Evidence in the record showed that respondent is the owner of a house and lot
located at 15-Yakan St., La Vista, Quezon City. He is also the owner of a
house and lot located in Cebu City. The lot has an area of 3,327 square
meters.
The value of the property located in Quezon City may be estimated modestly at
P700,000.00.
The equipment/items and communication facilities which were found in the
premises of Elizabeth Dimaano and were confiscated by elements of the PC
Command of Batangas were all covered by invoice receipt in the name of
CAPT. EFREN SALIDO, RSO Command Coy, MSC, PA. These items could not
have been in the possession of Elizabeth Dimaano if not given for her use by
respondent Commanding General of the Philippine Army.
Aside from the military equipment/items and communications equipment, the
raiding team was also able to confiscate money in the amount of P2,870,000.00
and $50,000 US Dollars in the house of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security Command,
Philippine Army, stationed at Camp Eldridge, Los Baos, Laguna, disclosed that
Elizabeth Dimaano is the mistress of respondent. That respondent usually
goes and stays and sleeps in the alleged house of Elizabeth Dimaano in
Barangay Tengga, Itaas, Batangas City and when he arrives, Elizabeth
Dimaano embraces and kisses respondent. That on February 25, 1986, a
person who rode in a car went to the residence of Elizabeth Dimaano with four
(4) attache cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no
visible means of income and is supported by respondent for she was formerly a
mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of
respondent, he being the Commanding General of the Philippine Army. It is
also impossible for Elizabeth Dimaano to claim that she owns the
P2,870,000.00 and $50,000 US Dollars for she had no visible source of
income.
This money was never declared in the Statement of Assets and Liabilities of
respondent. There was an intention to cover the existence of these money
because these are all ill-gotten and unexplained wealth. Were it not for the
affidavits of the members of the Military Security Unit assigned at Camp
Eldridge, Los Baos, Laguna, the existence and ownership of these money
would have never been known.
The Statement of Assets and Liabilities of respondent were also submitted for
scrutiny and analysis by the Boards consultant. Although the amount of
P2,870,000.00 and $50,000 US Dollars were not included, still it was disclosed
that respondent has an unexplained wealth of P104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case exists against
respondent for ill-gotten and unexplained wealth in the amount of
P2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be
prosecuted and tried for violation of RA 3019, as amended, otherwise known as
Anti-Graft and Corrupt Practices Act and RA 1379, as amended, otherwise
known as The Act for the Forfeiture of Unlawfully Acquired Property.
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic
Act No. 1379 (RA No. 1379) against Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I.
Chavez filed an Amended Complaint naming the Republic of the Philippines
(petitioner), represented by the PCGG, as plaintiff and Ramas as defendant.
The Amended Complaint also impleaded Elizabeth Dimaano (Dimaano) as
co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of
the Philippine Army until 1986. On the other hand, Dimaano was a confidential
agent of the Military Security Unit, Philippine Army, assigned as a clerk-typist at
the office of Ramas from 1 January 1978 to February 1979. The Amended
Complaint further alleged that Ramas acquired funds, assets and properties
manifestly out of proportion to his salary as an army officer and his other
income from legitimately acquired property by taking undue advantage of his
public office and/or using his power, authority and influence as such officer of
the Armed Forces of the Philippines and as a subordinate and close associate
of the deposed President Ferdinand Marcos.
The Amended Complaint also alleged that the AFP Board, after a previous
inquiry, found reasonable ground to believe that respondents have violated RA
No. 1379. The Amended Complaint prayed for, among others, the forfeiture of
respondents properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and
Compulsory Counterclaim to the Amended Complaint. In his Answer, Ramas
Dimaano filed her own Answer to the Amended Complaint. Admitting her
employment as a clerk-typist in the office of Ramas from January-November
1978 only, Dimaano claimed ownership of the monies, communications
equipment, jewelry and land titles taken from her house by the Philippine
Constabulary raiding team.
After termination of the pre-trial, the court set the case for trial on the merits on
9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing due to its
lack of preparation for trial and the absence of witnesses and vital documents
to support its case. The court reset the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in
order to charge the delinquent properties with being subject to forfeiture as
having been unlawfully acquired by defendant Dimaano alone x x x.
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded
with petitioners presentation of evidence on the ground that the motion for
leave to amend complaint did not state when petitioner would file the amended
complaint. The Sandiganbayan further stated that the subject matter of the
amended complaint was on its face vague and not related to the existing
complaint. The Sandiganbayan also held that due to the time that the case had
been pending in court, petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of
the trial.
On 28 September 1989, during the continuation of the trial, petitioner
manifested its inability to proceed to trial because of the absence of other
witnesses or lack of further evidence to present. Instead, petitioner reiterated
its motion to amend the complaint to conform to the evidence already
presented or to change the averments to show that Dimaano alone unlawfully
acquired the monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for over
a year mainly because of its many postponements. Moreover, petitioner would
want the case to revert to its preliminary stage when in fact the case had long
been ready for trial. The Sandiganbayan ordered petitioner to prepare for
presentation of its additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its inability to
present further evidence. Giving petitioner one more chance to present further
evidence or to amend the complaint to conform to its evidence, the
Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan, however,
hinted that the re-setting was without prejudice to any action that private
respondents might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability to proceed to
trial because it had no further evidence to present. Again, in the interest of
justice, the Sandiganbayan granted petitioner 60 days within which to file an
appropriate pleading. The Sandiganbayan, however, warned petitioner that
failure to act would constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on Republic v.
Migrino. The Court held in Migrino that the PCGG does not have jurisdiction
to investigate and prosecute military officers by reason of mere position held
without a showing that they are subordinates of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the
dispositive portion of which states:
The actions taken by the PCGG are not in accordance with the
rulings of the Supreme Court in Cruz, Jr. v. Sandiganbayan and
Republic v. Migrino which involve the same issues.
(2.)
(3.)
(4.)
The Issues
Petitioner raises the following issues:
A.
B.
1.
2.
3.
C.
necessary in order to accomplish and to carry out the purposes of this order.
EO No. 1 gave the PCGG specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the
President in regard to the following matters:
(a)
(b)
x x x.
The PCGG, through the AFP Board, can only investigate the unexplained
wealth and corrupt practices of AFP personnel who fall under either of the two
categories mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel
who have accumulated ill-gotten wealth during the administration of former
President Marcos by being the latters immediate family, relative, subordinate or
close associate, taking undue advantage of their public office or using their
powers, influence x x x; or (2) AFP personnel involved in other cases of graft
and corruption provided the President assigns their cases to the PCGG.
Petitioner, however, does not claim that the President assigned Ramas case to
the PCGG. Therefore, Ramas case should fall under the first category of AFP
personnel before the PCGG could exercise its jurisdiction over him. Petitioner
argues that Ramas was undoubtedly a subordinate of former President Marcos
because of his position as the Commanding General of the Philippine Army.
Petitioner claims that Ramas position enabled him to receive orders directly
from his commander-in-chief, undeniably making him a subordinate of former
President Marcos.
We hold that Ramas was not a subordinate of former President Marcos in the
sense contemplated under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a
subordinate as this term is used in EO Nos. 1, 2, 14 and 14-A absent a
A close reading of EO No. 1 and related executive orders will readily show what
is contemplated within the term subordinate. The Whereas Clauses of EO No.
1 express the urgent need to recover the ill-gotten wealth amassed by former
President Ferdinand E. Marcos, his immediate family, relatives, and close
associates both here and abroad.
EO No. 2 freezes all assets and properties in the Philippines in which former
President Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives,
subordinates, business associates, dummies, agents, or nominees have any
interest or participation.
Petitioners attempt to differentiate the instant case from Migrino does not
convince us. Petitioner argues that unlike in Migrino, the AFP Board
Resolution in the instant case states that the AFP Board conducted the
investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379.
Petitioner asserts that there is a presumption that the PCGG was acting within
its jurisdiction of investigating crony-related cases of graft and corruption and
that Ramas was truly a subordinate of the former President. However, the
same AFP Board Resolution belies this contention. Although the Resolution
begins with such statement, it ends with the following recommendation:
Applying the rule in statutory construction known as ejusdem generis that isV. RECOMMENDATION:
[W]here general words follow an enumeration of persons or things by words of
a particular and specific meaning, such general words are not to be construed
in their widest extent, but are to be held as applying only to persons or things of
the same kind or class as those specifically mentioned [Smith, Bell & Co, Ltd.
vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of
Laws, 2nd Ed., 203].
[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a
close association with former President Marcos and/or his wife, similar to the
immediate family member, relative, and close associate in EO No. 1 and
the close relative, business associate, dummy, agent, or nominee in EO
No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a government
official or employee during the administration of former President Marcos.
There must be a prima facie showing that the respondent unlawfully
accumulated wealth by virtue of his close association or relation with
former Pres. Marcos and/or his wife. (Emphasis supplied)
Ramas position alone as Commanding General of the Philippine Army with the
rank of Major General does not suffice to make him a subordinate of former
President Marcos for purposes of EO No. 1 and its amendments. The PCGG
has to provide a prima facie showing that Ramas was a close associate of
former President Marcos, in the same manner that business associates,
dummies, agents or nominees of former President Marcos were close to him.
Such close association is manifested either by Ramas complicity with former
President Marcos in the accumulation of ill-gotten wealth by the deposed
Moreover, the resolution of the AFP Board and even the Amended Complaint
do not show that the properties Ramas allegedly owned were accumulated by
him in his capacity as a subordinate of his commander-in-chief. Petitioner
merely enumerated the properties Ramas allegedly owned and suggested that
these properties were disproportionate to his salary and other legitimate income
without showing that Ramas amassed them because of his close association
with former President Marcos. Petitioner, in fact, admits that the AFP Board
resolution does not contain a finding that Ramas accumulated his wealth
because of his close association with former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of the New
Armed Forces of the Philippines did not categorically find a prima facie
evidence showing that respondent Ramas unlawfully accumulated wealth
by virtue of his close association or relation with former President Marcos
and/or his wife, it is submitted that such omission was not fatal. The
resolution of the Anti-Graft Board should be read in the context of the law
creating the same and the objective of the investigation which was, as stated in
the above, pursuant to Republic Act Nos. 3019 and 1379 in relation to
Executive Order Nos. 1, 2, 14 and 14-a; (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima facie
showing that the ill-gotten wealth was accumulated by a subordinate of former
President Marcos that vests jurisdiction on PCGG. EO No. 1 clearly premises
the creation of the PCGG on the urgent need to recover all ill-gotten wealth
amassed by former President Marcos, his immediate family, relatives,
subordinates and close associates. Therefore, to say that such omission was
not fatal is clearly contrary to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan, the Court outlined the cases that fall under the
jurisdiction of the PCGG pursuant to EO Nos. 1, 2, 14, 14-A:
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation
with Sections 1, 2 and 3 of Executive Order No. 14, shows what the authority of
the respondent PCGG to investigate and prosecute covers:
(a)
(b)
However, other violations of the Anti-Graft and Corrupt Practices Act not
otherwise falling under the foregoing categories, require a previous
authority of the President for the respondent PCGG to investigate and
prosecute in accordance with Section 2 (b) of Executive Order No. 1.
Otherwise, jurisdiction over such cases is vested in the Ombudsman and
other duly authorized investigating agencies such as the provincial and
city prosecutors, their assistants, the Chief State Prosecutor and his
assistants and the state prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should investigate and
prosecute forfeiture petitions not falling under EO No. 1 and its amendments.
The preliminary investigation of unexplained wealth amassed on or before 25
February 1986 falls under the jurisdiction of the Ombudsman, while the
authority to file the corresponding forfeiture petition rests with the Solicitor
General. The Ombudsman Act or Republic Act No. 6770 (RA No. 6770) vests
in the Ombudsman the power to conduct preliminary investigation and to file
forfeiture proceedings involving unexplained wealth amassed after 25 February
1986.
After the pronouncements of the Court in Cruz, the PCGG still pursued this
case despite the absence of a prima facie finding that Ramas was a
subordinate of former President Marcos. The petition for forfeiture filed with
the Sandiganbayan should be dismissed for lack of authority by the PCGG to
investigate respondents since there is no prima facie showing that EO No. 1
and its amendments apply to respondents. The AFP Board Resolution and
even the Amended Complaint state that there are violations of RA Nos. 3019
and 1379. Thus, the PCGG should have recommended Ramas case to the
Ombudsman who has jurisdiction to conduct the preliminary investigation of
ordinary unexplained wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate and
cause the prosecution of private respondent for violation of Rep. Acts Nos.
3019 and 1379, the PCGG must also be enjoined from proceeding with the
case, without prejudice to any action that may be taken by the proper
prosecutory agency. The rule of law mandates that an agency of government
be allowed to exercise only the powers granted to it.
Petitioners argument that private respondents have waived any defect in the
filing of the forfeiture petition by submitting their respective Answers with
counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no
jurisdiction to waive in the first place. The PCGG cannot exercise investigative
or prosecutorial powers never granted to it. PCGGs powers are specific and
limited. Unless given additional assignment by the President, PCGGs sole
task is only to recover the ill-gotten wealth of the Marcoses, their relatives and
cronies. Without these elements, the PCGG cannot claim jurisdiction over a
case.
Private respondents questioned the authority and jurisdiction of the PCGG to
investigate and prosecute their cases by filing their Motion to Dismiss as soon
as they learned of the pronouncement of the Court in Migrino. This case was
decided on 30 August 1990, which explains why private respondents only filed
their Motion to Dismiss on 8 October 1990. Nevertheless, we have held that
the parties may raise lack of jurisdiction at any stage of the proceeding. Thus,
we hold that there was no waiver of jurisdiction in this case. Jurisdiction is
vested by law and not by the parties to an action.
Consequently, the petition should be dismissed for lack of jurisdiction by the
PCGG to conduct the preliminary investigation. The Ombudsman may still
conduct the proper preliminary investigation for violation of RA No. 1379, and if
warranted, the Solicitor General may file the forfeiture petition with the
Sandiganbayan. The right of the State to forfeit unexplained wealth under RA
No. 1379 is not subject to prescription, laches or estoppel.
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in dismissing the case
before completion of the presentation of petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case, we
find that petitioner has only itself to blame for non-completion of the
presentation of its evidence. First, this case has been pending for four years
before the Sandiganbayan dismissed it. Petitioner filed its Amended
Complaint on 11 August 1987, and only began to present its evidence on
17 April 1989. Petitioner had almost two years to prepare its evidence.
However, despite this sufficient time, petitioner still delayed the presentation of
the rest of its evidence by filing numerous motions for postponements and
extensions. Even before the date set for the presentation of its evidence,
petitioner filed, on 13 April 1989, a Motion for Leave to Amend the Complaint.
The motion sought to charge the delinquent properties (which comprise most
of petitioners evidence) with being subject to forfeiture as having been
unlawfully acquired by defendant Dimaano alone x x x.
The Sandiganbayan, however, refused to defer the presentation of petitioners
evidence since petitioner did not state when it would file the amended
complaint. On 18 April 1989, the Sandiganbayan set the continuation of the
presentation of evidence on 28-29 September and 9-11 October 1989, giving
petitioner ample time to prepare its evidence. Still, on 28 September 1989,
petitioner manifested its inability to proceed with the presentation of its
evidence. The Sandiganbayan issued an Order expressing its view on the
matter, to wit:
The Court has gone through extended inquiry and a narration of the above
events because this case has been ready for trial for over a year and much of
the delay hereon has been due to the inability of the government to produce on
scheduled dates for pre-trial and for trial documents and witnesses, allegedly
upon the failure of the military to supply them for the preparation of the
presentation of evidence thereon. Of equal interest is the fact that this Court
has been held to task in public about its alleged failure to move cases such as
this one beyond the preliminary stage, when, in view of the developments such
as those of today, this Court is now faced with a situation where a case already
in progress will revert back to the preliminary stage, despite a five-month pause
where appropriate action could have been undertaken by the plaintiff Republic.
On 9 October 1989, the PCGG manifested in court that it was conducting a
preliminary investigation on the unexplained wealth of private respondents as
mandated by RA No. 1379. The PCGG prayed for an additional four months to
conduct the preliminary investigation. The Sandiganbayan granted this request
and scheduled the presentation of evidence on 26-29 March 1990. However,
on the scheduled date, petitioner failed to inform the court of the result of the
preliminary investigation the PCGG supposedly conducted. Again, the
Sandiganbayan gave petitioner until 18 May 1990 to continue with the
presentation of its evidence and to inform the court of what lies ahead insofar
as the status of the case is concerned x x x. Still on the date set, petitioner
failed to present its evidence. Finally, on 11 July 1990, petitioner filed its ReAmended Complaint. The Sandiganbayan correctly observed that a case
already pending for years would revert to its preliminary stage if the court were
to accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself to blame for
failure to complete the presentation of its evidence. The Sandiganbayan gave
petitioner more than sufficient time to finish the presentation of its evidence.
The Sandiganbayan overlooked petitioners delays and yet petitioner ended the
long-string of delays with the filing of a Re-Amended Complaint, which would
only prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the
Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to
investigate and prosecute the case against private respondents. This alone
would have been sufficient legal basis for the Sandiganbayan to dismiss the
forfeiture case against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case before
completion of the presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the properties
confiscated from Dimaanos house as illegally seized and therefore
inadmissible in evidence. This issue bears a significant effect on petitioners
It is widely known that Mrs. Aquinos rise to the presidency was not due
to constitutional processes; in fact, it was achieved in violation of the
provisions of the 1973 Constitution as a Batasang Pambansa resolution
had earlier declared Mr. Marcos as the winner in the 1986 presidential
election. Thus it can be said that the organization of Mrs. Aquinos
Government which was met by little resistance and her control of the state
evidenced by the appointment of the Cabinet and other key officers of the
administration, the departure of the Marcos Cabinet officials, revamp of the
Judiciary and the Military signaled the point where the legal system then in
effect, had ceased to be obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained operative
during the interregnum would render void all sequestration orders issued by the
Philippine Commission on Good Government (PCGG) before the adoption of
the Freedom Constitution. The sequestration orders, which direct the freezing
and even the take-over of private property by mere executive issuance without
judicial action, would violate the due process and search and seizure clauses of
the Bill of Rights.
During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly
question the sequestration orders as violative of the Bill of Rights because
there was no Bill of Rights during the interregnum. However, upon the adoption
of the Freedom Constitution, the sequestered companies assailed the
sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission
on Good Government, petitioner Baseco, while conceding there was no Bill of
Rights during the interregnum, questioned the continued validity of the
sequestration orders upon adoption of the Freedom Constitution in view of the
due process clause in its Bill of Rights. The Court ruled that the Freedom
Constitution, and later the 1987 Constitution, expressly recognized the validity
of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing considerations as to
the validity and propriety of sequestration, freeze and takeover orders, it should
be dispelled by the fact that these particular remedies and the authority of the
PCGG to issue them have received constitutional approbation and sanction. As
already mentioned, the Provisional or Freedom Constitution recognizes the
power and duty of the President to enact measures to achieve the mandate of
the people to . . . (r)ecover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of the people through
orders of sequestration or freezing of assets or accounts. And as also already
adverted to, Section 26, Article XVIII of the 1987 Constitution treats of, and
orders void. The Provisional Constitution adopted verbatim the Bill of Rights of
the 1973 Constitution. The Provisional Constitution served as a self-limitation
by the revolutionary government to avoid abuses of the absolute powers
entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights existed, directives
and orders issued by government officers were valid so long as these officers
did not exceed the authority granted them by the revolutionary government. The
directives and orders should not have also violated the Covenant or the
Declaration. In this case, the revolutionary government presumptively
sanctioned the warrant since the revolutionary government did not repudiate it.
The warrant, issued by a judge upon proper application, specified the items to
be searched and seized. The warrant is thus valid with respect to the items
specifically described in the warrant.
However, the Constabulary raiding team seized items not included in the
warrant. As admitted by petitioners witnesses, the raiding team confiscated
items not included in the warrant, thus:
Q.
A.
Cross-examination
Atty. Banaag
Q.
A.
Q.
A.
According to the search warrant, you are supposed to seize
only for weapons. What else, aside from the weapons, were
seized from the house of Miss Elizabeth Dimaano?
Yes, sir.
And the search warrant applied for by you was for the
search and seizure of five (5) baby armalite rifles M-16
and five (5) boxes of ammunition?
Yes, sir.
xxx
AJ AMORES
A.
Q.
A.
xxx
Q.
A.
Q.
A.
A.
xxx
Q.
A.
Q.
You stated that a .45 caliber pistol was seized along with
one armalite rifle M-16 and how many ammunition?
Forty, sir.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
A.
That holds true also with respect to the other articles that
were seized by your raiding team, like Transfer
Certificates of Title of lands?
Yes, sir. I think they were contained in one of the vaults
that were opened.
It is obvious from the testimony of Captain Sebastian that the warrant did not
include the monies, communications equipment, jewelry and land titles that the
raiding team confiscated. The search warrant did not particularly describe
these items and the raiding team confiscated them on its own authority. The
raiding team had no legal basis to seize these items without showing that these
items could be the subject of warrantless search and seizure. Clearly, the
raiding team exceeded its authority when it seized these items.
The seizure of these items was therefore void, and unless these items are
contraband per se, and they are not, they must be returned to the person from
whom the raiding seized them. However, we do not declare that such person is
the lawful owner of these items, merely that the search and seizure warrant
could not be used as basis to seize and withhold these items from the
possessor. We thus hold that these items should be returned immediately to
Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned
Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March
1992 in Civil Case No. 0037, remanding the records of this case to the
Ombudsman for such appropriate action as the evidence may warrant, and
referring this case to the Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano, are
AFFIRMED.
SO ORDERED.
Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna,
JJ., concur.
xxx
Q.
A.
Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his concurring
opinion.
SUZETTE
NICOLAS
y
SOMBILON,
Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL
GONZALEZ, in his capacity as Secretary of Justice; EDUARDO ERMITA, in
his capacity as Executive Secretary; RONALDO PUNO, in his capacity as
Secretary of the Interior and Local Government; SERGIO APOSTOL, in his
capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176051
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or for review of
the Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon.
Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United
States Armed Forces. He was charged with the crime of rape committed
against a Filipina, petitioner herein, sometime on November 1, 2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier,
Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of
Rape under Article 266-A of the Revised Penal Code, as amended by Republic
Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is
attached hereto and made an integral part hereof as Annex "A," committed as
follows:
"That on or about the First (1st) day of November 2005, inside the Subic Bay
Freeport Zone, Olongapo City and within the jurisdiction of this Honorable
Court, the above-named accuseds (sic), being then members of the United
States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating
together and mutually helping one another, with lewd design and by means of
force, threat and intimidation, with abuse of superior strength and taking
advantage of the intoxication of the victim, did then and there willfully, unlawfully
and feloniously sexually abuse and have sexual intercourse with or carnal
knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman inside a
Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours, with
Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by
accused Timoteo L. Soriano, Jr., against the will and consent of the said
Suzette S. Nicolas, to her damage and prejudice.
CONTRARY TO LAW."1
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, entered into on February 10, 1998, the
United States, at its request, was granted custody of defendant Smith pending
the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of
Zambales to the RTC of Makati for security reasons, the United States
Government faithfully complied with its undertaking to bring defendant Smith to
the trial court every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial,
rendered its Decision, finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce
sufficient evidence against accused S/SGT. CHAD BRIAN CARPENTER,
L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US
Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the crime
charged.
The prosecution having presented sufficient evidence against accused L/CPL.
DANIEL J. SMITH, also of the US Marine Corps at the USS Essex, this Court
hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of
RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code,
as amended by R.A. 8353, and, in accordance with Article 266-B, first
paragraph thereof, hereby sentences him to suffer the penalty of reclusion
perpetua together with the accessory penalties provided for under Article 41 of
the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement
entered into by the Philippines and the United States, accused L/CPL. DANIEL
J. SMITH shall serve his sentence in the facilities that shall, thereafter, be
agreed upon by appropriate Philippine and United States authorities. Pending
agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby
temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify
complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as
compensatory damages plus P50,000.00 as moral damages.
United States Marine Corps, be returned to U.S. military custody at the U.S.
Embassy in Manila.
DATE: 12-19-06
SO ORDERED.2
Hence, the present actions.
As a result, the Makati court ordered Smith detained at the Makati jail until
further orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati
jail by a contingent of Philippine law enforcement agents, purportedly acting
under orders of the Department of the Interior and Local Government, and
brought to a facility for detention under the control of the United States
government, provided for under new agreements between the Philippines and
the United States, referred to as the Romulo-Kenney Agreement of December
19, 2006 which states:
The Government of the Republic of the Philippines and the Government of the
United States of America agree that, in accordance with the Visiting Forces
Agreement signed between our two nations, Lance Corporal Daniel J. Smith,
The petitions were heard on oral arguments on September 19, 2008, after
which the parties submitted their memoranda.
Petitioners contend that the Philippines should have custody of defendant
L/CPL Smith because, first of all, the VFA is void and unconstitutional.
This issue had been raised before, and this Court resolved in favor of the
constitutionality of the VFA. This was in Bayan v. Zamora, 4 brought by Bayan,
one of petitioners in the present cases.
Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis
all the parties, the reversal of the previous ruling is sought on the ground that
the issue is of primordial importance, involving the sovereignty of the Republic,
as well as a specific mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines
and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other contracting State.
The reason for this provision lies in history and the Philippine experience in
regard to the United States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for
the Philippine Commonwealth and, eventually, for the recognition of
independence, the United States agreed to cede to the Philippines all the
territory it acquired from Spain under the Treaty of Paris, plus a few islands later
added to its realm, except certain naval ports and/or military bases and
facilities, which the United States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the
other places in the Philippines covered by the RP-US Military Bases Agreement
of 1947 were not Philippine territory, as they were excluded from the cession
and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the
extent allowed by the United States. Furthermore, the RP-US Military Bases
Agreement was never advised for ratification by the United States Senate, a
disparity in treatment, because the Philippines regarded it as a treaty and had it
concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the
Philippines; and with the expiration of the RP-US Military Bases Agreement in
1991, the territory covered by these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was
adopted in the 1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the
presence of foreign military bases, troops or facilities in Philippine territory shall
be equally binding on the Philippines and the foreign sovereign State involved.
The idea is to prevent a recurrence of the situation in which the terms and
conditions governing the presence of foreign armed forces in our territory were
binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the question is
whether or not the presence of US Armed Forces in Philippine territory pursuant
to the VFA is allowed "under a treaty duly concurred in by the Senate xxx and
recognized as a treaty by the other contracting State."
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the United States as
attested and certified by the duly authorized representative of the United States
government.
The fact that the VFA was not submitted for advice and consent of the United
States Senate does not detract from its status as a binding international
agreement or treaty recognized by the said State. For this is a matter of internal
United States law. Notice can be taken of the internationally known practice by
the United States of submitting to its Senate for advice and consent
agreements that are policymaking in nature, whereas those that carry out or
further implement these policymaking agreements are merely submitted to
Congress, under the provisions of the so-called CaseZablocki Act, within sixty
days from ratification.6
The second reason has to do with the relation between the VFA and the RP-US
Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed
and duly ratified with the concurrence of both the Philippine Senate and the
United States Senate.
The RP-US Mutual Defense Treaty states:7
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE
PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed at
Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of the
United Nations and their desire to live in peace with all peoples and all
governments, and desiring to strengthen the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their two
peoples together in a common bond of sympathy and mutual ideals to fight
side-by-side against imperialist aggression during the last war.
Desiring to declare publicly and formally their sense of unity and their common
determination to defend themselves against external armed attack, so that no
potential aggressor could be under the illusion that either of them stands alone
in the Pacific area.
Desiring further to strengthen their present efforts for collective defense for the
preservation of peace and security pending the development of a more
comprehensive system of regional security in the Pacific area.
Agreeing that nothing in this present instrument shall be considered or
interpreted as in any way or sense altering or diminishing any existing
agreements or understandings between the Republic of the Philippines and the
United States of America.
Have agreed as follows:
Any such armed attack and all measures taken as a result thereof shall be
immediately reported to the Security Council of the United Nations. Such
measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security.
Article V. For the purpose of Article IV, an armed attack on either of the Parties
is deemed to include an armed attack on the metropolitan territory of either of
the Parties, or on the island territories under its jurisdiction in the Pacific Ocean,
its armed forces, public vessels or aircraft in the Pacific.
Article VI. This Treaty does not affect and shall not be interpreted as affecting in
any way the rights and obligations of the Parties under the Charter of the
United Nations or the responsibility of the United Nations for the maintenance
of international peace and security.
Article VII. This Treaty shall be ratified by the Republic of the Philippines and
the United Nations of America in accordance with their respective constitutional
processes and will come into force when instruments of ratification thereof have
been exchanged by them at Manila.
Article I. The parties undertake, as set forth in the Charter of the United
Nations, to settle any international disputes in which they may be involved by
peaceful means in such a manner that international peace and security and
justice are not endangered and to refrain in their international relation from the
threat or use of force in any manner inconsistent with the purposes of the
United Nations.
Article VIII. This Treaty shall remain in force indefinitely. Either Party may
terminate it one year after notice has been given to the other party.
Article II. In order more effectively to achieve the objective of this Treaty, the
Parties separately and jointly by self-help and mutual aid will maintain and
develop their individual and collective capacity to resist armed attack.
Article III. The Parties, through their Foreign Ministers or their deputies, will
consult together from time to time regarding the implementation of this Treaty
and whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external
armed attack in the Pacific.
Article IV. Each Party recognizes that an armed attack in the Pacific area on
either of the parties would be dangerous to its own peace and safety and
declares that it would act to meet the common dangers in accordance with its
constitutional processes.
The VFA being a valid and binding agreement, the parties are required as a
matter of international law to abide by its terms and provisions.
The VFA provides that in cases of offenses committed by the members of the
US Armed Forces in the Philippines, the following rules apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until
completion of all judicial proceedings. United States military authorities shall,
upon formal notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been
charged. In extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the United
States Government shall take into full account. In the event Philippine judicial
proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one year period will not
include the time necessary to appeal. Also, the one year period will not include
any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange
for the presence of the accused, fail to do so.
Petitioners contend that these undertakings violate another provision of the
Constitution, namely, that providing for the exclusive power of this Court to
adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]).
They argue that to allow the transfer of custody of an accused to a foreign
power is to provide for a different rule of procedure for that accused, which also
violates the equal protection clause of the Constitution (Art. III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial basis
for a different treatment of a member of a foreign military armed forces allowed
to enter our territory and all other accused.11
The rule in international law is that a foreign armed forces allowed to enter
ones territory is immune from local jurisdiction, except to the extent agreed
upon. The Status of Forces Agreements involving foreign military units around
the world vary in terms and conditions, according to the situation of the parties
involved, and reflect their bargaining power. But the principle remains, i.e., the
receiving State can exercise jurisdiction over the forces of the sending State
only to the extent agreed upon by the parties.12
22, 2006, which are agreements on the detention of the accused in the United
States Embassy, are not in accord with the VFA itself because such detention is
not "by Philippine authorities."
As a result, the situation involved is not one in which the power of this Court to
adopt rules of procedure is curtailed or violated, but rather one in which, as is
normally encountered around the world, the laws (including rules of procedure)
of one State do not extend or apply except to the extent agreed upon to
subjects of another State due to the recognition of extraterritorial immunity
given to such bodies as visiting foreign armed forces.
Next, the Court addresses the recent decision of the United States Supreme
Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which
held that treaties entered into by the United States are not automatically part of
their domestic law unless these treaties are self-executing or there is an
implementing legislation to make them enforceable.1avvphi1
Respondents should therefore comply with the VFA and negotiate with
representatives of the United States towards an agreement on detention
facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.
under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been
implemented and executed, with the US faithfully complying with its obligation
to produce L/CPL Smith before the court during the trial.
Secondly, the VFA is covered by implementing legislation, namely, the CaseZablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of
the US Congress that executive agreements registered under this Act within 60
days from their ratification be immediately implemented. The parties to these
present cases do not question the fact that the VFA has been registered under
the Case-Zablocki Act.1avvphi1
In sum, therefore, the VFA differs from the Vienna Convention on Consular
Relations and the Avena decision of the International Court of Justice (ICJ),
subject matter of the Medellin decision. The Convention and the ICJ decision
are not self-executing and are not registrable under the Case-Zablocki Act, and
thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the
US Senate on March 20, 1952, as reflected in the US Congressional Record,
82nd Congress, Second Session, Vol. 98 Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of international
law in domestic courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF
INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries
require legislation whereas others do not.
It was not the intention of the framers of the 1987 Constitution, in adopting
Article XVIII, Sec. 25, to require the other contracting State to convert their
system to achieve alignment and parity with ours. It was simply required that
the treaty be recognized as a treaty by the other contracting State. With that, it
becomes for both parties a binding international obligation and the enforcement
of that obligation is left to the normal recourse and processes under
international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, 13 an
executive agreement is a "treaty" within the meaning of that word in
international law and constitutes enforceable domestic law vis--vis the United
States. Thus, the US Supreme Court in Weinberger enforced the provisions of
the executive agreement granting preferential employment to Filipinos in the
US Bases here.
Accordingly, there are three types of treaties in the American system:
1. Art. II, Sec. 2 treaties These are advised and consented to by the US
Senate in accordance with Art. II, Sec. 2 of the US Constitution.
2. ExecutiveCongressional Agreements: These are joint agreements of the
President and Congress and need not be submitted to the Senate.
3. Sole Executive Agreements. These are agreements entered into by the
President. They are to be submitted to Congress within sixty (60) days of
ratification under the provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be implemented.
As regards the implementation of the RP-US Mutual Defense Treaty, military
aid or assistance has been given under it and this can only be done through
implementing legislation. The VFA itself is another form of implementation of its
provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals
Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The
Visiting Forces Agreement (VFA) between the Republic of the Philippines and
the United States, entered into on February 10, 1998, is UPHELD as
constitutional, but the Romulo-Kenney Agreements of December 19 and 22,
2006 are DECLARED not in accordance with the VFA, and respondent
Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the
United States representatives for the appropriate agreement on detention
facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA,
pending which the status quo shall be maintained until further orders by this
Court.
The Court of Appeals is hereby directed to resolve without delay the related
matters pending therein, namely, the petition for contempt and the appeal of
L/CPL Daniel Smith from the judgment of conviction.
No costs.
SO ORDERED.
March 6, 2006
REPUBLIC OF THE PHILIPPINES represented by the PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioner,
vs.
SANDIGANBAYAN (SECOND DIVISION) and ROBERTO S. BENEDICTO, Respondents.
DECISION
was exempt from paying monthly membership due for the second and
subsequent shares that he/she owned.
GARCIA, J.:
Before the Court is this petition for certiorari under Rule 65 of the Rules of
Court to nullify and set aside the March 28, 1995 1 and March 13, 1997 2
Resolutions of the Sandiganbayan, Second Division, in Civil Case No. 0034,
insofar as said resolutions ordered the Presidential Commission on Good
Government (PCGG) to pay private respondent Roberto S. Benedicto or his
corporations the value of 227 shares of stock of the Negros Occidental Golf and
Country Club, Inc. (NOGCCI) at P150,000.00 per share, registered in the name
of said private respondent or his corporations.
The facts:
Civil Case No. 0034 entitled Republic of the Philippines, plaintiff, v. Roberto S.
Benedicto, et al., defendants, is a complaint for reconveyance, reversion,
accounting, reconstitution and damages. The case is one of several suits
involving ill-gotten or unexplained wealth that petitioner Republic, through the
PCGG, filed with the Sandiganbayan against private respondent Roberto S.
Benedicto and others pursuant to Executive Order (EO) No. 14, 3 series of 1986.
Pursuant to its mandate under EO No. 1, 4 series of 1986, the PCGG issued
writs placing under sequestration all business enterprises, entities and other
properties, real and personal, owned or registered in the name of private
respondent Benedicto, or of corporations in which he appeared to have
controlling or majority interest. Among the properties thus sequestered and
taken over by PCGG fiscal agents were the 227 shares in NOGCCI owned by
private respondent Benedicto and registered in his name or under the names of
corporations he owned or controlled.
Following the sequestration process, PCGG representatives sat as members of
the Board of Directors of NOGCCI, which passed, sometime in October 1986, a
resolution effecting a corporate policy change. The change consisted of
assessing a monthly membership due of P150.00 for each NOGCCI share.
Prior to this resolution, an investor purchasing more than one NOGCCI share
On February 22, 1994, Benedicto filed in Civil Case No. 0034 a "Motion for
Release from Sequestration and Return of Sequestered Shares/Dividends"
praying, inter alia, that his NOGCCI shares of stock be specifically released
from sequestration and returned, delivered or paid to him as part of the parties
Compromise Agreement in that case. In a Resolution 7 promulgated on
December 6, 1994, the Sandiganbayan granted Benedictos aforementioned
motion but placed the subject shares under the custody of its Clerk of Court,
thus:
WHEREFORE, in the light of the foregoing, the said "Motion for Release From
Sequestration and Return of Sequestered Shares/Dividends" is hereby
GRANTED and it is directed that said shares/dividends be delivered/placed
under the custody of the Clerk of Court, Sandiganbayan, Manila subject to this
Courts disposition.
On March 28, 1995, the Sandiganbayan came out with the herein first assailed
Resolution,8 which clarified its aforementioned December 6, 1994 Resolution
and directed the immediate implementation thereof by requiring PCGG, among
other things:
(b) To deliver to the Clerk of Court the 227 sequestered shares of [NOGCCI]
registered in the name of nominees of ROBERTO S. BENEDICTO free from all
liens and encumbrances, or in default thereof, to pay their value at P150,000.00
per share which can be deducted from [the Republics] cash share in the
Compromise Agreement. [Words in bracket added] (Emphasis Supplied).
Owing to PCGGs failure to comply with the above directive, Benedicto filed in
Civil Case No. 0034 a Motion for Compliance dated July 25, 1995, followed by
an Ex-Parte Motion for Early Resolution dated February 12, 1996. Acting
thereon, the Sandiganbayan promulgated yet another Resolution 9 on February
23, 1996, dispositively reading:
WHEREFORE, finding merit in the instant motion for early resolution and
considering that, indeed, the PCGG has not shown any justifiable ground as to
why it has not complied with its obligation as set forth in the Order of December
6, 1994 up to this date and which Order was issued pursuant to the
Compromise Agreement and has already become final and executory,
accordingly, the Presidential Commission on Good Government is hereby given
a final extension of fifteen (15) days from receipt hereof within which to comply
with the Order of December 6, 1994 as stated hereinabove.
On April 1, 1996, PCGG filed a Manifestation with Motion for Reconsideration, 10
praying for the setting aside of the Resolution of February 23, 1996. On April
11, 1996, private respondent Benedicto filed a Motion to Enforce Judgment
Levy. Resolving these two motions, the Sandiganbayan, in its second assailed
Resolution11 dated March 13, 1997, denied that portion of the PCGGs
Manifestation with Motion for Reconsideration concerning the subject 227
NOGCCI shares and granted Benedictos Motion to Enforce Judgment Levy.
Hence, the Republics present recourse on the sole issue of whether or not the
public respondent Sandiganbayan, Second Division, gravely abused its
discretion in holding that the PCGG is at fault for not paying the membership
dues on the 227 sequestered NOGCCI shares of stock, a failing which
eventually led to the foreclosure sale thereof.
The petition lacks merit.
To begin with, PCGG itself does not dispute its being considered as a receiver
insofar as the sequestered 227 NOGCCI shares of stock are concerned. 12
PCGG also acknowledges that as such receiver, one of its functions is to pay
outstanding debts pertaining to the sequestered entity or property, 13 in this case
the 227 NOGCCI shares in question. It contends, however, that membership
dues owing to a golf club cannot be considered as an outstanding debt for
which PCGG, as receiver, must pay. It also claims to have exercised due
diligence to prevent the loss through delinquency sale of the subject NOGCCI
shares, specifically inviting attention to the injunctive suit, i.e., Civil Case No.
5348, it filed before the RTC of Bacolod City to enjoin the foreclosure sale of
the shares.
The filing of the injunction complaint adverted to, without more, cannot plausibly
tilt the balance in favor of PCGG. To the mind of the Court, such filing is a case
of acting too little and too late. It cannot be over-emphasized that it behooved
the PCGGs fiscal agents to preserve, like a responsible father of the family, the
value of the shares of stock under their administration. But far from acting as
such father, what the fiscal agents did under the premises was to allow the
element of delinquency to set in before acting by embarking on a tedious
process of going to court after the auction sale had been announced and
scheduled.
The PCGGs posture that to the owner of the sequestered shares rests the
burden of paying the membership dues is untenable. For one, it lost sight of the
reality that such dues are basically obligations attached to the shares, which, in
the final analysis, shall be made liable, thru delinquency sale in case of default
in payment of the dues. For another, the PCGG as sequestrator-receiver of
such shares is, as stressed earlier, duty bound to preserve the value of such
shares. Needless to state, adopting timely measures to obviate the loss of
those shares forms part of such duty and due diligence.
The Sandiganbayan, to be sure, cannot plausibly be faulted for finding the
PCGG liable for the loss of the 227 NOGCCI shares. There can be no
quibbling, as indeed the graft court so declared in its assailed and related
resolutions respecting the NOGCCI shares of stock, that PCGGs fiscal agents,
while sitting in the NOGCCI Board of Directors agreed to the amendment of the
rule pertaining to membership dues. Hence, it is not amiss to state, as did the
Sandiganbayan, that the PCGG-designated fiscal agents, no less, had a direct
hand in the loss of the sequestered shares through delinquency and their
eventual sale through public auction. While perhaps anti-climactic to so mention
it at this stage, the unfortunate loss of the shares ought not to have come to
pass had those fiscal agents prudently not agreed to the passage of the
NOGCCI board resolutions charging membership dues on shares without
playing representatives.
Given the circumstances leading to the auction sale of the subject NOGCCI
shares, PCGGs lament about public respondent Sandiganbayan having erred
or, worse still, having gravely abused its discretion in its determination as to
who is at fault for the loss of the shares in question can hardly be given
cogency.
For sure, even if the Sandiganbayan were wrong in its findings, which does not
seem to be in this case, it is a well-settled rule of jurisprudence that certiorari
will issue only to correct errors of jurisdiction, not errors of judgment. Corollarily,
errors of procedure or mistakes in the courts findings and conclusions are
beyond the corrective hand of certiorari. 14 The extraordinary writ of certiorari
may be availed only upon a showing, in the minimum, that the respondent
tribunal or officer exercising judicial or quasi-judicial functions has acted without
or in excess of its or his jurisdiction, or with grave abuse of discretion. 15
The term "grave abuse of discretion" connotes capricious and whimsical
exercise of judgment as is equivalent to excess, or a lack of jurisdiction. 16 The
abuse must be so patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.17 Sadly, this is completely
absent in the present case. For, at bottom, the assailed resolutions of the
Sandiganbayan did no more than to direct PCGG to comply with its part of the
bargain under the compromise agreement it freely entered into with private
respondent Benedicto. Simply put, the assailed resolutions of the
Sandiganbayan have firm basis in fact and in law.
Lest it be overlooked, the issue of liability for the shares in question had, as
both public and private respondents asserted, long become final and executory.
Petitioners narration of facts in its present petition is even misleading as it
conveniently fails to make reference to two (2) resolutions issued by the
Sandiganbayan. We refer to that courts resolutions of December 6, 1994 18 and
February 23, 199619 as well as several intervening pleadings which served as
basis for the decisions reached therein. As it were, the present petition
questions only and focuses on the March 28, 1995 20 and March 13, 199721
resolutions, which merely reiterated and clarified the graft courts underlying
resolution of December 6, 1994. And to place matters in the proper perspective,
PCGGs failure to comply with the December 6, 1994 resolution prompted the
issuance of the clarificatory and/or reiteratory resolutions aforementioned.
In a last-ditch attempt to escape liability, petitioner Republic, through the
PCGG, invokes state immunity from suit. 22 As argued, the order for it to pay the
value of the delinquent shares would fix monetary liability on a government
agency, thus necessitating the appropriation of public funds to satisfy the
judgment claim.23 But, as private respondent Benedicto correctly countered, the
PCGG fails to take stock of one of the exceptions to the state immunity
principle, i.e., when the government itself is the suitor, as in Civil Case No.
0034. Where, as here, the State itself is no less the plaintiff in the main case,
immunity from suit cannot be effectively invoked. 24 For, as jurisprudence
teaches, when the State, through its duly authorized officers, takes the initiative
in a suit against a private party, it thereby descends to the level of a private
individual and thus opens itself to whatever counterclaims or defenses the latter
may have against it.25 Petitioner Republics act of filing its complaint in Civil
Case No. 0034 constitutes a waiver of its immunity from suit. Being itself the
plaintiff in that case, petitioner Republic cannot set up its immunity against
private respondent Benedictos prayers in the same case.
In fact, by entering into a Compromise Agreement with private respondent
Benedicto, petitioner Republic thereby stripped itself of its immunity from suit
and placed itself in the same level of its adversary. When the State enters into
contract, through its officers or agents, in furtherance of a legitimate aim and
purpose and pursuant to constitutional legislative authority, whereby mutual or
reciprocal benefits accrue and rights and obligations arise therefrom, the State
may be sued even without its express consent, precisely because by entering
into a contract the sovereign descends to the level of the citizen. Its consent to
be sued is implied from the very act of entering into such contract, 26 breach of
which on its part gives the corresponding right to the other party to the
agreement.
Finally, it is apropos to stress that the Compromise Agreement in Civil Case No.
0034 envisaged the immediate recovery of alleged ill-gotten wealth without
further litigation by the government, and buying peace on the part of the aging
Benedicto.27 Sadly, that stated objective has come to naught as not only had
the litigation continued to ensue, but, worse, private respondent Benedicto
passed away on May 15, 2000, 28 with the trial of Civil Case No. 0034 still in
swing, so much so that the late Benedicto had to be substituted by the
administratrix of his estate.29
WHEREFORE, the instant petition is hereby DISMISSED.
SO ORDERED.
G.R. No. 129406
March 6, 2006
REPUBLIC OF THE PHILIPPINES represented by the PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioner,
vs.
SANDIGANBAYAN (SECOND DIVISION) and ROBERTO S. BENEDICTO, Respondents.
DECISION
was exempt from paying monthly membership due for the second and
subsequent shares that he/she owned.
GARCIA, J.:
Before the Court is this petition for certiorari under Rule 65 of the Rules of
Court to nullify and set aside the March 28, 1995 1 and March 13, 1997 2
Resolutions of the Sandiganbayan, Second Division, in Civil Case No. 0034,
insofar as said resolutions ordered the Presidential Commission on Good
Government (PCGG) to pay private respondent Roberto S. Benedicto or his
corporations the value of 227 shares of stock of the Negros Occidental Golf and
Country Club, Inc. (NOGCCI) at P150,000.00 per share, registered in the name
of said private respondent or his corporations.
The facts:
Civil Case No. 0034 entitled Republic of the Philippines, plaintiff, v. Roberto S.
Benedicto, et al., defendants, is a complaint for reconveyance, reversion,
accounting, reconstitution and damages. The case is one of several suits
involving ill-gotten or unexplained wealth that petitioner Republic, through the
PCGG, filed with the Sandiganbayan against private respondent Roberto S.
Benedicto and others pursuant to Executive Order (EO) No. 14, 3 series of 1986.
Pursuant to its mandate under EO No. 1, 4 series of 1986, the PCGG issued
writs placing under sequestration all business enterprises, entities and other
properties, real and personal, owned or registered in the name of private
respondent Benedicto, or of corporations in which he appeared to have
controlling or majority interest. Among the properties thus sequestered and
taken over by PCGG fiscal agents were the 227 shares in NOGCCI owned by
private respondent Benedicto and registered in his name or under the names of
corporations he owned or controlled.
Following the sequestration process, PCGG representatives sat as members of
the Board of Directors of NOGCCI, which passed, sometime in October 1986, a
resolution effecting a corporate policy change. The change consisted of
assessing a monthly membership due of P150.00 for each NOGCCI share.
Prior to this resolution, an investor purchasing more than one NOGCCI share
On February 22, 1994, Benedicto filed in Civil Case No. 0034 a "Motion for
Release from Sequestration and Return of Sequestered Shares/Dividends"
praying, inter alia, that his NOGCCI shares of stock be specifically released
from sequestration and returned, delivered or paid to him as part of the parties
Compromise Agreement in that case. In a Resolution 7 promulgated on
December 6, 1994, the Sandiganbayan granted Benedictos aforementioned
motion but placed the subject shares under the custody of its Clerk of Court,
thus:
WHEREFORE, in the light of the foregoing, the said "Motion for Release From
Sequestration and Return of Sequestered Shares/Dividends" is hereby
GRANTED and it is directed that said shares/dividends be delivered/placed
under the custody of the Clerk of Court, Sandiganbayan, Manila subject to this
Courts disposition.
On March 28, 1995, the Sandiganbayan came out with the herein first assailed
Resolution,8 which clarified its aforementioned December 6, 1994 Resolution
and directed the immediate implementation thereof by requiring PCGG, among
other things:
(b) To deliver to the Clerk of Court the 227 sequestered shares of [NOGCCI]
registered in the name of nominees of ROBERTO S. BENEDICTO free from all
liens and encumbrances, or in default thereof, to pay their value at P150,000.00
per share which can be deducted from [the Republics] cash share in the
Compromise Agreement. [Words in bracket added] (Emphasis Supplied).
Owing to PCGGs failure to comply with the above directive, Benedicto filed in
Civil Case No. 0034 a Motion for Compliance dated July 25, 1995, followed by
an Ex-Parte Motion for Early Resolution dated February 12, 1996. Acting
thereon, the Sandiganbayan promulgated yet another Resolution 9 on February
23, 1996, dispositively reading:
WHEREFORE, finding merit in the instant motion for early resolution and
considering that, indeed, the PCGG has not shown any justifiable ground as to
why it has not complied with its obligation as set forth in the Order of December
6, 1994 up to this date and which Order was issued pursuant to the
Compromise Agreement and has already become final and executory,
accordingly, the Presidential Commission on Good Government is hereby given
a final extension of fifteen (15) days from receipt hereof within which to comply
with the Order of December 6, 1994 as stated hereinabove.
On April 1, 1996, PCGG filed a Manifestation with Motion for Reconsideration, 10
praying for the setting aside of the Resolution of February 23, 1996. On April
11, 1996, private respondent Benedicto filed a Motion to Enforce Judgment
Levy. Resolving these two motions, the Sandiganbayan, in its second assailed
Resolution11 dated March 13, 1997, denied that portion of the PCGGs
Manifestation with Motion for Reconsideration concerning the subject 227
NOGCCI shares and granted Benedictos Motion to Enforce Judgment Levy.
Hence, the Republics present recourse on the sole issue of whether or not the
public respondent Sandiganbayan, Second Division, gravely abused its
discretion in holding that the PCGG is at fault for not paying the membership
dues on the 227 sequestered NOGCCI shares of stock, a failing which
eventually led to the foreclosure sale thereof.
The petition lacks merit.
To begin with, PCGG itself does not dispute its being considered as a receiver
insofar as the sequestered 227 NOGCCI shares of stock are concerned. 12
PCGG also acknowledges that as such receiver, one of its functions is to pay
outstanding debts pertaining to the sequestered entity or property, 13 in this case
the 227 NOGCCI shares in question. It contends, however, that membership
dues owing to a golf club cannot be considered as an outstanding debt for
which PCGG, as receiver, must pay. It also claims to have exercised due
diligence to prevent the loss through delinquency sale of the subject NOGCCI
shares, specifically inviting attention to the injunctive suit, i.e., Civil Case No.
5348, it filed before the RTC of Bacolod City to enjoin the foreclosure sale of
the shares.
The filing of the injunction complaint adverted to, without more, cannot plausibly
tilt the balance in favor of PCGG. To the mind of the Court, such filing is a case
of acting too little and too late. It cannot be over-emphasized that it behooved
the PCGGs fiscal agents to preserve, like a responsible father of the family, the
value of the shares of stock under their administration. But far from acting as
such father, what the fiscal agents did under the premises was to allow the
element of delinquency to set in before acting by embarking on a tedious
process of going to court after the auction sale had been announced and
scheduled.
The PCGGs posture that to the owner of the sequestered shares rests the
burden of paying the membership dues is untenable. For one, it lost sight of the
reality that such dues are basically obligations attached to the shares, which, in
the final analysis, shall be made liable, thru delinquency sale in case of default
in payment of the dues. For another, the PCGG as sequestrator-receiver of
such shares is, as stressed earlier, duty bound to preserve the value of such
shares. Needless to state, adopting timely measures to obviate the loss of
those shares forms part of such duty and due diligence.
The Sandiganbayan, to be sure, cannot plausibly be faulted for finding the
PCGG liable for the loss of the 227 NOGCCI shares. There can be no
quibbling, as indeed the graft court so declared in its assailed and related
resolutions respecting the NOGCCI shares of stock, that PCGGs fiscal agents,
while sitting in the NOGCCI Board of Directors agreed to the amendment of the
rule pertaining to membership dues. Hence, it is not amiss to state, as did the
Sandiganbayan, that the PCGG-designated fiscal agents, no less, had a direct
hand in the loss of the sequestered shares through delinquency and their
eventual sale through public auction. While perhaps anti-climactic to so mention
it at this stage, the unfortunate loss of the shares ought not to have come to
pass had those fiscal agents prudently not agreed to the passage of the
NOGCCI board resolutions charging membership dues on shares without
playing representatives.
Given the circumstances leading to the auction sale of the subject NOGCCI
shares, PCGGs lament about public respondent Sandiganbayan having erred
or, worse still, having gravely abused its discretion in its determination as to
who is at fault for the loss of the shares in question can hardly be given
cogency.
For sure, even if the Sandiganbayan were wrong in its findings, which does not
seem to be in this case, it is a well-settled rule of jurisprudence that certiorari
will issue only to correct errors of jurisdiction, not errors of judgment. Corollarily,
errors of procedure or mistakes in the courts findings and conclusions are
beyond the corrective hand of certiorari. 14 The extraordinary writ of certiorari
may be availed only upon a showing, in the minimum, that the respondent
tribunal or officer exercising judicial or quasi-judicial functions has acted without
or in excess of its or his jurisdiction, or with grave abuse of discretion. 15
The term "grave abuse of discretion" connotes capricious and whimsical
exercise of judgment as is equivalent to excess, or a lack of jurisdiction. 16 The
abuse must be so patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.17 Sadly, this is completely
absent in the present case. For, at bottom, the assailed resolutions of the
Sandiganbayan did no more than to direct PCGG to comply with its part of the
bargain under the compromise agreement it freely entered into with private
respondent Benedicto. Simply put, the assailed resolutions of the
Sandiganbayan have firm basis in fact and in law.
Lest it be overlooked, the issue of liability for the shares in question had, as
both public and private respondents asserted, long become final and executory.
Petitioners narration of facts in its present petition is even misleading as it
conveniently fails to make reference to two (2) resolutions issued by the
Sandiganbayan. We refer to that courts resolutions of December 6, 1994 18 and
February 23, 199619 as well as several intervening pleadings which served as
basis for the decisions reached therein. As it were, the present petition
questions only and focuses on the March 28, 1995 20 and March 13, 199721
resolutions, which merely reiterated and clarified the graft courts underlying
resolution of December 6, 1994. And to place matters in the proper perspective,
PCGGs failure to comply with the December 6, 1994 resolution prompted the
issuance of the clarificatory and/or reiteratory resolutions aforementioned.
In a last-ditch attempt to escape liability, petitioner Republic, through the
PCGG, invokes state immunity from suit. 22 As argued, the order for it to pay the
value of the delinquent shares would fix monetary liability on a government
agency, thus necessitating the appropriation of public funds to satisfy the
judgment claim.23 But, as private respondent Benedicto correctly countered, the
PCGG fails to take stock of one of the exceptions to the state immunity
principle, i.e., when the government itself is the suitor, as in Civil Case No.
0034. Where, as here, the State itself is no less the plaintiff in the main case,
immunity from suit cannot be effectively invoked. 24 For, as jurisprudence
teaches, when the State, through its duly authorized officers, takes the initiative
in a suit against a private party, it thereby descends to the level of a private
individual and thus opens itself to whatever counterclaims or defenses the latter
may have against it.25 Petitioner Republics act of filing its complaint in Civil
Case No. 0034 constitutes a waiver of its immunity from suit. Being itself the
plaintiff in that case, petitioner Republic cannot set up its immunity against
private respondent Benedictos prayers in the same case.
In fact, by entering into a Compromise Agreement with private respondent
Benedicto, petitioner Republic thereby stripped itself of its immunity from suit
and placed itself in the same level of its adversary. When the State enters into
contract, through its officers or agents, in furtherance of a legitimate aim and
purpose and pursuant to constitutional legislative authority, whereby mutual or
reciprocal benefits accrue and rights and obligations arise therefrom, the State
may be sued even without its express consent, precisely because by entering
into a contract the sovereign descends to the level of the citizen. Its consent to
be sued is implied from the very act of entering into such contract, 26 breach of
which on its part gives the corresponding right to the other party to the
agreement.
Finally, it is apropos to stress that the Compromise Agreement in Civil Case No.
0034 envisaged the immediate recovery of alleged ill-gotten wealth without
further litigation by the government, and buying peace on the part of the aging
Benedicto.27 Sadly, that stated objective has come to naught as not only had
the litigation continued to ensue, but, worse, private respondent Benedicto
passed away on May 15, 2000, 28 with the trial of Civil Case No. 0034 still in
swing, so much so that the late Benedicto had to be substituted by the
administratrix of his estate.29
WHEREFORE, the instant petition is hereby DISMISSED.
SO ORDERED.
GARCIA, J.:
Petitioner,
Present:
PUNO, C.J.,Chairperson,
-
versus
SANDOVAL-GUTIERREZ,
CORONA,
Via this verified petition for certiorari and prohibition under Rule 65 of
the Rules of Court, the Republic of the Philippines (Republic, for short), thru
the Office of the Solicitor General (OSG), comes to this Court to nullify and set
aside the decision dated August 27, 2003 and other related issuances of the
Regional Trial Court (RTC) of Manila, Branch 37, in its Civil Case No. 99-94075.
In directly invoking the Courts original jurisdiction to issue the extraordinary
writs of certiorari and prohibition, without challenge from any of the
respondents, the Republic gave as justification therefor the fact that the case
involves an over TWO BILLION PESO judgment against the State, allegedly
rendered in blatant violation of the Constitution, law and jurisprudence.
AZCUNA, and
GARCIA, JJ.
HON. VICENTE A. HIDALGO, in his
capacity as Presiding Judge of the
Regional Trial Court of Manila, Branch
37, CARMELO V. CACHERO, in his
capacity as Sheriff IV, Regional Trial
Court of Manila, and TARCILA
LAPERAL MENDOZA,
Promulgated:
Respondents.
October 4, 2007
x----------------------------------------------------------------------------------------x
DECISION
The facts:
Sometime in June 1999, Mendoza filed a suit with the RTC of Manila for
reconveyance and the corresponding declaration of nullity of a deed of sale and
title against the Republic, the Register of Deeds of Manila and one Atty. Fidel
Vivar. In her complaint, as later amended, docketed as Civil Case No. 9994075 and eventually raffled to Branch 35 of the court, Mendoza essentially
alleged being the owner of the disputed Arlegui property which the Republic
forcibly dispossessed her of and over which the Register of Deeds of Manila
issued TCT No. 118911 in the name of the Republic.
Answering, the Republic set up, among other affirmative defenses, the
States immunity from suit.
The intervening legal tussles are not essential to this narration. What is
material is that in an Order of March 17, 2000, the RTC of Manila, Branch 35,
dismissed Mendozas complaint. The court would also deny, in another order
dated May 12, 2000, Mendozas omnibus motion for reconsideration. On a
petition for certiorari, however, the Court of Appeals (CA), in CA-G.R. SP No.
60749, reversed the trial courts assailed orders and remanded the case to the
court a quo for further proceedings. On appeal, this Court, in G.R. No. 155231,
sustained the CAs reversal action.
From Branch 35 of the trial court whose then presiding judge inhibited
himself from hearing the remanded Civil Case No. 99-94075, the case was reraffled to Branch 37 thereof, presided by the respondent judge.
On May 5, 2003, Mendoza filed a Motion for Leave of Court to file a Third
Amended Complaint with a copy of the intended third amended complaint
thereto attached. In the May 16, 2003 setting to hear the motion, the RTC, in
open court and in the presence of the Republics counsel, admitted the third
amended complaint, ordered the Republic to file its answer thereto within five
(5) days from May 16, 2003 and set a date for pre-trial.
1. Per verification, TCT No. 118527 had already been cancelled by virtue
of a deed of sale in favor of the Republic allegedly executed by her and her
deceased husband on July 15, 1975 and acknowledged before Fidel Vivar
which deed was annotated at the back of TCT No. 118527 under PE: 2035/T118911 dated July 28, 1975; and
Dated August 27, 2003, the trial courts decision dispositively reads as
follows:
1.
Declaring the deed of sale dated July 15, 1975, annotated at the
back of [TCT] No. 118527 as PE:2035/T-118911, as non-existent and/or
fictitious, and, therefore, null and void from the beginning;
2.
Declaring that [TCT] No. 118911 of the defendant Republic of the
Philippines has no basis, thereby making it null and void from the beginning;
3.
Ordering the defendant Register of Deeds for the City of Manila to
reinstate plaintiff [Mendozas TCT] No. 118527;
4.
Ordering the defendant Republic to pay just compensation in
the sum of ONE HUNDRED FORTY THREE MILLION SIX HUNDRED
THOUSAND (P143,600,000.00) PESOS, plus interest at the legal rate, until the
whole amount is paid in full for the acquisition of the subject property;
5.
Ordering the plaintiff, upon payment of the just compensation for
the acquisition of her property, to execute the necessary deed of conveyance in
favor of the defendant Republic ; and, on the other hand, directing the
defendant Register of Deeds, upon presentation of the said deed of
conveyance, to cancel plaintiffs TCT No. 118527 and to issue, in lieu thereof, a
new Transfer Certificate of Title in favor of the defendant Republic;
6.
Ordering the defendant Republic to pay the plaintiff the sum of
ONE BILLION FOUR HUNDRED EIGHTY MILLION SIX HUNDRED TWENTY
SEVEN THOUSAND SIX HUNDRED EIGHTY EIGHT (P1,480,627,688.00)
PESOS, representing the reasonable rental for the use of the subject property,
the interest thereon at the legal rate, and the opportunity cost at the rate of
three (3%) per cent per annum, commencing July 1975 continuously up to July
30, 2003, plus an additional interest at the legal rate, commencing from this
date until the whole amount is paid in full;
2.
December 17, 2003 - - Order denying the Notice of Appeal filed on
November 27, 2003, the same having been filed beyond the reglementary
period.
3.
December 19, 2003 - - Order granting the private respondents motion for
execution.
4.
Subsequently, the Republic moved for, but was denied, a new trial per
order of the trial court of October 7, 2003. Denied also was its subsequent plea
for reconsideration. These twin denial orders were followed by several orders
and processes issued by the trial court on separate dates as hereunder
indicated:
1.
November 27, 2003 - - Certificate of Finality declaring the August 27,
2003 decision final and executory.
By Resolution of November 20, 2006, the case was set for oral
arguments. On January 22, 2007, when this case was called for the purpose,
both parties manifested their willingness to settle the case amicably, for which
reason the Court gave them up to February 28, 2007 to submit the compromise
agreement for approval. Following several approved extensions of the February
28, 2007 deadline, the OSG, on August 6, 2007, manifested that it is submitting
the case for resolution on the merits owing to the inability of the parties to agree
on an acceptable compromise.
In this recourse, the petitioner urges the Court to strike down as a nullity
the trial courts order declaring it in default and the judgment by default that
followed. Sought to be nullified, too, also on the ground that they were issued in
grave abuse of discretion amounting to lack or in excess of jurisdiction, are the
orders and processes enumerated immediately above issued after the rendition
of the default judgment.
Petitioner lists five (5) overlapping grounds for allowing its petition. It
starts off by impugning the order of default and the judgment by default. To the
petitioner, the respondent judge committed serious jurisdictional error when he
proceeded to hear the case and eventually awarded the private respondent a
staggering amount without so much as giving the petitioner the opportunity to
present its defense.
While the ideal lies in avoiding orders of default, the policy of the law
being to have every litigated case tried on its full merits, the act of the
respondent judge in rendering the default judgment after an order of default
was properly issued cannot be struck down as a case of grave abuse of
discretion.
Under the premises, the mere issuance by the trial court of the order of
default followed by a judgment by default can easily be sustained as correct
and doubtless within its jurisdiction. Surely, a disposition directing the Republic
to pay an enormous sum without the trial court hearing its side does not,
without more, vitiate, on due procedural ground, the validity of the default
judgment. The petitioner may have indeed been deprived of such hearing, but
this does not mean that its right to due process had been violated. For,
consequent to being declared in default, the defaulting defendant is deemed to
have waived his right to be heard or to take part in the trial. The handling
solicitors simply squandered the Republics opportunity to be heard. But more
importantly, the law itself imposes such deprivation of the right to participate as
a form of penalty against one unwilling without justification to join issue upon
the allegations tendered by the plaintiff.
The Court is not convinced. Even as the Court particularly notes what the
trial court had said on the matter of negligence: that all of the petitioners
pleadings below bear at least three signatures, that of the handling solicitor, the
assistant solicitor and the Solicitor General himself, and hence accountability
should go up all the way to the top of the totem pole of authority, the cited
reasons advanced by the petitioner for a new trial are not recognized under
Section 1, Rule 37 of the Rules of Court for such recourse. Withal, there is no
cogent reason to disturb the denial by the trial court of the motion for new trial
and the denial of the reiterative motion for reconsideration.
Then, too, the issuance by the trial court of the Order dated December
17, 2003 denying the petitioners notice of appeal after the court caused the
issuance on November 27, 2003 of a certificate of finality of its August 27, 2003
decision can hardly be described as arbitrary, as the petitioner would have this
Court believe. In this regard, the Court takes stock of the following key events
and material dates set forth in the assailed December 17, 2003 order, supra:
(a) The petitioner, thru the OSG, received on August 29, 2003 a copy of the
RTC decision in this case, hence had up to September 13, 2003, a Saturday,
within which to perfect an appeal; (b) On September 15, 2003, a Monday, the
OSG filed its motion for new trial, which the RTC denied, the OSG receiving a
copy of the order of denial on October 9, 2003; and (c) On October 24, 2003,
the OSG sought reconsideration of the order denying the motion for new trial.
The motion for reconsideration was denied per Order dated November 25,
2003, a copy of which the OSG received on the same date.
Given the foregoing time perspective, what the trial court wrote in its
aforementioned impugned order of December 17, 2003 merits approval:
In the case at bar, it is clear that the motion for new trial filed on the
fifteenth (15th) day after the decision was received on August 29, 2003 was
denied and the moving party has only the remaining period from notice of
notice of denial within which to file a notice of appeal. xxx
The Court cannot, however, stop with just restoring the private
respondent to her possession and ownership of her property. The restoration
ought to be complemented by some form of monetary compensation for
having been unjustly deprived of the beneficial use thereof, but not, however,
in the varying amounts and level fixed in the assailed decision of the trial court
and set to be executed by the equally assailed writ of execution. The Court
finds the monetary award set forth therein to be erroneous. And the error
relates to basic fundamentals of law as to constitute grave abuse of discretion.
In doing so, the respondent judge brazenly went around the explicit
command of Rule 9, Section 3(d) of the Rules of Court which defines the extent
of the relief that may be awarded in a judgment by default, i.e., only so much as
has been alleged and proved. The court acts in excess of jurisdiction if it
awards an amount beyond the claim made in the complaint or beyond that
proved by the evidence. While a defaulted defendant may be said to be at the
mercy of the trial court, the Rules of Court and certainly the imperatives of fair
play see to it that any decision against him must be in accordance with law. In
the abstract, this means that the judgment must not be characterized by
outrageous one-sidedness, but by what is fair, just and equitable that always
underlie the enactment of a law.
Given the above perspective, the obvious question that comes to mind is
the level of compensation which for the use and occupancy of the Arlegui
property - would be fair to both the petitioner and the private respondent and,
at the same time, be within acceptable legal bounds. The process of balancing
the interests of both parties is not an easy one. But surely, the Arlegui
property cannot possibly be assigned, even perhaps at the present real estate
business standards, a monthly rental value of at least P500,000.00 or
P6,000,000.00 a year, the amount private respondent particularly sought and
attempted to prove. This asking figure is clearly unconscionable, if not
downright ridiculous, attendant circumstances considered. To the Court, an
award of P20,000.00 a month for the use and occupancy of the Arlegui
property, while perhaps a little bit arbitrary, is reasonable and may be granted
pro hac vice considering the following hard realities which the Court takes
stock of:
1.
The property is relatively small in terms of actual area and had an
assessed value of only P2,388,900.00;
2.
What the martial law regime took over was not exactly an area with a new
and imposing structure, if there was any; and
3.
The Arlegui property had minimal rental value during the relatively long
martial law years, given the very restrictive entry and egress conditions
prevailing at the vicinity at that time and even after.
The award of attorneys fees equivalent to 15% of the amount due the
private respondent, as reduced herein, is affirmed.
Albeit title to the Arlegui property remains in the name of the petitioner
Republic, it is actually the Office of the President which has beneficial
possession of and use over it since the 1975 takeover. Accordingly, and in
accord with the elementary sense of justice, it behooves that office to make the
appropriate budgetary arrangements towards paying private respondent what is
due her under the premises. This, to us, is the right thing to do. The
imperatives of fair dealing demand no less. And the Court would be remiss in
the discharge of its duties as dispenser of justice if it does not exhort the Office
of the President to comply with what, in law and equity, is its obligation. If the
same office will undertake to pay its obligation with reasonable dispatch or in a
manner acceptable to the private respondent, then simple justice, while
perhaps delayed, will have its day. Private respondent is in the twilight of her
life, being now over 90 years of age. Any delay in the implementation of this
disposition would be a bitter cut.
It is MODIFIED in the sense that for the use and occupancy of the
Arlegui property, petitioner Republic is ordered to pay private respondent the
reasonable amount of P20,000.00 a month beginning July 1975 until it vacates
the same and the possession thereof restored to the private respondent, plus
an additional interest of 6% per annum on the total amount due upon the finality
of this Decision until the same is fully paid. Petitioner is further ordered to pay
private respondent attorney's fees equivalent to 15% of the amount due her
under the premises.
2. The Order of the respondent court dated December 19, 2003 for the
issuance of a writ of execution and the Writ of Execution dated December 22,
2003 against government funds are hereby declared null and void.
Accordingly, the presiding judge of the respondent court, the private
respondent, their agents and persons acting for and in their behalves are
permanently enjoined from enforcing said writ of execution.
However, consistent with the basic tenets of justice, fairness and equity,
petitioner Republic, thru the Office of the President, is hereby strongly
enjoined to take the necessary steps, and, with reasonable dispatch, make the
appropriate budgetary arrangements to pay private respondent Tarcila L.
Mendoza or her assigns the amount adjudged due her under this disposition.
SO ORDERED.
TERESITA M. YUJUICO,
Petitioner,
Present:
- versus -
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
LUISA S. QUIONES,
Superintendent, ROGER
Promulgated:
Respondents.
x-------------------------------------------------------------------x
October 12, 2005
DECISION
Tinga, J.:
respondents Petition for Relief from Judgment under Section 2, Rule 38 of the
1997 Rules of Civil Procedure.
The judgment became final and executory, no appeal having been interposed
by either party.[8]
Upon manifestation of the counsel for the plaintiff that it is the City School
Board which has the authority to pass a resolution allocating funds for the full
satisfaction of the just compensation fixed, the said body is hereby given thirty
(30) days from receipt of this Order to pass the necessary resolution for the
payments of the remaining balance due to defendant Teresita M. Yujuico.[14]
A copy of the Order dated 2 August 2001 was served on the CSB on 3
August 2001.[15]
On 30 August 2001, petitioner submitted a manifestation before the trial
court requesting that she be informed by both the City and the CSB if a
resolution had already been passed by the latter in compliance with the Order.
[16] Earlier, petitioner sent a letter to the Superintendent of City Schools of
Manila to verify the CSBs compliance with the Order.[17]
Not having been favored with a reply to her queries even after the lapse
of the thirty (30)-day compliance period, petitioner sent a letter to the CSB
dated 10 September 2001, demanding compliance with the Order.[18]
As there was no action from the CSB, on 1 February 2002, petitioner filed
a petition for contempt of court against respondents Hon. Jose L. Atienza, Jr.,
Dr. Ma. Luisa S. Quioes, Roger Gernale, Arlene Ortiz, Miles Roces, Percival
Floriendo, Liberty Toledo, Isabelita Santos and Isabelita Ching in their
capacities as officers and members of the CSB.[19] The case was docketed as
Civil Case No. 02-102837 of the Manila RTC.[20]
Countering the petition for contempt, respondents filed a Motion to
Dismiss,[21] wherein they alleged inter alia that they never disregarded the
Order as the matter had in fact been calendared and deliberated upon during
the meetings of the CSB.[22] In their subsequent Omnibus Reply,[23]
respondents argued that petitioners failure to avail of the proper recourse to
enforce the final and executory judgment[24] should not be a ground to hold
them in contempt of court. Citing the case of Municipality of Makati v. Court of
Appeals,[25] respondents asserted that petitioner should have filed a petition
for mandamus to force the CSB to pass the necessary resolution for immediate
payment of the balance of the just compensation awarded in her favor.[26]
According to respondents, petitioner took the Order as a writ of mandamus
when in fact it was a mere order in furtherance of the Writ of Execution.[27]
This interpretation, respondents insisted, should never be allowed since
petitioner merely wanted to escape the payment of docket fees in the filing of
the petition for mandamus.[28]
In an Order[29] dated 17 May 2002, the trial court denied the petition for
contempt of court.
On 6 June 2002, petitioner filed a Petition for Mandamus[30] against the
members of the CSB, the same respondents in the petition for contempt of
court, seeking to compel them to pass a resolution appropriating the amount
necessary to pay the balance of the just compensation awarded to petitioner in
the expropriation case, Civil Case No. 96-79699. The petition was docketed as
Spl. Civil Action No. 02-103748 and raffled to Branch 51 of the RTC of Manila.
[31]
Upon petitioners motion,[32] Branch 51 of the Manila RTC before which the
mandamus case was pending, in an Order[33] dated 23 August 2002, directed
its consolidation with the expropriation case before Branch 15.[34]
In a Decision[35] dated 9 October 2002, the lower court (Branch 15) granted
the petition for mandamus. Specifically, it ordered respondents to immediately
pass a resolution appropriating the necessary amount and the corresponding
disbursement thereof for the full and complete payment of the balance of the
court-adjudged compensation still due petitioner, ratiocinating as follows:[36]
This case is on all fours with the case of Municipality of Makati v. Court of
Appeals (190 SCRA 206).
....
The States power of eminent domain should be exercised within the bounds of
fair play and justice. In the case at bar, considering that valuable property has
been taken, the compensation to be paid fixed and the municipality is in full
possession and utilizing the property for the public purpose, for three (3) years,
the Court finds that the municipality has had more than reasonable time to pay
full compensation.
The arguments of the herein respondents that passing the ordinance or the act
of appropriating special educational fund is a discretionary act that could not be
compelled by mandamus should be thrown overboard. It must be stressed that
what we have here is a final and executory judgment, establishing a legal right
for the petitioner to demand fulfillment which on the other hand became an
imperative duty on the part of the respondent to perform the act required.
WHEREFORE, premises considered, the petition is
GRANTED, and the respondents are hereby ordered to immediately pass a
SO ORDERED.[37]
Respondents filed a motion for reconsideration, which the trial court denied in
an Order[38] dated 13 December 2002.
Before resolving the substantive issues raised by the parties, the Court will first
address the procedural infirmities ascribed by respondents to the petition at bar.
With respondents not interposing an appeal, the Decision became final and
executory on 2 January 2003[39] and eventually, the corresponding Entry of
Judgment was issued on 15 January 2003.[40] The court granted petitioners
Motion for Execution[41] in an Order[42] dated 12 March 2003.
Anent the alleged breach of the rule on hierarchy of courts, the doctrine is not
an iron-clad dictum.[52] The rule may be relaxed when exceptional and
compelling circumstances warrant the exercise of this Courts primary
jurisdiction.[53] In this case, the judgment sought to be satisfied has long
attained finality and the expropriated property has been utilized as a school site
for five (5) years now; yet, the awarded just compensation has not been fully
paid. These circumstances, in the Courts estimation, merit the relaxation of the
technical rules of procedure to ensure that substantial justice will be served.
Concerning petitioners alleged failure to implead the CSB or its new members
before the trial court,[54] respondents argue that since there are five (5) new
members in the CSB any decision in the case requiring the CSB to act as a
body would prove to be legally impossible. The former members of the CSB
could no longer be compelled to act according to the orders of the Court since
they no longer have the capacity to do so. On the other hand, respondents
continue, the new members cannot be directed to comply with the Courts
judgment either; they have never been impleaded in the case; thus, the Court
never acquired jurisdiction over their persons.[55]
Considering the arguments posited by both parties, this Court is of the view that
a substitution of the original respondents by the members of the CSB who
replaced them is warranted. The phrase or such time as may be granted by
the Court in Sec. 17, Rule 3 of the 1997 Rules of Civil Procedure denotes that
the Court before whom the motion for substitution is filed may grant a period
longer than thirty (30) days for the purpose. In any event, technical rules on
substitution of a party should not be so narrowly construed as to prevent this
Court from taking cognizance of a case and deciding it on the merits.
Moreover, petitioner did make an attempt to implead the new members of the
CSB by making the CSB itself a respondent before this Court. There is also no
showing that the new members of the CSB have deviated from the stand of
their predecessors-in-interest; hence, there is a substantial need for continuing
or maintaining petitioners action against them.[56]
In the same Resolution, the Court ordered the impleading of the new CSB
members Roger Gernale, Manuel M. Zarcal, Benjamin Valbuena and
Francesca Gernale as party respondentsthe last three in substitution of
Arlene Ortiz, Percival Floriendo, Miles Rocesand the new CSB Assistant
Secretary Vicente Macarubbo in substitution of Isabelita Ching.[57] Only
Manuel Zarcal filed a Comment[58] dated 30 August 2005 through a new
counsel, adopting in toto the comment of his co-respondents. Hence, the other
four newly impleaded party respondents are deemed to have retained the
Office of the City Legal Officer (OCLO) as their counsel and to have adopted
the Comment already filed by the OCLO in behalf of their co-respondents.
Thus, the proper substitutions of some party respondents have already taken
place in this case.
The last procedural hurdle thrown petitioners way by respondents refers to the
supposed failure of the petition to comply with the requirements of Section 4,
Rule 7 and Section 4, Rule 45 of the 1997 Rules of Civil Procedure [59] as
amended by Supreme Court Circular A.M. No. 00-2-10-SC.[60] Respondents
claim that there was failure to include a verified statement indicating the
material dates relative to the receipt of the judgments and the filing of the
pleadings. The verification, moreover, allegedly failed to state that petitioner has
read the petition[61] and that the copies attached thereto are based on
authentic records.[62] The defects of the verification allegedly render the
petition without legal effect and constitute grounds for its dismissal.
....
The above requisites notwithstanding, it bears stressing that relief from
judgment is premised on equity. It is an act of grace which is allowed only in
exceptional cases.[65]
Clearly, the situation does not present a case of excusable negligence which
would warrant relief under Rule 38. Time and again, this Court has ruled that
the inability to perfect an appeal in due time by reason of failure of a counsels
clerk to notify the handling lawyer is not a pardonable oversight.[71] As held in
one case:
In the face of all these facts and circumstances, . . . the respondent judge
revealed a simple-minded willingness to swallow a story patently concocted to
delay as much as possible the satisfaction of a judgment against
respondent . . . .This indiscriminating credulity does not conform to what is to
be expected of a judicial mind.[72]
Reiterated in numerous cases is the rule that the clerks faults are attributable
to the handling lawyers.[73] Thus, excuses offered based on the formers
negligence are not deemed excusable. That the admonitions issued out by this
Court were mostly directed against lawyers in law firms does not exempt
respondents herein from the same treatment. For all intents and purposes, the
set-up at the OCLO is akin to that of a law firm, the only difference being that
the former serves a public entity while the latter caters to private clients. The
following pronouncement in Negros Stevedoring Co., Inc. v. Court of
Appeals[74] is apropos:
amount of Thirty Six Million Four Hundred Three Thousand One Hundred
Seventy Pesos (P36,403,170.00) had been appropriated by the City School
Board (CSB) under CSB Resolution Nos. 613 and 623 for this purpose.
....
Without doubt, it was grave abuse of discretion for the lower court to have given
due course to respondents appeal through the grant of their petition for relief
from judgment based on the flimsy ground they proferred.
Respondents defense consisted of their claim that the CSB has a personality
separate and distinct from the City such that it should not be made to pay for
the Citys obligations.[76] However, the argument is undercut by the particular
circumstances of this case.
It is worthy of note that the records of this case clearly show that the same
counsel, the OCLO, represented the City in the expropriation case and now, all
except one of the individual respondents in the case at bar. Worthy of note are
the following manifestations relied upon by the lower court in issuing the order
on the motion to quash the Notice of Garnishment over the funds of the City, to
wit:
The Motion to Quash Notice of Garnishment was heard by this court this
morning and Atty. Joseph Aquino appeared for the plaintiff (City of Manila) and
Atty. Federico Alday, for the defendant. Atty. Aquino manifested that the
Upon manifestation of the counsel for the plaintiff that it is the City
School Board which has the authority to pass a resolution allocating
funds for the full satisfaction of the just compensation fixed, the said body
is hereby given thirty (30) days from receipt of this Order to pass the necessary
resolution for the payments of the remaining balance due to defendant Teresita
M. Yujuico. (Emphasis supplied.)[77]
The manifestation was made by the same counsel now claiming that it is
actually the City which should be made liable for the payment of its own
obligations. This, after it trotted out the CSB as the entity with authority to pass
a resolution that would satisfy the obligation it had vigorously pursued.
The above circumstances, coupled with the rule that an act performed by
counsel within the scope of a general or implied authority is regarded as an
act of the client,[78] render the City and, through it, respondents in estoppel. By
estoppel is meant that an admission or representation is rendered conclusive
upon the person making it and cannot be denied or disproved as against the
person relying thereon.[79] Petitioner and the courts acted in accordance with
the Citys own manifestations by running after the CSB. At this point,
respondents and the OCLO can no longer turn around and toss the obligation
back to the City. After all, it was the legal counsel of both the City and
respondents who made a big production out of showing that the liability
incurred by the City will be borne by the CSB.
Contrary to respondents claim, the law does not make the CSB an entity
independent from the City of Manila. This is evident from the provisions of the
Local Government Code of 1991, the law providing for the creation of school
boards. It states:
(a)
There shall be established in every
province, city or municipality a provincial, city, or municipal school board,
respectively.
(b)
shall be as follows:
...
(2) The city school board shall be composed of the city mayor and the city
superintendent of schools as co-chairmen; the chairman of the education
committee of the sangguniang panlungsod, the city treasurer, the
representative of the pederasyon ng mga sangguniang kabataan in the
sangguniang panlungsod, the duly elected president of the city federation of
parents-teachers associations, the duly elected representative of the nonacademic personnel of public schools in the city, as members;
the local school board concerned, subject to existing accounting and auditing
rules and regulations.[80]
The fact that the highest ranking official of a local government unit (LGU) is
designated as co-chairman of the school board negates the claim in this case
that the CSB has a personality separate and distinct from the City. The other
fact that government officials in the school board do not receive any
compensation or remuneration while NGO representatives merely receive
allowances underscores the absurdity of respondents argument all the more.
Indeed, such would not be the situation if the school board has a personality
separate and distinct from the LGU.
Respondents also argue that the members of the CSB cannot be directed to
decide a discretionary function in the specific manner the court desires.[81] The
question of whether the enactment of an ordinance to satisfy the appropriation
of a final money judgment rendered against an LGU may be compelled by
mandamus has already been settled in Municipality of Makati v. Court of
Appeals.[82]
Nevertheless, this is not to say that private respondent and PSB are left with no
legal recourse. Where a municipality fails or refuses, without justifiable reason,
to effect payment of a final money judgment rendered against it, the claimant
may avail of the remedy of mandamus in order to compel the enactment and
approval of the necessary appropriation ordinance, and the corresponding
disbursement of municipal funds therefore [See Viuda De Tan Toco v. The
Municipal Council of Iloilo, supra, Baldivia v. Lota, 107 Phil 1099 (1960);
Yuviengco v. Gonzales, 108 Phil 247 (1960)].[83]
Clearly, mandamus is a remedy available to a property owner when a money
judgment is rendered in its favor and against a municipality or city, as in this
case.
Moreover, the very ordinance authorizing the expropriation of petitioners
property categorically states that the payment of the expropriated property will
be defrayed from the SEF. To quote:
...
Section 101. Compensation and Remuneration.The co-chairmen and members of the provincial, city or municipal school board
shall perform their duties as such without compensation or remuneration.
Members thereof who are not government officials or employees shall be
entitled to traveling expenses and allowances chargeable against the funds of
An amount not to exceed the current fair market value, prevailing in the area
appraised in accordance with the requirements of existing laws, rules and
regulations, of the property to be acquired or so much thereof as may be
necessary for the purpose shall be allocated out of the Special Education Fund
of the City to defray the cost of acquisition of the above-mentioned parcels of
land.[84]
Furthermore, respondents had argued in the petition for contempt filed against
them by petitioner that the latters failure to invoke the proper remedy of
mandamus should not be a ground to penalize them with contempt. In their
haste to have the contempt petition dismissed, respondents consistently
contended that what petitioner should have filed was a case for mandamus to
compel passage of the corresponding resolution of the CSB if she wanted
immediate payment.[85] Having relied on these representations of respondents
and having filed the action they adverted to, petitioner cannot now be sent by
respondents on another wild goose chase to obtain ultimate recovery of what
she is legally entitled to.
While this Court recognizes the power of LGU to expropriate private property
for public use, it will not stand idly by while the expropriating authority
maneuvers to evade the payment of just compensation of property already in its
possession.
Given the above ruling, the reversion of the expropriated property to the
petitioner would prove not to be a remote prospect should respondents and the
City they represent insist on trudging on their intransigent course.
One final note. Respondents appeal from the Decision dated 9 October
2002 of the lower court, made possible by its grant of their petition for relief, is
before the Court of Appeals where it is docketed as CA-G.R. No. 86692.[90]
The courts Decision in this case would have obvious consequences on said
appeal; hence, referral of this Decision to the Court of Appeals is in order.
. . . This Court will not condone petitioners blatant refusal to settle its legal
obligation arising from expropriation proceedings it had in fact initiated. It
cannot be over-emphasized that within the context of the States inherent power
of eminent domain,
WHEREFORE, the petition is GRANTED. The Order of the trial court dated 25
June 2004, granting respondents Petition for Relief from Judgment is
REVERSED and set aside and its Decision dated 9 October 2002, ordering
respondents to immediately pass a resolution for the payment of the balance of
the court-adjudged compensation due petitioner, is reinstated.
. . . (j)ust compensation means not only the correct determination of the amount
to be paid to the owner of the land but also the payment of the land within a
reasonable time from its taking. Without prompt payment, compensation cannot
be considered just for the property owner is made to suffer the consequence of
being immediately deprived of his land while being made to wait for a decade or
more before actually receiving the amount necessary to cope with his loss
(Consculluela v. The Honorable Court of Appeals, G.R. No. 77765, August 15,
1988, 164 SCRA 393, 400. See also Provincial Government of Sorsogon v.
Vda. De Villaroya, G.R. No. 64037, August 27, 1987, 153 SCRA 291).[86]
Let a copy of this Decision be furnished the Court of Appeals for its information
and guidance in relation to CA-G.R. No. 86692 entitled Teresita M. Yujuico v.
Hon. Jose L. Atienza, Jr., et al.
SO ORDERED.
DEUTSCHE GESELLSCHAFT FR
TECHNISCHE ZUSAMMENARBEIT,
also known as GERMAN AGENCY
x----------------------------------------------------------------------------x
Present:
DECISION
QUISUMBING, J.,
ANNE NICOLAY,
Chairperson,
Petitioners,
Tinga, J.:
CARPIO MORALES,
TINGA,
VELASCO, and
- versus -
BRION, JJ.
Promulgated:
HON. COURT OF APPEALS, HON.
ARIEL CADIENTE SANTOS, Labor
Arbiter of the Arbitration Branch,
3.
The Government of the Federal Republic of Germany shall make
the following contributions to the project.
It shall
(c) supply inputs, in particular
(a)
second
(c)
meet
the cost of accommodation for the seconded experts and their families in
so far as this cost is not met by the seconded experts themselves,
(b)
provide in situ
make available the land and buildings required for the project;
(b)
assume an increasing proportion of the running and operating costs
of the project;
(c)
afford the seconded experts any assistance they may require in
carrying out the tasks assigned to them and place at their disposal all
necessary records and documents;
(d)
guarantee that
xxx
the project is provided with an itemized budget of its own in order to
ensure smooth continuation of the project.
4.
The Government of the Republic of the Philippines shall make the
following contributions to the project:
the necessary legal and administrative framework is created for the
project,
It shall
(a)
provide the necessary Philippine experts for the project, in
particular one project coordinator in the Philippine Health Insurance
Corporation (Philhealth), at least three further experts and a sufficient number
of administrative and auxiliary personnel, as well as health personnel in the
pilot provinces and in the other project partners, in particular one responsible
expert for each pilot province and for each association representing the various
target groups,
the inputs supplied for the project on behalf of the Government of the
Federal Republic of Germany are exempted from the cost of licenses, harbour
dues, import and export duties and other public charges and fees, as well as
storage fees, or that any costs thereof are met, and that they are cleared by
customs without delay. The aforementioned exemptions shall, at the request of
the implementing agencies also apply to inputs procured in the Republic of the
Philippines,
the tasks of the seconded experts are taken over as soon as possible
by Philippine experts,
The issues that we [the private respondents] have stated here are very crucial
to us in working for the project. We could no longer find any reason to stay with
the project unless ALL of these issues be addressed immediately and
appropriately.
You have firmly and unequivocally stated in the last paragraph of your 8 th June
2000 letter that you and the five other staff could no longer find any reason to
stay with the project unless ALL of these issues be addressed immediately and
appropriately. Under the foregoing premises and circumstances, it is now
imperative that I am to accept your resignation, which I expect to receive as
soon as possible.
corporation which entered into an employment contract; and that GTZ had
failed to secure from the DFA a certification as to its diplomatic status.
The Decision initially offered that it need not discuss the jurisdictional
aspect considering that the same had already been lengthily discussed in the
Order de[n]ying respondents Motion to Dismiss. Nonetheless, it proceeded to
discuss the jurisdictional aspect, in this wise:
Under pain of being repetitious, the undersigned Labor Arbiter has jurisdiction
to entertain the complaint on the following grounds:
Firstly, under the employment contract entered into between complainants and
respondents, specifically Section 10 thereof, it provides that contract partners
agree that his contract shall be subject to the LAWS of the jurisdiction of the
locality in which the service is performed.
Secondly, respondent having entered into contract, they can no longer invoke
the sovereignty of the Federal Republic of Germany.
Notably, GTZ did not file a motion for reconsideration to the Labor
Arbiters Decision or elevate said decision for appeal to the NLRC. Instead,
GTZ opted to assail the decision by way of a special civil action for certiorari
filed with the Court of Appeals. On 10 December 2001, the Court of Appeals
promulgated a Resolution dismissing GTZs petition, finding that judicial
recourse at this stage of the case is uncalled for[,] [t]he appropriate remedy of
the petitioners [being] an appeal to the NLRC x x x. A motion for
reconsideration to this Resolution proved fruitless for GTZ.
Thus, the present petition for review under Rule 45, assailing the
decision and resolutions of the Court of Appeals and of the Labor Arbiter. GTZs
arguments center on whether the Court of Appeals could have entertained its
petition for certiorari despite its not having undertaken an appeal before the
NLRC; and whether the complaint for illegal dismissal should have been
dismissed for lack of jurisdiction on account of GTZs insistence that it enjoys
immunity from suit. No special arguments are directed with respect to
petitioners Hans Peter Paulenz and Anne Nicolay, respectively the then Director
The Court required the Office of the Solicitor General (OSG) to file a Comment
on the petition. In its Comment dated 7 November 2005, the OSG took the side
of GTZ, with the prayer that the petition be granted on the ground that GTZ was
immune from suit, citing in particular its assigned functions in implementing the
SHINE programa joint undertaking of the Philippine and German
governments which was neither proprietary nor commercial in nature.
The Court of Appeals had premised the dismissal of GTZs petition on its
procedural misstep in bypassing an appeal to NLRC and challenging the Labor
Arbiters Decision directly with the appellate court by way of a Rule 65
petition. In dismissing the petition, the Court of Appeals relied on our ruling in
Air Service Cooperative v. Court of Appeals. The central issue in that case was
whether a decision of a Labor Arbiter rendered without jurisdiction over the
subject matter may be annulled in a petition before a Regional Trial Court. That
case may be differentiated from the present case, since the Regional Trial
Court does not have original or appellate jurisdiction to review a decision
rendered by a Labor Arbiter. In contrast, there is no doubt, as affirmed by
jurisprudence, that the Court of Appeals has jurisdiction to review, by way of its
original certiorari jurisdiction, decisions ruling on complaints for illegal dismissal.
The OSG points out, citing Heirs of Mayor Nemencio Galvez v. Court of
Appeals, that even when appeal is available, the Court has nonetheless
allowed a writ of certiorari when the orders of the lower court were issued either
in excess of or without jurisdiction. Indeed, the Court has ruled before that the
failure to employ available intermediate recourses, such as a motion for
reconsideration, is not a fatal infirmity if the ruling assailed is a patent nullity.
This approach suggested by the OSG allows the Court to inquire directly into
what is the main issuewhether GTZ enjoys immunity from suit.
The arguments raised by GTZ and the OSG are rooted in several indisputable
facts. The SHINE project was implemented pursuant to the bilateral
agreements between the Philippine and German governments. GTZ was
tasked, under the 1991 agreement, with the implementation of the contributions
of the German government. The activities performed by GTZ pertaining to the
SHINE project are governmental in nature, related as they are to the promotion
of health insurance in the Philippines. The fact that GTZ entered into
employment contracts with the private respondents did not disqualify it from
invoking immunity from suit, as held in cases such as Holy See v. Rosario, Jr.,
which set forth what remains valid doctrine:
Certainly, the mere entering into a contract by a foreign state with a private
party cannot be the ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign state is engaged in the
activity in the regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or transaction must then be
tested by its nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is not undertaken for
gain or profit.
Beyond dispute is the tenability of the comment points raised by GTZ and the
OSG that GTZ was not performing proprietary functions notwithstanding its
entry into the particular employment contracts. Yet there is an equally
fundamental premise which GTZ and the OSG fail to address, namely: Is GTZ,
by conception, able to enjoy the Federal Republics immunity from suit?
The principle of state immunity from suit, whether a local state or a foreign
state, is reflected in Section 9, Article XVI of the Constitution, which states that
the State may not be sued without its consent. Who or what consists of the
State? For one, the doctrine is available to foreign States insofar as they are
sought to be sued in the courts of the local State, necessary as it is to avoid
unduly vexing the peace of nations.
If the instant suit had been brought directly against the Federal Republic of
Germany, there would be no doubt that it is a suit brought against a State, and
the only necessary inquiry is whether said State had consented to be sued.
However, the present suit was brought against GTZ. It is necessary for us to
understand what precisely are the parameters of the legal personality of GTZ.
Where suit is filed not against the government itself or its officials but against
one of its entities, it must be ascertained whether or not the State, as the
principal that may ultimately be held liable, has given its consent to be sued.
This ascertainment will depend in the first instance on whether the
government agency impleaded is incorporated or unincorporated.
State
special law
government
government
suit, owing
"It is not necessary to write an extended dissertation on whether or not the NPC
performs a governmental function with respect to the management and
operation of the Angat Dam. It is sufficient to say that the government has
organized a private corporation, put money in it and has allowed it to sue and
be sued in any court under its charter. (R.A. No. 6395, Sec. 3[d]). As a
government, owned and controlled corporation, it has a personality of its own,
distinct and separate from that of the Government. Moreover, the charter
provision that the NPC can 'sue and be sued in any court' is without
qualification on the cause of action and accordingly it can include a tort claim
such as the one instituted by the petitioners."
We come now to the amendability of the SSS to judicial action and legal
responsibility for its acts. To our minds, there should be no question on this
score considering that the SSS is a juridical entity with a personality of its own.
It has corporate powers separate and distinct from the Government. SSS' own
organic act specifically provides that it can sue and be sued in Court. These
words "sue and be sued" embrace all civil process incident to a legal action. So
that, even assuming that the SSS, as it claims, enjoys immunity from suit as an
entity performing governmental functions, by virtue of the explicit provision of
the aforecited enabling law, the Government must be deemed to have waived
immunity in respect of the SSS, although it does not thereby concede its
liability. That statutory law has given to the private citizen a remedy for the
enforcement and protection of his rights. The SSS thereby has been required to
submit to the jurisdiction of the Courts, subject to its right to interpose any
lawful defense. Whether the SSS performs governmental or proprietary
A recent case squarely in point anent the principle, involving the National Power
Corporation, is that of Rayo v. Court of First Instance of Bulacan, 110 SCRA
457 (1981), wherein this Court, speaking through Mr. Justice Vicente Abad
Santos, ruled:
asserted before the Labor Arbiter that GTZ was a private corporation engaged
in the implementation of development projects. The Labor Arbiter accepted that
claim in his Order denying the Motion to Dismiss, though he was silent on that
point in his Decision. Nevertheless, private respondents argue in their
Comment that the finding that GTZ was a private corporation was never
controverted, and is therefore deemed admitted. In its Reply, GTZ controverts
that finding, saying that it is a matter of public knowledge that the status of
petitioner GTZ is that of the implementing agency, and not that of a private
corporation.
GTZ itself provides a more helpful clue, inadvertently, through its own
official Internet website. In the Corporate Profile section of the English
language version of its site, GTZ describes itself as follows:
This self-description of GTZ in its own official website gives further cause
for pause in adopting petitioners argument that GTZ is entitled to immunity
from suit because it is an implementing agency. The above-quoted statement
does not dispute the characterization of GTZ as an implementing agency of
the Federal Republic of Germany, yet it bolsters the notion that as a company
organized under private law, it has a legal personality independent of that of the
Federal Republic of Germany.
The Federal Republic of Germany, in its own official website, also makes
reference to GTZ and describes it in this manner:
As an international cooperation enterprise for sustainable development with
worldwide operations, the federally owned Deutsche Gesellschaft fr
Technische Zusammenarbeit (GTZ) GmbH supports the German Government
in achieving its development-policy objectives. It provides viable, forwardlooking solutions for political, economic, ecological and social development in a
globalised world. Working under difficult conditions, GTZ promotes complex
reforms and change processes. Its corporate objective is to improve peoples
living conditions on a sustainable basis.
In the Philippines, the practice is for the foreign government or the international
organization to first secure an executive endorsement of its claim of sovereign
or diplomatic immunity. But how the Philippine Foreign Office conveys its
endorsement to the courts varies. In International Catholic Migration
Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs
just sent a letter directly to the Secretary of Labor and Employment, informing
the latter that the respondent-employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242
(1972), the Secretary of Foreign Affairs sent the trial court a telegram to that
effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the
Secretary of Foreign Affairs to request the Solicitor General to make, in behalf
of the Commander of the United States Naval Base at Olongapo City,
Zambales, a "suggestion" to respondent Judge. The Solicitor General
embodied the "suggestion" in a Manifestation and Memorandum as amicus
curiae.
It is to be recalled that the Labor Arbiter, in both of his rulings, noted that
it was imperative for petitioners to secure from the Department of Foreign
Would the fact that the Solicitor General has endorsed GTZs claim of
States immunity from suit before this Court sufficiently substitute for the DFA
certification? Note that the rule in public international law quoted in Holy See
referred to endorsement by the Foreign Office of the State where the suit is
filed, such foreign office in the Philippines being the Department of Foreign
Affairs. Nowhere in the Comment of the OSG is it manifested that the DFA has
endorsed GTZs claim, or that the OSG had solicited the DFAs views on the
issue. The arguments raised by the OSG are virtually the same as the
arguments raised by GTZ without any indication of any special and distinct
perspective maintained by the Philippine government on the issue. The
Comment filed by the OSG does not inspire the same degree of confidence as
a certification from the DFA would have elicited.
Holy See made reference to Baer v. Tizon, and that in the said case, the
United States Embassy asked the Secretary of Foreign Affairs to request the
Solicitor General to make a suggestion to the trial court, accomplished by way
of a Manifestation and Memorandum, that the petitioner therein enjoyed
immunity as the Commander of the Subic Bay Naval Base. Such circumstance
is actually not narrated in the text of Baer itself and was likely supplied in Holy
See because its author, Justice Camilio Quiason, had appeared as the Solicitor
in behalf of the OSG in Baer. Nonetheless, as narrated in Holy See, it was the
Secretary of Foreign Affairs which directed the OSG to intervene in behalf of the
United States government in the Baer case, and such fact is manifest enough
The Court is thus holds and so rules that GTZ consistently has been
unable to establish with satisfaction that it enjoys the immunity from suit
generally enjoyed by its parent country, the Federal Republic of Germany.
Consequently, both the Labor Arbiter and the Court of Appeals acted within
proper bounds when they refused to acknowledge that GTZ is so immune by
dismissing the complaint against it. Our finding has additional ramifications on
the failure of GTZ to properly appeal the Labor Arbiters decision to the NLRC.
As pointed out by the OSG, the direct recourse to the Court of Appeals while
bypassing the NLRC could have been sanctioned had the Labor Arbiters
decision been a patent nullity. Since the Labor Arbiter acted properly in
deciding the complaint, notwithstanding GTZs claim of immunity, we cannot
see how the decision could have translated into a patent nullity.
A final note. This decision should not be seen as deviation from the more
common methodology employed in ascertaining whether a party enjoys State
immunity from suit, one which focuses on the particular functions exercised by
the party and determines whether these are proprietary or sovereign in nature.
The nature of the acts performed by the entity invoking immunity remains the
most important barometer for testing whether the privilege of State immunity
from suit should apply. At the same time, our Constitution stipulates that a State
immunity from suit is conditional on its withholding of consent; hence, the laws
and circumstances pertaining to the creation and legal personality of an
instrumentality or agency invoking immunity remain relevant. Consent to be
sued, as exhibited in this decision, is often conferred by the very same statute
or general law creating the instrumentality or agency.
SO ORDERED.
FRANCISCO
I.
CHAVEZ,
Petitioner,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J.
CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S.
SENGA, in his capacity as AFP Chief of Staff, Respondents.
x-------------------------x
G.R. No. 169667
ALTERNATIVE
LAW
GROUPS,
INC.
(ALG),
Petitioner,
vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary,
Respondent.
x-------------------------x
G.R. No. 169834
PDPLABAN,
Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x
G.R. No. 171246
The present consolidated petitions for certiorari and prohibition proffer that the
President has abused such power by issuing Executive Order No. 464 (E.O.
464) last September 28, 2005. They thus pray for its declaration as null and
void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that
the issuance under review has come from a co-equal branch of government,
which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is dutybound to declare it so. For the Constitution, being the highest expression of the
sovereign will of the Filipino people, must prevail over any issuance of the
government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its
various Senate Committees, conducts inquiries or investigations in aid of
legislation which call for, inter alia, the attendance of officials and employees of
the executive department, bureaus, and offices including those employed in
Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued
invitations to various officials of the Executive Department for them to appear
on September 29, 2005 as resource speakers in a public hearing on the railway
project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project). The public
hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging
the Senate to investigate the alleged overpricing and other unlawful provisions
of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C.
Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy
Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of
the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco
V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource persons in a public
hearing scheduled on September 28, 2005 on the following: (1) Privilege
Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled
"Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show
Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege
Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of
Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and
Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana
Consuelo Madrigal Resolution Directing the Committee on National Defense
and Security to Conduct an Inquiry, in Aid of Legislation, and in the National
Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and
(5) Senate Resolution No. 295 filed by Senator Biazon Resolution Directing
the Committee on National Defense and Security to Conduct an Inquiry, in Aid
of Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was
the AFP Chief of Staff, General Generoso S. Senga who, by letter 3 dated
September 27, 2005, requested for its postponement "due to a pressing
operational situation that demands [his utmost personal attention" while "some
of the invited AFP officers are currently attending to other urgent operational
matters."
On September 28, 2005, Senate President Franklin M. Drilon received from
Executive Secretary Eduardo R. Ermita a letter 4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have
been invited" in order to "afford said officials ample time and opportunity to
study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."
Senate President Drilon, however, wrote 5 Executive Secretary Ermita that the
Senators "are unable to accede to [his request]" as it "was sent belatedly" and
"[a]ll preparations and arrangements as well as notices to all resource persons
were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter 6 from
the President of the North Luzon Railways Corporation Jose L. Cortes, Jr.
requesting that the hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance
of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," 7
Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
When the security of the State or the public interest so requires and the
President so states in writing, the appearance shall only be conducted in
executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege
is fundamental to the operation of government and rooted in the separation of
powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information
officially known to them by reason of their office and not made available to the
public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the
President and the public officers covered by this executive order, including:
Conversations and correspondence between the President and the public
official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367,
23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);
Military, diplomatic and other national security matters which in the interest of
national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367,
23 May 1995; Chavez v. Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of
treaties and executive agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department
heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such
other officers who in the judgment of the Chief of Staff are covered by the
executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or
higher and such other officers who in the judgment of the Chief of the PNP are
covered by the executive privilege;
Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All public
officials enumerated in Section 2 (b) hereof shall secure prior consent of the
President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter 8 informing him "that
officials of the Executive Department invited to appear at the meeting [regarding
the NorthRail project] will not be able to attend the same without the consent of
the President, pursuant to [E.O. 464]" and that "said officials have not secured
the required consent from the President." On even date which was also the
scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a
letter9 to Senator Biazon, Chairperson of the Committee on National Defense
and Security, informing him "that per instruction of [President Arroyo], thru the
Secretary of National Defense, no officer of the [AFP] is authorized to appear
before any Senate or Congressional hearings without seeking a written
approval from the President" and "that no approval has been granted by the
President to any AFP officer to appear before the public hearing of the Senate
Committee on National Defense and Security scheduled [on] 28 September
2005."
Despite the communications received from Executive Secretary Ermita and
Gen. Senga, the investigation scheduled by the Committee on National
Defense and Security pushed through, with only Col. Balutan and Brig. Gen.
Gudani among all the AFP officials invited attending.
For defying President Arroyos order barring military personnel from testifying
before legislative inquiries without her approval, Brig. Gen. Gudani and Col.
Balutan were relieved from their military posts and were made to face court
martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005,
Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in response
to the invitations sent to the following government officials: Light Railway Transit
Authority Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State
Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas
Gutierrez, Department of Transportation and Communication (DOTC)
Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza,
Philippine National Railways General Manager Jose Serase II, Monetary Board
Member Juanita Amatong, Bases Conversion Development Authority
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri. 10 NorthRail
President Cortes sent personal regrets likewise citing E.O. 464. 11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660,
and 169667, for certiorari and prohibition, were filed before this Court
challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza
Maza, Joel Virador and Teodoro Casino, Courage, an organization of
government employees, and Counsels for the Defense of Liberties (CODAL), a
group of lawyers dedicated to the promotion of justice, democracy and peace,
all claiming to have standing to file the suit because of the transcendental
importance of the issues they posed, pray, in their petition that E.O. 464 be
declared null and void for being unconstitutional; that respondent Executive
Secretary Ermita, in his capacity as Executive Secretary and alter-ego of
President Arroyo, be prohibited from imposing, and threatening to impose
sanctions on officials who appear before Congress due to congressional
summons. Additionally, petitioners claim that E.O. 464 infringes on their rights
and impedes them from fulfilling their respective obligations. Thus, Bayan Muna
alleges that E.O. 464 infringes on its right as a political party entitled to
participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes
on their rights and duties as members of Congress to conduct investigation in
aid of legislation and conduct oversight functions in the implementation of laws;
Courage alleges that the tenure of its members in public office is predicated on,
and threatened by, their submission to the requirements of E.O. 464 should
they be summoned by Congress; and CODAL alleges that its members have a
sworn duty to uphold the rule of law, and their rights to information and to
transparent governance are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his
constitutional rights as a citizen, taxpayer and law practitioner, are affected by
the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null
and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc. 12 (ALG), alleging
that as a coalition of 17 legal resource non-governmental organizations
engaged in developmental lawyering and work with the poor and marginalized
sectors in different parts of the country, and as an organization of citizens of the
Philippines and a part of the general public, it has legal standing to institute the
petition to enforce its constitutional right to information on matters of public
concern, a right which was denied to the public by E.O. 464, 13 prays, that said
order be declared null and void for being unconstitutional and that respondent
Executive Secretary Ermita be ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a
vital interest in the resolution of the issue of the validity of E.O. 464 for it stands
to suffer imminent and material injury, as it has already sustained the same with
its continued enforcement since it directly interferes with and impedes the valid
exercise of the Senates powers and functions and conceals information of
great public interest and concern, filed its petition for certiorari and prohibition,
docketed as G.R. No. 169777 and prays that E.O. 464 be declared
unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members
duly elected into the Philippine Senate and House of Representatives, filed a
similar petition for certiorari and prohibition, docketed as G.R. No. 169834,
alleging that it is affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented through its members in Congress,
particularly in the conduct of inquiries in aid of legislation and transcendental
In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were ventilated: (1) whether respondents
committed grave abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of general circulation; and
(2) whether E.O. 464 violates the following provisions of the Constitution: Art. II,
Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI,
Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether
there is an actual case or controversy that calls for judicial review was not taken
up; instead, the parties were instructed to discuss it in their respective
memoranda.
After the conclusion of the oral arguments, the parties were directed to submit
their respective memoranda, paying particular attention to the following
propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming
that it is not, it is unconstitutional as applied in four instances, namely: (a) the
so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping
activity of the ISAFP; and (d) the investigation on the Venable contract. 22
Petitioners in G.R. No. 169660 23 and G.R. No. 16977724 filed their memoranda
on March 7, 2006, while those in G.R. No. 169667 25 and G.R. No. 16983426
filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did
not file any memorandum.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential Spokesperson Ignacio R. Bunye, 19 DOJ Secretary
Raul M. Gonzalez20 and Department of Interior and Local Government
Undersecretary Marius P. Corpus21 communicated their inability to attend due to
lack of appropriate clearance from the President pursuant to E.O. 464. During
the February 13, 2005 budget hearing, however, Secretary Bunye was allowed
to attend by Executive Secretary Ermita.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
extension to file memorandum27 was granted, subsequently filed a
manifestation28 dated March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues resolved soonest, prompting
this Court to issue a Resolution reprimanding them.29
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of
the Board of Governors of the Integrated Bar of the Philippines, as taxpayers,
and the Integrated Bar of the Philippines as the official organization of all
Philippine lawyers, all invoking their constitutional right to be informed on
matters of public interest, filed their petition for certiorari and prohibition,
docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and
void.
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing, enforcing, and observing E.O. 464.
Petitioners submit that E.O. 464 violates the following constitutional provisions:
That this power of inquiry is broad enough to cover officials of the executive
branch may be deduced from the same case. The power of inquiry, the Court
therein ruled, is co-extensive with the power to legislate. 60 The matters which
may be a proper subject of legislation and those which may be a proper subject
of investigation are one. It follows that the operation of government, being a
legitimate subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of inquiry.
Besides being related to the expenditure of public funds of which Congress is
the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the
power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar with and informed on
executive operations.
The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the 1986 Constitution. 63 Being of American
origin, it is best understood in light of how it has been defined and used in the
legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to
withhold information from the public, the courts, and the Congress." 64 Similarly,
Rozell defines it as "the right of the President and high-level executive branch
officers to withhold information from Congress, the courts, and ultimately the
public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
encompassed claims of varying kinds. 67 Tribe, in fact, comments that while it is
customary to employ the phrase "executive privilege," it may be more accurate
to speak of executive privileges "since presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of
considerations, and may be asserted, with differing degrees of success, in the
context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked
by U.S. Presidents, beginning with Washington, on the ground that the
information is of such nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informers privilege, or the privilege
of the Government not to disclose the identity of persons who furnish
information of violations of law to officers charged with the enforcement of that
law. Finally, a generic privilege for internal deliberations has been said to attach
to intragovernmental documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which governmental
decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they felt
was crucial to fulfillment of the unique role and responsibilities of the executive
branch of our government. Courts ruled early that the executive had a right to
withhold documents that might reveal military or state secrets. The courts have
also granted the executive a right to withhold the identity of government
informers in some circumstances and a qualified right to withhold information
related to pending investigations. x x x"69 (Emphasis and underscoring supplied)
security of the State or the public interest so requires and the President so
states in writing, the appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the
meaning of Section 22 of Article VI. Section 22 which provides for the question
hour must be interpreted vis--vis Section 21 which provides for the power of
either House of Congress to "conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the Constitutional Commission shows,
the framers were aware that these two provisions involved distinct functions of
Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the
Question Hour] yesterday, I noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of Representatives or before
the Senate. I have a particular problem in this regard, Madam President,
because in our experience in the Regular Batasang Pambansa as the
Gentleman himself has experienced in the interim Batasang Pambansa one
of the most competent inputs that we can put in our committee deliberations,
either in aid of legislation or in congressional investigations, is the testimonies
of Cabinet ministers. We usually invite them, but if they do not come and it is a
congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he
said that the fact that the Cabinet ministers may refuse to come to the House of
Representatives or the Senate [when requested under Section 22] does not
mean that they need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is allowed
and their presence can be had under Section 21. Does the gentleman confirm
this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers
only to what was originally the Question Hour, whereas, Section 21 would refer
specifically to inquiries in aid of legislation, under which anybody for that matter,
may be summoned and if he refuses, he can be held in contempt of the
House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the question
hour, it was compulsory in inquiries in aid of legislation. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the
further and assess the claim of privilege authorized by the Order to determine
whether it is valid.
While the validity of claims of privilege must be assessed on a case to case
basis, examining the ground invoked therefor and the particular circumstances
surrounding it, there is, in an implied claim of privilege, a defect that renders it
invalid per se. By its very nature, and as demonstrated by the letter of
respondent Executive Secretary quoted above, the implied claim authorized by
Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis
thereof (e.g., whether the information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates
the types of information that are covered by the privilege under the challenged
order, Congress is left to speculate as to which among them is being referred to
by the executive. The enumeration is not even intended to be comprehensive,
but a mere statement of what is included in the phrase "confidential or classified
information between the President and the public officers covered by this
executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that the
President, or an authorized head of office, has determined that it is so, and that
the President has not overturned that determination. Such declaration leaves
Congress in the dark on how the requested information could be classified as
privileged. That the message is couched in terms that, on first impression, do
not seem like a claim of privilege only makes it more pernicious. It threatens to
make Congress doubly blind to the question of why the executive branch is not
providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose
information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to be lightly invoked.
There must be a formal claim of privilege, lodged by the head of the department
which has control over the matter, after actual personal consideration by that
officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure
of the very thing the privilege is designed to protect. 92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege,
there is no way of determining whether it falls under one of the traditional
privileges, or whether, given the circumstances in which it is made, it should be
respected.93 These, in substance, were the same criteria in assessing the claim
of privilege asserted against the Ombudsman in Almonte v. Vasquez 94 and,
more in point, against a committee of the Senate in Senate Select Committee
on Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting
from disclosure impossible, thereby preventing the Court from balancing such
harm against plaintiffs needs to determine whether to override any claims of
privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this
balancing operation. In stating its objection to claimants interrogatories,
government asserts, and nothing more, that the disclosures sought by claimant
would inhibit the free expression of opinion that non-disclosure is designed to
protect. The government has not shown nor even alleged that those who
evaluated claimants product were involved in internal policymaking, generally,
or in this particular instance. Privilege cannot be set up by an unsupported
claim. The facts upon which the privilege is based must be established. To find
these interrogatories objectionable, this Court would have to assume that the
evaluation and classification of claimants products was a matter of internal
policy formulation, an assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy 99 similarly emphasizes that "an agency
must provide precise and certain reasons for preserving the confidentiality of
requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation
and description of the documents within its scope as well as precise and certain
reasons for preserving their confidentiality. Without this specificity, it is
impossible for a court to analyze the claim short of disclosure of the very thing
sought to be protected. As the affidavit now stands, the Court has little more
than its sua sponte speculation with which to weigh the applicability of the
claim. An improperly asserted claim of privilege is no claim of privilege.
Therefore, despite the fact that a claim was made by the proper executive as
Reynolds requires, the Court can not recognize the claim in the instant case
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is
thus invalid per se. It is not asserted. It is merely implied. Instead of providing
precise and certain reasons for the claim, it merely invokes E.O. 464, coupled
with an announcement that the President has not given her consent. It is
woefully insufficient for Congress to determine whether the withholding of
information is justified under the circumstances of each case. It severely
frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides
guidelines, binding only on the heads of office mentioned in Section 2(b), on
what is covered by executive privilege. It does not purport to be conclusive on
the other branches of government. It may thus be construed as a mere
expression of opinion by the President regarding the nature and scope of
executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged
order the alleged unlawful delegation of authority to the heads of offices in
Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of
the United States where, so it claims, only the President can assert executive
privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of
office determines that a certain information is privileged, such determination is
presumed to bear the Presidents authority and has the effect of prohibiting the
official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature
of the privilege. Executive privilege, as already discussed, is recognized with
respect to information the confidential nature of which is crucial to the fulfillment
of the unique role and responsibilities of the executive branch, 105 or in those
instances where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of executive privilege
is thus premised on the fact that certain informations must, as a matter of
necessity, be kept confidential in pursuit of the public interest. The privilege
being, by definition, an exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such high degree as to
outweigh the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She may of
course authorize the Executive Secretary to invoke the privilege on her behalf,
in which case the Executive Secretary must state that the authority is "By order
of the President," which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by the highest
official in the executive hierarchy. In other words, the President may not
authorize her subordinates to exercise such power. There is even less reason
to uphold such authorization in the instant case where the authorization is not
explicit but by mere silence. Section 3, in relation to Section 2(b), is further
invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on a
matter which, in his own judgment, might be covered by executive privilege, he
must be afforded reasonable time to inform the President or the Executive
Secretary of the possible need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary with fair opportunity to
consider whether the matter indeed calls for a claim of executive privilege. If,
after the lapse of that reasonable time, neither the President nor the Executive
Secretary invokes the privilege, Congress is no longer bound to respect the
failure of the official to appear before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to
secure the consent of the President under Section 3 of E.O. 464 is to ensure
"respect for the rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by Congress is an echo
from Article VI Section 21 of the Constitution mandating that "[t]he rights of
persons appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an
authorization for implied claims of executive privilege, for which reason it must
be invalidated. That such authorization is partly motivated by the need to
ensure respect for such officials does not change the infirm nature of the
authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance
of executive officials in the hearings conducted by it, and not with the demands
of citizens for information pursuant to their right to information on matters of
public concern. Petitioners are not amiss in claiming, however, that what is
involved in the present controversy is not merely the legislative power of inquiry,
but the right of the people to information.
publishing even those statutes that do not directly apply to people in general,
Taada v. Tuvera states:
There are, it bears noting, clear distinctions between the right of Congress to
information which underlies the power of inquiry and the right of the people to
information on matters of public concern. For one, the demand of a citizen for
the production of documents pursuant to his right to information does not have
the same obligatory force as a subpoena duces tecum issued by Congress.
Neither does the right to information grant a citizen the power to exact
testimony from government officials. These powers belong only to Congress
and not to an individual citizen.
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit
there are some that do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of President Marcos who was
decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the
people. The subject of such law is a matter of public interest which any member
of the body politic may question in the political forums or, if he is a proper party,
even in courts of justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic dictates
that the challenged order must be covered by the publication requirement. As
explained above, E.O. 464 has a direct effect on the right of the people to
information on matters of public concern. It is, therefore, a matter of public
interest which members of the body politic may question before this Court. Due
process thus requires that the people should have been apprised of this
issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch
whenever it is sought in aid of legislation. If the executive branch withholds
such information on the ground that it is privileged, it must so assert it and state
the reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right
to do so and/or proffering its reasons therefor. By the mere expedient of
invoking said provisions, the power of Congress to conduct inquiries in aid of
legislation is frustrated. That is impermissible. For
[w]hat republican theory did accomplishwas to reverse the old presumption in
favor of secrecy, based on the divine right of kings and nobles, and replace it
with a presumption in favor of publicity, based on the doctrine of popular
sovereignty. (Underscoring supplied)109
Resort to any means then by which officials of the executive branch could
refuse to divulge information cannot be presumed valid. Otherwise, we shall not
have merely nullified the power of our legislature to inquire into the operations
KILUSANG MAYO UNO, NATIONAL FEDERATION OF LABOR UNIONSKILUSANG MAYO UNO (NAFLU-KMU), JOSELITO V. USTAREZ, EMILIA P.
DAPULANG, SALVADOR T. CARRANZA, MARTIN T. CUSTODIO, JR. and
ROQUE
M.
TAN,
Petitioners,
vs.
THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT
AUTHORITY, and THE SECRETARY, DEPARTMENT OF BUDGET and
MANAGEMENT, Respondents.
x-----------------------------------x
WHEREAS, there is urgent need to streamline and integrate the processes and
issuance of identification cards in government to reduce costs and to provide
greater convenience for those transacting business with government;
WHEREAS, a unified identification system will facilitate private businesses,
enhance the integrity and reliability of government-issued identification cards in
private transactions, and prevent violations of laws involving false names and
identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines by virtue of the powers vested in me by law, do
hereby direct the following:
Section 1. Adoption of a unified multi-purpose identification (ID) system
for government.1avvphil.net All government agencies, including
government-owned and controlled corporations, are hereby directed to adopt a
unified multi-purpose ID system to ensure the attainment of the following
objectives:
a. To reduce costs and thereby lessen the financial burden on both the
government and the public brought about by the use of multiple ID cards and
the maintenance of redundant database containing the same or related
information;
This case involves two consolidated petitions for certiorari, prohibition, and
mandamus under Rule 65 of the Rules of Court, seeking the nullification of
Executive Order No. 420 (EO 420) on the ground that it is unconstitutional.
c. To facilitate private businesses and promote the wider use of the unified ID
card as provided under this executive order;
These limited and specific data are the usual data required for personal
identification by government entities, and even by the private sector. Any one
who applies for or renews a drivers license provides to the LTO all these 14
specific data.
At present, government entities like LTO require considerably more data from
applicants for identification purposes. EO 420 will reduce the data required to
be collected and recorded in the ID databases of the government entities.
Government entities cannot collect or record data, for identification purposes,
other than the 14 specific data.
Various laws allow several government entities to collect and record data for
their ID systems, either expressly or impliedly by the nature of the functions of
these government entities. Under their existing ID systems, some government
entities collect and record more data than what EO 420 allows. At present, the
data collected and recorded by government entities are disparate, and the IDs
they issue are dissimilar.
In the case of the Supreme Court, 9 the IDs that the Court issues to all its
employees, including the Justices, contain 15 specific data, namely: (1) Name;
(2) Picture; (3) Position; (4) Office Code Number; (5) ID Number; (6) Height; (7)
Weight; (8) Complexion; (9) Color of Hair; (10) Blood Type; (11) Right
Thumbmark; (12) Tax Identification Number; (13) GSIS Policy Number; (14)
Name and Address of Person to be Notified in Case of Emergency; and (15)
Signature. If we consider that the picture in the ID can generally also show the
sex of the employee, the Courts ID actually contains 16 data.
In contrast, the uniform ID format under Section 3 of EO 420 requires only "the
first five items listed" in Section 3, plus the fingerprint, agency number and the
common reference number, or only eight specific data. Thus, at present, the
Supreme Courts ID contains far more data than the proposed uniform ID for
government entities under EO 420. The nature of the data contained in the
Supreme Court ID is also far more financially sensitive, specifically the Tax
Identification Number.
Making the data collection and recording of government entities unified, and
making their ID formats uniform, will admittedly achieve substantial benefits.
These benefits are savings in terms of procurement of equipment and supplies,
compatibility in systems as to hardware and software, ease of verification and
thus increased reliability of data, and the user-friendliness of a single ID format
for all government entities.
There is no dispute that government entities can individually limit the collection
and recording of their data to the 14 specific items in Section 3 of EO 420.
There is also no dispute that these government entities can individually adopt
the ID format as specified in Section 3 of EO 420. Such an act is certainly within
the authority of the heads or governing boards of the government entities that
are already authorized under existing laws to issue IDs.
A unified ID system for all these government entities can be achieved in either
of two ways. First, the heads of these existing government entities can enter
into a memorandum of agreement making their systems uniform. If the
government entities can individually adopt a format for their own ID pursuant to
their regular functions under existing laws, they can also adopt by mutual
agreement a uniform ID format, especially if the uniform format will result in
substantial savings, greater efficiency, and optimum compatibility. This is purely
an administrative matter, and does not involve the exercise of legislative power.
Second, the President may by executive or administrative order direct the
government entities under the Executive department to adopt a uniform ID data
collection and format. Section 17, Article VII of the 1987 Constitution provides
that the "President shall have control of all executive departments, bureaus and
offices." The same Section also mandates the President to "ensure that the
laws be faithfully executed."
Certainly, under this constitutional power of control the President can direct all
government entities, in the exercise of their functions under existing laws, to
adopt a uniform ID data collection and ID format to achieve savings, efficiency,
reliability, compatibility, and convenience to the public. The Presidents
constitutional power of control is self-executing and does not need any
implementing legislation.
Of course, the Presidents power of control is limited to the Executive branch of
government and does not extend to the Judiciary or to the independent
constitutional commissions. Thus, EO 420 does not apply to the Judiciary, or to
the COMELEC which under existing laws is also authorized to issue voters ID
cards.10 This only shows that EO 420 does not establish a national ID system
because legislation is needed to establish a single ID system that is compulsory
for all branches of government.
The Constitution also mandates the President to ensure that the laws are
faithfully executed. There are several laws mandating government entities to
reduce costs, increase efficiency, and in general, improve public services. 11 The
adoption of a uniform ID data collection and format under EO 420 is designed
In fact, petitioners in the present cases do not claim that the ID systems of
government entities prior to EO 420 violate their right to privacy. Since
petitioners do not make such claim, they even have less basis to complain
against the unified ID system under EO 420. The data collected and stored for
the unified ID system under EO 420 will be limited to only 14 specific data, and
the ID card itself will show only eight specific data. The data collection,
recording and ID card system under EO 420 will even require less data
collected, stored and revealed than under the disparate systems prior to EO
420.
Prior to EO 420, government entities had a free hand in determining the kind,
nature and extent of data to be collected and stored for their ID systems. Under
EO 420, government entities can collect and record only the 14 specific data
mentioned in Section 3 of EO 420. In addition, government entities can show in
their ID cards only eight of these specific data, seven less data than what the
Supreme Courts ID shows.
Also, prior to EO 420, there was no executive issuance to government entities
prescribing safeguards on the collection, recording, and disclosure of personal
identification data to protect the right to privacy. Now, under Section 5 of EO
420, the following safeguards are instituted:
a. The data to be recorded and stored, which shall be used only for purposes of
establishing the identity of a person, shall be limited to those specified in
Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in violation of a
persons right to privacy be allowed or tolerated under this order;
c. Stringent systems of access control to data in the identification system shall
be instituted;
d. Data collected and stored for this purpose shall be kept and treated as
strictly confidential and a personal or written authorization of the Owner shall be
required for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced security
features and cryptographic technology;
f. A written request by the Owner of the identification card shall be required for
any correction or revision of relevant data, or under such conditions as the
participating agency issuing the identification card shall prescribe.
issue in U.S. Justice Department is that the State can collect and store in a
central database information on citizens gathered from public records across
the country. In fact, the law authorized the Department of Justice to collect and
preserve fingerprints and other criminal identification records nationwide. The
law also authorized the Department of Justice to exchange such information
with "officials of States, cities and other institutions." The Department of Justice
treated such information as confidential. A CBS news correspondent and the
Reporters Committee demanded the criminal records of four members of a
family pursuant to the Freedom of Information Act. The U.S. Supreme Court
ruled that the Freedom of Information Act expressly exempts release of
information that would "constitute an unwarranted invasion of personal privacy,"
and the information demanded falls under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the personal
data collected and recorded under EO 420 are treated as "strictly confidential"
under Section 6(d) of EO 420. These data are not only strictly confidential but
also personal matters. Section 7, Article III of the 1987 Constitution grants the
"right of the people to information on matters of public concern." Personal
matters are exempt or outside the coverage of the peoples right to information
on matters of public concern. The data treated as "strictly confidential" under
EO 420 being private matters and not matters of public concern, these data
cannot be released to the public or the press. Thus, the ruling in U.S. Justice
Department does not collide with EO 420 but actually supports the validity EO
420.
Whalen v. Roe is the leading American case on the constitutional protection for
control over information. In Whalen, the U.S. Supreme Court upheld the validity
of a New York law that required doctors to furnish the government reports
identifying patients who received prescription drugs that have a potential for
abuse. The government maintained a central computerized database
containing the names and addresses of the patients, as well as the identity of
the prescribing doctors. The law was assailed because the database allegedly
infringed the right to privacy of individuals who want to keep their personal
matters confidential. The U.S. Supreme Court rejected the privacy claim, and
declared:
Disclosures of private medical information to doctors, to hospital personnel, to
insurance companies, and to public health agencies are often an essential part
of modern medical practice even when the disclosure may reflect unfavorably
on the character of the patient. Requiring such disclosures to representatives of
the State having responsibility for the health of the community does not
hold that EO 420 violates the right to privacy because in that case the assailed
executive issuance, broadly drawn and devoid of safeguards, was annulled
solely on the ground that the subject matter required legislation. As then
Associate Justice, now Chief Justice Artemio V. Panganiban noted in his
concurring opinion in Ople v. Torres, "The voting is decisive only on the need for
appropriate legislation, and it is only on this ground that the petition is granted
by this Court."
EO 420 applies only to government entities that already maintain ID systems
and issue ID cards pursuant to their regular functions under existing laws. EO
420 does not grant such government entities any power that they do not
already possess under existing laws. In contrast, the assailed executive
issuance in Ople v. Torres sought to establish a "National Computerized
Identification Reference System,"19 a national ID system that did not exist prior
to the assailed executive issuance. Obviously, a national ID card system
requires legislation because it creates a new national data collection and card
issuance system where none existed before.
In the present case, EO 420 does not establish a national ID system but makes
the existing sectoral card systems of government entities like GSIS, SSS,
Philhealth and LTO less costly, more efficient, reliable and user-friendly to the
public. Hence, EO 420 is a proper subject of executive issuance under the
Presidents constitutional power of control over government entities in the
Executive department, as well as under the Presidents constitutional duty to
ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is
declared VALID.
SO ORDERED.
At the time of the promulgation of the 2003 Decision, the NAIA 3 facilities had
already been built by PIATCO and were nearing completion. 4 However, the
ponencia was silent as to the legal status of the NAIA 3 facilities following the
nullification of the contracts, as well as whatever rights of PIATCO for
reimbursement for its expenses in the construction of the facilities. Still, in his
Separate Opinion, Justice Panganiban, joined by Justice Callejo, declared as
follows:
Should government pay at all for reasonable expenses incurred in the
construction of the Terminal? Indeed it should, otherwise it will be unjustly
enriching itself at the expense of Piatco and, in particular, its funders,
contractors and investors - both local and foreign. After all, there is no question
that the State needs and will make use of Terminal III, it being part and parcel of
the critical infrastructure and transportation-related programs of government. 5
PIATCO and several respondents-intervenors filed their respective motions for
the reconsideration of the 2003 Decision. These motions were denied by the
Court in its Resolution dated 21 January 2004 (2004 Resolution). 6 However, the
Court this time squarely addressed the issue of the rights of PIATCO to refund,
compensation or reimbursement for its expenses in the construction of the
NAIA 3 facilities. The holding of the Court on this crucial point follows:
This Court, however, is not unmindful of the reality that the structures
comprising the NAIA IPT III facility are almost complete and that funds have
been spent by PIATCO in their construction. For the government to take over
the said facility, it has to compensate respondent PIATCO as builder of the said
structures. The compensation must be just and in accordance with law and
equity for the government can not unjustly enrich itself at the expense of
PIATCO and its investors.7
After the promulgation of the rulings in Agan, the NAIA 3 facilities have
remained in the possession of PIATCO, despite the avowed intent of the
Government to put the airport terminal into immediate operation. The
Government and PIATCO conducted several rounds of negotiation regarding
the NAIA 3 facilities.8 It also appears that arbitral proceedings were commenced
before the International Chamber of Commerce International Court of
Arbitration and the International Centre for the Settlement of Investment
Disputes,9 although the Government has raised jurisdictional questions before
those two bodies.10
Then, on 21 December 2004, the Government 11 filed a Complaint for
expropriation with the Pasay City Regional Trial Court (RTC), together with an
Application for Special Raffle seeking the immediate holding of a special raffle.
The Government sought upon the filing of the complaint the issuance of a writ
of possession authorizing it to take immediate possession and control over the
NAIA 3 facilities.
The Government also declared that it had deposited the amount of
P3,002,125,000.0012 (3 Billion)13 in Cash with the Land Bank of the Philippines,
representing the NAIA 3 terminal's assessed value for taxation purposes. 14
The case15 was raffled to Branch 117 of the Pasay City RTC, presided by
respondent judge Hon. Henrick F. Gingoyon (Hon. Gingoyon). On the same day
that the Complaint was filed, the RTC issued an Order 16 directing the issuance
of a writ of possession to the Government, authorizing it to "take or enter upon
the possession" of the NAIA 3 facilities. Citing the case of City of Manila v.
Serrano,17 the RTC noted that it had the ministerial duty to issue the writ of
possession upon the filing of a complaint for expropriation sufficient in form and
substance, and upon deposit made by the government of the amount
equivalent to the assessed value of the property subject to expropriation. The
RTC found these requisites present, particularly noting that "[t]he case record
shows that [the Government has] deposited the assessed value of the [NAIA 3
facilities] in the Land Bank of the Philippines, an authorized depositary, as
shown by the certification attached to their complaint." Also on the same day,
the RTC issued a Writ of Possession. According to PIATCO, the Government
was able to take possession over the NAIA 3 facilities immediately after the Writ
of Possession was issued.18
However, on 4 January 2005, the RTC issued another Order designed to
supplement its 21 December 2004 Order and the Writ of Possession. In the 4
January 2005 Order, now assailed in the present petition, the RTC noted that its
earlier issuance of its writ of possession was pursuant to Section 2, Rule 67 of
the 1997 Rules of Civil Procedure. However, it was observed that Republic Act
No. 8974 (Rep. Act No. 8974), otherwise known as "An Act to Facilitate the
Acquisition of Right-of-Way, Site or Location for National Government
Infrastructure Projects and For Other Purposes" and its Implementing Rules
and Regulations (Implementing Rules) had amended Rule 67 in many respects.
There are at least two crucial differences between the respective procedures
under Rep. Act No. 8974 and Rule 67. Under the statute, the Government is
required to make immediate payment to the property owner upon the filing of
the complaint to be entitled to a writ of possession, whereas in Rule 67, the
Government is required only to make an initial deposit with an authorized
government depositary. Moreover, Rule 67 prescribes that the initial deposit be
equivalent to the assessed value of the property for purposes of taxation, unlike
Rep. Act No. 8974 which provides, as the relevant standard for initial
compensation, the market value of the property as stated in the tax declaration
or the current relevant zonal valuation of the Bureau of Internal Revenue (BIR),
whichever is higher, and the value of the improvements and/or structures using
the replacement cost method.
Accordingly, on the basis of Sections 4 and 7 of Rep. Act No. 8974 and Section
10 of the Implementing Rules, the RTC made key qualifications to its earlier
issuances. First, it directed the Land Bank of the Philippines, Baclaran Branch
(LBP-Baclaran), to immediately release the amount of US$62,343,175.77 to
PIATCO, an amount which the RTC characterized as that which the
Government "specifically made available for the purpose of this expropriation;"
and such amount to be deducted from the amount of just compensation due
PIATCO as eventually determined by the RTC. Second, the Government was
directed to submit to the RTC a Certificate of Availability of Funds signed by
authorized officials to cover the payment of just compensation. Third, the
Government was directed "to maintain, preserve and safeguard" the NAIA 3
facilities or "perform such as acts or activities in preparation for their direct
operation" of the airport terminal, pending expropriation proceedings and full
payment of just compensation. However, the Government was prohibited "from
performing acts of ownership like awarding concessions or leasing any part of
[NAIA 3] to other parties."19
The very next day after the issuance of the assailed 4 January 2005 Order, the
Government filed an Urgent Motion for Reconsideration, which was set for
hearing on 10 January 2005. On 7 January 2005, the RTC issued another
Order, the second now assailed before this Court, which appointed three (3)
Commissioners to ascertain the amount of just compensation for the NAIA 3
Complex. That same day, the Government filed a Motion for Inhibition of Hon.
Gingoyon.
The RTC heard the Urgent Motion for Reconsideration and Motion for Inhibition
on 10 January 2005. On the same day, it denied these motions in an Omnibus
Order dated 10 January 2005. This is the third Order now assailed before this
Court. Nonetheless, while the Omnibus Order affirmed the earlier dispositions
in the 4 January 2005 Order, it excepted from affirmance "the superfluous part
of the Order prohibiting the plaintiffs from awarding concessions or leasing any
part of [NAIA 3] to other parties."20
Thus, the present Petition for Certiorari and Prohibition under Rule 65 was filed
on 13 January 2005. The petition prayed for the nullification of the RTC orders
dated 4 January 2005, 7 January 2005, and 10 January 2005, and for the
inhibition of Hon. Gingoyon from taking further action on the expropriation case.
A concurrent prayer for the issuance of a temporary restraining order and
preliminary injunction was granted by this Court in a Resolution dated 14
January 2005.21
The Government, in imputing grave abuse of discretion to the acts of Hon.
Gingoyon, raises five general arguments, to wit:
(i) that Rule 67, not Rep. Act No. 8974, governs the present expropriation
proceedings;
(ii) that Hon. Gingoyon erred when he ordered the immediate release of the
amount of US$62.3 Million to PIATCO considering that the assessed value as
alleged in the complaint was only P3 Billion;
(iii) that the RTC could not have prohibited the Government from enjoining the
performance of acts of ownership;
(iv) that the appointment of the three commissioners was erroneous; and
(v) that Hon. Gingoyon should be compelled to inhibit himself from the
expropriation case.22
Before we delve into the merits of the issues raised by the Government, it is
essential to consider the crucial holding of the Court in its 2004 Resolution in
Agan, which we repeat below:
This Court, however, is not unmindful of the reality that the structures
comprising the NAIA IPT III facility are almost complete and that funds have
been spent by PIATCO in their construction. For the government to take over
the said facility, it has to compensate respondent PIATCO as builder of the said
structures. The compensation must be just and in accordance with law and
equity for the government can not unjustly enrich itself at the expense of
PIATCO and its investors.23
This pronouncement contains the fundamental premises which permeate this
decision of the Court. Indeed, Agan, final and executory as it is, stands as
governing law in this case, and any disposition of the present petition must
conform to the conditions laid down by the Court in its 2004 Resolution.
The 2004 Resolution Which Is Law of This Case Generally Permits
Expropriation
The determination of just compensation could very well be agreed upon by the
parties without judicial intervention, and it appears that steps towards that
direction had been engaged in. Still, ultimately, the Government resorted to its
inherent power of eminent domain through expropriation proceedings. Is
eminent domain appropriate in the first place, with due regard not only to the
law on expropriation but also to the Court's 2004 Resolution in Agan?
The right of eminent domain extends to personal and real property, and the
NAIA 3 structures, adhered as they are to the soil, are considered as real
property.26 The public purpose for the expropriation is also beyond dispute. It
should also be noted that Section 1 of Rule 67 (on Expropriation) recognizes
the possibility that the property sought to be expropriated may be titled in the
name of the Republic of the Philippines, although occupied by private
individuals, and in such case an averment to that effect should be made in the
complaint. The instant expropriation complaint did aver that the NAIA 3 complex
"stands on a parcel of land owned by the Bases Conversion Development
Authority, another agency of [the Republic of the Philippines]." 27
Admittedly, eminent domain is not the sole judicial recourse by which the
Government may have acquired the NAIA 3 facilities while satisfying the
requisites in the 2004 Resolution. Eminent domain though may be the most
effective, as well as the speediest means by which such goals may be
accomplished. Not only does it enable immediate possession after satisfaction
of the requisites under the law, it also has a built-in procedure through which
just compensation may be ascertained. Thus, there should be no question as to
the propriety of eminent domain proceedings in this case.
Still, in applying the laws and rules on expropriation in the case at bar, we are
impelled to apply or construe these rules in accordance with the Court's
prescriptions in the 2004 Resolution to achieve the end effect that the
Government may validly take over the NAIA 3 facilities. Insofar as this case is
concerned, the 2004 Resolution is effective not only as a legal precedent, but
as the source of rights and prescriptions that must be guaranteed, if not
enforced, in the resolution of this petition. Otherwise, the integrity and efficacy
of the rulings of this Court will be severely diminished.
It is from these premises that we resolve the first question, whether Rule 67 of
the Rules of Court or Rep. Act No. 8974 governs the expropriation proceedings
in this case.
Application of Rule 67 Violates the 2004 Agan Resolution
The Government insists that Rule 67 of the Rules of Court governs the
expropriation proceedings in this case to the exclusion of all other laws. On the
other hand, PIATCO claims that it is Rep. Act No. 8974 which does apply.
Earlier, we had adverted to the basic differences between the statute and the
procedural rule. Further elaboration is in order.
Rule 67 outlines the procedure under which eminent domain may be exercised
by the Government. Yet by no means does it serve at present as the solitary
guideline through which the State may expropriate private property. For
example, Section 19 of the Local Government Code governs as to the exercise
by local government units of the power of eminent domain through an enabling
ordinance. And then there is Rep. Act No. 8974, which covers expropriation
proceedings intended for national government infrastructure projects.
Rep. Act No. 8974, which provides for a procedure eminently more favorable to
the property owner than Rule 67, inescapably applies in instances when the
national government expropriates property "for national government
infrastructure projects."28 Thus, if expropriation is engaged in by the national
government for purposes other than national infrastructure projects, the
assessed value standard and the deposit mode prescribed in Rule 67 continues
to apply.
Under both Rule 67 and Rep. Act No. 8974, the Government commences
expropriation proceedings through the filing of a complaint. Unlike in the case of
local governments which necessitate an authorizing ordinance before
expropriation may be accomplished, there is no need under Rule 67 or Rep. Act
No. 8974 for legislative authorization before the Government may proceed with
a particular exercise of eminent domain. The most crucial difference between
Rule 67 and Rep. Act No. 8974 concerns the particular essential step the
Government has to undertake to be entitled to a writ of possession.
The first paragraph of Section 2 of Rule 67 provides:
SEC. 2. Entry of plaintiff upon depositing value with authorized government
depository. - Upon the filing of the complaint or at any time thereafter and after
due notice to the defendant, the plaintiff shall have the right to take or enter
upon the possession of the real property involved if he deposits with the
authorized government depositary an amount equivalent to the assessed value
of the property for purposes of taxation to be held by such bank subject to the
orders of the court. Such deposit shall be in money, unless in lieu thereof the
court authorizes the deposit of a certificate of deposit of a government bank of
It is quite apparent why the Government would prefer to apply Rule 67 in lieu of
Rep. Act No. 8974. Under Rule 67, it would not be obliged to immediately pay
any amount to PIATCO before it can obtain the writ of possession since all it
need do is deposit the amount equivalent to the assessed value with an
authorized government depositary. Hence, it devotes considerable effort to
point out that Rep. Act No. 8974 does not apply in this case, notwithstanding
the undeniable reality that NAIA 3 is a national government project. Yet, these
efforts fail, especially considering the controlling effect of the 2004 Resolution in
Agan on the adjudication of this case.
It is the finding of this Court that the staging of expropriation proceedings in this
case with the exclusive use of Rule 67 would allow for the Government to take
over the NAIA 3 facilities in a fashion that directly rebukes our 2004 Resolution
in Agan. This Court cannot sanction deviation from its own final and executory
orders.
Section 2 of Rule 67 provides that the State "shall have the right to take or
enter upon the possession of the real property involved if [the plaintiff] deposits
with the authorized government depositary an amount equivalent to the
assessed value of the property for purposes of taxation to be held by such bank
subject to the orders of the court." 30 It is thus apparent that under the provision,
all the Government need do to obtain a writ of possession is to deposit the
amount equivalent to the assessed value with an authorized government
depositary.
Would the deposit under Section 2 of Rule 67 satisfy the requirement laid down
in the 2004 Resolution that "[f]or the government to take over the said facility, it
has to compensate respondent PIATCO as builder of the said structures"?
Evidently not.
If Section 2 of Rule 67 were to apply, PIATCO would be enjoined from receiving
a single centavo as just compensation before the Government takes over the
NAIA 3 facility by virtue of a writ of possession. Such an injunction squarely
contradicts the letter and intent of the 2004 Resolution. Hence, the position of
the Government sanctions its own disregard or violation the prescription laid
down by this Court that there must first be just compensation paid to PIATCO
before the Government may take over the NAIA 3 facilities.
Thus, at the very least, Rule 67 cannot apply in this case without violating the
2004 Resolution. Even assuming that Rep. Act No. 8974 does not govern in
this case, it does not necessarily follow that Rule 67 should then apply. After all,
adherence to the letter of Section 2, Rule 67 would in turn violate the Court's
requirement in the 2004 Resolution that there must first be payment of just
compensation to PIATCO before the Government may take over the property.
It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit
under Rule 67 with the scheme of "immediate payment" in cases involving
national government infrastructure projects. The following portion of the Senate
deliberations, cited by PIATCO in its Memorandum, is worth quoting to cogitate
on the purpose behind the plain meaning of the law:
THE CHAIRMAN (SEN. CAYETANO). "x x x Because the Senate believes that,
you know, we have to pay the landowners immediately not by treasury bills but
by cash.
Since we are depriving them, you know, upon payment, 'no, of possession, we
might as well pay them as much, 'no, hindi lang 50 percent.
xxx
THE CHAIRMAN (REP. VERGARA). Accepted.
Given that the 2004 Resolution militates against the continued use of the norm
under Section 2, Rule 67, is it then possible to apply Rep. Act No. 8974? We
find that it is, and moreover, its application in this case complements rather than
contravenes the prescriptions laid down in the 2004 Resolution.
Rep. Act No. 8974 Fits to the Situation at Bar and Complements the 2004 Agan
Resolution
xxx
THE CHAIRMAN (SEN. CAYETANO). Oo. Because this is really in favor of the
landowners, e.
THE CHAIRMAN (REP. VERGARA). That's why we need to really secure the
availability of funds.
xxx
THE CHAIRMAN (SEN. CAYETANO). No, no. It's the same. It says here: iyong
first paragraph, di ba? Iyong zonal - talagang magbabayad muna. In other
words, you know, there must be a payment kaagad. (TSN, Bicameral
Conference on the Disagreeing Provisions of House Bill 1422 and Senate Bill
2117, August 29, 2000, pp. 14-20)
xxx
THE CHAIRMAN (SEN. CAYETANO). Okay, okay, 'no. Unang-una, it is not
deposit, 'no. It's payment."
REP. BATERINA. It's payment, ho, payment." (Id., p. 63)
31
Rep. Act No. 8974 is entitled "An Act To Facilitate The Acquisition Of Right-OfWay, Site Or Location For National Government Infrastructure Projects And For
Other Purposes." Obviously, the law is intended to cover expropriation
proceedings intended for national government infrastructure projects. Section 2
of Rep. Act No. 8974 explains what are considered as "national government
projects."
Sec. 2. National Government Projects. - The term "national government
projects" shall refer to all national government infrastructure, engineering works
and service contracts, including projects undertaken by government-owned and
controlled corporations, all projects covered by Republic Act No. 6957, as
amended by Republic Act No. 7718, otherwise known as the Build-Operateand-Transfer Law, and other related and necessary activities, such as site
acquisition, supply and/or installation of equipment and materials,
implementation,
construction,
completion,
operation,
maintenance,
improvement, repair and rehabilitation, regardless of the source of funding.
As acknowledged in the 2003 Decision, the development of NAIA 3 was made
pursuant to a build-operate-and-transfer arrangement pursuant to Republic Act
No. 6957, as amended,33 which pertains to infrastructure or development
projects normally financed by the public sector but which are now wholly or
No. 8974 contemplates within its coverage such real property constituting land,
buildings, roads and constructions of all kinds adhered to the soil. Section 1 of
Rep. Act No. 8974, which sets the declaration of the law's policy, refers to "real
property acquired for national government infrastructure projects are promptly
paid just compensation."41 Section 4 is quite explicit in stating that the scope of
the law relates to the acquisition of "real property," which under civil law
includes buildings, roads and constructions adhered to the soil.
It is moreover apparent that the law and its implementing rules commonly
provide for a rule for the valuation of improvements and/or structures thereupon
separate from that of the land on which such are constructed. Section 2 of Rep.
Act No. 8974 itself recognizes that the improvements or structures on the land
may very well be the subject of expropriation proceedings. Section 4(a), in
relation to Section 7 of the law provides for the guidelines for the valuation of
the improvements or structures to be expropriated. Indeed, nothing in the law
would prohibit the application of Section 7, which provides for the valuation
method of the improvements and or structures in the instances wherein it is
necessary for the Government to expropriate only the improvements or
structures, as in this case.
The law classifies the NAIA 3 facilities as real properties just like the soil to
which they are adhered. Any sub-classifications of real property and divergent
treatment based thereupon for purposes of expropriation must be based on
substantial distinctions, otherwise the equal protection clause of the
Constitution is violated. There may be perhaps a molecular distinction between
soil and the inorganic improvements adhered thereto, yet there are no
purposive distinctions that would justify a variant treatment for purposes of
expropriation. Both the land itself and the improvements thereupon are
susceptible to private ownership independent of each other, capable of
pecuniary estimation, and if taken from the owner, considered as a deprivation
of property. The owner of improvements seized through expropriation suffers
the same degree of loss as the owner of land seized through similar means.
Equal protection demands that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. For
purposes of expropriation, parcels of land are similarly situated as the buildings
or improvements constructed thereon, and a disparate treatment between
those two classes of real property infringes the equal protection clause.
Even as the provisions of Rep. Act No. 8974 call for that law's application in this
case, the threshold test must still be met whether its implementation would
conform to the dictates of the Court in the 2004 Resolution. Unlike in the case
of Rule 67, the application of Rep. Act No. 8974 will not contravene the 2004
Resolution, which requires the payment of just compensation before any
takeover of the NAIA 3 facilities by the Government. The 2004 Resolution does
not particularize the extent such payment must be effected before the takeover,
but it unquestionably requires at least some degree of payment to the private
property owner before a writ of possession may issue. The utilization of Rep.
Act No. 8974 guarantees compliance with this bare minimum requirement, as it
assures the private property owner the payment of, at the very least, the
proffered value of the property to be seized. Such payment of the proffered
value to the owner, followed by the issuance of the writ of possession in favor of
the Government, is precisely the schematic under Rep. Act No. 8974, one
which facially complies with the prescription laid down in the 2004 Resolution.
Clearly then, we see no error on the part of the RTC when it ruled that Rep. Act
No. 8974 governs the instant expropriation proceedings.
The Proper Amount to be Paid under Rep. Act No. 8974
Then, there is the matter of the proper amount which should be paid to PIATCO
by the Government before the writ of possession may issue, consonant to Rep.
Act No. 8974.
At this juncture, we must address the observation made by the Office of the
Solicitor General in behalf of the Government that there could be no "BIR zonal
valuations" on the NAIA 3 facility, as provided in Rep. Act No. 8974, since zonal
valuations are only for parcels of land, not for airport terminals. The Court
agrees with this point, yet does not see it as an impediment for the application
of Rep. Act No. 8974.
It must be clarified that PIATCO cannot be reimbursed or justly compensated
for the value of the parcel of land on which NAIA 3 stands. PIATCO is not the
owner of the land on which the NAIA 3 facility is constructed, and it should not
be entitled to just compensation that is inclusive of the value of the land itself. It
would be highly disingenuous to compensate PIATCO for the value of land it
does not own. Its entitlement to just compensation should be limited to the
value of the improvements and/or structures themselves. Thus, the
determination of just compensation cannot include the BIR zonal valuation
under Section 4 of Rep. Act No. 8974.
Under Rep. Act No. 8974, the Government is required to "immediately pay" the
owner of the property the amount equivalent to the sum of (1) one hundred
percent (100%) of the value of the property based on the current relevant zonal
valuation of the [BIR]; and (2) the value of the improvements and/or structures
as determined under Section 7. As stated above, the BIR zonal valuation
cannot apply in this case, thus the amount subject to immediate payment
should be limited to "the value of the improvements and/or structures as
determined under Section 7," with Section 7 referring to the "implementing rules
and regulations for the equitable valuation of the improvements and/or
structures on the land." Under the present implementing rules in place, the
valuation of the improvements/structures are to be based using "the
replacement cost method."42 However, the replacement cost is only one of the
factors to be considered in determining the just compensation.
In addition to Rep. Act No. 8974, the 2004 Resolution in Agan also mandated
that the payment of just compensation should be in accordance with equity as
well. Thus, in ascertaining the ultimate amount of just compensation, the duty of
the trial court is to ensure that such amount conforms not only to the law, such
as Rep. Act No. 8974, but to principles of equity as well.
Admittedly, there is no way, at least for the present, to immediately ascertain
the value of the improvements and structures since such valuation is a matter
for factual determination.43 Yet Rep. Act No. 8974 permits an expedited means
by which the Government can immediately take possession of the property
without having to await precise determination of the valuation. Section 4(c) of
Rep. Act No. 8974 states that "in case the completion of a government
infrastructure project is of utmost urgency and importance, and there is no
existing valuation of the area concerned, the implementing agency shall
immediately pay the owner of the property its proferred value, taking into
consideration the standards prescribed in Section 5 [of the law]." 44 The
"proffered value" may strike as a highly subjective standard based solely on the
intuition of the government, but Rep. Act No. 8974 does provide relevant
standards by which "proffered value" should be based, 45 as well as the certainty
of judicial determination of the propriety of the proffered value. 46
In filing the complaint for expropriation, the Government alleged to have
deposited the amount of P3 Billion earmarked for expropriation, representing
the assessed value of the property. The making of the deposit, including the
determination of the amount of the deposit, was undertaken under the
erroneous notion that Rule 67, and not Rep. Act No. 8974, is the applicable law.
Still, as regards the amount, the Court sees no impediment to recognize this
sum of P3 Billion as the proffered value under Section 4(b) of Rep. Act No.
8974. After all, in the initial determination of the proffered value, the
Government is not strictly required to adhere to any predetermined standards,
although its proffered value may later be subjected to judicial review using the
standards enumerated under Section 5 of Rep. Act No. 8974.
How should we appreciate the questioned order of Hon. Gingoyon, which
pegged the amount to be immediately paid to PIATCO at around $62.3 Million?
The Order dated 4 January 2005, which mandated such amount, proves
problematic in that regard. While the initial sum of P3 Billion may have been
based on the assessed value, a standard which should not however apply in
this case, the RTC cites without qualification Section 4(a) of Rep. Act No. 8974
as the basis for the amount of $62.3 Million, thus leaving the impression that
the BIR zonal valuation may form part of the basis for just compensation, which
should not be the case. Moreover, respondent judge made no attempt to apply
the enumerated guidelines for determination of just compensation under
Section 5 of Rep. Act No. 8974, as required for judicial review of the proffered
value.
The Court notes that in the 10 January 2005 Omnibus Order, the RTC noted
that the concessions agreement entered into between the Government and
PIATCO stated that the actual cost of building NAIA 3 was "not less than"
US$350 Million.47 The RTC then proceeded to observe that while Rep. Act No.
8974 required the immediate payment to PIATCO the amount equivalent to
100% of the value of NAIA 3, the amount deposited by the Government
constituted only 18% of this value. At this point, no binding import should be
given to this observation that the actual cost of building NAIA 3 was "not less
than" US$350 Million, as the final conclusions on the amount of just
compensation can come only after due ascertainment in accordance with the
standards set under Rep. Act No. 8974, not the declarations of the parties. At
the same time, the expressed linkage between the BIR zonal valuation and the
amount of just compensation in this case, is revelatory of erroneous thought on
the part of the RTC.
We have already pointed out the irrelevance of the BIR zonal valuation as an
appropriate basis for valuation in this case, PIATCO not being the owner of the
land on which the NAIA 3 facilities stand. The subject order is flawed insofar as
it fails to qualify that such standard is inappropriate.
It does appear that the amount of US$62.3 Million was based on the
certification issued by the LBP-Baclaran that the Republic of the Philippines
maintained a total balance in that branch amounting to such amount. Yet the
actual representation of the $62.3 Million is not clear. The Land Bank
Certification expressing such amount does state that it was issued upon
request of the Manila International Airport Authority "purportedly as guaranty
fact that no payment of any amount had yet been made to PIATCO, despite the
clear command of Rep. Act No. 8974 that there must first be payment before
the writ of possession can issue. While the RTC did direct the LBP-Baclaran to
immediately release the amount of US$62 Million to PIATCO, it should have
likewise suspended the writ of possession, nay, withdrawn it altogether, until the
Government shall have actually paid PIATCO. This is the inevitable
consequence of the clear command of Rep. Act No. 8974 that requires
immediate payment of the initially determined amount of just compensation
should be effected. Otherwise, the overpowering intention of Rep. Act No. 8974
of ensuring payment first before transfer of repossession would be eviscerated.
Rep. Act No. 8974 represents a significant change from previous expropriation
laws such as Rule 67, or even Section 19 of the Local Government Code. Rule
67 and the Local Government Code merely provided that the Government
deposit the initial amounts53 antecedent to acquiring possession of the property
with, respectively, an authorized
Government depositary54 or the proper court.55 In both cases, the private owner
does not receive compensation prior to the deprivation of property. On the other
hand, Rep. Act No. 8974 mandates immediate payment of the initial just
compensation prior to the issuance of the writ of possession in favor of the
Government.
Rep. Act No. 8974 is plainly clear in imposing the requirement of immediate
prepayment, and no amount of statutory deconstruction can evade such
requisite. It enshrines a new approach towards eminent domain that reconciles
the inherent unease attending expropriation proceedings with a position of
fundamental equity. While expropriation proceedings have always demanded
just compensation in exchange for private property, the previous deposit
requirement impeded immediate compensation to the private owner, especially
in cases wherein the determination of the final amount of compensation would
prove highly disputed. Under the new modality prescribed by Rep. Act No.
8974, the private owner sees immediate monetary recompense with the same
degree of speed as the taking of his/her property.
While eminent domain lies as one of the inherent powers of the State, there is
no requirement that it undertake a prolonged procedure, or that the payment of
the private owner be protracted as far as practicable. In fact, the expedited
procedure of payment, as highlighted under Rep. Act No. 8974, is inherently
more fair, especially to the layperson who would be hard-pressed to fully
comprehend the social value of expropriation in the first place. Immediate
upon the issuance of the writ of possession. Section 4 states that "the court
shall immediately issue to the implementing agency an order to take
possession of the property and start the implementation of the project." We hold
that accordingly, once the Writ of Possession is effective, the Government itself
is authorized to perform the acts that are essential to the operation of the NAIA
3 as an international airport terminal upon the effectivity of the Writ of
Possession. These would include the repair, reconditioning and improvement of
the complex, maintenance of the existing facilities and equipment, installation of
new facilities and equipment, provision of services and facilities pertaining to
the facilitation of air traffic and transport, and other services that are integral to
a modern-day international airport.
The Government's position is more expansive than that adopted by the Court. It
argues that with the writ of possession, it is enabled to perform acts de jure on
the expropriated property. It cites Republic v. Tagle, 57 as well as the statement
therein that "the expropriation of real property does not include mere physical
entry or occupation of land," and from them concludes that "its mere physical
entry and occupation of the property fall short of the taking of title, which
includes all the rights that may be exercised by an owner over the subject
property."
This conclusion is indeed lifted directly from statements in Tagle, 58 but not from
the ratio decidendi of that case. Tagle concerned whether a writ of possession
in favor of the Government was still necessary in light of the fact that it was
already in actual possession of the property. In ruling that the Government was
entitled to the writ of possession, the Court in Tagle explains that such writ
vested not only physical possession, but also the legal right to possess the
property. Continues the Court, such legal right to possess was particularly
important in the case, as there was a pending suit against the Republic for
unlawful detainer, and the writ of possession would serve to safeguard the
Government from eviction.59
At the same time, Tagle conforms to the obvious, that there is no transfer of
ownership as of yet by virtue of the writ of possession. Tagle may concede that
the Government is entitled to exercise more than just the right of possession by
virtue of the writ of possession, yet it cannot be construed to grant the
Government the entire panoply of rights that are available to the owner.
Certainly, neither Tagle nor any other case or law, lends support to the
Government's proposition that it acquires beneficial or equitable ownership of
the expropriated property merely through the writ of possession.
Indeed, this Court has been vigilant in defense of the rights of the property
owner who has been validly deprived of possession, yet retains legal title over
the expropriated property pending payment of just compensation. We reiterated
the various doctrines of such import in our recent holding in Republic v. Lim: 60
The recognized rule is that title to the property expropriated shall pass from the
owner to the expropriator only upon full payment of the just compensation.
Jurisprudence on this settled principle is consistent both here and in other
democratic jurisdictions. In Association of Small Landowners in the Philippines,
Inc. et al., vs. Secretary of Agrarian Reform[61], thus:
"Title to property which is the subject of condemnation proceedings does not
vest the condemnor until the judgment fixing just compensation is entered and
paid, but the condemnor's title relates back to the date on which the petition
under the Eminent Domain Act, or the commissioner's report under the Local
Improvement Act, is filed.
x x x Although the right to appropriate and use land taken for a canal is
complete at the time of entry, title to the property taken remains in the owner
until payment is actually made. (Emphasis supplied.)
In Kennedy v. Indianapolis, the US Supreme Court cited several cases holding
that title to property does not pass to the condemnor until just compensation
had actually been made. In fact, the decisions appear to be uniform to this
effect. As early as 1838, in Rubottom v. McLure, it was held that 'actual
payment to the owner of the condemned property was a condition precedent to
the investment of the title to the property in the State' albeit 'not to the
appropriation of it to public use.' In Rexford v. Knight, the Court of Appeals of
New York said that the construction upon the statutes was that the fee did not
vest in the State until the payment of the compensation although the authority
to enter upon and appropriate the land was complete prior to the payment.
Kennedy further said that 'both on principle and authority the rule is . . . that the
right to enter on and use the property is complete, as soon as the property is
actually appropriated under the authority of law for a public use, but that the title
does not pass from the owner without his consent, until just compensation has
been made to him."
Our own Supreme Court has held in Visayan Refining Co. v. Camus and
Paredes, that:
'If the laws which we have exhibited or cited in the preceding discussion are
attentively examined it will be apparent that the method of expropriation
Of course, once the amount of just compensation has been finally determined,
the Government is obliged to pay PIATCO the said amount. As shown in Lim
and other like-minded cases, the Government's refusal to make such payment
is indubitably actionable in court.
Appointment of Commissioners
The next argument for consideration is the claim of the Government that the
RTC erred in appointing the three commissioners in its 7 January 2005 Order
without prior consultation with either the Government or PIATCO, or without
affording the Government the opportunity to object to the appointment of these
commissioners. We can dispose of this argument without complication.
It must be noted that Rep. Act No. 8974 is silent on the appointment of
commissioners tasked with the ascertainment of just compensation. 67 This
protocol though is sanctioned under Rule 67. We rule that the appointment of
commissioners under Rule 67 may be resorted to, even in expropriation
proceedings under Rep. Act No. 8974, since the application of the provisions of
Rule 67 in that regard do not conflict with the statute. As earlier stated, Section
14 of the Implementing Rules does allow such other incidents affecting the
complaint to be resolved under the provisions on expropriation of Rule 67 of the
Rules of Court. Even without Rule 67, reference during trial to a commissioner
of the examination of an issue of fact is sanctioned under Rule 32 of the Rules
of Court.
But while the appointment of commissioners under the aegis of Rule 67 may be
sanctioned in expropriation proceedings under Rep. Act No. 8974, the
standards to be observed for the determination of just compensation are
provided not in Rule 67 but in the statute. In particular, the governing standards
for the determination of just compensation for the NAIA 3 facilities are found in
Section 10 of the Implementing Rules for Rep. Act No. 8974, which provides for
the replacement cost method in the valuation of improvements and structures. 68
Nothing in Rule 67 or Rep. Act No. 8974 requires that the RTC consult with the
parties in the expropriation case on who should be appointed as
commissioners. Neither does the Court feel that such a requirement should be
imposed in this case. We did rule in Municipality of Talisay v. Ramirez 69 that
"there is nothing to prevent [the trial court] from seeking the recommendations
of the parties on [the] matter [of appointment of commissioners], the better to
ensure their fair representation." 70 At the same time, such solicitation of
recommendations is not obligatory on the part of the court, hence we cannot
impute error on the part of the RTC in its exercise of solitary discretion in the
appointment of the commissioners.
What Rule 67 does allow though is for the parties to protest the appointment of
any of these commissioners, as provided under Section 5 of the Rule. These
objections though must be made filed within ten (10) days from service of the
order of appointment of the commissioners. 71 In this case, the proper recourse
of the Government to challenge the choice of the commissioners is to file an
objection with the trial court, conformably with Section 5, Rule 67, and not as it
has done, assail the same through a special civil action for certiorari.
Considering that the expropriation proceedings in this case were effectively
halted seven (7) days after the Order appointing the commissioners, 72 it is
permissible to allow the parties to file their objections with the RTC within five
(5) days from finality of this decision.
Insufficient Ground for Inhibition of Respondent Judge
The final argument for disposition is the claim of the Government is that Hon.
Gingoyon has prejudged the expropriation case against the Government's
cause and, thus, should be required to inhibit himself. This grave charge is
predicated on facts which the Government characterizes as "undeniable." In
particular, the Government notes that the 4 January 2005 Order was issued
motu proprio, without any preceding motion, notice or hearing. Further, such
order, which directed the payment of US$62 Million to PIATCO, was attended
with error in the computation of just compensation. The Government also notes
that the said Order was issued even before summons had been served on
PIATCO.
The disqualification of a judge is a deprivation of his/her judicial power 73 and
should not be allowed on the basis of mere speculations and surmises. It
certainly cannot be predicated on the adverse nature of the judge's rulings
towards the movant for inhibition, especially if these rulings are in accord with
law. Neither could inhibition be justified merely on the erroneous nature of the
rulings of the judge. We emphasized in Webb v. People: 74
To prove bias and prejudice on the part of respondent judge, petitioners harp on
the alleged adverse and erroneous rulings of respondent judge on their various
motions. By themselves, however, they do not sufficiently prove bias and
prejudice to disqualify respondent judge. To be disqualifying, the bias and
prejudice must be shown to have stemmed from an extrajudicial source and
result in an opinion on the merits on some basis other than what the judge
learned from his participation in the case. Opinions formed in the course of
judicial proceedings, although erroneous, as long as they are based on the
evidence presented and conduct observed by the judge, do not prove personal
bias or prejudice on the part of the judge. As a general rule, repeated rulings
against a litigant, no matter how erroneous and vigorously and consistently
expressed, are not a basis for disqualification of a judge on grounds of bias and
prejudice. Extrinsic evidence is required to establish bias, bad faith, malice or
corrupt purpose, in addition to the palpable error which may be inferred from
the decision or order itself. Although the decision may seem so erroneous as to
raise doubts concerning a judge's integrity, absent extrinsic evidence, the
decision itself would be insufficient to establish a case against the judge. The
only exception to the rule is when the error is so gross and patent as to produce
an ineluctable inference of bad faith or malice.75
The Government's contentions against Hon. Gingoyon are severely undercut by
the fact that the 21 December 2004 Order, which the 4 January 2005 Order
sought to rectify, was indeed severely flawed as it erroneously applied the
provisions of Rule 67 of the Rules of Court, instead of Rep. Act No. 8974, in
ascertaining compliance with the requisites for the issuance of the writ of
possession. The 4 January 2005 Order, which according to the Government
establishes Hon. Gingoyon's bias, was promulgated precisely to correct the
previous error by applying the correct provisions of law. It would not speak well
of the Court if it sanctions a judge for wanting or even attempting to correct a
previous erroneous order which precisely is the right move to take.
Neither are we convinced that the motu proprio issuance of the 4 January 2005
Order, without the benefit of notice or hearing, sufficiently evinces bias on the
part of Hon. Gingoyon. The motu proprio amendment by a court of an
erroneous order previously issued may be sanctioned depending on the
circumstances, in line with the long-recognized principle that every court has
inherent power to do all things reasonably necessary for the administration of
justice within the scope of its jurisdiction.76 Section 5(g), Rule 135 of the Rules
of Court further recognizes the inherent power of courts "to amend and control
its process and orders so as to make them conformable to law and justice," 77 a
power which Hon. Gingoyon noted in his 10 January 2005 Omnibus Order. 78
This inherent power includes the right of the court to reverse itself, especially
when in its honest opinion it has committed an error or mistake in judgment,
and that to adhere to its decision will cause injustice to a party litigant. 79
Certainly, the 4 January 2005 Order was designed to make the RTC's previous
order conformable to law and justice, particularly to apply the correct law of the
case. Of course, as earlier established, this effort proved incomplete, as the 4
January 2005 Order did not correctly apply Rep. Act No. 8974 in several
respects. Still, at least, the 4 January 2005 Order correctly reformed the most
basic premise of the case that Rep. Act No. 8974 governs the expropriation
proceedings.
Nonetheless, the Government belittles Hon. Gingoyon's invocation of Section
5(g), Rule 135 as "patently without merit". Certainly merit can be seen by the
fact that the 4 January 2005 Order reoriented the expropriation proceedings
towards the correct governing law. Still, the Government claims that the
unilateral act of the RTC did not conform to law or justice, as it was not afforded
the right to be heard.
The Court would be more charitably disposed towards this argument if not for
the fact that the earlier order with the 4 January 2005 Order sought to correct
was itself issued without the benefit of any hearing. In fact, nothing either in
Rule 67 or Rep. Act No. 8975 requires the conduct of a hearing prior to the
issuance of the writ of possession, which by design is available immediately
upon the filing of the complaint provided that the requisites attaching thereto
are present. Indeed, this expedited process for the obtention of a writ of
possession in expropriation cases comes at the expense of the rights of the
property owner to be heard or to be deprived of possession. Considering these
predicates, it would be highly awry to demand that an order modifying the
earlier issuance of a writ of possession in an expropriation case be barred until
the staging of a hearing, when the issuance of the writ of possession itself is not
subject to hearing. Perhaps the conduct of a hearing under these
circumstances would be prudent. However, hearing is not mandatory, and the
failure to conduct one does not establish the manifest bias required for the
inhibition of the judge.
The Government likewise faults Hon. Gingoyon for using the amount of
US$350 Million as the basis for the 100% deposit under Rep. Act No. 8974. The
Court has noted that this statement was predicated on the erroneous belief that
the BIR zonal valuation applies as a standard for determination of just
compensation in this case. Yet this is manifest not of bias, but merely of error
on the part of the judge. Indeed, the Government was not the only victim of the
errors of the RTC in the assailed orders. PIATCO itself was injured by the
issuance by the RTC of the writ of possession, even though the former had yet
to be paid any amount of just compensation. At the same time, the Government
was also prejudiced by the erroneous ruling of the RTC that the amount of
US$62.3 Million, and not P3 Billion, should be released to PIATCO.
The Court has not been remiss in pointing out the multiple errors committed by
the RTC in its assailed orders, to the prejudice of both parties. This attitude of
error towards all does not ipso facto negate the charge of bias. Still, great care
should be had in requiring the inhibition of judges simply because the
magistrate did err. Incompetence may be a ground for administrative sanction,
but not for inhibition, which requires lack of objectivity or impartiality to sit on a
case.
The Court should necessarily guard against adopting a standard that a judge
should be inhibited from hearing the case if one litigant loses trust in the judge.
Such loss of trust on the part of the Government may be palpable, yet inhibition
cannot be grounded merely on the feelings of the party-litigants. Indeed, every
losing litigant in any case can resort to claiming that the judge was biased, and
he/she will gain a sympathetic ear from friends, family, and people who do not
understand the judicial process. The test in believing such a proposition should
not be the vehemence of the litigant's claim of bias, but the Court's judicious
estimation, as people who know better than to believe any old cry of "wolf!",
whether such bias has been irrefutably exhibited.
The Court acknowledges that it had been previously held that "at the very first
sign of lack of faith and trust in his actions, whether well-grounded or not, the
judge has no other alternative but to inhibit himself from the case." 80 But this
doctrine is qualified by the entrenched rule that "a judge may not be legally
prohibited from sitting in a litigation, but when circumstances appear that will
induce doubt to his honest actuations and probity in favor of either party, or
incite such state of mind, he should conduct a careful self- examination. He
should exercise his discretion in a way that the people's faith in the Courts of
Justice is not impaired."81 And a self-assessment by the judge that he/she is not
impaired to hear the case will be respected by the Court absent any evidence
to the contrary. As held in Chin v. Court of Appeals:
An allegation of prejudgment, without more, constitutes mere conjecture and is
not one of the "just and valid reasons" contemplated in the second paragraph of
Rule 137 of the Rules of Court for which a judge may inhibit himself from
hearing the case. We have repeatedly held that mere suspicion that a judge is
partial to a party is not enough. Bare allegations of partiality and prejudgment
will not suffice in the absence of clear and convincing evidence to overcome the
presumption that the judge will undertake his noble role to dispense justice
according to law and evidence and without fear or favor. There should be
adequate evidence to prove the allegations, and there must be showing that the
judge had an interest, personal or otherwise, in the prosecution of the case. To
be a disqualifying circumstance, the bias and prejudice must be shown to have
stemmed from an extrajudicial source and result in an opinion on the merits on
some basis other than what the judge learned from his participation in the
case.82
The mere vehemence of the Government's claim of bias does not translate to
clear and convincing evidence of impairing bias. There is no sufficient ground to
direct the inhibition of Hon. Gingoyon from hearing the expropriation case.
In conclusion, the Court summarizes its rulings as follows:
(1) The 2004 Resolution in Agan sets the base requirement that has to be
observed before the Government may take over the NAIA 3, that there must be
payment to PIATCO of just compensation in accordance with law and equity.
Any ruling in the present expropriation case must be conformable to the
dictates of the Court as pronounced in the Agan cases.
(2) Rep. Act No. 8974 applies in this case, particularly insofar as it requires the
immediate payment by the Government of at least the proffered value of the
NAIA 3 facilities to PIATCO and provides certain valuation standards or
methods for the determination of just compensation.
(3) Applying Rep. Act No. 8974, the implementation of Writ of Possession in
favor of the Government over NAIA 3 is held in abeyance until PIATCO is
directly paid the amount of P3 Billion, representing the proffered value of NAIA
3 under Section 4(c) of the law.
(4) Applying Rep. Act No. 8974, the Government is authorized to start the
implementation of the NAIA 3 Airport terminal project by performing the acts
that are essential to the operation of the NAIA 3 as an international airport
terminal upon the effectivity of the Writ of Possession, subject to the conditions
above-stated. As prescribed by the Court, such authority encompasses "the
repair, reconditioning and improvement of the complex, maintenance of the
existing facilities and equipment, installation of new facilities and equipment,
provision of services and facilities pertaining to the facilitation of air traffic and
transport, and other services that are integral to a modern-day international
airport."83
(7) The Government shall pay the just compensation fixed in the decision of the
trial court to PIATCO immediately upon the finality of the said decision.
(8) There is no basis for the Court to direct the inhibition of Hon. Gingoyon.
All told, the Court finds no grave abuse of discretion on the part of the RTC to
warrant the nullification of the questioned orders. Nonetheless, portions of
these orders should be modified to conform with law and the pronouncements
made by the Court herein.
WHEREFORE, the Petition is GRANTED in PART with respect to the orders
dated 4 January 2005 and 10 January 2005 of the lower court. Said orders are
AFFIRMED with the following MODIFICATIONS:
1) The implementation of the Writ of Possession dated 21 December 2005 is
HELD IN ABEYANCE, pending payment by petitioners to PIATCO of the
amount of Three Billion Two Million One Hundred Twenty Five Thousand Pesos
(P3,002,125,000.00), representing the proffered value of the NAIA 3 facilities;
2) Petitioners, upon the effectivity of the Writ of Possession, are authorized start
the implementation of the Ninoy Aquino International Airport Pasenger Terminal
III project by performing the acts that are essential to the operation of the said
International Airport Passenger Terminal project;
3) RTC Branch 117 is hereby directed, within sixty (60) days from finality of this
Decision, to determine the just compensation to be paid to PIATCO by the
Government.
The Order dated 7 January 2005 is AFFIRMED in all respects subject to the
qualification that the parties are given ten (10) days from finality of this Decision
ROMMEL
JACINTO
DANTES
SILVERIO,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
petitioner,
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created them
male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices
coming from inside the bamboo. "Oh North Wind! North Wind! Please let us
out!," the voices said. She pecked the reed once, then twice. All of a sudden,
the bamboo cracked and slit open. Out came two human beings; one was a
male and the other was a female. Amihan named the man "Malakas" (Strong)
and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does the
law recognize the changes made by a physician using scalpel, drugs and
counseling with regard to a persons sex? May a person successfully petition
for a change of name and sex appearing in the birth certificate to reflect the
result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case
No. 02-105207, impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the
spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His
name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of
live birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male but
feels, thinks and acts as a female" and that he had always identified himself
with girls since childhood.1 Feeling trapped in a mans body, he consulted
several doctors in the United States. He underwent psychological examination,
hormone treatment and breast augmentation. His attempts to transform himself
to a "woman" culminated on January 27, 2001 when he underwent sex
reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by
Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the
Finally, no evidence was presented to show any cause or ground to deny the
present petition despite due notice and publication thereof. Even the State,
through the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and
ordering the Civil Registrar of Manila to change the entries appearing in the
Certificate of Birth of [p]etitioner, specifically for petitioners first name from
"Rommel Jacinto" to MELY and petitioners gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG,
filed a petition for certiorari in the Court of Appeals. 6 It alleged that there is no
law allowing the change of entries in the birth certificate by reason of sex
alteration.
On February 23, 2006, the Court of Appeals 7 rendered a decision8 in favor of
the Republic. It ruled that the trial courts decision lacked legal basis. There is
no law allowing the change of either name or sex in the certificate of birth on
the ground of sex reassignment through surgery. Thus, the Court of Appeals
granted the Republics petition, set aside the decision of the trial court and
ordered the dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth
certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and
108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for
change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of
making his birth records compatible with his present sex. (emphasis
supplied)
Petitioner believes that after having acquired the physical features of a female,
he became entitled to the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for
purposes of identification.11 A change of name is a privilege, not a right. 12
Petitions for change of name are controlled by statutes. 13 In this connection,
Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change of
First Name or Nickname. No entry in a civil register shall be changed or
corrected without a judicial order, except for clerical or typographical errors and
change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance with
the provisions of this Act and its implementing rules and regulations.
RA 9048 now governs the change of first name. 14 It vests the power and
authority to entertain petitions for change of first name to the city or municipal
civil registrar or consul general concerned. Under the law, therefore, jurisdiction
over applications for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the law is to
exclude the change of first name from the coverage of Rules 103 (Change of
Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of
the Rules of Court, until and unless an administrative petition for change of
name is first filed and subsequently denied. 15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily administrative in
nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may be
allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The petition for
change of first name or nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used
by the petitioner and he has been publicly known by that first name or
nickname in the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex he
thought he transformed himself into through surgery. However, a change of
name does not alter ones legal capacity or civil status. 18 RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioners first name for his declared
purpose may only create grave complications in the civil registry and the public
interest.
Before a person can legally change his given name, he must present proper or
reasonable cause or any compelling reason justifying such change. 19 In
addition, he must show that he will be prejudiced by the use of his true and
official name.20 In this case, he failed to show, or even allege, any prejudice that
he might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of
petitioners first name was not within that courts primary jurisdiction as the
petition should have been filed with the local civil registrar concerned, assuming
it could be legally done. It was an improper remedy because the proper remedy
was administrative, that is, that provided under RA 9048. It was also filed in the
wrong venue as the proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. More importantly, it had no merit since
the use of his true and official name does not prejudice him at all. For all these
reasons, the Court of Appeals correctly dismissed petitioners petition in so far
as the change of his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On
the Ground of Sex Reassignment
The determination of a persons sex appearing in his birth certificate is a legal
issue and the court must look to the statutes. 21 In this connection, Article 412 of
the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected without a
judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA
9048 in so far as clerical or typographical errors are involved. The correction or
change of such matters can now be made through administrative proceedings
and without the need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors. 22 Rule 108
now applies only to substantial changes and corrections in entries in the civil
register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the following terms shall
mean:
xxx
xxx
xxx
The acts, events or factual errors contemplated under Article 407 of the Civil
Code include even those that occur after birth. 25 However, no reasonable
interpretation of the provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.
But there is no such special law in the Philippines governing sex reassignment
and its effects. This is fatal to petitioners cause.
To correct simply means "to make or set aright; to remove the faults or error
from" while to change means "to replace something with something else of the
same kind or with something that serves as a substitute." 26 The birth certificate
of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is
necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain
acts (such as legitimations, acknowledgments of illegitimate children and
naturalization), events (such as births, marriages, naturalization and deaths)
and judicial decrees (such as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions, naturalization, loss or recovery
of citizenship, civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal consequences
that touch upon the legal capacity, status and nationality of a person. Their
effects are expressly sanctioned by the laws. In contrast, sex reassignment is
not among those acts or events mentioned in Article 407. Neither is it
recognized nor even mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the
sum total of capacities and incapacities) of a person in view of his age,
nationality and his family membership.27
The status of a person in law includes all his personal qualities and relations,
more or less permanent in nature, not ordinarily terminable at his own
will, such as his being legitimate or illegitimate, or his being married or not. The
comprehensive term status include such matters as the beginning and end of
legal personality, capacity to have rights in general, family relations, and its
various aspects, such as birth, legitimation, adoption, emancipation, marriage,
divorce, and sometimes even succession.28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a part
of a persons legal capacity and civil status. In this connection, Article 413 of the
Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall be
governed by special laws.
In such declaration, the person above mentioned shall certify to the following
facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names,
citizenship and religion of parents or, in case the father is not known, of the
mother alone; (d) civil status of parents; (e) place where the infant was born;
and (f) such other data as may be required in the regulations to be issued.
xxx
xxx
Under the Civil Register Law, a birth certificate is a historical record of the facts
as they existed at the time of birth. 29 Thus, the sex of a person is determined at
birth, visually done by the birth attendant (the physician or midwife) by
examining the genitals of the infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a persons sex made at the
time of his or her birth, if not attended by error,30 is immutable.31
When words are not defined in a statute they are to be given their common and
ordinary meaning in the absence of a contrary legislative intent. The words
"sex," "male" and "female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male from a female" 32 or
"the distinction between male and female." 33 Female is "the sex that produces
ova or bears young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in
everyday understanding do not include persons who have undergone sex
reassignment. Furthermore, "words that are employed in a statute which had at
the time a well-known meaning are presumed to have been used in that sense
unless the context compels to the contrary." 36 Since the statutory language of
the Civil Register Law was enacted in the early 1900s and remains unchanged,
it cannot be argued that the term "sex" as used then is something alterable
through surgery or something that allows a post-operative male-to-female
transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his body
and appearance through the intervention of modern surgery, no law authorizes
the change of entry as to sex in the civil registry for that reason. Thus, there is
no legal basis for his petition for the correction or change of the entries in his
birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be
Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with the
principles of justice and equity. It believed that allowing the petition would cause
no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and
public policy consequences. First, even the trial court itself found that the
petition was but petitioners first step towards his eventual marriage to his male
fianc. However, marriage, one of the most sacred social institutions, is a
special contract of permanent union between a man and a woman.37 One of its
essential requisites is the legal capacity of the contracting parties who must be
a male and a female.38 To grant the changes sought by petitioner will
substantially reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man who has undergone
sex reassignment (a male-to-female post-operative transsexual). Second, there
are various laws which apply particularly to women such as the provisions of
the Labor Code on employment of women, 39 certain felonies under the Revised
Penal Code40 and the presumption of survivorship in case of calamities under
Rule 131 of the Rules of Court,41 among others. These laws underscore the
public policy in relation to women which could be substantially affected if
petitioners petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall
decline to render judgment by reason of the silence, obscurity or insufficiency of
the law." However, it is not a license for courts to engage in judicial legislation.
The duty of the courts is to apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it choose to do so,
to determine what guidelines should govern the recognition of the effects of sex
A.M.
No.
P-08-2535
June
23,
(Formerly A.M. OCA IPI No. 04- 2022-P and A.M. No. 04-434-RTC)
2010
OFFICE
OF
THE
COURT
ADMINISTRATOR,
Complainant,
vs.
FLORENCIO M. REYES,1 Officer-in-Charge, and RENE DE GUZMAN, Clerk,
Regional Trial Court, Branch 31, Guimba, Nueva Ecija, Respondents.
DECISION
Per curiam:*
This complaint for gross misconduct against Rene de Guzman (De Guzman),
Clerk, Regional Trial Court (RTC) of Guimba, Nueva Ecija, Branch 31, is an
offshoot of the complaint filed by Atty. Hugo B. Sansano, Jr. (Atty. Sansano)
relative to the alleged incompetence/inefficiency of the RTC of Guimba, Nueva
Ecija, Branch 31, in the transmittal of the records of Criminal Case No. 1144-G 2
to the Court of Appeals.
In our Resolution dated September 17, 2007, we adopted the findings and
recommendation of the Office of the Court Administrator (OCA) declaring as
closed and terminated the administrative matter relative to the delay in the
transmittal of the records of Criminal Case No. 1144-G, and exonerating De
Guzman and Florencio M. Reyes (Reyes), the Officer-in-Charge of the RTC of
Guimba, Nueva Ecija, Branch 31.
However, in the same Resolution, we also required De Guzman to comment on
the allegation that he is using illegal drugs and had been manifesting irrational
and queer behavior while at work. According to Reyes, De Guzmans
manifestations of absurd behavior prompted Judge Napoleon R. Sta. Romana
(Judge Sta. Romana) to request the Philippine National Police Crime
Laboratory to perform a drug test on De Guzman. As alleged by Reyes:
x x x Mr. Rene de Guzman, the Docket Clerk, was [in] charge of the preparation
and transmission of the records on appeal x x x. Nonetheless, x x x Judge Sta.
Romana would x x x often x x x [remind him] about the transmittal of records of
the appealed cases [for more than] a dozen times, even personally confronting
Mr. Rene de Guzman about the matter, x x x though unsuccessfully x x x. Mr.
De Guzman would just x x x dismiss the subject in ridicule and with the empty
assurance that the task is as good as finished and what x x x need[s] to be
done [is] simply retyping of the corrected indices or the like and that he would
submit the same in [no] time at all. This was after a number of weeks from
March 26, 2003 after Mr. De Guzman made the undersigned sign the
transmittal of PP v. Manangan which he allegedly did not transmit before owing
to some minor corrections in the indexing. All too often, (it seems to have been
customary on his part, for this he would do to other pressing assignment) he
would come to the office the next day, jubilant that the problem has been solved
at last! But to no avail. This attitude seemingly bordering on the irrational if not
to say that a sense of responsibility is utterly lacking may have given cue for
Judge Sta. Romana to have Mr. De Guzman undergo a drug test x x x. 3
That Mr. De Guzman could brush aside even the personal importuning by the
judge is a fete no other of our co-employees dare emulate. On the contrary,
everybody is apprehensive for his well being and in his behalf. x x x
On May 24, 2004, Judge Sta. Romana requested the Nueva Ecija Provincial
Crime Laboratory Office to conduct a drug test on De Guzman. On May 26,
2004, De Guzman underwent a qualitative examination the results of which
yielded positive for Tetrahydrocannabinol metabolites (marijuana) and
Methamphetamine (shabu), both dangerous drugs.
In our Resolution of September 17, 2007, we required De Guzman to submit
his comment on the charge of misconduct relative to the alleged use of
prohibited drugs within 10 days from notice. Notwithstanding the Courts
directive, De Guzman failed to file his Comment. Thus, on January 23, 2008,
we directed De Guzman to show cause why he should not be held in contempt
for failure to comply with the September 17, 2007 Resolution. At the same time,
we resolved to require him to submit his comment within 10 days from notice.
De Guzman complied with our directive only on March 12, 2008. In his letter,
De Guzman claimed that he failed to comply with the Courts directive because
he lost his copy of the September 17, 2007 Resolution.
Treating De Guzmans letter as his Comment, we referred the same to the OCA
for evaluation, report and recommendation. The OCA submitted its Report and
Recommendation on July 23, 2008 which reads in part:
xxxx
Noticeably, respondent de Guzman did not challenge the authenticity and
validity of the chemistry report of the Nueva Ecija Provincial Crime Laboratory
Office which found him positive for "marijuana" and "shabu". He did not also
promptly submit another test report or other document to controvert the drug
test report. His plain refutation of the charge and his willingness to submit
himself now to a drug test are token attempts at candor and assertion of
innocence. These perfunctory attempts cannot prevail over the solitary yet
compelling evidence of misconduct for use of prohibited drugs.
Relative to respondents delay in filing his comment to the charge of
misconduct, his claim that he "lost and misplaced (his) copy of said resolution,
and for that (he) almost forgot about it" is neither a valid reason nor an excuse
for the delay in complying with the order of the Court. His flippant attitude
towards the repeated orders of the Court to explain his conduct does not merit
consideration and justification for delay.
It is settled that respondents "indifference to [the resolutions] requiring him to
comment on the accusation(s) in the complaint thoroughly and substantially is
gross misconduct, and may even be considered as outright disrespect to the
Court." After all, a resolution of the Supreme Court is not a mere request and
should be complied with promptly and completely. Such failure to comply
accordingly betrays not only a recalcitrant streak in character, but has likewise
been considered as an utter lack of interest to remain with, if not contempt of
the judicial system.
It should be mentioned that this is not the first instance that respondent is
ordered to account for his failure to comply with a court order. Earlier, he was
required to explain to the Court his failure to promptly submit a copy of the
affidavit of retired court stenographer Jorge Caoile and to show cause why he
should not be administratively dealt with for his failure to comply with a show
cause order.
For failure to overcome the charge of use of prohibited drugs and to
satisfactorily explain his failure to submit promptly his compliance to the Courts
show cause order, respondent may be held guilty of two counts of gross
misconduct.
The OCA thus submitted the following recommendations for consideration of
the Court viz:
1. The instant matter be RE-DOCKETED as a regular administrative case; and
2. Respondent Rene de Guzman be found guilty of gross misconduct and
accordingly be DISMISSED from the service effective immediately with
forfeiture of all benefits except accrued leave credits, with prejudice to his reemployment in any branch or instrumentality of the government, including
government-owned
institutions.4
or
controlled
agencies,
corporations
and
financial
1. To detect the use of dangerous drugs among lower court employees, impose
disciplinary sanctions, and provide administrative remedies in cases where an
employee is found positive for dangerous drug use.
2. To discourage the use and abuse of dangerous drugs among first and
second level court employees and enhance awareness of their adverse effects
by information dissemination and periodic random drug testing.
3. To institute other measures that address the menace of drug abuse within the
personnel of the Judiciary.
In the instant administrative matter, De Guzman never challenged the
authenticity of the Chemistry Report of the Nueva Ecija Provincial Crime
Laboratory Office. Likewise, the finding that De Guzman was found positive for
use of marijuana and shabu remains unrebutted. De Guzmans general denial
that he is not a drug user cannot prevail over this compelling evidence.
The foregoing constitutes more than substantial evidence that De Guzman was
indeed found positive for use of dangerous drugs. In Dadulo v. Court of
Appeals,10 we held that "(a)dministrative proceedings are governed by the
substantial evidence rule. Otherwise stated, a finding of guilt in an
administrative case would have to be sustained for as long as it is supported by
substantial evidence that the respondent has committed acts stated in the
complaint. Substantial evidence is more than a mere scintilla of evidence. It
means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion, even if other minds equally reasonable might
conceivably opine otherwise." 11
This Court is a temple of justice. Its basic duty and responsibility is the
dispensation of justice. As dispensers of justice, all members and employees of
the Judiciary are expected to adhere strictly to the laws of the land, one of
which is Republic Act No. 916512 which prohibits the use of dangerous drugs. 13
The Court has adhered to the policy of safeguarding the welfare, efficiency, and
well-being not only of all the court personnel, but also that of the general public
whom it serves. The Court will not allow its front-line representatives, like De
Guzman, to put at risk the integrity of the whole judiciary. As we held in Baron v.
Anacan,14 "(t)he image of a court of justice is mirrored in the conduct, official
and otherwise, of the personnel who work thereat. Thus, the conduct of a
person serving the judiciary must, at all times, be characterized by propriety
and decorum and above all else, be above suspicion so as to earn and keep
the respect of the public for the judiciary. The Court would never countenance
any conduct, act or omission on the part of all those in the administration of
justice, which will violate the norm of public accountability and diminish or even
just tend to diminish the faith of the people in the judiciary."
Article XI of the Constitution mandates that:
SECTION 1. Public office is a public trust. Public officers and employees must
at all times be accountable to the people and serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and justice,
and lead modest lives.
De Guzmans use of prohibited drugs has greatly affected his efficiency in the
performance of his functions. De Guzman did not refute the observation of his
superior, Judge Sta. Romana, that as a criminal docket court clerk, he (De
Guzman) was totally inept and incompetent. Hence, to get across his
displeasure and dissatisfaction with his job performance, Judge Sta. Romana
gave De Guzman an unsatisfactory rating.
Moreover, De Guzmans efficiency as a custodian of court records is also totally
wanting. As early as May 12, 2004, Judge Sta. Romana issued a Memorandum
addressed to De Guzman relative to the "sleeping cases" inside the latters
drawer. It would appear that several cases have not been proceeded upon
because De Guzman hid the records of the same inside his drawer. The text of
the said Memorandum reads:
An examination of the records found in your drawer reveal that the following
cases have not moved because you have not brought the same to the attention
of the Presiding Judge, to wit:
1. Crim. Case No. 1849-C, PP v. Ruben Villanueva Order of transmittal to the
Office of the Provincial Prosecutor of Nueva Ecija dated August 6, 2003 to
resolve the Motion for Reconsideration.
Resolution of the Provincial Prosecutor dated September 23, 2003 denying the
Motion for Reconsideration and transmitting the records to the RTC, Br. 31,
Guimba, Nueva Ecija received by this court on September 24, 2003;
2. Crim. Case No. 1993-G, PP vs. JOJO SUPNET Information dated October
14, 2002 received by this Court on November 18, 2002;
3. Crim. Case No. 2013-G, PP vs. Brgy. Capt. BAYANI CAMIS Information
dated September 23, 2002 received by this court on January 24, 2003;
4. Crim. Case No. 2007-G, PP vs. Armando Marcos Information dated June
23, 2002; Records received on January 2, 2003.
The Presiding Judge caused the issuance of finding of probable causes and the
corresponding Warrants of Arrest. You are hereby ordered to assist the
OIC/Clerk of Court in sending forthwith the Warrants of Arrest to the proper
agencies for implementation.
In the same vein, Reyes also put forth the absurd behavioral manifestations of
De Guzman. According to Reyes, Judge Sta. Romana would always remind De
Guzman to prepare and transmit the complete records of the appealed cases.
However, De Guzman would only make empty assurances to perform his task.
Notwithstanding the reminders of his superiors, De Guzman would still fail to
transmit the records. Instead, he would report the next day and jubilantly
declare that the problem has been solved at last.
In fine, we agree with the OCA that by his repeated and contumacious conduct
of disrespecting the Courts directives, De Guzman is guilty of gross misconduct
and has already forfeited his privilege of being an employee of the Court.
Likewise, we can no longer countenance his manifestations of queer behavior,
bordering on absurd, irrational and irresponsible, because it has greatly
affected his job performance and efficiency. By using prohibited drugs, and
being a front-line representative of the Judiciary, De Guzman has exposed to
risk the very institution which he serves. It is only by weeding out the likes of De
Guzman from the ranks that we would be able to preserve the integrity of this
institution.
Two justices disagree with the majority opinion. They opine that the Courts
action in this case contravenes an express public policy, i.e., "imprisonment for
drug dealers and pushers, rehabilitation for their victims." They also posit that
De Guzmans failure to properly perform his duties and promptly respond to
Court orders precisely springs from his drug addiction that requires
rehabilitation. Finally, they state that the Courts real strength is not in its
righteousness but in its willingness to understand that men are not perfect and
that there is a time to punish and a time to give a chance for contrition and
change.
However, the legislative policy as embodied in Republic Act No. 9165 in
deterring dangerous drug use by resort to sustainable programs of
rehabilitation and treatment must be considered in light of this Courts
constitutional power of administrative supervision over courts and court
personnel. The legislative power imposing policies through laws is not unlimited
petitioner's liability for the income tax due as a result thereof was unavoidable.
As the Court of Tax Appeals reached a similar conclusion, we sustain its
decision now before us on appeal.
In the decision appealed from, the Court of Tax Appeals, after stating the nature
of the case, started the recital of facts thus: "It appears that petitioner, a citizen
of the United States and an employee of Bendix Radio, Division of Bendix
Aviation Corporation, which provides technical assistance to the United States
Air Force, was assigned at Clark Air Base, Philippines, on or about July 7, 1959
... . Nine (9) months thereafter and before his tour of duty expired, petitioner
imported on April 22, 1960 a tax-free 1960 Cadillac car with accessories valued
at $6,443.83, including freight, insurance and other charges." 4 Then came the
following: "On July 11, 1960, more than two (2) months after the 1960 Cadillac
car was imported into the Philippines, petitioner requested the Base
Commander, Clark Air Base, for a permit to sell the car, which was granted
provided that the sale was made to a member of the United States Armed
Forces or a citizen of the United States employed in the U.S. military bases in
the Philippines. On the same date, July 11, 1960, petitioner sold his car for
$6,600.00 to a certain Willie Johnson, Jr. (Private first class), United States
Marine Corps, Sangley Point, Cavite, Philippines, as shown by a Bill of Sale . . .
executed at Clark Air Base. On the same date, Pfc. Willie (William) Johnson, Jr.
sold the car to Fred Meneses for P32,000.00 as evidenced by a deed of sale
executed in Manila."5
As a result of the transaction thus made, respondent Commissioner of Internal
Revenue, after deducting the landed cost of the car as well as the personal
exemption to which petitioner was entitled, fixed as his net taxable income
arising from such transaction the amount of P17,912.34, rendering him liable
for income tax in the sum of P2,979.00. After paying the sum, he sought a
refund from respondent claiming that he was exempt, but pending action on his
request for refund, he filed the case with the Court of Tax Appeals seeking
recovery of the sum of P2,979.00 plus the legal rate of interest.
As noted in the appealed decision: "The only issue submitted for our resolution
is whether or not the said income tax of P2,979.00 was legally collected by
respondent for petitioner."6 After discussing the legal issues raised, primarily the
contention that the Clark Air Base "in legal contemplation, is a base outside the
Philippines" the sale therefore having taken place on "foreign soil", the Court of
Tax Appeals found nothing objectionable in the assessment and thereafter the
payment of P2,979.00 as income tax and denied the refund on the same.
Hence, this appeal predicated on a legal theory we cannot accept. Petitioner
cannot make out a case for reversal.
1. Resort to fundamentals is unavoidable to place things in their proper
perspective, petitioner apparently feeling justified in his refusal to defer to basic
postulates of constitutional and international law, induced no doubt by the
weight he would accord to the observation made by this Court in the two
opinions earlier referred to. To repeat, scant comfort, if at all is to be derived
from such an obiter dictum, one which is likewise far from reflecting the fact as
it is.
Nothing is better settled than that the Philippines being independent and
sovereign, its authority may be exercised over its entire domain. There is no
portion thereof that is beyond its power. Within its limits, its decrees are
supreme, its commands paramount. Its laws govern therein, and everyone to
whom it applies must submit to its terms. That is the extent of its jurisdiction,
both territorial and personal. Necessarily, likewise, it has to be exclusive. If it
were not thus, there is a diminution of its sovereignty.
It is to be admitted that any state may, by its consent, express or implied,
submit to a restriction of its sovereign rights. There may thus be a curtailment of
what otherwise is a power plenary in character. That is the concept of
sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is
the property of a state-force due to which it has the exclusive capacity of legal
self-determination and self-restriction."7 A state then, if it chooses to, may
refrain from the exercise of what otherwise is illimitable competence.
Its laws may as to some persons found within its territory no longer control. Nor
does the matter end there. It is not precluded from allowing another power to
participate in the exercise of jurisdictional right over certain portions of its
territory. If it does so, it by no means follows that such areas become impressed
with an alien character. They retain their status as native soil. They are still
subject to its authority. Its jurisdiction may be diminished, but it does not
disappear. So it is with the bases under lease to the American armed forces by
virtue of the military bases agreement of 1947. They are not and cannot be
foreign territory.
not thus, tax evasion would have been facilitated. The United States forces that
brought in such equipment later disposed of as surplus, when no longer needed
for military purposes, was beyond the reach of our tax statutes.
Justice Tuason, who spoke for the Court, adhered to such a rationale, quoting
extensively from the earlier opinion. He could have stopped there. He chose not
to do so. The transaction having occurred in 1946, not so long after the
liberation of the Philippines, he proceeded to discuss the role of the American
military contingent in the Philippines as a belligerent occupant. In the course of
such a dissertion, drawing on his well-known gift for rhetoric and cognizant that
he was making an as if statement, he did say: "While in army bases or
installations within the Philippines those goods were in contemplation of law on
foreign soil."
It is thus evident that the first, and thereafter the controlling, decision as to the
liability for sales taxes as an importer by the purchaser, could have been
reached without any need for such expression as that given utterance by
Justice Tuason. Its value then as an authoritative doctrine cannot be as much
as petitioner would mistakenly attach to it. It was clearly obiter not being
necessary for the resolution of the issue before this Court. 16 It was an opinion
"uttered by the way."17 It could not then be controlling on the question before us
now, the liability of the petitioner for income tax which, as announced at the
opening of this opinion, is squarely raised for the first time. 18
On this point, Chief Justice Marshall could again be listened to with profit. Thus:
"It is a maxim, not to be disregarded, that general expressions, in every opinion,
are to be taken in connection with the case in which those expressions are
used. If they go beyond the case, they may be respected, but ought not to
control the judgment in a subsequent suit when the very point is presented for
decision."19
Nor did the fact that such utterance of Justice Tuason was cited in Co Po v.
Collector of Internal Revenue,20 a 1962 decision relied upon by petitioner, put a
different complexion on the matter. Again, it was by way of pure embellishment,
there being no need to repeat it, to reach the conclusion that it was the
purchaser of army goods, this time from military bases, that must respond for
the advance sales taxes as importer. Again, the purpose that animated the
reiteration of such a view was clearly to emphasize that through the
employment of such a fiction, tax evasion is precluded. What is more, how far
divorced from the truth was such statement was emphasized by Justice
Barrera, who penned the Co Po opinion, thus: "It is true that the areas covered
by the United States Military Bases are not foreign territories both in the political
and geographical sense."21
Justice Tuason moreover made explicit that rather than corresponding with
reality, what was said by him was in the way of a legal fiction. Note his stress on
"in contemplation of law." To lend further support to a conclusion already
announced, being at that a confirmation of what had been arrived at in the
earlier case, distinguished by its sound appreciation of the issue then before
this Court and to preclude any tax evasion, an observation certainly not to be
taken literally was thus given utterance.
This is not to say that it should have been ignored altogether afterwards. It
could be utilized again, as it undoubtedly was, especially so for the purpose
intended, namely to stigmatize as without support in law any attempt on the
part of a taxpayer to escape an obligation incumbent upon him. So it was
quoted with that end in view in the Co Po case. It certainly does not justify any
effort to render futile the collection of a tax legally due, as here. That was
farthest from the thought of Justice Tuason.
What is more, the statement on its face is, to repeat, a legal fiction. This is not
to discount the uses of a fictio juris in the science of the law. It was Cardozo
who pointed out its value as a device "to advance the ends of justice" although
at times it could be "clumsy" and even "offensive". 22 Certainly, then, while far
from objectionable as thus enunciated, this observation of Justice Tuason could
be misused or misconstrued in a clumsy manner to reach an offensive result.
To repeat, properly used, a legal fiction could be relied upon by the law, as
Frankfurter noted, in the pursuit of legitimate ends. 23 Petitioner then would be
well-advised to take to heart such counsel of care and circumspection before
invoking not a legal fiction that would avoid a mockery of the law by avoiding
tax evasion but what clearly is a misinterpretation thereof, leading to results that
would have shocked its originator.
The conclusion is thus irresistible that the crucial error assigned, the only one
that calls for discussion to the effect that for income tax purposes the Clark Air
Force Base is outside Philippine territory, is utterly without merit. So we have
said earlier.
3. To impute then to the statement of Justice Tuason the meaning that petitioner
would fasten on it is, to paraphrase Frankfurter, to be guilty of succumbing to
the vice of literalness. To so conclude is, whether by design or inadvertence, to
misread it. It certainly is not susceptible of the mischievous consequences now
sought to be fastened on it by petitioner.
That it would be fraught with such peril to the enforcement of our tax statutes on
the military bases under lease to the American armed forces could not have
been within the contemplation of Justice Tuason. To so attribute such a bizarre
consequence is to be guilty of a grave disservice to the memory of a great
jurist. For his real and genuine sentiment on the matter in consonance with the
imperative mandate of controlling constitutional and international law concepts
was categorically set forth by him, not as an obiter but as the rationale of the
decision, in People v. Acierto24 thus: "By the [Military Bases] Agreement, it
should be noted, the Philippine Government merely consents that the United
States exercise jurisdiction in certain cases. The consent was given purely as a
matter of comity, courtesy, or expediency over the bases as part of the
Philippine territory or divested itself completely of jurisdiction over offenses
committed therein."
Nor did he stop there. He did stress further the full extent of our territorial
jurisdiction in words that do not admit of doubt. Thus: "This provision is not and
can not on principle or authority be construed as a limitation upon the rights of
the Philippine Government. If anything, it is an emphatic recognition and
reaffirmation of Philippine sovereignty over the bases and of the truth that all
jurisdictional rights granted to the United States and not exercised by the latter
are reserved by the Philippines for itself." 25
It is in the same spirit that we approach the specific question confronting us in
this litigation. We hold, as announced at the outset, that petitioner was liable for
the income tax arising from a sale of his automobile in the Clark Field Air Base,
which clearly is and cannot otherwise be other than, within our territorial
jurisdiction to tax.
4. With the mist thus lifted from the situation as it truly presents itself, there is
nothing that stands in the way of an affirmance of the Court of Tax Appeals
decision. No useful purpose would be served by discussing the other assigned
errors, petitioner himself being fully aware that if the Clark Air Force Base is to
be considered, as it ought to be and as it is, Philippine soil or territory, his claim
for exemption from the income tax due was distinguished only by its futility.
There is further satisfaction in finding ourselves unable to indulge petitioner in
his plea for reversal. We thus manifest fealty to a pronouncement made time
and time again that the law does not look with favor on tax exemptions and that
he who would seek to be thus privileged must justify it by words too plain to be
mistaken and too categorical to be misinterpreted. 26 Petitioner had not done so.
Petitioner cannot do so.
WHEREFORE, the decision of the Court of Tax Appeals of May 12, 1966
denying the refund of P2,979.00 as the income tax paid by petitioner is
affirmed. With costs against petitioner.
Concepcion, C.J., Dizon,
Teehankee, JJ., concur.
Makalintal,
Zaldivar,
Sanchez,
Castro
and
branch,8 while three justices opined that the nullity of the issuances was the
consequence of the enactment of the 1935 Constitution, which reduced the
power of the Chief Executive over local governments. 9 Pelaez was disposed in
this wise:
WHEREFORE, the Executive Orders in question are declared null and void ab
initio and the respondent permanently restrained from passing in audit any
expenditure of public funds in implementation of said Executive Orders or any
disbursement by the municipalities above referred to. It is so ordered. 10
Among the Executive Orders annulled was Executive Order No. 107 which
created the Municipality of Andong. Nevertheless, the core issue presented in
the present petition is the continued efficacy of the judicial annulment of the
Municipality of Andong.
Petitioner Sultan Osop B. Camid (Camid) represents himself as a current
resident of Andong,11 suing as a private citizen and taxpayer whose locus
standi "is of public and paramount interest especially to the people of the
Municipality of Andong, Province of Lanao del Sur." 12 He alleges that Andong
"has metamorphosed into a full-blown municipality with a complete set of
officials appointed to handle essential services for the municipality and its
constituents,"13 even though he concedes that since 1968, no person has been
appointed, elected or qualified to serve any of the elective local government
positions of Andong.14 Nonetheless, the municipality of Andong has its own high
school, Bureau of Posts, a Department of Education, Culture and Sports office,
and at least seventeen (17) "barangay units" with their own respective
chairmen.15 From 1964 until 1972, according to Camid, the public officials of
Andong "have been serving their constituents through the minimal means and
resources with least (sic) honorarium and recognition from the Office of the then
former President Diosdado Macapagal." Since the time of Martial Law in 1972,
Andong has allegedly been getting by despite the absence of public funds, with
the "Interim Officials" serving their constituents "in their own little ways and
means."16
In support of his claim that Andong remains in existence, Camid presents to this
Court a Certification issued by the Office of the Community Environment and
Natural Resources (CENRO) of the Department of Environment and Natural
Resources (DENR) certifying the total land area of the Municipality of Andong,
"created under Executive Order No. 107 issued [last] October 1, 1964." 17 He
also submits a Certification issued by the Provincial Statistics Office of Marawi
City concerning the population of Andong, which is pegged at fourteen
thousand fifty nine (14,059) strong. Camid also enumerates a list of
governmental agencies and private groups that allegedly recognize Andong,
and notes that other municipalities have recommended to the Speaker of the
Regional Legislative Assembly for the immediate implementation of the revival
or re-establishment of Andong.18
The petition assails a Certification dated 21 November 2003, issued by the
Bureau of Local Government Supervision of the Department of Interior and
Local Government (DILG).19 The Certification enumerates eighteen (18)
municipalities certified as "existing," per DILG records. Notably, these eighteen
(18) municipalities are among the thirty-three (33), along with Andong, whose
creations were voided by this Court in Pelaez. These municipalities are
Midaslip, Pitogo, Naga, and Bayog in Zamboanga del Sur; Siayan and Pres.
Manuel A. Roxas in Zamboanga del Norte; Magsaysay, Sta. Maria and New
Corella in Davao; Badiangan and Mina in Iloilo; Maguing in Lanao del Sur;
Gloria in Oriental Mindoro; Maasim in Sarangani; Kalilangan and Lantapan in
Bukidnon; and Maco in Compostela Valley.20
Camid imputes grave abuse of discretion on the part of the DILG "in not
classifying [Andong] as a regular existing municipality and in not including said
municipality in its records and official database as [an] existing regular
municipality."21 He characterizes such non-classification as unequal treatment
to the detriment of Andong, especially in light of the current recognition given to
the eighteen (18) municipalities similarly annulled by reason of Pelaez. As
appropriate relief, Camid prays that the Court annul the DILG Certification
dated 21 November 2003; direct the DILG to classify Andong as a "regular
existing municipality;" all public respondents, to extend full recognition and
support to Andong; the Department of Finance and the Department of Budget
and Management, to immediately release the internal revenue allotments of
Andong; and the public respondents, particularly the DILG, to recognize the
"Interim Local Officials" of Andong.22
Moreover, Camid insists on the continuing validity of Executive Order No. 107.
He argues that Pelaez has already been modified by supervening events
The Court can employ a simplistic approach in resolving the substantive aspect
of the petition, merely by pointing out that the Municipality of Andong never
existed.29 Executive Order No. 107, which established Andong, was declared
"null and void ab initio" in 1965 by this Court in Pelaez, along with thirty-three
(33) other executive orders. The phrase "ab initio" means "from the
beginning,"30 "at first,"31 "from the inception."32 Pelaez was never reversed by
this Court but rather it was expressly affirmed in the cases of Municipality of
San Joaquin v. Siva,33 Municipality of Malabang v. Benito, 34 and Municipality of
Kapalong v. Moya.35 No subsequent ruling by this Court declared Pelaez as
overturned or inoperative. No subsequent legislation has been passed since
1965 creating a Municipality of Andong. Given these facts, there is hardly any
reason to elaborate why Andong does not exist as a duly constituted
municipality.
This ratiocination does not admit to patent legal errors and has the additional
virtue of blessed austerity. Still, its sweeping adoption may not be advisedly
appropriate in light of Section 442(d) of the Local Government Code and our
ruling in Municipality of San Narciso, both of which admit to the possibility of de
facto municipal corporations.
To understand the applicability of Municipality of San Narciso and Section
442(b) of the Local Government Code to the situation of Andong, it is necessary
again to consider the ramifications of our decision in Pelaez.
The eminent legal doctrine enunciated in Pelaez was that the President was
then, and still is, not empowered to create municipalities through executive
issuances. The Court therein recognized "that the President has, for many
years, issued executive orders creating municipal corporations, and that the
same have been organized and in actual operation . . . ." 36 However, the Court
ultimately nullified only those thirty-three (33) municipalities, including Andong,
created during the period from 4 September to 29 October 1964 whose
existence petitioner Vice-President Pelaez had specifically assailed before this
Court. No pronouncement was made as to the other municipalities which had
been previously created by the President in the exercise of power the Court
deemed unlawful.
Two years after Pelaez was decided, the issue again came to fore in
Municipality of San Joaquin v. Siva.37 The Municipality of Lawigan was created
by virtue of Executive Order No. 436 in 1961. Lawigan was not one of the
municipalities ordered annulled in Pelaez. A petition for prohibition was filed
contesting the legality of the executive order, again on the ground that Section
68 of the Revised Administrative Code was unconstitutional. The trial court
dismissed the petition, but the Supreme Court reversed the ruling and entered
a new decision declaring Executive Order No. 436 void ab initio. The Court
reasoned without elaboration that the issue had already been squarely taken up
and settled in Pelaez which agreed with the argument posed by the challengers
to Lawigans validity.38
In the 1969 case of Municipality of Malabang v. Benito,39 what was challenged
is the validity of the constitution of the Municipality of Balabagan in Lanao del
Sur, also created by an executive order,40 and which, similar to Lawigan, was
not one of the municipalities annulled in Pelaez. This time, the officials of
Balabagan invoked de facto status as a municipal corporation in order to
dissuade the Court from nullifying action. They alleged that its status as a de
facto corporation cannot be collaterally attacked but should be inquired into
directly in an action for quo warranto at the instance of the State, and not by a
private individual as it was in that case. In response, the Court conceded that
an inquiry into the legal existence of a municipality is reserved to the State in a
proceeding for quo warranto, but only if the municipal corporation is a de facto
corporation.41
Ultimately, the Court refused to acknowledge Balabagan as a de facto
corporation, even though it had been organized prior to the Courts decision in
Pelaez. The Court declared void the executive order creating Balabagan and
restrained its municipal officials from performing their official duties and
functions.42 It cited conflicting American authorities on whether a de facto
corporation can exist where the statute or charter creating it is
unconstitutional.43 But the Courts final conclusion was unequivocal that
Balabagan was not a de facto corporation.1awphi1.nt
nearly thirty (30) years before its legality was challenged. The Court did not
declare the executive order creating San Andres null and void. Still, acting on
the premise that the said executive order was a complete nullity, the Court
noted "peculiar circumstances" that led to the conclusion that San Andres had
attained the unique status of a "de facto municipal corporation." 51 It noted that
Pelaez limited its nullificatory effect only to those executive orders specifically
challenged therein, despite the fact that the Court then could have very well
extended the decision to invalidate San Andres as well. 52 This statement
squarely contradicts Camids reading of San Narciso that the creation of San
Andres, just like Andong, had been declared a complete nullity on the same
ground of unconstitutional delegation of legislative power found in Pelaez.53
The Court also considered the applicability of Section 442(d) 54 of the Local
Government Code of 1991. It clarified the implication of the provision as
follows:
Equally significant is Section 442(d) of the Local Government Code to the effect
that municipal districts "organized pursuant to presidential issuances or
executive orders and which have their respective sets of elective municipal
officials holding office at the time of the effectivity of (the) Code shall henceforth
be considered as regular municipalities." No pretension of unconstitutionality
per se of Section 442(d) of the Local Government Code is preferred. It is
doubtful whether such a pretext, even if made, would succeed. The power to
create political subdivisions is a function of the legislature. Congress did
just that when it has incorporated Section 442(d) in the Code. Curative
laws, which in essence are retrospective, and aimed at giving "validity to acts
done that would have been invalid under existing laws, as if existing laws have
been complied with," are validly accepted in this jurisdiction, subject to the
usual qualification against impairment of vested rights. (Emphasis supplied) 55
The holding in San Narciso was subsequently affirmed in Municipality of
Candijay v. Court of Appeals56 and Municipality of Jimenez v. Baz57 In Candijay,
the juridical personality of the Municipality of Alicia, created in a 1949 executive
order, was attacked only beginning in 1984. Pelaez was again invoked in
support of the challenge, but the Court refused to invalidate the municipality,
citing San Narciso at length. The Court noted that the situation of the
Municipality of Alicia was strikingly similar to that in San Narciso; hence, the
town should likewise "benefit from the effects of Section 442(d) of the Local
Government Code, and should [be] considered as a regular, de jure
municipality." 58
the State and even the Municipality of Jimenez itself have recognized
Sinacaban's corporate existence. Under Administrative Order No. 33 dated
June 13, 1978 of this Court, as reiterated by 31 of the Judiciary
Reorganization Act of 1980 (B. P. Blg. 129), Sinacaban is constituted part of a
municipal circuit for purposes of the establishment of Municipal Circuit Trial
Courts in the country. For its part, Jimenez had earlier recognized Sinacaban in
1950 by entering into an agreement with it regarding their common boundary.
The agreement was embodied in Resolution No. 77 of the Provincial Board of
Misamis Occidental.
Indeed Sinacaban has attained de jure status by virtue of the Ordinance
appended to the 1987 Constitution, apportioning legislative districts throughout
the country, which considered Sinacaban part of the Second District of Misamis
Occidental. Moreover, following the ruling in Municipality of San Narciso,
Quezon v. Mendez, Sr., 442(d) of the Local Government Code of 1991 must be
deemed to have cured any defect in the creation of Sinacaban. 591awphi1.nt
From this survey of relevant jurisprudence, we can gather the applicable rules.
Pelaez and its offspring cases ruled that the President has no power to create
municipalities, yet limited its nullificatory effects to the particular municipalities
challenged in actual cases before this Court. However, with the promulgation of
the Local Government Code in 1991, the legal cloud was lifted over the
municipalities similarly created by executive order but not judicially annulled.
The de facto status of such municipalities as San Andres, Alicia and Sinacaban
was recognized by this Court, and Section 442(b) of the Local Government
Code deemed curative whatever legal defects to title these municipalities had
labored under.
Is Andong similarly entitled to recognition as a de facto municipal corporation?
It is not. There are eminent differences between Andong and municipalities
such as San Andres, Alicia and Sinacaban. Most prominent is the fact that the
executive order creating Andong was expressly annulled by order of this Court
in 1965. If we were to affirm Andongs de facto status by reason of its alleged
continued existence despite its nullification, we would in effect be condoning
defiance of a valid order of this Court.l^vvphi1.net Court decisions cannot
obviously lose their efficacy due to the sheer defiance by the parties aggrieved.
It bears noting that based on Camids own admissions, Andong does not meet
the requisites set forth by Section 442(d) of the Local Government Code.
Section 442(d) requires that in order that the municipality created by executive
order may receive recognition, they must "have their respective set of elective
municipal officials holding office at the time of the effectivity of [the Local
Government] Code." Camid admits that Andong has never elected its municipal
officers at all.60 This incapacity ties in with the fact that Andong was judicially
annulled in 1965. Out of obeisance to our ruling in Pelaez, the national
government ceased to recognize the existence of Andong, depriving it of its
share of the public funds, and refusing to conduct municipal elections for the
void municipality.
The failure to appropriate funds for Andong and the absence of elections in the
municipality in the last four decades are eloquent indicia of the non-recognition
by the State of the existence of the town. The certifications relied upon by
Camid, issued by the DENR-CENRO and the National Statistics Office, can
hardly serve the purpose of attesting to Andongs legal efficacy. In fact, both
these certifications qualify that they were issued upon the request of Camid, "to
support the restoration or re-operation of the Municipality of Andong, Lanao del
Sur,"61 thus obviously conceding that the municipality is at present
inoperative.1awphi1.nt
We may likewise pay attention to the Ordinance appended to the 1987
Constitution, which had also been relied upon in Jimenez and San Narciso.
This Ordinance, which apportioned the seats of the House of Representatives
to the different legislative districts in the Philippines, enumerates the various
municipalities that are encompassed by the various legislative districts. Andong
is not listed therein as among the municipalities of Lanao del Sur, or of any
other province for that matter.62 On the other hand, the municipalities of San
Andres, Alicia and Sinacaban are mentioned in the Ordinance as part of
Quezon,63 Bohol,64 and Misamis Occidental65 respectively.
How about the eighteen (18) municipalities similarly nullified in Pelaez but
certified as existing in the DILG Certification presented by Camid? The petition
fails to mention that subsequent to the ruling in Pelaez, legislation was enacted
to reconstitute these municipalities. 66 It is thus not surprising that the DILG
certified the existence of these eighteen (18) municipalities, or that these towns
are among the municipalities enumerated in the Ordinance appended to the
Constitution. Andong has not been similarly reestablished through statute.
Clearly then, the fact that there are valid organic statutes passed by legislation
recreating these eighteen (18) municipalities is sufficient legal basis to accord a
different legal treatment to Andong as against these eighteen (18) other
municipalities.
We thus assert the proper purview to Section 442(d) of the Local Government
Codethat it does not serve to affirm or reconstitute the judicially dissolved
municipalities such as Andong, which had been previously created by
VELASCO, JR.,
BAI SANDRA S. A. SEMA,
NACHURA,
REYES,
Petitioner,
LEONARDO-DE CASTRO, and
- versus -
BRION, JJ.
COMMISSION ON ELECTIONS
and DIDAGEN P. DILANGALEN,
COMMISSION ON ELECTIONS,
Respondents.
Respondent.
x------------------------x
PERFECTO F. MARQUEZ,
Promulgated:
July 16, 2008
x--------------------------------------------------x
Petitioner,
Present:
DECISION
PUNO,
C.J.,
QUISUMBING,
CARPIO, J.:
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
The Case
CARPIO MORALES,
- versus -
AZCUNA,
TINGA,
CHICO-NAZARIO,
The Facts
xxxx
Sec. 5. The corporate existence of this province shall commence upon the
appointment by the Regional Governor or election of the governor and majority
of the regular members of the Sangguniang Panlalawigan.
Later, three new municipalities were carved out of the original nine
municipalities constituting Shariff Kabunsuan, bringing its total number of
municipalities to 11. Thus, what was left of Maguindanao were the
municipalities constituting its second legislative district. Cotabato City, although
part of Maguindanaos first legislative district, is not part of the Province of
Maguindanao.
In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007
elections for Representative of Shariff Kabunsuan with Cotabato City, prayed
for the nullification of COMELEC Resolution No. 7902 and the exclusion from
canvassing of the votes cast in Cotabato City for that office. Sema contended
that Shariff Kabunsuan is entitled to one representative in Congress under
Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance
appended to the Constitution. Thus, Sema asserted that the COMELEC acted
without or in excess of its jurisdiction in issuing Resolution No. 7902 which
maintained the status quo in Maguindanaos first legislative district despite the
COMELECs earlier directive in Resolution No. 7845 designating Cotabato City
as the lone component of Maguindanaos reapportioned first legislative district.
Sema further claimed that in issuing Resolution No. 7902, the COMELEC
usurped Congress power to create or reapportion legislative districts.
In the Resolution of 4 September 2007, the Court required the parties in G.R.
No. 177597 to comment on the issue of whether a province created by the
ARMM Regional Assembly under Section 19, Article VI of RA 9054 is entitled to
one representative in the House of Representatives without need of a national
law creating a legislative district for such new province. The parties submitted
their compliance as follows:
(1) Sema answered the issue in the affirmative on the following grounds: (a) the
Court in Felwa v. Salas stated that when a province is created by statute, the
corresponding representative district comes into existence neither by authority
of that statute which cannot provide otherwise nor by apportionment, but
by operation of the Constitution, without a reapportionment; (b) Section 462 of
Republic Act No. 7160 (RA 7160) affirms the apportionment of a legislative
district incident to the creation of a province; and (c) Section 5 (3), Article VI of
the Constitution and Section 3 of the Ordinance appended to the Constitution
mandate the apportionment of a legislative district in newly created provinces.
(2) The COMELEC, again represented by the OSG, apparently abandoned its
earlier stance on the propriety of issuing Resolution Nos. 07-0407 and 7902
and joined causes with Sema, contending that Section 5 (3), Article VI of the
Constitution is self-executing. Thus, every new province created by the ARMM
Regional Assembly is ipso facto entitled to one representative in the House of
Representatives even in the absence of a national law; and
(3) Respondent Dilangalen answered the issue in the negative on the following
grounds: (a) the province contemplated in Section 5 (3), Article VI of the
Constitution is one that is created by an act of Congress taking into account the
provisions in RA 7160 on the creation of provinces; (b) Section 3, Article IV of
RA 9054 withheld from the ARMM Regional Assembly the power to enact
measures relating to national elections, which encompasses the apportionment
In compliance with the Resolution dated 27 November 2007, the parties in G.R.
No. 177597 filed their respective Memoranda on the issues raised in the oral
arguments. On the question of the constitutionality of Section 19, Article VI of
RA 9054, the parties in G.R. No. 177597 adopted the following positions:
(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a)
as a valid delegation by Congress to the ARMM of the power to create
provinces under Section 20 (9), Article X of the Constitution granting to the
autonomous regions, through their organic acts, legislative powers over other
matters as may be authorized by law for the promotion of the general welfare of
the people of the region and (b) as an amendment to Section 6 of RA 7160.
However, Sema concedes that, if taken literally, the grant in Section 19, Article
VI of RA 9054 to the ARMM Regional Assembly of the power to prescribe
standards lower than those mandated in RA 7160 in the creation of provinces
contravenes Section 10, Article X of the Constitution. Thus, Sema proposed
that Section 19 should be construed as prohibiting the Regional Assembly from
prescribing standards x x x that do not comply with the minimum criteria under
RA 7160.
The Issues
The pendency of the petition in G.R. No. 178628 was disclosed during the oral
arguments on 27 November 2007. Thus, in the Resolution of 19 February 2008,
the Court ordered G.R. No. 178628 consolidated with G.R. No. 177597. The
petition in G.R. No. 178628 echoed Sema's contention that the COMELEC
acted ultra vires in issuing Resolution
No. 7902 depriving the voters of
Cotabato City of a representative in the House of Representatives. In its
Comment to the petition in G.R.
No. 178628, the COMELEC, through
the OSG, maintained the validity of COMELEC Resolution No. 7902 as a
temporary measure pending the enactment by Congress of the appropriate
law.
II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution
No. 7902 is valid for maintaining the status quo in the first legislative district of
Maguindanao (as Shariff Kabunsuan Province with Cotabato City [formerly
First District of Maguindanao with Cotabato City]), despite the creation of the
Province of Shariff Kabunsuan out of such district (excluding Cotabato City).
The petitions have no merit. We rule that (1) Section 19, Article VI of RA
9054 is unconstitutional insofar as it grants to the ARMM Regional Assembly
the power to create provinces and cities; (2) MMA Act 201 creating the Province
of Shariff Kabunsuan is void; and (3) COMELEC Resolution No. 7902 is valid.
Thus, the creation of any of the four local government units province, city,
municipality or barangay must comply with three conditions. First, the creation
of a local government unit must follow the criteria fixed in the Local Government
Code. Second, such creation must not conflict with any provision of the
Constitution. Third, there must be a plebiscite in the political units affected.
For Congress to delegate validly the power to create a province or city, it must
also validly delegate at the same time the power to create a legislative district.
The threshold issue then is, can Congress validly delegate to the ARMM
Regional Assembly the power to create legislative districts for the House of
Representatives? The answer is in the negative.
xxxx
(4) Within three years following the return of every census, the Congress shall
make a reapportionment of legislative districts based on the standards
provided in this section. (Emphasis supplied)
The creation of the ARMM, and the grant of legislative powers to its Regional
Assembly under its organic act, did not divest Congress of its exclusive
authority to create legislative districts. This is clear from the Constitution and
the ARMM Organic Act, as amended. Thus, Section 20, Article X of the
Constitution provides:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous regions shall
provide for legislative powers over:
(1)
Administrative organization;
(2)
(3)
(4)
(5)
(6)
(7)
Educational policies;
(8)
To allow the ARMM Regional Assembly to create a national office is to allow its
legislative powers to operate outside the ARMMs territorial jurisdiction. This
violates Section 20, Article X of the Constitution which expressly limits
the coverage of the Regional Assemblys legislative powers [w]ithin its
territorial jurisdiction x x x.
(9)
Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region.
Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article
VI of the Constitution, which provides:
Any province that may hereafter be created, or any city whose population
may hereafter increase to more than two hundred fifty thousand shall be
entitled in the immediately following election to at least one Member or
such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
created or where the city, whose population has so increased, is geographically
located shall be correspondingly adjusted by the Commission on Elections but
such adjustment shall not be made within one hundred and twenty days before
the election. (Emphasis supplied)
serve as bases for the conclusion that the Province of Shariff Kabunsuan,
created on 29 October 2006, is automatically entitled to one member in the
House of Representatives in the 14 May 2007 elections. As further support for
her stance, petitioner invokes the statement in Felwa that when a province is
created by statute, the corresponding representative district comes into
existence neither by authority of that statute which cannot provide otherwise
nor by apportionment, but by operation of the Constitution, without a
reapportionment.
First. The issue in Felwa, among others, was whether Republic Act No.
4695 (RA 4695), creating the provinces of Benguet, Mountain Province, Ifugao,
and Kalinga-Apayao and providing for congressional representation in the old
districts prescribed in the Constitution, which is not the effect of the legislation
under consideration. As a matter of fact, provinces have been created or
subdivided into other provinces, with the consequent creation of additional
representative districts, without complying with the aforementioned
requirements. (Emphasis supplied)
(1) An inferior legislative body like the ARMM Regional Assembly can create
100 or more provinces and thus increase the membership of a superior
legislative body, the House of
Representatives, beyond the maximum limit of
250 fixed in the Constitution (unless a national law provides otherwise);
(3) Representatives from the ARMM provinces can become the majority in the
House of Representatives through the ARMM Regional Assemblys continuous
creation of provinces or cities within the ARMM.
The following exchange during the oral arguments of the petition in G.R. No.
177597 highlights the absurdity of Semas position that the ARMM Regional
Assembly can create provinces:
Without law passed by Congress, yes, Your Honor, that is what we are saying.
Justice Carpio:
So, you mean to say [a] Local Government can create legislative district[s] and
pack Congress with their own representatives [?]
xxxx
Justice Carpio:
So, they can also create one thousand (1000) new provinces, sen[d] one
thousand (1000) representatives to the House of Representatives without
a national law[,] that is legally possible, correct?
Justice Carpio:
So, [the] Regional Assembly of [the] ARMM can create and create x x x
provinces x x x and, therefore, they can have thirty-five (35) new
representatives in the House of Representatives without Congress agreeing to
it, is that what you are saying? That can be done, under your theory[?]
(Emphasis supplied)
Neither the framers of the 1987 Constitution in adopting the provisions in Article
X on regional autonomy, nor Congress in enacting RA 9054, envisioned or
intended these disastrous consequences that certainly would wreck the tribranch system of government under our Constitution. Clearly, the power to
create or reapportion legislative districts cannot be delegated by Congress but
must be exercised by Congress itself. Even the ARMM Regional Assembly
recognizes this.
Justice Carpio:
Under your theory, the ARMM legislature can create thirty-five (35) new
provinces, there may be x x x [only] one hundred thousand (100,000)
[population], x x x, and they will each have one representative x x x to Congress
without any national law, is that what you are saying?
districts, a power only Congress can exercise under Section 5, Article VI of the
Constitution and Section 3 of the Ordinance appended to the Constitution. The
ARMM Regional Assembly cannot create a province without a legislative district
because the Constitution mandates that every province shall have a legislative
district. Moreover, the ARMM Regional Assembly cannot enact a law creating a
national office like the office of a district representative of Congress because
the legislative powers of the ARMM Regional Assembly operate only within its
territorial jurisdiction as provided in Section 20, Article X of the Constitution.
Thus, we rule that MMA Act 201, enacted by the ARMM Regional Assembly and
creating the Province of Shariff Kabunsuan, is void.
The present case involves the creation of a local government unit that
necessarily involves also the creation of a legislative district. The Court will not
pass upon the constitutionality of the creation of municipalities and barangays
that does not comply with the criteria established in Section 461 of RA 7160, as
mandated in Section 10, Article X of the Constitution, because the creation of
such municipalities and barangays does not involve the creation of legislative
districts. We leave the resolution of this issue to an appropriate case.
Let a copy of this ruling be served on the President of the Senate and the
Speaker of the House of Representatives.
SO ORDERED.
NPC DRIVERS AND MECHANICS ASSOCIATION, (NPC DAMA), represented by Its President ROGER S. SAN JUAN, SR., NPC EMPLOYEES & WORKERS
UNION (NEWU) NORTHERN LUZON REGIONAL CENTER, represented by its Regional President JIMMY D. SALMAN, in their own individual capacities
and in behalf of the members of the associations and all affected officers and employees of National Power Corporation (NPC), ZOL D. MEDINA,
NARCISO M. MAGANTE, VICENTE B. CIRIO, JR., NECITAS B. CAMAMA, in their individual capacities as employees of National Power Corporation,
petitioners,
vs.
THE NATIONAL POWER CORPORATION (NPC), NATIONAL POWER BOARD OF DIRECTORS (NPB), JOSE ISIDRO N. CAMACHO as Chairman of the
National Power Board of Directors (NPB), ROLANDO S. QUILALA, as President Officer-in-charge/CEO of National Power Corporation and Member of
National Power Board, and VINCENT S. PEREZ, JR., EMILIA T. BONCODIN, MARIUS P. CORPUS, RUBEN S. REINOSO, JR., GREGORY L. DOMINGO and
NIEVES L. OSORIO, respondents.
DECISION
xxxx
CHICO-NAZARIO, J.:
Section 3. Scope. This Act shall provide a framework for the restructuring of
the electric power industry, including the privatization of the assets of NPC, the
transition to the desired competitive structure, and the definition of the
responsibilities of the various government agencies and private entities. 1
Under the EPIRA Law,2 a new National Power Board of Directors was
constituted composed of the Secretary of Finance as Chairman, with the
Secretary of Energy, the Secretary of Budget and Management, the Secretary
of Agriculture, the Director-General of the National Economic and Development
Authority, the Secretary of Environment and Natural Resources, the Secretary
of Interior and Local Government, the Secretary of the Department of Trade
and Industry, and the President of the National Power Corporation as members.
On 27 February 2002, the Secretary of the Department of Energy (DOE)
promulgated the Implementing Rules and Regulations (IRR) of the EPIRA Law,
pursuant to Section 773 thereof. Said IRR were approved by the Joint
Congressional Power Commission on even date. Meanwhile, also in pursuant
to the provisions of the EPIRA Law, the DOE created the Energy Restructuring
In assailing the validity of NPB Resolutions No. 2002-124 and No. 2002-125,
petitioners maintain that said Resolutions were not passed and issued by a
majority of the members of the duly constituted Board of Directors since only
three of its members, as provided under Section 48 6 of the EPIRA Law, were
present, namely: DOE Secretary Vincent S. Perez, Jr.; Department of Budget
and Management Secretary Emilia T. Boncodin; and NPC OIC-President
Rolando S. Quilala. According to petitioners, the other four members who were
present at the meeting and signed the Resolutions were not the secretaries of
their respective departments but were merely representatives or designated
alternates of the officials who were named under the EPIRA Law to sit as
members of the NPB. Petitioners claim that the acts of these representatives
are violative of the well-settled principle that "delegated power cannot be further
delegated." Thus, petitioners conclude that the questioned Resolutions have
been illegally issued as it were not issued by a duly constituted board since no
quorum existed because only three of the nine members, as provided under
Section 48 of the EPIRA Law, were present and qualified to sit and vote.
shown by the fact that it is the signatures of the respective representatives that
are affixed to the questioned Resolutions. This, to our mind, violates the duty
imposed upon the specifically enumerated department heads to employ their
own sound discretion in exercising the corporate powers of the NPC. Evidently,
the votes cast by these mere representatives in favor of the adoption of the said
Resolutions must not be considered in determining whether or not the
necessary number of votes was garnered in order that the assailed Resolutions
may be validly enacted. Hence, there being only three valid votes cast out of
the nine board members, namely those of DOE Secretary Vincent S. Perez, Jr.;
Department of Budget and Management Secretary Emilia T. Boncodin; and
NPC OIC-President Rolando S. Quilala, NPB Resolutions No. 2002-124 and
No. 2002-125 are void and are of no legal effect.
Having determined that the assailed Resolutions are void as they lack the
necessary number of votes for their adoption, We no longer deem it necessary
to pass upon the other issues raised in the instant petition
WHEREFORE, premises considered, National Power Board Resolutions No.
2002-124 and No. 2002-125 are hereby declared VOID and WITHOUT LEGAL
EFFECT. The Petition for Injunction is hereby GRANTED and respondents are
hereby ENJOINED from implementing said NPB Resolutions No. 2002-124 and
No. 2002-125.
SO ORDERED.
attend the pre-trial. Based on the records, the Petition for Certiorari,
Mandamus, Prohibition with Application for Mandatory Injunction and Ex-Parte
Motion for Temporary Restraining Order and the Motion for Reconsideration
thereto filed by complainant with the Regional Trial Court, Branch 64, Labo,
Camarines Norte were already denied; thus the respondent judge had the
authority to proceed with the case. The postponements in the pre-trial were not
attributable to the respondent judge but to the accused and his
counsel.1avvphi1
Finally, on the issue of bias, complainant failed to submit any evidence showing
the respondent biased or partial in hearing the case. Bias and partiality of a
judge must be proved by clear and convincing evidence. Mere suspicion that a
judge is bias or partial would not be enough. 13 (Italics in the original;
underscoring supplied)
gross ignorance of law or procedures shall be dealt with more severely lies,
however.
WHEREFORE, the Court finds respondent, Judge Aurea G. Pealosa-Fermo of
the Municipal Trial Court of Labo, Camarines Norte, guilty of Gross Ignorance
of the Law or Procedure. She is FINED in the amount of Twenty Thousand
(P20,000) Pesos and warned that a commission of another infraction which is
tantamount to the same charge shall be dealt with more severely.
SO ORDERED.