generis is to be resorted to only for the purpose of determining what the intent of the legislature was in enacting the law. If that intent clearly appears from other parts of the law, and such intent thus clearly manifested is contrary to the result which would be reached by the appreciation of the rule of ejusdem generis, the latter must give way. 18 Moreover, the above conclusions are supported by the fact that the Philippine Patent Office, which is the proper and competent government agency vested with the authority to enforce and implement Republic Act No. 623, registered the bottles of respondent LTI as containers for gin and issued in its name a certificate of registration with the following findings: It appearing, upon due examination that the applicant is entitled to have the said MARKS OR NAMES registered under R.A. No. 623, the said marks or names have been duly registered this day in the PATENT OFFICE under the said Act, for gin, Ginebra San Miguel. 19 While executive construction is not necessarily binding upon the courts, it is entitled to great weight and consideration. The reason for this is that such construction comes from the particular branch of government called upon to implement the particular law involved. 20

Just as impuissant is petitioners contention that respondent court erred in holding that there is no need for LTI to display the words "Reg Phil. Pat. Off." in order to succeed in its injunction suit against Cagayan for the illegal use of the bottles. To repeat, Republic Act No. 623 governs the registration of marked bottles and containers and merely requires that the bottles and/or containers be marked or stamped by the names of the manufacturer or the names of their principals or products or other marks of ownership. The owner upon registration of its marked bottles, is vested by law with an exclusive right to use the same to the exclusion of others, except as a container for native products. A violation of said right gives use to a cause of action against the violator or infringer. While Republic Act No. 623, as amended, provides for a criminal action in case of violation, a civil action for damages is proper under Article 20 of the Civil Code which provides that every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. This particular provision of the Civil Case was clearly meant to complement all legal provisions which may have inadvertently failed to provide for indemnification or reparation of damages when proper or called for. In the language of the Code Commission "(t)he foregoing rule pervades the entire legal system, and renders it impossible that a person who suffers damage because another has violated some legal provisions, should find himself without relief." 21 Moreover, under Section 23 of Republic Act No. 166, as amended, a person entitled to the exclusive use of a registered mark or tradename may recover damages in a civil action from any person who infringes his rights. He may also, upon proper showing, be granted injunction. It is true that the aforesaid law on trademarks provides: SEC. 21. Requirements of notice of registration of trade-mark.-The registrant of a trade-mark, heretofore registered or registered under the provisions of this Act, shall give notice that his mark is registered by displaying with the same as used the words 'Registered in the Philippines Patent Office' or 'Reg Phil. Pat. Off.'; and in any suit for infringement under this Act by a registrant failing so to mark the goods bearing the registered trade-mark, no damages shall be recovered under the provisions of this Act, unless the defendant has actual notice of the registration.

with the blown-in marks "La Tondea Inc." and "Ginebra San Miguel" are duly registered. In Civil Case No. 102859 of the Court of First Instance of Manila, entitled "La Tondea Inc. versus Diego Lim, doing business under the name and style 'Cagayan Valley Distillery,' " a decision was rendered in favor of plaintiff therein on the basis of the admission and/or acknowledgment made by the defendant that the bottles marked only with the words "La Tondea Inc." and "Ginebra San Miguel" are registered bottles of LTI. 22 Petitioner cannot avoid the effect of the admission and/or acknowledgment made by Diego Lim in the said case. While a corporation is an entity separate and distinct from its stock-holders and from other corporations with which it may be connected, where the discreteness of its personality is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons, or in the case of two corporations, merge them into one. When the corporation is the mere alter ego or business conduit of a person, it may be disregaded. 23 Petitioner's claim that it is separate and distinct from the former Cagayan Valley Distillery is belied by the evidence on record. The following facts warrant the conclusion that petitioner, as a corporate entity, and Cagayan Valley Distillery are one and the same. to wit: (1) petitioner is being managed by Rogelio Lim, the son of Diego Lim, the owner and manager of Cagayan Valley Distellery; (2) it is a family corporation; 24 (3) it is an admitted fact that before petitioner was incorporated it was under a single proprietorship; 25 (4) petitioner is engaged in the same business as Cagayan Valley Distillery, the manufacture of wines and liquors; and (5) the factory of petitioner is located in the same place as the factory of the former Cagayan Valley Distillery. It is thus clear that herein petitioner is a mere continuation and successor of Cagayan Valley Distillery. It is likewise indubitable that the admission made in the former case, as earlier explained, is binding on it as cogent proof that even before the filing of this case it had actual knowledge that the bottles in dispute were registered containers of LTI As held in La Campana Coffee Factory, Inc., et al. vs. Kaisahan Ng Mga Manggagawa sa La Campana (KKM), et al., 26 where the main purpose in forming the corporation was to evade one's subsidiary liability for damages in a criminal case, the corporation may not be heard to say that it has a personality separate and distinct from its members, because to allow it to do so would be to sanction the use of the fiction of corporate entity as a shield to further an end subversive of justice. Anent the several motions of private respondent LTI to have petitioner cited for contempt, we reject the argument of petitioner that an appeal from a verdict of acquittal in a contempt, proceeding constitutes double jeopardy. A failure to do something ordered by the court for the benefit of a party constitutes civil contempt. 27 As we held inConverse Rubber Corporation vs. Jacinto Rubber & Plastics Co., Inc.: ...True it is that generally, contempt proceedings are characterized as criminal in nature, but the more accurate juridical concept is that contempt proceedings may actually be either civil or criminal, even if the distinction between one and the other may be so thin as to be almost imperceptible. But it does exist in law. It is criminal when the

Even assuming that said provision is applicable in this case, the failure of LTI to make said marking will not bar civil action against petitioner Cagayan. The aforesaid requirement is not a condition sine qua non for filing of a civil action against the infringer for other reliefs to which the plaintiff may be entitled. The failure to give notice of registration will not deprive the aggrieved party of a cause of action against the infringer but, at the most, such failure may bar recovery of damages but only under the provisions of Republic Act No. 166. However, in this case an award of damages to LTI is ineluctably called for. Petitioner cannot claim good faith. The record shows that it had actual knowledge that the bottles

purpose is to vindicate the authority of the court and protect its outraged dignity. It is civil when there is failure to do something ordered by a court to be done for the benefit of a party (3 Moran Rules of Court, pp. 343-344, 1970 ed.; see also Perkins vs. Director of Prisons, 58 Phil. 272; Harden vs. Director of Prisons, 81 Phil. 741.) And with this distinction in mind, the fact that the injunction in the instant case is manifestly for the benefit of plaintiffs makes of the contempt herein involved civil, not criminal. Accordingly, the conclusion is inevitable that appellees have been virtually found by the trial court guilty of civil contempt, not criminal contempt, hence, the rule on double jeopardy may not be invoked. 28 The contempt involved in this case is civil and constructive in nature, it having arisen from the act of Cagayan in violating the writ of preliminary injunction of the lower court which clearly defined the forbidden act, to wit: NOW THEREFORE, pending the resolution of this case by the court, you are enjoined from using the 350 c.c. white flint bottles with the marks La Tondea Inc.,' and 'Ginebra San Miguel' blown-in or stamped into the bottles as containers for the defendant's products. 19 On this incident, two considerations must be borne in mind. Firstly, an injunction duly issued must be obeyed, however erroneous the action of the court may be, until its decision is overruled by itself or by a higher court. 30Secondly, the American rule that the power to judge a contempt rests exclusively with the court contemned does not apply in this Jurisdiction. The provision of the present Section 4, Rule 71 of the Rules of Court as to where the charge may be filed is permissive in nature and is merely declaratory of the inherent power of courts to punish contumacious conduct. Said rules do not extend to the determination of the jurisdiction of Philippine courts. 31 In appropriate case therefore, this Court may, in the interest of expedient justice, impose sanctions on contemners of the lower courts. Section 3 of Republic Act No. 623, as amended, creates a prima facie presumption against Cagayan for its unlawful use of the bottles registered in the name of LTI Corollarily, the writ of injunction directing petitioner to desist from using the subject bottles was properly issued by the trial court. Hence, said writ could not be simply disregarded by Cagayan without adducing proof sufficient to overcome the aforesaid presumption. Also, based on the findings of respondent court, and the records before us being sufficient for arbitrament without remanding the incident to the court a quo petitioner can be adjudged guilty of contempt and imposed a sanction in this appeal since it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding, 32 We so impose such penalty concordant with the preservative principle and as demanded by the respect due the orders, writs and processes of the courts of justice. WHEREFORE, judgment is hereby rendered DENYING the petition in this case and AFFIRMING the decision of respondent Court of Appeals. Petitioner is hereby declared

in contempt of court and ORDERED to pay a fine of One Thousand Pesos (P1,000.00), with costs. SO ORDERED. Paras, Padilla and Sarmiento, JJ., concur. Melencio-Herrera (Chairperson), J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-19337 September 30, 1969

ASTURIAS SUGAR CENTRAL, INC., petitioner, vs. COMMISSIONER OF CUSTOMS and COURT OF TAX APPEALS, respondents. Laurea, Laurea and Associates for petitioner. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Esmeraldo Umali and Solicitor Sumilang V. Bernardo for respondents.

On February 6, 1958 the petitioner, thru its agent Theo. H. Davies & Co., Far East, Ltd., requested the Commissioner of Customs for a week's extension of Re-exportation and Special Import Tax Bond no. 6 which was to expire the following day, giving the following as the reasons for its failure to export the remaining jute bags within the period of one year: (a) typhoons and severe floods; (b) picketing of the Central railroad line from November 6 to December 21, 1957 by certain union elements in the employ of the Philippine Railway Company, which hampered normal operations; and (c) delay in the arrival of the vessel aboard which the petitioner was to ship its sugar which was then ready for loading. This request was denied by the Commissioner per his letter of April 15, 1958. Due to the petitioner's failure to show proof of the exportation of the balance of 86,353 jute bags within one year from their importation, the Collector of Customs of Iloilo, on March 17, 1958, required it to pay the amount of P28,629.42 representing the customs duties and special import tax due thereon, which amount the petitioner paid under protest. In its letter of April 10, 1958, supplemented by its letter of May 12, 1958, the petitioner demanded the refund of the amount it had paid, on the ground that its request for extension of the period of one year was filed on time, and that its failure to export the jute bags within the required one-year period was due to delay in the arrival of the vessel on which they were to be loaded and to the picketing of the Central railroad line. Alternatively, the petitioner asked for refund of the same amount in the form of a drawback under section 106(b) in relation to section 105(x) of the Tariff and Customs Code. After hearing, the Collector of Customs of Iloilo rendered judgment on January 21, 1960 denying the claim for refund. From his action, appeal was taken to the Commissioner of Customs who upheld the decision of the Collector. Upon a petition for review the Court of Tax Appeals affirmed the decision of the Commissioner of Customs. The petitioner imputes three errors to the Court of Tax Appeals, namely: 1. In not declaring that force majeure and/or fortuitous event is a sufficient justification for the failure of the petitioner to export the jute bags in question within the time required by the bonds. 2. In not declaring that it is within the power of the Collector of Customs and/or the Commissioner of Customs to extend the period of one (1) year within which the jute bags should be exported. 3. In not declaring that the petitioner is entitled to a refund by way of a drawback under the provisions of section 106, par. (b), of the Tariff and Customs Code.

CASTRO, J.: This is a petition for review of the decision of the Court of Tax Appeals of November 20, 1961, which denied recovery of the sum of P28,629.42, paid by the petitioner, under protest, in the concept of customs duties and special import tax, as well as the petitioner's alternative remedy to recover the said amount minus one per cent thereof by way of a drawback under sec. 106 (b) of the Tariff and Customs Code. The petitioner Asturias Sugar Central, Inc. is engaged in the production and milling of centrifugal sugar for exert, the sugar so produced being placed in containers known as jute bags. In 1957 it made two importations of jute bags. The first shipment consisting of 44,800 jute bags and declared under entry 48 on January 8, 1967, entered free of customs duties and special import tax upon the petitioner's filing of Re-exportation and Special Import Tax Bond no. 1 in the amounts of P25,088 and P2,464.50, conditioned upon the exportation of the jute bags within one year from the date of importation. The second shipment consisting of 75,200 jute bags and declared under entry 243 on February 8, 1957, likewise entered free of customs duties and special import tax upon the petitioner's filing of Re-exportation and Special Import Tax Bond no. 6 in the amounts of P42,112 and P7,984.44, with the same conditions as stated in bond no. 1. Of the 44,800 jute bags declared under entry 48, only 8,647 were exported within one year from the date of importation as containers of centrifugal sugar. Of the 75,200 jute bags declared under entry 243, only 25,000 were exported within the said period of one year. In other words, of the total number of imported jute bags only 33,647 bags were exported within one year after their importation. The remaining 86,353 bags were exported after the expiration of the one-year period but within three years from their importation.

1. The basic issue tendered for resolution is whether the Commissioner of Customs is vested, under the Philippine Tariff Act of 1909, the then applicable law, with discretion to extend the period of one year provided for in section 23 of the Act. Section 23 reads: SEC. 23. That containers, such as casks, large metal, glass, or other receptacles which are, in the opinion of the collector of customs, of such a character as to be readily identifiable may be delivered to the importer thereof upon identification and the giving of a bond with sureties satisfactory to the collector of customs in an amount equal to double the estimated duties thereon, conditioned for the exportation thereof or payment of the corresponding duties thereon within one year from the date of importation, under such rules and regulations as the Insular Collector of Customs shall provide. 1 To implement the said section 23, Customs Administrative Order 389 dated December 6, 1940 was promulgated, paragraph XXVIII of which provides that "bonds for the re-exportation of cylinders and other containers are good for 12 months without extension," and paragraph XXXI, that "bonds for customs brokers, commercial samples, repairs and those filed to guarantee the re-exportation of cylinders and other containers are not extendible." And insofar as jute bags as containers are concerned, Customs Administrative Order 66 dated August 25, 1948 was issued, prescribing rules and regulations governing the importation, exportation and identification thereof under section 23 of the Philippine Tariff Act of 1909. Said administrative order provides: That importation of jute bags intended for use as containers of Philippine products for exportation to foreign countries shall be declared in a regular import entry supported by a surety bond in an amount equal to double the estimated duties, conditioned for the exportation or payment of the corresponding duties thereon within one year from the date of importation. It will be noted that section 23 of the Philippine Tariff Act of 1909 and the superseding sec. 105(x) of the Tariff and Customs Code, while fixing at one year the period within which the containers therein mentioned must be exported, are silent as to whether the said period may be extended. It was surely by reason of this silence that the Bureau of Customs issued Administrative Orders 389 and 66, already adverted to, to eliminate confusion and provide a guide as to how it shall apply the law, 2 and, more specifically, to make officially known its policy to consider the one-year period mentioned in the law as non-extendible. Considering that the statutory provisions in question have not been the subject of previous judicial interpretation, then the application of the doctrine of "judicial respect for administrative construction," 3 would, initially, be in order. Only where the court of last resort has not previously interpreted the statute is the rule applicable that courts will give consideration to construction by administrative or executive departments of the state.41awphl.nt

The formal or informal interpretation or practical construction of an ambiguous or uncertain statute or law by the executive department or other agency charged with its administration or enforcement is entitled to consideration and the highest respect from the courts, and must be accorded appropriate weight in determining the meaning of the law, especially when the construction or interpretation is long continued and uniform or is contemporaneous with the first workings of the statute, or when the enactment of the statute was suggested by such agency.5 The administrative orders in question appear to be in consonance with the intention of the legislature to limit the period within which to export imported containers to one year, without extension, from the date of importation. Otherwise, in enacting the Tariff and Customs Code to supersede the Philippine Tariff Act of 1909, Congress would have amended section 23 of the latter law so as to overrule the long-standing view of the Commissioner of Customs that the one-year period therein mentioned is not extendible. Implied legislative approval by failure to change a long-standing administrative construction is not essential to judicial respect for the construction but is an element which greatly increases the weight given such construction.6 The correctness of the interpretation given a statute by the agency charged with administering its provision is indicated where it appears that Congress, with full knowledge of the agency's interpretation, has made significant additions to the statute without amending it to depart from the agency's view.7 Considering that the Bureau of Customs is the office charged with implementing and enforcing the provisions of our Tariff and Customs Code, the construction placed by it thereon should be given controlling weight.1awphl.nt In applying the doctrine or principle of respect for administrative or practical construction, the courts often refer to several factors which may be regarded as bases of the principle, as factors leading the courts to give the principle controlling weight in particular instances, or as independent rules in themselves. These factors are the respect due the governmental agencies charged with administration, their competence, expertness, experience, and informed judgment and the fact that they frequently are the drafters of the law they interpret; that the agency is the one on which the legislature must rely to advise it as to the practical working out of the statute, and practical application of the statute presents the agency with unique opportunity and experiences for discovering deficiencies, inaccuracies, or improvements in the statute; ... 8 If it is further considered that exemptions from taxation are not favored, 9 and that tax statutes are to be construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority, 10 then we are hard put to sustain the petitioner's stand that it was entitled to an extension of time within which to export the jute bags and, consequently, to a refund of the amount it had paid as customs duties.

In the light of the foregoing, it is our considered view that the one-year period prescribed in section 23 of the Philippine Tariff Act of 1909 is non-extendible and compliance therewith is mandatory. The petitioner's argument that force majeure and/or fortuitous events prevented it from exporting the jute bags within the one-year period cannot be accorded credit, for several reasons. In the first place, in its decision of November 20, 1961, the Court of Tax Appeals made absolutely no mention of or reference to this argument of the petitioner, which can only be interpreted to mean that the court did not believe that the "typhoons, floods and picketing" adverted to by the petitioner in its brief were of such magnitude or nature as to effectively prevent the exportation of the jute bags within the required oneyear period. In point of fact nowhere in the record does the petitioner convincingly show that the so-called fortuitous events or force majeure referred to by it precluded the timely exportation of the jute bags. In the second place, assuming, arguendo, that the one-year period is extendible, the jute bags were not actually exported within the one-week extension the petitioner sought. The record shows that although of the remaining 86,353 jute bags 21,944 were exported within the period of one week after the request for extension was filed, the rest of the bags, amounting to a total of 64,409, were actually exported only during the period from February 16 to May 24, 1958, long after the expiration of the one-week extension sought by the petitioner. Finally, it is clear from the record that the typhoons and floods which, according to the petitioner, helped render impossible the fulfillment of its obligation to export within the one-year period, assuming that they may be placed in the category of fortuitous events or force majeure, all occurred prior to the execution of the bonds in question, or prior to the commencement of the oneyear period within which the petitioner was in law required to export the jute bags. 2. The next argument of the petitioner is that granting that Customs Administrative Order 389 is valid and binding, yet "jute bags" cannot be included in the phrase "cylinders and other containers" mentioned therein. It will be noted, however, that the Philippine Tariff Act of 1909 and the Tariff and Customs Code, which Administrative Order 389 seeks to implement, speak of "containers" in general. The enumeration following the word "containers" in the said statutes serves merely to give examples of containers and not to specify the particular kinds thereof. Thus, sec. 23 of the Philippine Tariff Act states, "containers such as casks large metals, glass or other receptacles," and sec. 105 (x) of the Tariff and Customs Code mentions "large containers," giving as examples "demijohn cylinders, drums, casks and other similar receptacles of metal, glass or other materials." (emphasis supplied) There is, therefore, no reason to suppose that the customs authorities had intended, in Customs Administrative Order 389 to circumscribe the scope of the word "container," any more than the statures sought to be implemented actually intended to do. 3. Finally, the petitioner claims entitlement to a drawback of the duties it had paid, by virtue of section 106 (b) of the Tariff and Customs Code, 11 which reads: SEC. 106. Drawbacks: ... b. On Articles Made from Imported Materials or Similar Domestic Materials and Wastes Thereof. Upon the exportation of articles

manufactured or produced in the Philippines, including the packing, covering, putting up, marking or labeling thereof, either in whole or in part of imported materials, or from similar domestic materials of equal quantity and productive manufacturing quality and value, such question to be determined by the Collector of Customs, there shall be allowed a drawback equal in amount to the duties paid on the imported materials so used, or where similar domestic materials are used, to the duties paid on the equivalent imported similar materials, less one per cent thereof: Provided, That the exportation shall be made within three years after the importation of the foreign material used or constituting the basis for drawback ... . The petitioner argues that not having availed itself of the full exemption granted by sec. 105(x) of the Tariff and Customs Code due to its failure to export the jute bags within one year, it is nevertheless, by authority of the above-quoted provision, entitled to a 99% drawback of the duties it had paid, averring further that sec. 106(b) does not presuppose immediate payment of duties and taxes at the time of importation. The contention is palpably devoid of merit. The provisions invoked by the petitioner (to sustain his claim for refund) offer two options to an importer. The first, under sec. 105 (x), gives him the privilege of importing, free from import duties, the containers mentioned therein as long as he exports them within one year from the date of acceptance of the import entry, which period as shown above, is not extendible. The second, presented by sec. 106 (b), contemplates a case where import duties are first paid, subject to refund to the extent of 99% of the amount paid, provided the articles mentioned therein are exported within three years from importation. It would seem then that the Government would forego collecting duties on the articles mentioned in section 105(x) of Tariff and Customs Code as long as it is assured, by the filing of a bond, that the same shall be exported within the relatively short period of one year from the date of acceptance of the import entry. Where an importer cannot provide such assurance, then the Government, under sec. 106(b) of said Code, would require payment of the corresponding duties first. The basic purpose of the two provisions is the same, which is, to enable a local manufacturer to compete in foreign markets, by relieving him of the disadvantages resulting from having to pay duties on imported merchandise, thereby building up export trade and encouraging manufacture in the country. 12But there is a difference, and it is this: under section 105(x) full exemption is granted to an importer who justifies the grant of exemption by exporting within oneyear. The petitioner, having opted to take advantage of the provisions of section 105(x), may not, after having failed to comply with the conditions imposed thereby, avoid the consequences of such failure by being allowed a drawback under section 106(b) of the same Act without having complied with the conditions of the latter section. For it is not to be supposed that the legislature had intended to defeat compliance with the terms of section 105(x) thru a refuge under the provisions of section 106(b). A construction should be avoided which affords an opportunity to defeat compliance with

the terms of a statute. 13 Rather courts should proceed on the theory that parts of a statute may be harmonized and reconciled with each other. A construction of a statute which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the act and will carry out the intention of Congress. In the construction of statutes, the courts start with the assumption that the legislature intended to enact an effective law, and the legislature is not to be presumed to have done a vain thing in the enactment of a statute. Hence, it is a general principle, embodied in the maxim, "ut res magis valeat quam pereat," that the courts should, if reasonably possible to do so without violence to the spirit and language of an act, so interpret the statute to give it efficient operation and effect as a whole. An interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory. 14 ACCORDINGLY, the judgment of the Court of Tax Appeals of November 20, 1961 is affirmed, at petitioner's cost. Concepcion, C.J., Dizon, Zaldivar, Fernando, Capistrano, Teehankee and Barredo, JJ., concur. Makalintal and Sanchez, JJ., took no part. Reyes, J.B.L., J., is on leave.

EN BANC [G. R. No. 5000. March 11, 1909.] THE UNITED STATES, Plaintiff-Appellant, vs. VICTOR SANTO NIO, Defendant-Appellee.

and are presumed to embrace only things or persons of the kind designated by them. In short, the court below held that the carrying of a revolver concealed about the person would not be a violation of this Act. The rule of construction above referred to is resorted to only for the purpose of determining what the intent of the legislature was in enacting the law. If that intent clearly appears from other parts of the law, and such intent thus clearly manifested is contrary to the result which would reached by application of the rule of ejusdem generis, the latter must give way. In this case the proviso of the Act clearly indicates that in the view of the legislature the carrying of an unlicensed revolver would be a violation of the Act. By the proviso it manifested its intention to include in the prohibition weapons other than the armas blancas therein specified. The judgment of the court below is reversed, and the case is remanded for further proceedings. No costs will be allowed to either party in this court. SO ORDERED. Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

DECISION WILLARD, J.: Act No. 1780 is entitled as follows: chanrobles virtualawlibrary An Act to regulate the importation, acquisition, possession, use, and transfer of firearms, and to prohibit the possession of same except in compliance with the provisions of this Act. Section 26 of this Act is in part as follows: chanrobles virtualawlibrary It shall be unlawful for any person to carry concealed abou t his person any bowie knife, dirk, dagger, kris, or other deadly weapon: chanrobles virtualawlibrary Provided, That this prohibition shall not apply to firearms in possession of persons who have secured a license therefor or who are entitled to carry same under the provisions of this Act. The amended complaint in this case is as follows: chanrobles virtualawlibrary The undersigned accuses Victor Santo Nino of the violation of Act No. 1780, committed as follows: chanrobles virtualawlibrary That on or about the 16th day of August, 1908, in the city of Manila, Philippine Islands, the said Victor Santo Nino, voluntarily, unlawfully, and criminally, had in his possession and concealed about his person a deadly weapon, to wit: chanrobles virtualawlibrary One (1) iron bar, about 15 inches in length provided with an iron ball on one end and a string on the other to tie to the wrist, which weapon had been designed and made for use in fighting, and as a deadly weapon. With violation of the provisions of section 2 6 of Act No. 1780 of the Philippine Commission. A demurrer to this complaint was sustained in the court below the Government has appealed. The basis for the holding of the court below was that The words or other deadly weapon only signify a kind of w eapon included within the preceding classification. In other words, the rule of ejusdem generis must be applied in the interpretation of this law, which rule is as follows: chanrobles virtualawlibrary The most frequent application of this rule is found where specific and generic terms of the same nature are employed in the same act, the latter following the former. While in the abstract, general terms are to be given their natural and full signification, yet where they follow specific words of a like nature they take their meaning from the latter,

THIRD DIVISION [G.R. No. 136426. August 6, 1999] E. B. VILLAROSA & PARTNER CO., LTD., petitioner, vs. HON. HERMINIO I. BENITO, in his capacity as Presiding Judge, RTC, Branch 132, Makati City and IMPERIAL DEVELOPMENT CORPORATION, respondent. DECISION GONZAGA-REYES, J.: Before this Court is a petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction seeking to annul and set aside the Orders dated August 5, 1998 and November 20, 1998 of the public respondent Judge Herminio I. Benito of the Regional Trial Court of Makati City, Branch 132 and praying that the public respondent court be ordered to desist from further proceeding with Civil Case No. 98-824. Petitioner E.B. Villarosa & Partner Co., Ltd. is a limited partnership with principal office address at 102 Juan Luna St., Davao City and with branch offices at 2492 Bay View Drive, Tambo, Paraaque, Metro Manila and Kolambog, Lapasan, Cagayan de Oro City. Petitioner and private respondent executed a Deed of Sale with Development Agreement wherein the former agreed to develop certain parcels of land located at Barrio Carmen, Cagayan de Oro belonging to the latter into a housing subdivision for the construction of low cost housing units. They further agreed that in case of litigation regarding any dispute arising therefrom, the venue shall be in the proper courts of Makati. On April 3, 1998, private respondent, as plaintiff, filed a Complaint for Breach of Contract and Damages against petitioner, as defendant, before the Regional Trial Court of Makati allegedly for failure of the latter to comply with its contractual obligation in that, other than a few unfinished low cost houses, there were no substantial developments therein.[1] Summons, together with the complaint, were served upon the defendant, through its Branch Manager Engr. Wendell Sabulbero at the stated address at Kolambog, Lapasan, Cagayan de Oro City[2] but the Sheriffs Return of Service[3] stated that the summons was duly served upon defendant E. B. Villarosa & Partner Co., Ltd. thru its Branch Manager Engr. WENDELL SALBULBERO on May 5, 1998 at their new office Villa Gonzalo, Nazareth, Cagayan de Oro City, and evidenced by the signature on the face of the original copy of the summons. On June 9, 1998, defendant filed a Special Appearance with Motion to Dismiss[4]alleging that on May 6, 1998, summons intended for defendant was served upon Engr. Wendell Sabulbero, an employee of defendant at its branch office at Cagayan de Oro City. Defendant prayed for the dismissal of the complaint on the ground of improper service of summons and for lack of jurisdiction over the person of the defendant. Defendant contends that the trial court did not acquire jurisdiction over its person since the summons was improperly served upon its employee in its branch office at Cagayan de Oro City who is not one of those persons named in Section 11, Rule 14 of the 1997 Rules of Civil Procedure upon whom service of summons may be made. Meanwhile, on June 10, 1998, plaintiff filed a Motion to Declare Defendant in Default[5] alleging that defendant has failed to file an Answer despite its receipt allegedly on May 5, 1998 of the summons and the complaint, as shown in the Sheriffs Return.

On June 22, 1998, plaintiff filed an Opposition to Defendants Motion to Dismiss[6] alleging that the records show that defendant, through its branch manager, Engr. Wendell Sabulbero actually received the summons and the complaint on May 8, 1998 as evidenced by the signature appearing on the copy of the summons and not on May 5, 1998 as stated in the Sheriffs Return nor on May 6, 1998 as stated in the motion to dismiss; that defendant has transferred its office from Kolambog, Lapasan, Cagayan de Oro to its new office address at Villa Gonzalo, Nazareth, Cagayan de Oro; and that the purpose of the rule is to bring home to the corporation notice of the filing of the action. On August 5, 1998, the trial court issued an Order [7] denying defendants Motion to Dismiss as well as plaintiffs Motion to Declare Defendant in Default. Defendant was given ten (10) days within which to file a responsive pleading. The trial court stated that since the summons and copy of the complaint were in fact received by the corporation through its branch manager Wendell Sabulbero, there was substantial compliance with the rule on service of summons and consequently, it validly acquired jurisdiction over the person of the defendant. On August 19, 1998, defendant, by Special Appearance, filed a Motion for Reconsideration[8] alleging that Section 11, Rule 14 of the new Rules did not liberalize but, on the contrary, restricted the service of summons on persons enumerated therein; and that the new provision is very specific and clear in that the word manager was changed to general manager, secretary to corporate secretary, and excluding therefrom agent and director. On August 27, 1998, plaintiff filed an Opposition to defendants Motion for Reconsideration[9] alleging that defendants branch manager did bring home to the defendant-corporation the notice of the filing of the action and by virtue of which a motion to dismiss was filed; and that it was one (1) month after receipt of the summons and the complaint that defendant chose to file a motion to dismiss. On September 4, 1998, defendant, by Special Appearance, filed a Reply[10] contending that the changes in the new rules are substantial and not just general semantics. Defendants Motion for Reconsideration was denied in the Order dated November 20, 1998.[11] Hence, the present petition alleging that respondent court gravely abused its discretion tantamount to lack or in excess of jurisdiction in denying petitioners motions to dismiss and for reconsideration, despite the fact that the trial court did not acquire jurisdiction over the person of petitioner because the summons intended for it was improperly served. Petitioner invokes Section 11 of Rule 14 of the 1997 Rules of Civil Procedure. Private respondent filed its Comment to the petition citing the cases of Kanlaon Construction Enterprises Co., Inc. vs. NLRC[12] wherein it was held that service upon a construction project manager is valid and in Gesulgon vs. NLRC [13] which held that a corporation is bound by the service of summons upon its assistant manager. The only issue for resolution is whether or not the trial court acquired jurisdiction over the person of petitioner upon service of summons on its Branch Manager.

When the complaint was filed by Petitioner on April 3, 1998, the 1997 Rules of Civil Procedure was already in force.[14] Section 11, Rule 14 of the 1997 Rules of Civil Procedure provides that: When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. (underscoring supplied). This provision revised the former Section 13, Rule 14 of the Rules of Court which provided that: SEC. 13. Service upon private domestic corporation or partnership. If the defendant is a corporation organized under the laws of the Philippines or a partnership duly registered, service may be made on the president, manager, secretary, cashier, agent, or any of its directors. (underscoring supplied). Petitioner contends that the enumeration of persons to whom summons may be served is restricted, limited and exclusive following the rule on statutory construction expressio unios est exclusio alterius and argues that if the Rules of Court Revision Committee intended to liberalize the rule on service of summons, it could have easily done so by clear and concise language. We agree with petitioner. Earlier cases have uphold service of summons upon a construction project manager[15]; a corporations assistant manager[16]; ordinary clerk of a corporation[17]; private secretary of corporate executives[18]; retained counsel[19]; officials who had charge or control of the operations of the corporation, like the assistant general manager [20]; or the corporations Chief Finance and Administrative Officer[21]. In these cases, these persons were considered as agent within the contemplation of the old rule. [22] Notably, under the new Rules, service of summons upon an agent of the corporation is no longer authorized. The cases cited by private respondent are therefore not in point. In the Kanlaon case, this Court ruled that under the NLRC Rules of Procedure, summons on the respondent shall be served personally or by registered mail on the party himself; if the party is represented by counsel or any other authorized representative or agent, summons shall be served on such person. In said case, summons was served on one Engr. Estacio who managed and supervised the construction project in Iligan City (although the principal address of the corporation is in Quezon City) and supervised the work of the employees. It was held that as manager, he had sufficient responsibility and discretion to realize the importance of the legal papers served on him and to relay the same to the president or other responsible officer of petitioner such that summons for petitioner was validly served on him as agent and authorized representative of petitioner. Also in the Gesulgon case cited by private respondent, the summons was received by the clerk in the office of the Assistant Manager (at principal office address)

and under Section 13 of Rule 14 (old rule), summons may be made upon the clerk who is regarded as agent within the contemplation of the rule. The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states general manager instead of only manager; corporate secretary instead of secretary; and treasurer instead of cashier. The phrase agent, or any of its directors is conspicuously deleted in the new rule. The particular revision under Section 11 of Rule 14 was explained by retired Supreme Court Justice Florenz Regalado, thus:[23] x x x the then Sec. 13 of this Rule allowed service upon a defendant corporation to be made on the president, manager, secretary, cashier, agent or any of its directors. The aforesaid terms were obviously ambiguous and susceptible of broad and sometimes illogical interpretations, especially the word agent of the corporation. The Filoil case, involving the litigation lawyer of the corporation who precisely appeared to challenge the validity of service of summons but whose very appearance for that purpose was seized upon to validate the defective service, is an illustration of the need for this revised section with limited scope and specific terminology. Thus the absurd result in the Filoil case necessitated the amendment permitting service only on the in-house counsel of the corporation who is in effect an employee of the corporation, as distinguished from an independent practitioner. (underscoring supplied) Retired Justice Oscar Herrera, who is also a consultant of the Rules of Court Revision Committee, stated that (T)he rule must be strictly observed. Service must be made to one named in (the) statute x x x.[24] It should be noted that even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance with the rules has been enjoined. In the case of Delta Motor Sales Corporation vs. Mangosing,[25] the Court held: A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise the service is insufficient. x x x. The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, to bring home to the corporation notice of the filing of the action. x x x. The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. x x x. (underscoring supplied).

Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been held as improper. [26] Even under the old rule, service upon a general manager of a firms branch office has been held as improper as summons should have been served at the firms principal office. In First Integrated Bonding & Ins. Co., Inc. vs. Dizon,[27] it was held that the service of summons on the general manager of the insurance firms Cebu branch was improper; default order could have been obviated had the summons been served at the firms principal office. And in the case of Solar Team Entertainment, Inc. vs. Hon. Helen Bautista Ricafort, et al.[28] the Court succinctly clarified that, for the guidance of the Bench and Bar, strictest compliance with Section 11 of Rule 13 of the 1997 Rules of Civil Procedure (on Priorities in modes of service and filing) is mandated and the Court cannot rule otherwise, lest we allow circumvention of the innovation by the 1997 Rules in order to obviate delay in the administration of justice. Accordingly, we rule that the service of summons upon the branch manager of petitioner at its branch office at Cagayan de Oro, instead of upon the general manager at its principal office at Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person of the petitioner. The fact that defendant filed a belated motion to dismiss did not operate to confer jurisdiction upon its person. There is no question that the defendants voluntary appearance in the action is equivalent to service of summons. [29] Before, the rule was that a party may challenge the jurisdiction of the court over his person by making a special appearance through a motion to dismiss and if in the same motion, the movant raised other grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the court, the party is deemed to have submitted himself to the jurisdiction of the court.[30]This doctrine has been abandoned in the case of La Naval Drug Corporation vs. Court of Appeals, et al.,[31] which became the basis of the adoption of a new provision in the former Section 23, which is now Section 20 of Rule 14 of the 1997 Rules. Section 20 now provides that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person of the defendant can by no means be deemed a submission to the jurisdiction of the court. There being no proper service of summons, the trial court cannot take cognizance of a case for lack of jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court will consequently be null and void.[32] WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public respondent trial court are ANNULLED and SET ASIDE. The public respondent Regional Trial Court of Makati, Branch 132 is declared without jurisdiction to take cognizance of Civil Case No. 98-824, and all its orders and issuances in connection therewith are hereby ANNULLED and SET ASIDE. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-32441 March 29, 1930

1. In holding that Assistant Fiscal Alfonso Felix of the City of Manila was authorized to appear and institute administrative proceedings against Dr. Dominador Gomez before the Board of Medical Examiners of the Philippines. 2. In not holding that Assistant Fiscal Alfonso Felix, of the City of Manila, had personality nor power to institute administrative proceedings against Dr. Dominador Gomez before the Board of Medical Examiners of the Philippines. 3. In admitting in its decision that section 9 of Act No. 2381, known as the Opium Law, is valid. 4. In not holding that section 9 of Act No. 2381, known as the Opium Law, is unconstitutional, and therefore null and void. 5. In holding that section 9 Act No. 2381, known as the Opium Law, is in force.

DOMINADOR GOMEZ, plaintiff-appellant, vs. HONORIO VENTURA, Secretary of the Interior of the Government of the Philippine Islands, and the BOARD OF MEDICAL EXAMINERS OF THE PHILIPPINE ISLANDS, defendants-appellees. Jose Varela Calderon for appellant. Attorney-General Jaranilla for appellees. ROMUALDEZ, J.:

6. In not holding that section 9 Act No. 2381 has been repealed, even on the supposition that it was valid. 7. In rendering the judgment appealed from.

In this cause, the plaintiff prays for judgment, as follows: 8. In denying the motion for avoidance, and for a new trial, filed by appellant. 1. Annulling and setting aside the aforementioned investigation proceedings, and particularly the decision of the Board of Medical Examiners of the Philippine Islands dated March 30, 1926, forever revoking the plaintiff's license to practice medicine and surgery. 2. Ordering the defendants to restore the plaintiff to his status before the investigation and the decision of March 30, 1926, that is, as if there had never been an investigation and an adverse decision. 3. Ordering said defendants to issue in favor of the plaintiff a license for the practice of medicine and surgery in the Philippine Islands, such as he had prior to the investigation and adverse decision. 4. Granting the plaintiff any proper legal remedy. (Pages 5 and 6, bill of exemptions.) The defendants answered with a general denial and prayed that the complaint be dismissed. After trial the Court of First Instance of Manila dismissed the complaint with costs against the plaintiff. Counsel for plaintiff contends that the court below erred: The first two assignments of error relate to the validity of the charges against the plaintiff, preferred by Assistant Fiscal Alfonso Felix of the City of Manila, who, according to the plaintiff is not authorized by law to file charges with the Board of Medical Examiners, which therefore acquired no jurisdiction over the matter. According to section 780 of Administrative Code, as amended by Act No. 3111, the procedure to be observed in revoking a certificate of registration is the following: Proceedings for revocation of a certificate of registration shall be begun by filing a written charge or charges against the accused. These charges may be preferred by any person or persons, firm or corporation, or the Board of Medical Examiners itself may direct its executive officer to prepare said charges. Said charges shall be filed with the executive officer of the Board of Medical Examiners and a copy thereof, together with written notice of the time and place when they will be heared and determined, shall be served upon the accused or his counsel, at least two weeks before the date actually fixed for said hearing. (Sec. 12, Act No. 3111.) The law does not require that the charges be preferred by a public officer or by any specified person; it even permits the Board of Medical Examiners itself to require its executive officer to prefer said charges. From the wording of the law we infer that any person, including a public officer, may prefer the charges referred to in the above-quoted provision. Wherefore, the fact that the charges were filed by Assistant Fiscal Alfonso

Felix of the City of Manila, does not deprive the Board of Medical Examiners of jurisdiction to hear said charges and to take the proper action according to law. The appellant contends in his third and fourth assignments of error that section 9 of Act No. 2381 is null and void on the ground of unconstitutionality, since said section is foreign to the subject of said Act, in violation of section 3 of the Jones Law prohibiting the enactment of any bill embracing more than one subject and providing that the subject be expressed in the title of the bill. Our opinion is that the matter contained in section 9 of Act No. 2381 is not foreign to the end pursued in said Act, and that in view in the provision of said section it cannot be maintained that Act No. 2381 includes more than one subject. The penalty provided in said section for the physician or dentist who prescribes opium for a patient whose physical condition does not require the use of said drug, is one of the means employed by the Legislature to attain the purpose of Act No. 2381, which is, to prohibit unnecessary use of opium; it is one of the details subordinate to the purpose in view. Such punishment is not the end contemplated in Act No. 2381, but, as we have just said, it is a means employed to regulate the use of opium. In passing said Act No. 2381, the Legislature merely exercised the police power expressly granted by the Act of Congress of March 3, 1905, for the protection of the health, comfort, and general welfare of the people of the Philippine Islands. ID.; ID.; POWER OF PHILIPPINE LEGISLATURE TO LEGISLATE UPON THE SUBJECT. The Philippine Legislature is expressly authorized by the Act of Congress of March 3, 1905, to adopt legislation upon the importation and sale of opium in the Philippine Islands. The purpose of such legislation was to protect the health, comfort, and general welfare of the people of the Philippine Islands. Such legislation was an exercise of the police power of the State. (United States vs. Wayne Shoup, 35 Phil., 56.) And, as we have stated, the provisions contained in section 9 of Act No. 2381 relative to the physicians and dentist are simply detailes and means conducive to the ultimate purpose of said Act, which details and means need not be stated in the title of the Act for the very reason that properly speaking, they are not foreign matter. The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act relating to that alone, would not only be unreasonable, but would actually render legislation impossible. (Cooley on Constitutional Limitations, pp. 296-297.) The constitutional requirement is addressed to the subject, not to the details of the act. The subject must be single; the provisions, to accomplished the object involved in that subject, may be multifarious. . . . None of the provisions of a statute will be held unconstitutional when they all relate, directly or indirectly,

to the same subject, have natural connection, and are not foreign to the subject expressed in the title. As very frequently expressed by the courts, any provisions that are germane to the subject expressed in the title may properly be included in the act. (I Sutherland on Stat. Const., par. 118.) In order to hold that section 9 of Act No. 2381 is unconstitutional on the ground alleged by the plaintiff, the violation of the constitutional provision must be substantial and manifest. It is not so in the case at bar. 2. To warrant the setting aside of statutes because their subjects are not expressed in the titles, the violation of the rule must be substantial and plain. (Posadas vs. Menzi, Decision of the United States Supreme Court, page 388, No. 11, May 15, 1929, United States Supreme Court Advance Opinions.) At all events the validity of this Opium Law, Act No. 2381, has already been upheld by this court, not only in the above cited case, United States vs. Wayne Shoup, supra, but also in the subsequent case of United States vs. Jao Li Sing (37 Phil., 211). Passing to the fifth and sixth assignments of error, wherein counsel for appellant contends that even granting that section 9 of Act No. 2381 is valid, it was repealed by Act No. 2493 and later by section 780 of the Administrative Code, we note, first, that there is no express repeal of section 9 of Act No. 2381. Secondly, it cannot be held that it has been impliedly repealed, for the reason that the provisions of section 9, Act No. 2381, are neither contrary to, nor incompatible with, the provisions of section 780 of the Administrative Code, as amended. Upon this point, we approve and adopt the following statements made by the trial judge: Counsel contends, in support of the above, that Act No. 2493 being complete, and "covering the field" by implication repealed all laws relating to the practice of medicine, powers of the Board of Medical Examiners and allied matters; hence, the said law, expressly providing the causes for revocation of medical licenses, necessarily excluded all others, even though embodied in prior enactments. Act No. 310 provided that the Board of medical Examiners could revoke licenses for "unprofessional conduct," without defining the term. Act No. 1761 (the Opium Law) provided that illegaly prescribing opium should be cause for revocation of medical licenses. Clearly, the Opium Law did not repeal Act No. 310. Act No. 2381 also an Opium Law in its section 9, repeated the provision as to doctors and dentists. The repetition did not repeal Act No. 310. Act No. 2493, section 11 (Ad. Code, sec. 780), provided that certificates of physicians are revocable for "unprofessional conduct," without defining the phrase. In other words, so far as revocation of licenses is concerned, Act No. 2493 is mere reenactment of Act No. 310. The reenactment of the said portion of Act No. 310 did not repeal section 9 of the Opium Law. If said section 9 has been repealed, it must be by Act No. 3111, which amends Act No. 2493 (Ad.

Code, sec. 780), by an addition after the words "unprofessional conduct" of the following: "The words "unprofessional conduct, immoral, or dishonorable conduct" as used in this chapter shall be construed to include the following acts: (1) Procuring, aiding or abeting a criminal abortion; (2) advertising, either in his own name or in the name of any other person, firm, association, or corporation, in any written or printed paper, or document, of medical business in which untruthful or improbable promises are made, or being employed by, or in the service of any person, firm, association or corporation so advertising, or advertising in any obscene manner derogatory to good morals; (3) habitual intemperance or addition to the use of morphine, opium, cocaine or other drugs having a similar effect; (4) conviction of a crime or misdemeanor involving dishonorable conduct; and (5) willfully betraying a professional secret." It cannot be seriously contended that aside from the five examples specified there can be no other conduct of a physician deemed "unprofessional" conduct theretofore deemed grounds for revocation licenses. The maxim expressio unius est exclussio alterius should be applied only as a means of discovering legislative intent and should not be permitted to defeat the plain indicated purpose of the Legislature. It does not apply when words are mentioned by way of example, or to remove doubts. (See Cyc., 1122.) If, therefore, there exists, "unprofessional conduct" not specified in the laws, with more reason does the criminal use of opium remain a specific cause for revocation of license. (Pages 11, 12 and 13, bill of exceptions.) As to the seventh and eighth assignments of error, we find the judgment and appealed from correctly rendered, and the motion of avoidance and new trial properly denied. As the Attorney-General correctly observes, the powers vested in the Board of Medical Examiners to suspend or revoke a physician's certificate of registration and the authority granted the Secretary of the Interior of confirming or reversing the decision of said board of examiners, partake of a quasi-judicial character, that is, involve the use of discretion. For this reason, the exercise thereof cannot be reviewed by mandamus, which is the nature of this cause on its merits. As in the case of courts and judicial officers, it is a rule of general application that mandamus will not lie to review or control the acts of executive officers and boards of state and federal governments in respect of matters as to which they are vested with discretion. In other words, they cannot be compelled to act or render a decision in any particular way, and this is so, even though the exercise of this discretion requires the construction and interpretation of statutes. Where public officials exercise their discretion, it is said that their conclusions, although disputable, are impregnable to mandamus. (38 C. J., 659660.)

That this action is really a mandamus proceeding, appears clearly from the terms of the complaint filed herein. Finding no merit in the assignments of error, the judgment appealed from is affirmed, with costs against the appellant. So ordered. Malcolm, Ostrand, Johns and Villa-Real, JJ., concur. Villamor, J., reserves his vote.

SPECIAL SECOND DIVISION [G.R. No. 131457. August 19, 1999] HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF BUKIDNON, HON. REY B. BAULA, MUNICIPAL MAYOR OF SUMILAO, BUKIDNON, NQSR MANAGEMENT AND DEVELOPMENT CORPORATION, petitioners, vs. HON. RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY, HON. ERNESTO D. GARILAO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, respondents. RESOLUTION YNARES-SANTIAGO, J.: This resolves the pending incidents before us, namely, respondents and intervenors separate motions for reconsideration of our Resolution dated November 17, 1998, as well as their motions to refer this case to this Court en banc. Respondents and intervenors jointly argue, in fine, that our Resolution dated November 17, 1998, wherein we voted two-two on the separate motions for reconsideration of our earlier Decision of April 24, 1998, as a result of which the Decision was deemed affirmed, did not effectively resolve the said motions for reconsideration inasmuch as the matter should have been referred to the Court sitting en banc, pursuant to Article VIII, Section 4(3) of the Constitution. Respondents and intervenors also assail our Resolution dated January 27, 1999, wherein we noted without action the intervenors Motion For Reconsideration With Motion To Refer The Matter To The Court En Banc filed on December 3, 1998, on the follo wing considerations, to wit: the movants have no legal personality to further seek redress before the Court after their motion for leave to intervene in this case was denied in the April 24, 1998 Decision. Their subsequent motion for reconsideration of the said decision, with a prayer to resolve the motion to the Court En Banc, was also denied in the November 17, 1998 Resolution of the Court. Besides, their aforesaid motion of December 3, 1998 is in the nature of a second motion for reconsideration which is a forbidden motion (Section 2, Rule 52 in relation to Section 4, Rule 56 of the 1997 Rules of Civil Procedure). The impropriety of movants December 3, 1998 motion becomes all the more glaring considering that all the respondents in this case did not anymore join them (movants) in seeking a reconsideration of the November 17, 1998 Resolution. [1] Subsequently, respondents, through the Office of the Solicitor General, filed their Motion For Reconsideration Of The Resolution Dated November 17, 1998 And For Referral Of The Case To This Honorable Court En Banc (With Urgent Prayer For Issuance Of A Restraining Order) on December 3, 1998, accompanied by a Manifestation and Motion[2] and a copy of the Registered Mail Bill[3]evidencing filing of the said motion for reconsideration to this Court by registered mail. In their respective motions for reconsideration, both respondents and intervenors pray that this case be referred to this Court en banc. They contend that inasmuch as their earlier motions for reconsideration (of the Decision dated April 24, 1998) were resolved by a vote of two-two, the required number to carry a decision, i.e., three, was not

met. Consequently, the case should be referred to and be decided by this Court en banc, relying on the following constitutional provision: Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc.[4] A careful reading of the above constitutional provision, however, reveals the intention of the framers to draw a distinction between cases, on the one hand, and matters, on the other hand, such that casesare decided while matters, which include motions, are resolved. Otherwise put, the word decided must refer to cases; while the word resolved must refer to matters, applying the rule of reddendo singula singulis. This is true not only in the interpretation of the above-quoted Article VIII, Section 4(3), but also of the other provisions of the Constitution where these words appear.[5] With the aforesaid rule of construction in mind, it is clear that only cases are referred to the Court en banc for decision whenever the required number of votes is not obtained. Conversely, the rule does not apply where, as in this case, the required three votes is not obtained in the resolution of a motion for reconsideration. Hence, the second sentence of the aforequoted provision speaks only of case and not matter. The reason is simple. The above-quoted Article VIII, Section 4(3) pertains to the disposition of cases by a division. If there is a tie in the voting, there is no decision. The only way to dispose of the case then is to refer it to the Court en banc. On the other hand, if a case has already been decided by the division and the losing party files a motion for reconsideration, the failure of the division to resolve the motion because of a tie in the voting does not leave the case undecided. There is still the decision which must stand in view of the failure of the members of the division to muster the necessary vote for its reconsideration. Quite plainly, if the voting results in a tie, the motion for reconsideration is lost. The assailed decision is not reconsidered and must therefore be deemed affirmed. Such was the ruling of this Court in the Resolution of November 17, 1998. It is the movants further contention in support of their plea for the referral of this case to the Court en banc that the issues submitted in their separate motions are of first impression. In the opinion penned by Mr. Justice Antonio M. Martinez during the resolution of the motions for reconsideration on November 17, 1998, the following was expressed: Regrettably, the issues presented before us by the movants are matters of no extraordinary import to merit the attention of the Court en banc. Specifically, the issue of whether or not the power of the local government units to reclassify lands is subject to the approval of the DAR is no longer novel, this having been decided by this Court in the case of Province of Camarines Sur, et al. vs. Court of Appealswherein we held that local government units need not obtain the approval of the DAR to convert or reclassify lands

from agricultural to non-agricultural use. The dispositive portion of the Decision in the aforecited case states: WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals is set aside insofar as it (a) nullifies the trial courts order allowing the Province of Camarines Sur to take possession of private respondents property; (b) orders the trial court to suspend the expropriation proceedings; and (c) requires the Province of Camarines Sur to obtain the approval of the Department of Agrarian Reform to convert or reclassify private respondents property from agricultural to non agricultural use. xxx xxx xxx (Emphasis supplied)

procedural rule pertaining to the reglementary period to appeal or move for reconsideration, the underlying consideration therefor was the protection of the substantive rights of petitioners. The succinct words of Mr. Justice Artemio V. Panganiban are quoted in the November 17, 1998 opinion of Mr. Justice Martinez, viz: Just as a losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his/her case.[8] In other words, the finality of the March 29, 1996 OP Decision accordingly vested appurtenant rights to the land in dispute on petitioners as well as on the people of Bukidnon and other parts of the country who stand to be benefited by the development of the property. The issue in this case, therefore, is not a question of technicality but of substance and merit.[9] Before finally disposing of these pending matters, we feel it necessary to rule once and for all on the legal standing of intervenors in this case. In their present motions, intervenors insist that they are real parties in interest inasmuch as they have already been issued certificates of land ownership award, or CLOAs, and that while they are seasonal farmworkers at the plantation, they have been identified by the DAR as qualified beneficiaries of the property. These arguments are, however, nothing new as in fact they have already been raised in intervenors earlier motion for reconsideration of our April 24, 1998 Decision. Again as expressed in the opinion of Mr. Justice Martinez, intervenors, who are admittedly not regular but seasonal farmworkers, have no legal or actual and substantive interest over the subject land inasmuch as they have no right to own the land. Rather, their right is limited only to a just share of the fruits of the land.[10] Moreover, the Win-Win Resolution itself states that the qualified beneficiaries have yet to be carefully and meticulously determined by the Department of Agrarian Reform.[11] Absent any definitive finding of the Department of Agrarian Reform, intervenors cannot as yet be deemed vested with sufficient interest in the controversy as to be qualified to intervene in this case. Likewise, the issuance of the CLOA's to them does not grant them the requisite standing in view of the nullity of the Win -Win Resolution. No legal rights can emanate from a resolution that is null and void. WHEREFORE, based on the foregoing, the following incidents, namely: intervenors Motion For Reconsideration With Motion To Refer The Matter To The Court En Banc, dated December 3, 1998; respondents Motion For Reconsideration Of The Resolution Dated November 17, 1998 And For Referral Of The Case To This Honorable Court En Banc (With Urgent Prayer For Issuance Of A Restraining Order), dated December 2, 1998; and intervenors Urgent Omnibus Motion For The Supreme Court Sitting En Banc To Annul The Second Divisions Resolution Dated 27 January 1999 And Immediately Resolve The 28 May 1998 Motion For Reconsideration Filed By The Intervenors, dated March 2, 1999; are all DENIED with FINALITY. No further motion, pleading, or paper will be entertained in this case. SO ORDERED. Melo, J., see separate opinion. Puno, J., in the result, he maintain his original position that the case should go to CA for further proceedings. Mendoza, J., in the result.

Moreover, the Decision sought to be reconsidered was arrived at by a unanimous vote of all five (5) members of the Second Division of this Court. Stated otherwise, this Second Division is of the opinion that the matters raised by movants are nothing new and do not deserve the consideration of the Court en banc. Thus, the participation of the full Court in the resolution of movants motions for reconsideration would be inappropriate. [6] The contention, therefore, that our Resolution of November 17, 1998 did not dispose of the earlier motions for reconsideration of the Decision dated April 24, 1998 is flawed. Consequently, the present motions for reconsideration necessarily partake of the nature of a second motion for reconsideration which, according to the clear and unambiguous language of Rule 56, Section 4, in relation to Rule 52, Section 2, of the 1997 Rules of Civil Procedure, is prohibited. True, there are exceptional cases when this Court may entertain a second motion for reconsideration, such as where there are extraordinarily persuasive reasons. Even then, we have ruled that such second motions for reconsideration must be filed with express leave of court first obtained.[7] In this case, not only did movants fail to ask for prior leave of court, but more importantly, they have been unable to show that there are exceptional reasons for us to give due course to their second motions for reconsideration. Stripped of the arguments for referral of this incident to the Court en banc, the motions subject of this resolution are nothing more but rehashes of the motions for reconsideration which have been denied in the Resolution of November 17, 1998. To be sure, the allegations contained therein have already been raised before and passed upon by this Court in the said Resolution. The crux of the controversy is the validity of the Win -Win Resolution dated November 7, 1997. We maintain that the same is void and of no legal effect considering that the March 29, 1996 decision of the Office of the President had already become final and executory even prior to the filing of the motion for reconsideration which became the basis of the said Win-Win Resolution. This ruling, quite understandably, sparked a litany of protestations on the part of respondents and intervenors including entreaties for a liberal interpretation of the rules. The sentiment was that notwithstanding its importance and far-reaching effects, the case was disposed of on a technicality. The situation, however, is not as simple as what the movants purport it to be. While it may be true that on its face the nullification of the Win -Win Resolution was grounded on a

SEPARATE OPINION

Let us take the smallest division of 3 and the vote is 2-1. So, it is less than 3 votes. Should it immediately go to the court en banc of 15 justices or should it first go to a bigger division? MR. CONCEPCION: MR. RODRIGO: MR. SUAREZ: Yes.

MELO, J.: On the merits, I still maintain my vote with Mr. Justice Puno that this case should be referred to the Court of Appeals for further proceedings. Since what is now before us is a second motion for reconsideration, which under the rules is generally proscribed, the majority deemed it pertinent to limit its resolution in regard to cogent procedural points. At the outset, I wish to point out that inasmuch as I am bound to abide by the Court En Bancs Resolution No. 99-1-09-SC dated January 22, 1999, which settled the issue of an even (2-2) vote in a division, I am constrained to vote with the majority in denying all of the subject motions in the above-captioned case. Nevertheless, I wish to express my views on this issue and put them on record, so, in the event that the Court decides to re-open and re-discuss this issue at some future time, these considerations may be referred to. I continue to have some reservations regarding the maj oritys position regarding an even (2-2) vote in a division, due to the following considerations: By mandate of the Constitution, cases heard by a division when the required majority of at least 3 votes in the division is not obtained are to be heard and decided by the Court En Banc. Specifically, Paragraph 3, Section 4, Article VIII of the Constitution provides that: xxx (3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such members. When the required number is not obtained, the case shall be decided en banc: provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. The deliberations of the 1986 Constitutional Commission disclose that if the case is not decided in a division by a majority vote, it goes to the Court En Banc and not to a larger division. Moreover, the elevation of a case to the Banc shall be automatic. Thus, MR. RODRIGO: Madam President, may I ask some questions for clarification.

They immediately go to the court en banc? Yes, Madam President.

MR. RODRIGO: Is that automatic? Let us say that in the division of 3, the vote is 2-1, automatically it goes to the court en banc? MR. SUAREZ: Yes, because the required number of 3 is not obtained. So, this last phrase would operate automatically WHEN THE REQUIRED NUMBER IS NOT OBTAINED, THE CASE SHALL BE DECIDED EN BANC. xxx (V Record 635, Oct. 8, 1986) Explicit, therefore, is the requirement that at least 3 members must concur in any case or matter heard by a division. Failing thus, or, when the required number of 3 votes is not obtained, the case or matter will have to be decided by the Court En Banc. In a situation where a division of 5 has only 4 members, the 5 th member having inhibited himself or is otherwise not in a position to participate, or has retired, a minimum of 3 votes would still be required before there can be any valid decision or resolution by that division. There may, then, be instances when a deadlock may occur, i.e., the votes tied at 2-2. It is my humble view that under the clear and unequivocal provisions of the 1986 Constitution, if the required majority is not reached in a division, the case should automatically go to Court En Banc. A distinction has been made between cases and matters referred to in the above-quoted constitutional provision. Cases being decided, and matters being resolved. Only cases are referred to the Court En Banc for decision whenever the required number of votes is not obtained. Matters are not referred anymore. I regret I cannot square with such position. The majority view is that cases would only refer to deliberations at first instance on the merits of a case filed with the Court, and other deliberations, such as motions, including motions for reconsideration, are matters to be r esolved. To give flesh to this distinction, it is cited that if a tie occurs in the voting on deliberations of cases, no decision is passed, whereas, if a tie occurs in the voting on motions for reconsideration, the decision which had already been passed stands. This is not true all the time. It may be true only in original cases, as opposed to appealed cases, filed with the Court. However, because of the doctrine of hierarchy of courts, the only original cases which are taken cognizance of by this Court are those wherein it has exclusive jurisdiction. But, invariably, these cases are all required by the xxx xxx

MR. PRESIDENT: Commissioner Rodrigo is recognized. MR. RODRIGO: Under these provisions, there are 3 kinds of divisions : one would be a division composed of 3 justices in which case there will be 5 divisions; another division is composed of 5 justices each, in which case there will be 3 divisions; and the other is composed of 7 members each, in which case, there will be 2 divisions.

Constitution to be heard by the Court En Banc. So, there will be no instance when a division will be ever taking cognizance of an original action filed with this Court. It may be noted that cases taken cognizance of by the divisions are either petitions for review on certiorari under Rule 45 or petitions for certiorari, prohibition or mandamus, under Rule 65. Under Rule 45, appeal by way of petition for review on certiorari is not a matter of right. Thus, should there be a tie in the voting on deliberation of a case by the division, although apparently no action is passed, a decision may still be rendered-the petition is hereby DENIED due course, and it is forthwith DISMISSED. This is definitely in consonance with the majoritys line of reasoning in the 2-2 vote on motions for reconsideration. But why is that, the 2-2 vote in the deliberation of the case at the first instance should still be referred to the Court En Banc? The reason is simple. Because the express provision of the Constitution requires a vote of at least three justices for there to be a valid and binding decision of the Court. But, why do we not apply the same rule to motions for reconsideration? Even on this score alone, it is my view that, in all instances, whether it be in the deliberations of a case at first instance or on a motion for reconsideration, a division having a 2-2 vote cannot pass action. I submit that the requirement of 3 votes equally applies to motions for reconsideration because the provision contemplates cases or matters (which for me has no material distinction insofar as divisions are concerned) heard by a division, and a motion for reconsideration cannot be divorced from the decision in a case that it seeks to be reconsidered. Consequently, if the required minimum majority of 3 votes is not met, the matter of the motion for reconsideration has to be heard by the Court En Banc, as mandated by the Constitution (par. 3, Sec. 4, Art. VIII). To say that the motion is lost in the division on a 2-2 vote, is to construe something which cannot be sustained by a reading of the Constitution. To argue that a motion for reconsideration is not a case but only a matter which does not concern a case, so that, even though the vote thereon in the division is 2-2, the matter or issue is not required to elevated to the Court En Banc, is to engage in a lot of unfounded hairsplitting. Furthermore, I humbly submit that the theory of leaving the issue hanging on a 2-2 vote or any even vote may be sustained only in cases where there is no recourse to a higher assemblage. In the Court of Appeals, for instance, an even vote in a division of 5 (2-2, with 1 abstaining) would result in the motion not being carried, but only because there is and there cannot be recourse to the Court of Appeals En Banc which, does not act on judicial matters. In a legislative body, an even vote results in the failure of the proposition, only because there is no higher body which can take over. In our own Court En Banc, if the voting is evenly split, on a 7-7 vote with 1 slot vacant, or with 1 justice inhibiting or disqualifying himself, the motion shall, of course, not be carried because that is the end of the line. But in the situation now facing us, the even vote is in a division, and there being recourse to the Court En Banc, and more so, this being expressly directed by the Constitution, the matter of the motion for reconsideration should, by all means, be decided by the Court En Banc.

EN BANC [G.R. No. 138381. November 10, 2004] GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner, vs. COMMISSION ON AUDIT, respondent. [G.R. No. 141625. November 10, 2004] GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner, vs. ALFREDO D. PINEDA, DANIEL GO, FELINO BULANDUS, FELICIMO J. FERRARIS, JR., BEN HUR PORLUCAS, LUIS HIPONIA, MARIA LUISA A. FERNANDEZ, VICTORINA JOVEN, CORAZON S. ALIWANAG, SILVER L. MARTINES, SR., RENATO PEREZ, LOLITA CAYLAN, DOUGLAS VALLEJO and LETICIA ALMAZAN, on their own behalf and on behalf of all GSIS retirees with all of whom they share a common and general interest, respondents. RESOLUTION YNARES-SANTIAGO, J.: On April 16, 2002, the Court promulgated a decision on these two consolidated cases partially granting the petition in G.R. No. 138381 (first petition) thereby reversing the Commission on Audits (COA) disallowance of certain fringe benefits granted to GSIS employees. As a result, the Court ordered the refund of amounts representing fringe benefits corresponding to those allowed in the first petition in favor of the respondents in G.R. No. 141625 (second petition). The benefits which the Court ordered to be refunded included increases in longevity pay, childrens allowance and management contribution to the Provident Fund as well as premiums for group personal accident insurance. On the other hand, the Court affirmed the COA disallowance of loyalty and service cash award as well as housing allowance in excess of that approved by the COA. Amounts corresponding to these benefits were previously deducted by GSIS from respondents retirement benefits in view of the COA disallowance in the first petition. COA did not seek reconsideration of the judgment ordering said refund, which thus became final and executory. On August 7, 2002, the respondents in the second petition, all GSIS retirees, filed a motion for amendatory and clarificatory judgment (amendatory motion). [1] They averred that we did not categorically resolve the issue raised in the second petition, namely: whether or not the GSIS may lawfully deduct any amount from their retirement benefits in light of Section 39 of Republic Act No. 8291. According to respondents, said provision of law clearly states that no amount whatsoever could be legally deducted from retirement benefits, even those amounts representing COA disallowances. They posit that we should have ordered refund not only of benefits allowed in the first petition, but all amounts claimed, regardless of whether or not these were allowed by the COA. These include items which were correctly disallowed by the COA in the first petition, as well as disallowed benefits under the second petition. The latter consists of initial payment of productivity bonus, accelerated implementation of the new salary schedule effective August 1, 1995, 1995 mid-year financial assistance and increase in clothing, rice and meal allowances. Respondents further insist that we should have awarded damages in their favor, citing the GSIS alleged bad faith in making the deductions.

GSIS filed a comment[2] to respondents amendatory motion, as directed by the Court in a resolution dated September 3, 2002. GSIS posited that the other benefits not passed upon in the main judgment should be understood by respondents as having been impliedly denied by this Court. It also sought clarification of our decision insofar as it declared that there was no identity of subject matter between the COA proceedings, from which the first petition stemmed, and respondents claim under the second pet ition, which emanated from an order of the GSIS Board of Trustees (Board). As for the damages claimed by respondents, GSIS insists that it made the deductions in good faith for these were done in accordance with COA directives. Respondents filed a reply[3] to the comment of GSIS on September 9, 2002. Meanwhile, respondents filed a second motion, this time for leave to file a motion for discretionary and partial execution[4] (motion for execution). They prayed that GSIS be ordered to effect the refund, as finally adjudged in our decision, pending resolution of their amendatory motion as to the other deducted amounts. We granted the motion for execution on September 3, 2002. Subsequently, on December 26, 2002, counsel for respondents, Atty. Agustin Sundiam, filed a motion for entry and enforcement of attorneys lien [5] (motion for charging lien) and a supplement[6] to this motion on January 10, 2003. He sought entry of a charging lien in the records of this case pursuant to Section 37 of Rule 138. He prayed for an order directing the GSIS to deduct, as his professional fees, 15% from respondents refund vouchers since the GSIS was already in t he process of releasing his clients checks in compliance with our judgment in the first petition. The payment scheme was allegedly authorized by the Board of Directors of his clients, the GSIS Retirees Association, Inc. (GRIA), through a board resolution [7] that he has attached to the motion. Atty. Sundiams motion for charging lien was opposed by petitioner GSIS on the ground that it was through its efforts, and n ot Atty. Sundiams, that the retirees were able to obtain a refund.[8] Meanwhile, the GRIA confirmed the payment scheme it adopted with Atty. Sundiam and prayed for its approval.[9] Thereafter, on January 10, 2003, respondents filed another manifestation and motion as well as supplement thereto, claiming that GSIS was deducting new and unspecified sums from the amount it was refunding to respondents. These new deductions purportedly pertain to another set of COA disallowances. [10] On January 21, 2003, respondents again filed a motion [11] praying for the inclusion in the refundable amount of dividends on the management contribution to the Provident Fund (motion for payment of dividends). Respondents claimed that the contribution, which amounted to Fifty Million Pesos (P50M), was retained by GSIS for more than five years and thus earned a considerable sum of income while under its control. GSIS declared and paid dividends on said contribution to incumbent officials and employees, but refused to extend the same benefits to respondents/retirees. On March 6, 2003, GSIS filed a joint comment[12] to respondents two foregoing motions contending that the new deductions are legitimate. The deductions pertain to car loan arrearages, disallowed employees compensation claims and the like. As for the dividends on the Provident Fund contributions, respondents are not entitled to the same

because while the first petition was pending, the contributions were not actually remitted to the fund but were withheld by COA pursuant to its earlier disallowance. On October 2, 2003, respondents filed another motion[13] for an order to compel the GSIS to pay dividends on the Provident Fund contributions pending resolution of their other motions. They also sought refund of Permanent Partial Disability (PPD) benefits that GSIS supposedly paid to some of the respondents, but once again arbitrarily deducted from the amount which the Court ordered to be refunded. In a minute resolution[14] dated November 11, 2003, we denied the last motion for lack of merit. We likewise denied with finality respondents motion for reconsideration from the denial of said motion.[15] We now resolve the matters raised by the parties. On the amendatory motion, it must be clarified that the question raised before this Court in the second petition was the issue of the Boards jurisdiction to resolve respondents claim for refund of amounts representing deductions from their retirement benefits. What was assailed in the second petition was the appellate courts ruling that the Board had jurisdiction over respondents claim since there was no identity of subject matter between the proceedings then pending before the COA and the petition brought by respondents before the Board. The Court of Appeals did not rule on the main controversy of whether COA disallowances could be deducted from retirement benefits because the Board ordered the dismissal of respondents claim for alleged lack of jurisdiction, before it could even decide on the principal issue. Consequently, the only matter that was properly elevated to this Court was the issue of whether or not the Board had jurisdiction over respondents demands. We did not resolve the issue of whether or not the deductions were valid under Section 39 of RA 8291, for the simple reason that the Board, as well as the appellate court, did not tackle the issue. The doctrine of primary jurisdiction[16] would ordinarily preclude us from resolving the matter, which calls for a ruling to be first made by the Board. It is the latter that is vested by law with exclusive and original jurisdiction to settle any dispute arising under RA 8291, as well as other matters related thereto. [17] However, both the GSIS and respondents have extensively discussed the merits of the case in their respective pleadings and did not confine their arguments to the issue of jurisdiction. Respondents, in fact, submit that we should resolve the main issue on the ground that it is a purely legal question. Respondents further state that a remand of the case to the Board would merely result in unnecessary delay and needless expense for the parties. They thus urge the Court to decide the main question in order to finally put an end to the controversy. Indeed, the principal issue pending before the Board does not involve any factual question, as it concerns only the correct application of the last paragraph of Section 39, RA 8291. The parties agreed that the lone issue is whether COA disallowances could be legally deducted from retirement benefits on the ground that these were respondents monetary liabilities to the GSIS under the said provision. There is no dispute that the amounts deducted by GSIS represented COA disallowances. Thus, the only question left for the Board to decide is whether the deductions are allowed under RA 8291.

Under certain exceptional circumstances, we have taken cognizance of questions of law even in the absence of an initial determination by a lower court or administrative body. InChina Banking Corporation v. Court of Appeals ,[18] the Court held: At the outset, the Courts attention is drawn to the fact that since the filing of this suit before the trial court, none of the substantial issues have been resolved. To avoid and gloss over the issues raised by the parties, as what the trial court and respondent Court of Appeals did, would unduly prolong this litigation involving a rather simple case of foreclosure of mortgage. Undoubtedly, this will run counter to the avowed purpose of the rules, i.e., to assist the parties in obtaining just, speedy and inexpensive determination of every action or proceeding. The Court, therefore, feels that the central issues of the case, albeit unresolved by the courts below, should now be settled specially as they involved pure questions of law. Furthermore, the pleadings of the respective parties on file have amply ventilated their various positions and arguments on the matter necessitating prompt adjudication. In Roman Catholic Archbishop of Manila v. Court of Appeals ,[19] the Court likewise held that the remand of a case is not necessary where the court is in a position to resolve the dispute based on the records before it. The Court will decide actions on the merits in order to expedite the settlement of a controversy and if the ends of justice would not be subserved by a remand of the case. Here, the primary issue calls for an application of a specific provision of RA 8291 as well as relevant jurisprudence on the matter. No useful purpose will indeed be served if we remand the matter to the Board, only for its decision to be elevated again to the Court of Appeals and subsequently to this Court. Hence, we deem it sound to rule on the merits of the controversy rather than to remand the case for further proceedings. The last paragraph of Section 39, RA 8291 specifically provides: SEC. 39. Exemption from Tax, Legal Process and Lien.xxx xxx xxx

The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or administrative bodies including Commission on Audit (COA) disallowances and from all financial obligations of the members, including his pecuniary accountability arising from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or in connection with his position or work except when his monetary liability, contractual or otherwise, is in favor of the GSIS. It is clear from the above provision that COA disallowances cannot be deducted from benefits under RA 8291, as the same are explicitly made exempt by law from such deductions. Retirement benefits cannot be diminished by COA disallowances in view of the clear mandate of the foregoing provision. It is a basic rule in statutory construction

that if a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without interpretation. This is what is known as plain-meaning rule or verba legis.[20] Accordingly, the GSIS interpretation of Section 39 that COA disallowances have become monetary liabilities of respondents to the GSIS and therefore fall under the exception stated in the law is wrong. No interpretation of the said provision is necessary given the clear language of the statute. A meaning that does not appear nor is intended or reflected in the very language of the statute cannot be placed therein by construction. [21] Moreover, if we are to accept the GSIS interpretation, then it would be unnecessary to single out COA disallowances as among those from which benefits under RA 8291 are exempt. In such a case, the inclusion of COA disallowances in the enumeration of exemptions would be a mere surplusage since the GSIS could simply consider COA disallowances as monetary liabilities in its favor. Such a construction would empower the GSIS to withdraw, at its option, an exemption expressly granted by law. This could not have been the intention of the statute. That retirement pay accruing to a public officer may not be withheld and applied to his indebtedness to the government has been settled in several cases. In Cruz v. Tantuico, Jr.,[22] the Court, citing Hunt v. Hernandez,[23] explained the reason for such policy thus: x x x we are of the opinion that the exemption should be liberally construed in favor of the pensioner. Pension in this case is a bounty flowing from the graciousness of the Government intended to reward past services and, at the same time, to provide the pensioner with the means with which to support himself and his family. Unless otherwise clearly provided, the pension should inure wholly to the benefit of the pensioner. It is true that the withholding and application of the amount involved was had under section 624 of the Administrative Code and not by any judicial process, but if the gratuity could not be attached or levied upon execution in view of the prohibition of section 3 of Act No. 4051, the appropriation thereof by administrative action, if allowed, would lead to the same prohibited result and enable the respondents to do indirectly what they can not do directly under section 3 of Act No. 4051. Act No. 4051 is a later statute having been approved on February 21, 1933, whereas the Administrative Code of 1917 which embodies section 624 relied upon by the respondents was approved on March 10 of that year. Considering section 3 of Act No. 4051 as an exception to the general authority granted in section 624 of the Administrative Code, antagonism between the two provisions is avoided. (Underscoring supplied) The above ruling was reiterated in Tantuico, Jr. v. Domingo,[24] where the Court similarly declared that benefits under retirement laws cannot be withheld regardless of the petitioners monetary liability to the government. The policy of exempting retirement benefits from attachment, levy and execution, as well as unwarranted deductions, has been embodied in a long line of retirement statutes. Act No. 4051,[25] which provides for the payment of gratuity to officers and employees of the Insular Government upon retirement due to reorganization, expressly provides in its Section 3 that (t)he gratuity provided for in this Act shall not b e attached or levied upon execution.

The law which established the GSIS, Commonwealth Act No. 186 (CA No. 186),[26] went further by providing as follows: SEC. 23. Exemptions from legal process and liens. No policy of life insurance issued under this Act, or the proceeds thereof, except those corresponding to the annual premium thereon in excess of five hundred pesos per annum, when paid to any member thereunder, shall be liable to attachment, garnishment, or other process, or to be seized, taken, appropriated, or applied by any legal or equitable process or operation of law to pay any debt or liability of such member, or his beneficiary, or any other person who may have a right thereunder, either before or after payment; nor shall the proceeds thereof, when not made payable to a named beneficiary, constitute a part of the estate of the member for payment of his debt. Presidential Decree No. 1146,[27] which amended CA No. 186, likewise contained a provision exempting benefits from attachment, garnishment, levy or other processes. However, the exemption was expressly made inapplicable to obligations of the member to the System, or to the employer, or when the benefits granted are assigned by the member with the authority of the System.[28] The latest GSIS enactment, RA 8291,[29] provides for a more detailed and wider range of exemptions under Section 39. Aside from exempting benefits from judicial processes, it likewise unconditionally exempts benefits from quasi-judicial and administrative processes, including COA disallowances, as well as all financial obligations of the member. The latter includes any pecuniary accountability of the member which arose out of the exercise or performance of his official functions or duties or incurred relative to his position or work. The only exception to such pecuniary accountability is when the same is in favor of the GSIS. Thus, monetary liability in favor of GSIS refers to indebtedness of the member to the System other than those which fall under the categories of pecuniary accountabilities exempted under the law. Such liability may include unpaid social insurance premiums and balances on loans obtained by the retiree from the System, which do not arise in the performance of his duties and are not incurred relative to his work. The general policy, as reflected in our retirement laws and jurisprudence, is to exempt benefits from all legal processes or liens, but not from outstanding obligations of the member to the System. This is to ensure maintenance of the GSIS fund reserves in order to guarantee fulfillment of all its obligations under RA 8291. Notwithstanding the foregoing, however, we find it necessary to nonetheless differentiate between those benefits which were properly disallowed by the COA and those which were not. Anent the benefits which were improperly disallowed, the same rightfully belong to respondents without qualification. As for benefits which were justifiably disallowed by the COA, the same were erroneously granted to and received by respondents who now have the obligation to return the same to the System. It cannot be denied that respondents were recipients of benefits that were properly disallowed by the COA. These COA disallowances would otherwise have been deducted from their salaries, were it not for the fact that respondents retired before such deductions

could be effected. The GSIS can no longer recover these amounts by any administrative means due to the specific exemption of retirement benefits from COA disallowances. Respondents resultantly retained benefits to which they were not legally entitled which, in turn, gave rise to an obligation on their part to return the amounts under the principle of solutio indebiti. Under Article 2154 of the Civil Code,[30] if something is received and unduly delivered through mistake when there is no right to demand it, the obligation to return the thing arises. Payment by reason of mistake in the construction or application of a doubtful or difficult question of law also comes within the scope of solutio indebiti.[31] In the instant case, the confusion about the increase and payment of benefits to GSIS employees and executives, as well as its subsequent disallowance by the COA, arose on account of the application of RA 6758 or the Salary Standardization Law and its implementing rules, CCC No. 10. The complexity in the application of these laws is manifested by the several cases that have reached the Court since its passage in 1989.[32] The application of RA 6758 was made even more difficult when its implementing rules were nullified for non-publication.[33] Consequently, the delivery of benefits to respondents under an erroneous interpretation of RA 6758 gave rise to an actionable obligation for them to return the same. While the GSIS cannot directly proceed against responden ts retirement benefits, it can nonetheless seek restoration of the amounts by means of a proper court action for its recovery. Respondents themselves submit that this should be the case, [34] although any judgment rendered therein cannot be enforced against retirement benefits due to the exemption provided in Section 39 of RA 8291. However, there is no prohibition against enforcing a final monetary judgment against respondents other assets and properties. This is only fair and consistent with basic principles of due process. As such, a proper accounting of the amounts due and refundable is in order. In rendering such accounting, the parties must observe the following guidelines: (1) All deductions from respondents retirement benefits should be refunded except those amounts which may properly be defined as monetary liability to the GSIS; (2) Any other amount to be deducted from retirement benefits must be agreed upon by and between the parties; and (3) Refusal on the part of respondents to return disallowed benefits shall give rise to a right of action in favor of GSIS before the courts of law. Conformably, any fees due to Atty. Sundiam for his professional services may be charged against respondents retirement benefits. The arrangement, however, must be covered by a proper agreement between him and his clients under (2) above. As to whether respondents are entitled to dividends on the provident fund contributions, the same is not within the issues raised before the Court. The second petition refers only to the legality of the deductions made by GSIS from respondents retirement benefits. There are factual matters that need to be threshed out in determining respondents right to the payment of dividends, in view of the GSIS assertion that the management contributions were not actually remitted to the fund. Thus, the payment of

dividends should be the subject of a separate claim where the parties can present evidence to prove their respective assertions. The Court is in no position to resolve the matter since the material facts that would prove or disprove the claim are not on record. In the interest of clarity, we reiterate herein our ruling that there is no identity of subject matter between the COA proceedings, from which the first petition stemmed, and respondents claim of refund before the Board. While the first petition referred to the propriety of the COA disallowances per se, respondents claim before the Board pertained to the legality of deducting the COA disallowances from retirement benefits under Section 39 of RA 8291. Finally, on respondents claim that the GSIS acted in bad faith when it deducted the COA disallowances from their retirement benefits, except for bare allegations, there is no proof or evidence of the alleged bad faith and partiality of the GSIS. Moreover, the latter cannot be faulted for taking measures to ensure recovery of the COA disallowances since respondents have already retired and would be beyond its administrative reach. The GSIS merely acted upon its best judgment and chose to err in the side of prudence rather than suffer the consequence of not being able to account for the COA disallowances. It concededly erred in taking this recourse but it can hardly be accused of malice or bad faith in doing so. WHEREFORE, in view of the foregoing, the April 16, 2002 Decision in G.R. Nos. 138381 and 141625 is AMENDED. In addition to the refund of amounts corresponding to benefits allowed in G.R. No. 138381, the GSIS is ordered to REFUND all deductions from retirement benefits EXCEPT amounts representing monetary liability of the respondents to the GSIS as well as all other amounts mutually agreed upon by the parties. SO ORDERED. Davide, Jr., C.J., Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, AustriaMartinez, Carpio-Morales, Azcuna, Chico-Nazario, and Garcia, JJ., concur. Puno, J. on official leave. Corona and Tinga, JJ., on leave. Callejo, Sr., J., no part, Ponente in CA Decision.

EN BANC [G.R. No. 143047. July 14, 2004] RICARDO S. INDING, petitioner, vs. THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents. DECISION CALLEJO, SR., J.: This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure for the nullification of the September 23, 1999 Resolution[1] of the Sandiganbayan (Second Division), which denied the petitioners omnibus motion with supplemental motion, and its Resolution dated April 25, 2000, denying the petitioners motion for the reconsideration of the same.

In its comment on the omnibus motion, the Office of the Special Prosecutor asserted that the petitioner was, at the time of the commission of the crime, a member of the Sangguniang Panlungsod of Dapitan City, Zamboanga del Norte, one of those public officers who, by express provision of Section 4 a.(1)(b) of P.D. No. 1606, as amended by Rep. Act No. 7975,[5] is classified as SG 27. Hence, the Sandiganbayan, not the RTC, has original jurisdiction over the case, regardless of his salary grade under Adm. Order No. 270. On September 23, 1999, the respondent Sandiganbayan issued a Resolution denying the petitioners omnibus motion. According to the court, the Information alleged that the petitioner has a salary grade of 27. Furthermore, Section 2 of Rep. Act No. 7975, which amended Section 4 of P.D. No. 1606, provides that the petitioner, as a member of the Sangguniang Panlungsod of Dapitan City, has a salary grade of 27.[6] On October 27, 1999, the petitioner filed a Supplemental Motion to his omnibus motion,[7] citing Rep. Act No. 8294 and the ruling of this Court in Organo v. Sandiganbayan,[8]where it was declared that Rep. Act No. 8249, the latest amendment to the law creating the Sandiganbayan, collated the provisions on the exclusive jurisdiction of the Sandiganbayan, and that the original jurisdiction of the Sandiganbayan as a trial court was made to depend not on the penalty imposed by law on the crimes and offenses within its jurisdiction but on the rank and salary grade of accused government officials and employees . In the meantime, the petitioner was conditionally arraigned on October 28, 1999 and entered a plea of not guilty.[9] On November 18, 1999, the petitioner filed a Motion for Reconsideration of the Sandiganbayans September 23, 1999 Resolution.[10] The motion was, however, denied by the Sandiganbayan in a Resolution promulgated on April 25, 2000.[11] Dissatisfied, the petitioner filed the instant petition for certiorari, contending as follows: A. That Republic Act [No.] 8249 which took effect last 05 February 1997 made the jurisdiction of the Sandiganbayan as a trial court depend not only on the penalty imposed by law on the crimes and offenses within its jurisdiction but on the rank and salary grade of accused government officials and employees. B. That the ruling of the Supreme Court in Lilia B. Organo versus The Sandiganbayan and the People of the Philippines, G.R. No. 133535, 09 September 1999, settles the matter on the original jurisdiction of the Sandiganbayan as a trial court which is over public officials and employees with rank and salary grade 27 and above. The petitioner contends that, at the time the offense charged was allegedly committed, he was already occupying the position of Sangguniang Panlungsod Member I with SG 25. Hence, under Section 4 of Rep. Act No. 8249, amending Rep. Act No. 7975, it is the RTC and not the Sandiganbayan that has jurisdiction over the offense lodged against him. He asserts that under Adm. Order No. 270,[12] Dapitan City is only a component city, and the members of the Sangguniang Panlungsod are classified as Sangguniang PanlungsodMembers I with SG 25. Thus, Section 4 a.(1)(b) of P.D. No. 1606, as amended by Section 2 of Rep. Act No. 7975, and retained by Section 4 of Rep. Act No. 8249, does not apply to him. On the other hand, the respondents, through the Office of the Special Prosecutor, contend that Section 4 a.(1)(b) of P.D. No. 1606, as amended by Section 2 of Rep. Act No. 7975, expressly provides that the Sandiganbayan has original jurisdiction over violations of Rep. Act No. 3019, as amended, committed by the members of the Sangguniang Panlungsod,

The Antecedents

On January 27, 1999, an Information was filed with the Sandiganbayan charging petitioner Ricardo S. Inding, a member of the Sangguniang Panlungsod of Dapitan City, with violation of Section 3(e) of Republic Act No. 3019,[2] committed as follows: That from the period 3 January 1997 up to 9 August 1997 and for sometime prior or subsequent thereto, in Dapitan City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Ricardo S. Inding, a high-ranking public officer, being a Councilor of Dapitan City and as such, while in the performance of his official functions, particularly in the operation against drug abuse, with evident bad faith and manifest partiality, did then and there, willfully, unlawfully and criminally, faked buy-bust operations against alleged pushers or users to enable him to claim or collect from the coffers of the city government a total amount of P30,500.00, as reimbursement for actual expenses incurred during the alleged buy-bust operations, knowing fully well that he had no participation in the said police operations against drugs but enabling him to collect from the coffers of the city government a total amount of P30,500.00, thereby causing undue injury to the government as well as the public interest.[3] The case was docketed as Criminal Case No. 25116 and raffled to the Second Division of the Sandiganbayan. On June 2, 1999, the petitioner filed an Omnibus Motion[4] for the dismissal of the case for lack of jurisdiction over the officers charged or, in the alternative, for the referral of the case either to the Regional Trial Court or the Municipal Trial Court for appropriate proceedings. The petitioner alleged therein that under Administrative Order No. 270 which prescribes the Rules and Regulations Implementing the Local Government Code of 1991, he is a member of the Sangguniang Panlungsod of Dapitan City with Salary Grade (SG) 25. He asserted that under Republic Act No. 7975, which amended Presidential Decree No. 1606, the Sandiganbayan exercises original jurisdiction to try cases involving crimes committed by officials of local government units only if such officials occupy positions with SG 27 or higher, based on Rep. Act No. 6758, otherwise known as the Compensation and Position Classification Act of 1989. He contended that under Section 4 of P.D. No. 16 06, as amended by Section 2 of Rep. Act No. 7975, the RTC, not the Sandiganbayan, has original jurisdiction over the crime charged against him. The petitioner urged the trial court to take judicial notice of Adm. Order No. 270.

without qualification and regardless of salary grade. They argue that when Congress approved Rep. Act No. 7975 and Rep. Act No. 8249, it was aware that not all the positions specifically mentioned in Section 4, subparagraph (1) were classified as SG 27, and yet were specifically included therein, viz: It is very clear from the aforecited provisions of law that the members of the sangguniang panlungsod are specifically included as among those falling within the exclusive original jurisdiction of the Sandiganbayan. A reading of the aforesaid provisions, likewise, show that the qualification as to Salary Grade 27 and higher applies only to such officials of the executive branch other than the regional director and higher and those specifically enumerated. To rule, otherwise, is to give a different interpretation to what the law clearly is. Moreover, had there been an intention to make Salary Grade 27 and higher as the sole factor to determine the exclusive original jurisdiction of the Sandiganbayan then the lawmakers could have simply stated that the officials of the executive branch, to fall within the exclusive original jurisdiction of the Sandiganbayan, should have been occupying the positions with a Salary Grade of 27 and higher. But the express wordings in both RA No. 7975 and RA No. 8249 specifically including the members of the sangguniang panlungsod, among others, as those within the exclusive original jurisdiction of the Sandiganbayan only means that the said sangguniang members shall be within the exclusive original jurisdiction of the said court regardless of their Salary Grade. In this connection too, it is well to state that the lawmakers are very well aware that not all the positions specifically mentioned as those within the exclusive original jurisdiction of the Sandiganbayan have a Salary Grade of 27 and higher. Yet, the legislature has explicitly made the officials so enumerated in RA No. 7975 and RA No. 8249 as falling within the exclusive original jurisdiction of the Sandiganbayan because of the nature of these officials functions and responsibilities as well as the power they can wield over their respective area of jurisdiction.[13] The threshold issue for the Courts resolution is whether the Sandiganbayan has original jurisdiction over the petitioner, a member of the Sangguniang Panlungsod of DapitanCity, who was charged with violation of Section 3(e) of Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The Court rules in the affirmative. Rep. Act No. 7975, entitled An Act to Strengthen the Functional and Structural Organization of the Sandiganbayan, Amending for that Purpose Presidential Decree No. 1606, took effect on May 16, 1995. Section 2 thereof enumerates the cases falling within the original jurisdiction of the Sandiganbayan. Subsequently, Rep. Act No. 7975 was amended by Rep. Act No. 8249, entitled An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending for the Purpose Presidential Decree No. 1606, as Amended, Providing Funds Therefor, and for Other Purposes. The amendatory law took effect on February 23, 1997 and Section 4 thereof enumerates the cases now falling within the exclusive original jurisdiction of the Sandiganbayan. For purposes of determining which of the two laws, Rep. Act No. 7975 or Rep. Act No. 8249, applies in the present case, the reckoning period is the time of the commission of the

offense.[14] Generally, the jurisdiction of a court to try a criminal case is to be determined by the law in force at the time of the institution of the action, not at the time of the commission of the crime.[15] However, Rep. Act No. 7975, as well as Rep. Act No. 8249, constitutes an exception thereto as it expressly states that to determine the jurisdiction of the Sandiganbayan in cases involving violations of Rep. Act No. 3019, the reckoning period is the time of the commission of the offense. This is plain from the last clause of the opening sentence of paragraph (a) of these two provisions which reads: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise [exclusive] [16] original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, [Book II][17] of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: In this case, as gleaned from the Information filed in the Sandiganbayan, the crime charged was committed from the period of January 3, 1997 up to August 9, 1997. The applicable law, therefore, is Rep. Act No. 7975. Section 2 of Rep. Act No. 7975 expanded the jurisdiction of the Sandiganbayan as defined in Section 4 of P.D. No. 1606, thus: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise original jurisdiction in all cases involving:[18] a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code,[19] where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads;[20] (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) PNP chief superintendent and PNP officers of higher rank;[21] (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution;

(5) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. With respect to the first category, i.e., officials of the executive branch with SG 27 or higher, Rep. Act No. 7975 further specifically included the following officials as falling within the original jurisdiction of the Sandiganbayan: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) (d) Officials of the diplomatic service occupying the position of consul and higher; Philippine army and air force colonels, naval captains, and all officers of higher rank; PNP chief superintendent and PNP officers of higher rank;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office. [22] c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A. In cases where none of the principal accused are occupying positions corresponding to salary grade 27 or higher, as prescribed in the said Republic Act No. 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129.[23] A plain reading of the above provision shows that, for purposes of determining the government officials that fall within the original jurisdiction of the Sandiganbayan in cases involving violations of Rep. Act No. 3019 and Chapter II, Section 2, Title VII of the Revised Penal Code, Rep. Act No. 7975 has grouped them into five categories, to wit: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher. . . (2) Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution;

(e)

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; The specific inclusion of the foregoing officials constitutes an exception to the general qualification relating to officials of the executive branch as occupying the positions of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989. In other words, violation of Rep. Act No. 3019 committed by officials in the executive branch with SG 27 or higher, and the officials specifically enumerated in (a) to (g) of Section 4 a.(1) of P.D. No. 1606, as amended by Section 2 of Rep. Act No. 7975, regardless of their salary grades, likewise fall within the original jurisdiction of the Sandiganbayan. Had it been the intention of Congress to confine the original jurisdiction of the Sandiganbayan to violations of Rep. Act No. 3019 only to officials in the executive branch with SG 27 or higher, then it could just have ended paragraph (1) of Section 4 a. of P.D. No. 1606, as amended by Section 2 of Rep. Act No. 7975, with the phrase officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989. Or the category in paragraph (5) of the same provision relating to [a]ll other national and local officials classified as Grade 27 and up under the Compensation and Classification Act of 1989 would have sufficed. Instead, under paragraph (1) of Section 4 a. of P.D. No. 160 6, as amended by Section 2 of Rep. Act No. 7975, Congress included specific officials,without any reference as to their salary grades. Clearly, therefore, Congress intended these officials, regardless of their salary grades, to be specifically included within the Sandiganbayans original jurisdiction, for had it been otherwise, then there would have been no need for such enumeration. It is axiomatic in legal hermeneutics that words in a statute should not be

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and

construed as surplusage if a reasonable construction which will give them some force and meaning is possible.[24] That the legislators intended to include certain public officials, regardless of their salary grades, within the original jurisdiction of the Sandiganbayan is apparent from the legislative history of both Rep. Acts Nos. 7975 and 8249. In his sponsorship speech of Senate Bill No. 1353, which was substantially adopted by both Houses of Congress and became Rep. Act No. 7975, Senator Raul S. Roco, then Chairman of the Committee on Justice and Human Rights, explained: Senate Bill No. 1353 modifies the present jurisdiction of the Sandiganbayan such that only those occupying high positions in the government and the military fall under the jurisdiction of the court. As proposed by the Committee, the Sandiganbayan shall exercise original jurisdiction over cases assigned to it only in instances where one or more of the principal accused are officials occupying the positions of regional director and higher or are otherwise classified as Grade 27 and higher by the Compensation and Classification Act of 1989, whether in a permanent, acting or interim capacity at the time of the commission of the offense. The jurisdiction, therefore, refers to a certain grade upwards, which shall remain with the Sandiganbayan. The President of the Philippines and other impeachable officers such as the justices of the Supreme Court and constitutional commissions are not subject to the original jurisdiction of the Sandiganbayan during their incumbency. The bill provides for an extensive listing of other public officers who will be subject to the original jurisdiction of the Sandiganbayan. It includes, among others, Members of Congress, judges and justices of all courts.[25] More instructive is the sponsorship speech, again, of Senator Roco, of Senate Bill No. 844, which was substantially adopted by both Houses of Congress and became Rep. Act No. 8249. Senator Roco explained the jurisdiction of the Sandiganbayan in Rep. Act No. 7975, thus:

It divested the Sandiganbayan of jurisdiction over public officials whose salary grades were at Grade 26 or lower, devolving thereby these cases to the lower courts, and retaining the jurisdiction of the Sandiganbayan only over public officials whose salary grades were at Grade 27 or higher and over other specific public officials holding important positions in government regardless of salary grade;[26] Evidently, the officials enumerated in (a) to (g) Section 4 a.(1) of P.D. No. 1606, amended Section 2 of Rep. Act No. 7975, were specifically included within the original jurisdiction of the Sandiganbayan because the lawmakers considered them big fish and their positions important, regardless of their salary grades. This conclusion is further bolstered by the fact that some of the officials enumerated in (a) to (g) are not classified as SG 27 or higher under the Index of Occupational Services, Position Titles and Salary Grades issued by the Department of Budget and Management in 1989, then in effect at the time that Rep. Act No. 7975 was approved. For example: Category New Position Title Grade

16. FOREIGN RELATIONS SERVICE Foreign Service Foreign Service Officer, Class II[27] Foreign Service Officer, Class I[29] 18. EXECUTIVE SERVICE 23[28] 24[30]

SPONSORSHIP OF SENATOR ROCO Local Executives By way of sponsorship, Mr. President we will issue the full sponsorship speech to the members because it is fairly technical may we say the following things: To speed up trial in the Sandiganbayan, Republic Act No. 7975 was enacted for that Court to concentrate on the larger fish and leave the small fry to the lower cour ts. This law became effective on May 6, 1995 and it provided a two-pronged solution to the clogging of the dockets of that court, to wit: City Government Department Head I City Government Department Head II Provincial Government Department Head 25[33] 24[31] 26[32]

 City Vice Mayor I City Vice Mayor II City Mayor I City Mayor II 19. LEGISLATIVE SERVICE Sangguniang Members Sangguniang Panlungsod Member I Sangguniang Panlungsod Member II Sangguniang Panlalawigan Member Office of the City and Provincial Prosecutors Prosecutor IV Prosecutor III Prosecutor II Prosecutor I
[36]

26 28 28[34] 30

the Sandiganbayan has jurisdiction, all other public officials below SG 27 shall be under the jurisdiction of the proper trial courts where none of the principal accused are occupying positions corresponding to SG 27 or higher. By this construction, the entire Section 4 is given effect. The cardinal rule, after all, in statutory construction is that the particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole.[39] And courts should adopt a construction that will give effect to every part of a statute, if at all possible. Ut magis valeat quam pereat or that construction is to be sought which gives effect to the whole of the statute its every word.[40] In this case, there is no dispute that the petitioner is a member of the Sangguniang Panlungsod of Dapitan City and he is charged with violation of Section 3 (e) of Rep. Act No. 3019. Members of the Sangguniang Panlungsod are specifically included as among those within the original jurisdiction of the Sandiganbayan in Section 4 a.(1) (b) of P.D. No. 1606, as amended by Section 2 of Rep. Act No. 7975,[41] or even Section 4 of Rep. Act No. 8249[42] for that matter. The Sandiganbayan, therefore, has original jurisdiction over the petitioners case docketed as Criminal Case No. 25116. IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED. The Resolutions of the Sandiganbayan dated September 23, 1999 and April 25, 2000 are AFFIRMED. No costs. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ.,concur.

25 27 26[35]

29 28 27 26

Noticeably, the vice mayors, members of the Sangguniang Panlungsod and prosecutors, without any distinction or qualification, were specifically included in Rep. Act No. 7975 as falling within the original jurisdiction of the Sandiganbayan. Moreover, the consuls, city department heads, provincial department heads and members of the Sangguniang Panlalawigan, albeit classified as having salary grades 26 or lower, were also specifically included within the Sandiganbayans original jurisdiction. As correctly posited by the respondents, Congress is presumed to have been aware of, and had taken into account, these officials respective salary grades when it deliberated upon the amendments to the Sandiganbayan jurisdiction. Nonetheless, Congress passed into law Rep. Act No. 7975, specifically including them within the original jurisdiction of the Sandiganbayan. By doing so, it obviously intended cases mentioned in Section 4 a. of P.D. No. 1606, as amended by Section 2 of Rep. Act No. 7975, when committed by the officials enumerated in (1) (a) to (g) thereof, regardless of their salary grades, to be tried by the Sandiganbayan. Indeed, it is a basic precept in statutory construction that the intent of the legislature is the controlling factor in the interpretation of a statute.[37] From the congressional records and the text of Rep. Acts No. 7975 and 8294, the legislature undoubtedly intended the officials enumerated in (a) to (g) of Section 4 a.(1) of P.D. No. 1606, as amended by the aforesaid subsequent laws, to be included within the original jurisdiction of the Sandiganbayan. Following this disquisition, the paragraph of Section 4 which provides that if the accused is occupying a position lower than SG 27, the proper trial court has jurisdiction,[38] can only be properly interpreted as applying to those cases where the principal accused is occupying a position lower than SG 27 and not among those specifically included in the enumeration in Section 4 a. (1)(a) to (g). Stated otherwise, except for those officials specifically included in Section 4 a. (1) (a) to (g), regardless of their salary grades, over whom