G.R. No.

215847
GOV. EXEQUIEL B. JAVIER, Petitioner,
vs.
COMMISSION ON ELECTIONS, CORNELIO P. ALDON, and RAYMUNDO T. ROQUERO,
Respondents.
DECISION
BRION, J.:
This is a petition for certiorari under Rule 65 in relation to Rule 64 of the Rules of
Court, filed to challenge the January 12, 2015 per curiam order of the Commission
on Elections (COMELEC/The Commission) en banc in SPA No. 13-254 (DC).1 The
Commission granted the petition to disqualify the petitioner Exequiel Javier and to
annul his proclamation as the duly elected governor of Antique.
THE ANTECEDENTS
On December 3, 1985, the Batasang Pambansa enacted the Omnibus Election Code
(Election Code).2 Section 261(d) and (e) of this Code prescribe the following
elements of coercion as an election offense:
Section 261. Prohibited Acts. - The following shall be guilty of an election offense: x
xx
(d) Coercion of subordinates. (1) Any public officer, or any officer of any public or private corporation or association,
or any head, superior, or administrator of any religious organization, or any employer
or landowner who coerces or intimidates or compels, or in any manner influence,
directly or indirectly, any of his subordinates or members or parishioners or
employees or house helpers, tenants, overseers, farm helpers, tillers, or lease holders
to aid, campaign or vote for or against any candidate or any aspirant for the
nomination or selection of candidates.
(2) Any public officer or any officer of any commercial, industrial, agricultural,
economic or social enterprise or public or private corporation or association, or any
head, superior or administrator of any religious organization, or any employer or
landowner who dismisses or threatens to dismiss, punishes or threatens to punish by
reducing his salary, wage or compensation, or by demotion, transfer, suspension,
separation, excommunication, ejectment, or causing him annoyance in the
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performance of his job or in his membership, any subordinate member or affiliate,

parishioner, employee or house helper, tenant, overseer, farm helper, tiller, or lease
holder, for disobeying or not complying with any of the acts ordered by the former to
aid, campaign or vote for or against any candidate, or any aspirant for the nomination
or selection of candidates.
(e) Threats, intimidation, terrorism, use of fraudulent device or other forms of
coercion. - Any person who, directly or indirectly, threatens, intimidates or actually
causes, inflicts or produces any violence, injury, punishment, damage, loss or
disadvantage upon any person or persons or that of the immediate members of his
family, his honor or property, or uses any fraudulent device or scheme to compel or
induce the registration or refraining from registration of any voter, or the participation
in a campaign or refraining or desistance from any campaign, or the casting of any
vote or omission to vote, or any promise of such registration, campaign, vote, or
omission therefrom. (emphases supplied)
Coercion, as an election offense, is punishable by imprisonment of not less than one
year but not more than six years.3 Notably, Section 68 of the Election Code provides
that the Commission may administratively disqualify a candidate who violates Section
261(d) or (e).
On February 20, 1995, Congress enacted Republic Act No. 7890 amending the
definition of Grave Coercion under the Revised Penal Code.4 It increased the penalty
for coercion committed in violation of a persons right to suffrage to prision mayor.
Further, Section 3 of R.A. 7890 expressly repealed Section 26, paragraphs (d)(1) and
(2) of the Election Code.
On April 3, 2012, COMELEC issued Resolution No. 93855 fixing the calendar of
activities for the May 2013 elections. The resolution set the election period from
January 13, 2013 until June 12, 2013.
On September 3, 2012, Valderrama Municipal Vice-Mayor Christopher B. Maguad filed
an administrative complaint for Gross Misconduct/Dereliction of Duty and Abuse of
Authority against Valderrama Mayor Mary Joyce U. Roquero (Mayor Roquero). This
complaint was docketed as Administrative Case No. 05-2012.
On November 9, 2012, the Sangguniang Panlalawigan (SP) issued Resolution No.
291-2012 recommending to Antique Governor Exequiel Javier (Gov. Javier) the
preventive suspension of Mayor Roquero.
On November 21, 2012, Mayor Roquero filed a petition for certiorari and prohibition
with prayer for the issuance of a temporary restraining order (TRO) before the
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Regional Trial Court (RTC), Branch 12, Antique, against Gov. Javier and the members
of the SP to restrain them from proceeding with Administrative Case No. 05-2012.
The petition was docketed as Special Civil Action No. 12-11-86.
The case was re-raffled to the RTC, Branch 11 which issued a writ of preliminary
injunction.
Gov. Javier, Vice-Governor Dimamay, and the members of the SP filed a petition for
certiorari with urgent prayer for TRO and preliminary injunction before the CA,
docketed as CA-G.R. SP-07307.
On December 18, 2012, COMELEC issued Resolution No. 95816 prohibiting any public
official from suspending any elective provincial, city, municipal, or barangay officer
during the election period for the May 13, 2013 elections. This resolution implements
Section 261 (x)7 of the Election Code.
On January 15, 2013, the CA issued a TRO in CA-G.R. SP-07307.
On January 16, 2013, the RTC, Branch 11 promulgated its judgment granting
certiorari and prohibition. It ordered the SP to cease and desist from further
proceeding with Administrative Case No. 05-2012. It likewise ordered Gov. Javier to
refrain from implementing SP Resolution No. 291-2012 and from preventively
suspending Mayor Roquero.
On January 23, 2013, Gov. Javier issued Executive Order No. 003, S. 2013,
preventively suspending Mayor Roquero for thirty (30) days.
On February 7, 2013, the SP of Antique issued a decision finding Mayor Roquero
guilty of Grave Misconduct in relation with Section 3(e) of R. A. 3019, the Anti-Graft
and Corrupt Practices Act, and Grave Abuse of Authority in relation with Section 5(e)
of R.A. No. 6713. The SP suspended her for four (4) months.
Mayor Roquero filed an Election Offense complaint against Gov. Javier for violating
Section 261(x) of the Election Code. The case was filed before the COMELEC Law
Department and docketed as Election Offense Case (EOC) No. 13-025.
Meanwhile (or on March 15, 2013), the CA granted the writ of preliminary injunction
filed by Gov. Javier, et al., in CA-G.R. SP-07307. It enjoined Judge Nery Duremdes
of the RTC, Branch 11 from conducting further proceedings in SPL Civil Action No.
12-11-86.

On March 22, 2013, private respondents Cornelio P. Aldon (Aldon) and Raymundo T.
Roquero (Roquero) also filed a petition for disqualification before the Commission
against Gov. Javier, Vice-Governor Rosie A. Dimamay, and the other members of the
SP. The case was docketed as COMELEC Special Action (SPA) No. 13-254 (DC.)
Aldon and Roquero sought to disqualify Gov. Javier and the other incumbent officials
from running in the 2013 elections on the ground that the latter committed the
election offenses of Coercion of Subordinates [Sec. 261(d)] and Threats,
Intimidation, Terrorism x x x or Other Forms of Coercion [Sec. 261(e)] by suspending
Mayor Roquero. They alleged that the suspension was political harassment calculated
to intimidate the Roqueros into backing out of the 2013 elections.8
On April 29, 2013, the Clerk of the Commission conducted a conference hearing
between the parties.
On April 30, 2013, Gov. Javier (together with the SP Members) filed a motion to
dismiss with answer ex abundante ad cautelam.
After the May 13, 2013 Elections, only Gov. Javier and SP Members Tobias M. Javier,
Edgar D. Denosta, Teopisto C. Estaris, Jr., and Victor R. Condez were proclaimed
winners. Hence, the Commission considered the disqualification cases against the
losing candidates moot.
On October 3, 2014, the COMELEC Second Division issued a resolution in SPA No.
13-254 (DC) disqualifying Gov. Javier and annulling his proclamation as the Governor
of Antique. The resolution was penned by Commissioner Elias R. Yusoph.
The COMELEC held that the preventive suspension of Mayor Roquero under Executive
Order No. 003 violated the election period ban because it was not for the purpose of
applying the Anti-Graft and Corrupt Practices Act. It also considered the
Commissions findings in EOC No. 13-025 that there was substantial evidence
showing that Gov. Javier acted in bad faith when he suspended Mayor Roquero as a
form of punishment for opposing him.9
The COMELEC ruled that Gov. Javiers act of preventively suspending Mayor Roquero
during the election period ban fell within the contemplation of Section 261(d) of the
Election Code, which is a ground for disqualification under Section 68. It held that
while Section 261(d) of the Election Code was repealed by Republic Act No. 7890, it
did not remove coercion "as a ground per se for disqualification under [Section] 68."
In fact, R.A. 7890 made Coercion (an election offense) a felony with a higher
penalty.10 The COMELEC added that the general repealing clause of R.A. No. 7890

cannot impliedly repeal Section 68 because the latter was "not absolutely and
irreconcilably incompatible with Article 286."11
Commissioner Luie Tito F. Guia dissented from the resolution. Commissioner Guia
reasoned that the legal basis to dismiss Gov. Javier no longer exists because Section
3 of Republic Act No. 7890 had repealed Section 261(d) of the Election Code.
Commissioner Arthur D. Lim took no part in the vote because he did not participate
in the deliberations.
With the votes tied at 1-1-1 (one voted to grant, one dissenting, and one not
participating), the case failed to obtain the necessary majority. Consequently on
October 14, 2014, the COMELEC Second Division issued an order elevating the case
to the en banc for its disposition.12
The Commission en banc agreed, as a matter of internal arrangement, to submit their
respective opinions explaining their respective votes or their concurrence with either
Commissioner Yusoph or Commissioner Guia.
Three (3) Commissioners concurred with Commissioner Yusoph: Chairman Sixto
Brillantes, Jr., Commissioner Lucenito Tagle, and Commissioner Arthur Lim.
Commissioner Christian Robert Lim joined Commissioner Guias dissent.
Commissioner Al A. Parreo did not participate in the vote as he was away on official
business. Thus, the vote was 4-2-1 in favor of disqualification; in a per curiam order
promulgated on January 12, 2015, the Commission en banc disqualified Gov. Javier
and annulled his proclamation as the governor of Antique.
On January 20, 2015, Gov. Javier filed the present petition for certiorari under Rule
65 in relation with Rule 64 of the Rules of Court.
THE PETITION
The petitioner argues that the Commission en banc committed grave abuse of
discretion because: (1) its January 12, 2015 order was arrived at on the basis of an
"internal arrangement; and (2) the order did not obtain a majority vote because
Commissioner Arthur Lim should not have been allowed to participate.
The petitioner also asserts that the Commission erred in ruling that R.A. 7890 did not
remove Section 261(d) of the Election Code as a ground for administrative
disqualification. Finally, the petitioner maintains that the Commission
unconstitutionally set the Election Period for the May 13, 2013 elections in violation
of Article IX-C, Section 9 of the Constitution, Sec. 62 (c) of the Local Government
Code, and Section 8 of Republic Act No. 7056.13
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In its comment on the petition, COMELEC, through the Office of the Solicitor General
(OSG), counters that it did not abuse its discretion in issuing the January 12, 2015
order disqualifying Gov. Javier. The Commission insists that the procedure observed
during the proceedings was not infirm and that there was no legal impediment for
Commissioner Arthur Lim to participate in the en banc vote.
On the alleged errors of law, the Commission insists that there was legal basis to
disqualify Gov. Javier under both Sections 261 (d) and (e) of the Election Code; the
repeal of Section 261(d) by R.A. 7890 did not ipso facto remove coercion as a ground
for disqualification under Section 68 of the Election Code. It added that Section
261(e), on the other hand, has not been repealed, either expressly or impliedly.
Finally, the Commission asserts that COMELEC Resolution No. 9581 fixing the date of
the election period is expressly authorized by Article IX, Section 9 of the Constitution
and Section 8 of Republic Act No. 7056.
Based on these submissions, the following issues now confront the Court:
I.
Whether the Commission gravely abused its discretion when it issued Resolution No.
9581 fixing the 2013 election period from January 13, 2013 until June 12, 2013, for
the purpose of determining administrative and criminal liability for election offenses.
II.
Whether the Commission erred in ruling that R.A. No. 7890 did not remove coercion
as a ground for disqualification under Section 68 of the Election Code.
III.
Whether the Commission en banc committed grave abuse of discretion in issuing its
Order dated January 12, 2015, disqualifying Gov. Javier and annulling his
proclamation as the governor of Antique.
OUR RULING:
After due consideration, we resolve to grant the petition.
The COMELEC is expressly authorized to fix a different date of the election period.

The petitioner contends that the election period for the reckoning of administrative
and criminal liabilities under election laws should always be the same-90 days before
and 30 days after an election-fixed in Article IX-C, Section 9 of the Constitution and
Section 8 of Republic Act No. 7056.14 He argues that the Commissions authority to
fix the pre-election period refers only to the period needed to properly administer
and conduct orderly elections. The petitioner argues that by extending the period for
incurring criminal liability beyond the 90-day period, the Commission encroached on
the legislatures prerogative to impute criminal and administrative liability on mala
prohibita acts. Therefore, COMELEC Resolution Nos. 9385 and 9581 were issued ultra
vires.
We do not find this argument meritorious.
No less than the Constitution authorizes the Commission to fix the dates of the
election period. Article IX-C, Section 9 provides:
Section 9. Unless otherwise fixed by the Commission in special cases, the election
period shall commence ninety days before the day of election and shall end thirty
days thereafter.15
Congress, through the Election Code, explicitly recognizes this authority:
Sec. 3. Election and campaign periods. Unless otherwise fixed in special cases by
the Commission on Elections, which hereinafter shall be referred to as the
Commission, the election period shall commence ninety days before the day of the
election and shall end thirty days thereafter.16 (emphases supplied)
Evidently, the 120-day period is merely the default election period. The Commission
is not precluded from fixing the length and the starting date of the election period to
ensure free, orderly, honest, peaceful, and credible elections. This is not merely a
statutory but a constitutionally granted power of the Commission.
Contrary to the petitioners contention, the Commissions act of fixing the election
period does not amount to an encroachment on legislative prerogative. The
Commission did not prescribe or define the elements of election offenses. Congress
already defined them through the Omnibus Election Code, the Fair Elections Act, and
other pertinent election laws.
As defined by Congress, some election offenses and prohibited acts can only be
committed during the election period. An element of these offenses (i.e., that it be
committed during the election period) is variable, as election periods are not affixed
to a specific and permanent date. Nevertheless, the definition of the offense is already
7

complete. By fixing the date of the election period, the Commission did not change
what the offense is or how it is committed. There is thus no intrusion into the
legislative sphere.
There is also no merit in the petitioners argument that the extended election period
only applies to pre-election activities other than the determination of administrative
or criminal liability for violating election laws. Neither the law nor the Constitution
authorizes the use of two distinct election periods for the same election. The law does
not distinguish between election offenses and other pre-election activities in terms of
the applicable election period. Where the law does not distinguish, neither should this
Court.
The Alleged Lack of Due Process
We find the petitioners claim that the Commission committed grave abuse of
discretion since there was no preliminary investigation as required under Section 265
of the Omnibus Election Code to be misplaced.17
SPA No. 13-254 was an administrative proceeding for disqualification and not a
criminal prosecution of an election offense. The due process requirements and the
procedures for these are not the same. Section 265 of the Election Code only applies
to criminal prosecutions. Disqualification cases are summary in nature and governed
by Rule 25 of the COMELEC Rules of Procedure.
There is likewise no merit in the petitioners allegation that he was denied due process
because the Commission adjudicated the issue without conducting any subsequent
hearings and without requiring the submission of position papers or memoranda,
notarized witness affidavits, or other documentary evidence aside from the annexes
included in the petition and the answer.
Administrative due process cannot be fully equated with due process in its strict
judicial sense.18 A formal hearing is not always necessary and the observance of
technical rules of procedure is not strictly applied in administrative proceedings.19
The essence of administrative due process is the right to be heard and to be given
an opportunity to explain ones side.20 Where the Commission hears both sides and
considers their contentions, the requirements of administrative due process are
complied with.
As we held in Lanot v. Commission on Elections:21
The electoral aspect of a disqualification case determines whether the offender should
be disqualified from being a candidate or from holding office. Proceedings are
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summary in character and require only clear preponderance of evidence. An erring

candidate may be disqualified even without prior determination of probable cause in
a preliminary investigation. The electoral aspect may proceed independently of the
criminal aspect, and vice versa.
The criminal aspect of a disqualification case determines whether there is probable
cause to charge a candidate for an election offense. The prosecutor is the COMELEC,
through its Law Department, which determines whether probable cause exists. If
there is probable cause, the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper court demand a
full-blown hearing and require proof beyond reasonable doubt to convict. A criminal
conviction shall result in the disqualification of the offender, which may even include
disqualification from holding a future public office.
Commissioner Arthur Lims Participation in the En Banc Voting
The petitioner further argues that the Commission committed grave abuse of
discretion by allowing Commissioner Arthur D. Lim to participate in the proceedings
before the Commission en banc. The petitioner maintains that because Commissioner
Arthur Lim took no part in the proceedings before the COMELEC Second Division,
then he should have inhibited from the en banc proceedings pursuant to the ruling in
Estrella v. COMELEC.22 If we disregard Commissioner Arthur Lims vote, then the
Commission would have failed to attain the necessary majority vote of all the
members of the Commission.
The petitioners reliance on Estrella is misplaced because the facts of this case are
different from those of the present case. Estrella involved two related election cases
between the same parties: an election protest and an action for certiorari. One party
moved for Commissioner Lantions inhibition which the Commission denied. However,
Commissioner Lantion later inhibited himself from the certiorari proceeding and was
substituted by another Commissioner.23 The substitution order was also adopted in
the election protest case. When the election protest was elevated to the COMELEC en
banc, Commissioner Lantion participated in the deliberations and voted despite his
prior inhibition. This Court granted certiorari and held that Commissioner Lantions
piecemeal voluntary inhibition was illegal and unethical.
In the present case, Commissioner Arthur Lim did not inhibit from the proceedings.
If the Commissioner had inhibited, there would have been a need to replace him
pursuant to Rule 3, Section 6 of the COMELEC Rules of Procedure24 (as what
happened in Estrella where there was an issuance of an order designating
Commissioner Borra as Commissioner Lantions substitute). Commissioner Arthur
Lim only abstained from voting; he did not participate in the deliberations. When the
9

Commission en banc, as a matter of internal arrangement, agreed among themselves

to submit their own opinion explaining their respective vote or merely their
concurrence with either Commissioner Elias R. Yusoph or Commissioner Luie Tito F.
Guias position on the matter, no legal or ethical impediment existed preventing him
(Commissioner Arthur Lim) from subsequently participating in the deliberations and
from casting his vote.
COMELECs Internal Arrangement
The petitioner also maintains that the Commission gravely abused its discretion when
it set aside its own rules and resolved the case through an "internal arrangement."
He submits that the Commission should have waited for the assigned ponente to
write an opinion before agreeing to vote based on the positions of Commissioner
Yusoph and Commissioner Guia. The petitioner also claims that the assailed Order is
a "midnight decision" and cites the absence of a promulgation date on the front page
and of a certification signed by the Chairman as procedural infirmities.
The petitioner clearly refers to Rule 18 of the COMELEC Rules of Procedure which
states:
Part IV
Rule 18 Decisions
Sec. 1 Procedure in Making Decisions. The conclusions of the Commission in any
case submitted to it for decision en banc or in Division shall be reached in consultation
before the case is assigned by raffle to a Member for the writing of the opinion of the
Commission or the Division and a certification to this effect signed by the Chairman
or the Presiding Commissioner, as the case may be, shall be incorporated in the
decision. Any member who took no part, dissented, or abstained from a decision or
resolution must state the reason therefor.
Every decision shall express therein clearly and distinctly the facts and the law on
which it is based. (emphasis supplied)
To our mind, the essence of this provision is: (1) that decisions of the Commission,
whether in Division or en banc, must be reached in consultation; and (2) that the
decisions must state their factual and legal bases. Moreover, Rule 18, Section 1 must
be read together with the other provisions of the COMELEC Rules of Procedure,
particularly the following related portions:
Rule 1 Introductory Provisions

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Sec. 3. Construction These rules shall be liberally construed in order to promote

the effective and efficient implementation of the objectives of ensuring the holding of
free, orderly, honest, peaceful and credible elections and to achieve just, expeditious
and inexpensive determination and disposition of every action and proceeding
brought before the Commission.
Sec. 4. Suspension of the Rules In the interest of justice and in order to obtain
speedy disposition of all matters pending before the Commission, these rules or any
portion thereof may be suspended by the Commission.
The COMELEC Rules specifically authorize the Commission to suspend the strict
application of its rules in the interest of justice and the speedy disposition of cases.
In this case, the Commission suspended Rule 18, Section 1. The Commission, as a
body, dispensed with the preparation of another ponencia and opted to vote on the
legal positions of Commissioners Yusoph and Guia. Nevertheless, the decision was
evidently reached through consultation. Then Chairman Sixto Brillantes, Jr.,
Commissioner Lucenito Tagle, and Commissioner Arthur Lim concurred with
Commissioner Yusoph. Commissioner Christian Robert Lim joined Commissioner
Guias dissent. Chairman Brillantes, Jr. and Commissioner Arthur Lim also wrote
separate concurring opinions. The Court does not see any arbitrariness or infirmity in
this internal arrangement that would have deprived the petitioner of due process.
Moreover, the Commission resorted to this arrangement because, as the petitioner
pointed out, three Commissioners were retiring soon. There was a need to resolve
the cases because the impending vacancies would have resulted in further delay.
Contrary to the petitioners insinuations, "midnight decisions" are not illegal. Judges
and other quasi-judicial officers cannot sit back, relax, and refuse to do their work
just because they are nearing retirement or are near the end of their term. As civil
servants, they are expected to diligently carry out their duties until their separation
from service. Thus, the Commissions suspension of its rules and use of an internal
arrangement to expedite its internal proceedings is not at all unusual in collegial
bodies. We note that the vote was divided and dissents were filed, thereby indicating
the absence of any malicious departure from the usual procedures in arriving at the
Commissions ruling on the case.
Absence of a Promulgated Date and Failure to Serve Advance Copy
With respect to the absence of a promulgation date on the first page of the assailed
order, this Court directs the petitioners attention to the last page stating that the
Order was "Given this 12th day of January 2015, Manila, Philippines.25 Promulgation
is the process by which a decision is published, officially announced, made known to

11

the public, or delivered to the clerk of court for filing, coupled with notice to the
parties or their counsel.26 The order was evidently promulgated on January 12, 2015.
The Commission does not deny that it failed to serve an advance copy of the order
to the petitioner as required under Rule 18, Section 527 of its Rules. But as we
previously held in the cases of Lindo v. COMELEC28 and Pimping v. COMELEC,29 this
kind of procedural lapse does not affect the validity of the order and is insufficient to
warrant the grant of a writ of certiorari in the absence of any grave abuse of discretion
prejudicing the rights of the parties.
Repeal of Section 261 (d) of Batas Pambansa Blg. 881 by Republic Act No. 7890
No less than the Constitution empowers the Commission to decide all questions
affecting elections except those involving the right to vote.30 It is the sole arbiter of
all issues involving elections. Hence, unless tainted with grave abuse of discretion,
simple errors of judgment committed by COMELEC cannot be reviewed even by this
Court.31
An error of judgment is one that the court may commit in the exercise of its
jurisdiction;32 they only involve errors in the court or tribunals appreciation of the
facts and the law.33 An error of jurisdiction is one where the act complained of was
issued by the court without or in excess of its jurisdiction, or with grave abuse of
discretion tantamount to lack or excess of jurisdiction.34
A review of the October 3, 2014 COMELEC Second Division resolution (penned by
Commissioner Yusoph), however, showed that the main thrust of this resolution to
which four Commissioners concurred in when the case was elevated to the en banc
is faulty.35 It considered the repeal of Section 261(d) by R.A. No.7890 to be an
implied one, which is contrary to the wordings of R.A. 7890.
For clarity, we reproduce the pertinent provisions of R.A. No. 7890, thus:
SECTION 1. Article 286, Section Three, Chapter Two, Title Nine of Act No. 3815, as
amended, is hereby further amended to read as follows:
ART. 286. Grave Coercions. The penalty of prision correccional and a fine not
exceeding Six thousand pesos shall be imposed upon any person who, without any
authority of law, shall, by means of violence, threats or intimidation, prevent another
from doing something not prohibited by law, or compel him to do something against
his will, whether it be right or wrong.

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If the coercion be committed in violation of the exercise of the right of suffrage, or

for the purpose of compelling another to perform any religious act, to prevent him
from exercising such right or from so doing such act, the penalty next higher in
degree shall be imposed."
SEC. 2. Section 261, Paragraphs (d)(1) and (2), Article XXII of Batas Pambansa Blg.
881 is hereby repealed.
SEC. 3. All other election laws, decrees, executive orders rules and regulations, or
parts thereof inconsistent with the provisions of this Act are hereby repealed.
xxxx
A repeal may be express or implied.36 An express repeal is one wherein a statute
declares, usually in its repealing clause, that a particular and specific law, identified
by its number or title, is repealed.37 An implied repeal, on the other hand, transpires
when a substantial conflict exists between the new and the prior laws. In the absence
of an express repeal, a subsequent law cannot be construed as repealing a prior law
unless an irreconcilable inconsistency and repugnancy exist in the terms of the new
and the old laws.38
In the present case, it is clear that R.A. No. 7890 expressly repealed Section 261,
paragraphs (d)(1) and (2) of the Omnibus Election Code. The COMELEC Second
Divisions October 3, 2014 resolution, however, treated this repeal as merely an
implied one. Commissioner Yusoph reasoned out as follows:
Moreover, the general repealing clause in Section 3 of RA 7890 cannot impliedly
repeal Section 68 because the latter is not absolutely and irreconcilably incompatible
with Article 286, as amended by RA 7890. Meaning, a case for disqualification due to
coercion under Section 68 can very well stand apart from the criminal case for
coercion under Article 286, as amended. This is so because Section 68 involves an
administrative proceeding intended to disqualify a candidate whereas Article 286,
supra, involves a criminal proceeding intended to penalize coercion. Both laws,
therefore, can be given effect without nullifying the other, hence the inapplicability
of implied repeal.
To firm up our stance against implied repeal of coercion as a ground for
disqualification, the following pronouncements of the Supreme Court are guiding:
Implied repeal by irreconcilable inconsistency takes place when the two statutes
cover the same subject matter; they are so clearly inconsistent and incompatible with

13

each other that they cannot be reconciled or harmonized; and both cannot be given
effect, that is, that one law cannot be enforced without nullifying the other."
Well-settled is the rule is statutory construction that implied repeals are disfavored.
In order to effect a repeal by implication, the latter statute must be so irreconcilably
inconsistent and repugnant with the existing law that they cannot be made to
reconcile and stand together. The clearest case possible must be made before the
inference of implied repeal may be drawn, for inconsistency is never presumed. x x
x x"39
We point out that this resolution and the dissenting opinion of Commissioner Guia
became the basis of the internal arrangement reached upon by the Commission en
banc whereby the commissioners agreed to submit their respective opinions
explaining their votes or their concurrence with either Commissioner Yusoph or Guia.
As earlier stated, the vote was 4-2-1 in favor of disqualification; in a per curiam order
promulgated on January 12, 2015, the Commission en banc disqualified Gov. Javier
and annulled his proclamation as the governor of Antique. Chairman Brillantes and
Commissioner Arthur Lim wrote their own opinions concurring with the position of
Commissioner Yusoph, while Commissioner Tagle submitted his vote concurring with
the opinions of Commissioner Yusoph and Chairman Brillantes.
In his Separate Opinion, Chairman Brillantes agreed with Commissioner Yusoph that
the repeal of Section 261(d) by R.A. No. 7890 was merely implied, and made the
following disquisition:
xxxx
The Supreme Court, in a long line of cases, has constantly disfavored and struck
down the use of repeal by implication. Pursuant to jurisprudence, well entrenched is
the rule that an implied repeal is disfavored. The apparently conflicting provisions of
a law or two laws should be harmonized as much as possible, so that each shall be
effective. For a law to operate to repeal another law, the two laws must actually be
inconsistent. The former must be so repugnant as to be irreconcilable with the latter
act. Stated plainly, a petition for disqualification on the ground of coercion shall be
taken differently and distinctly from coercion punishable under the RPC for the two
can very well stand independently from each other. x x x Therefore, unless proven
that the two are inconsistent and would render futile the application and enforcement
of the other, only then that a repeal by implication will be preferred. x x x x40
A law that has been expressly repealed ceases to exist and becomes inoperative from
the moment the repealing law becomes effective.41 The discussion on implied repeals
14

by the Yusoph resolution, (and the concurring opinion of Chairman Brillantes, Jr.),
including the concomitant discussions on the absence of irreconcilable provisions
between the two laws, were thus misplaced. The harmonization of laws can only be
had when the repeal is implied, not when it is express, as in this case.
The COMELECs reasoning that coercion remains to be a ground for disqualification
under Section 68 of the Election Code despite the passage of R.A. No. 7890 is
erroneous. To the point of our being repetitive, R.A. No. 7890 expressly repealed
Section 261 d(1) and (2) of Batas Pambansa Blg. 881, rendering these provisions
inoperative. The effect of this repeal is to remove Section 261(d) from among those
listed as ground for disqualification under Section 68 of the Omnibus Election Code.
In his Memorandum/Concurring Opinion, Commissioner Arthur Lim stated that the
petition for disqualification is anchored not only on violation of Section 261 (d), but
also on the violation of Section 261(e) in relation to Section 68 of the OEC. We point
out, however, that the COMELEC Second Divisions October 3, 2014 resolution in SPA
No. 13-254 (disqualifying Gov. Javier and annulling his proclamation as the Governor
of Antique) was premised solely on violation of Section 261(d) of the OEC; it did not
find that Gov. Javier even by substantial evidence - violated the provisions of
Section 261(e). For clarity and accuracy, we quote the pertinent portions of the
COMELECs (Second Division) October 3, 2014 resolution:
Ineluctably, the act of Gov. Javier in preventively suspending Mayor Roquero during
the Election period ban falls within the contemplation of Section 261(d) of the Election
Code which is a ground for disqualification under Section 68, Election Code. That is,
Gov. Javier issued Executive Order No. 003 suspending Mayor Roquero to coerce,
intimidate, compel, or influence the latter to collaborate with or campaign for the
former, or to punish the latter for having manifested political opposition against the
former. For that, he must be disqualified.42
With the express repeal of Section 261(d), the basis for disqualifying Javier no longer
existed. As we held in Jalosjos, Jr. v. Commission on Elections,43 [t]he jurisdiction
of the COMELEC to disqualify candidates is limited to those enumerated in Section 68
of the Omnibus Election Code. All other election offenses are beyond the ambit of
COMELEC jurisdiction. They are criminal and not administrative in nature.44 Pursuant
to sections 265 and 268 of the Omnibus Election Code, the power of the COMELEC is
confined to the conduct of preliminary investigation on the alleged election offenses
for the purpose of prosecuting the alleged offenders before the regular courts of
justice.45
There is grave abuse of discretion justifying the issuance of the writ of certiorari when
there is such capricious and whimsical exercise of judgment as is equivalent to lack
15

of jurisdiction,46 where power is exercised arbitrarily or in a despotic manner by

reason of passion, prejudice, or personal hostility amounting to an evasion of positive
duty, or to virtual refusal to perform the duty enjoined, 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 and hostility.47
To our mind, the COMELEC gravely abused its discretion when it disqualified Gov.
Javier based on a provision of law that had already been expressly repealed. Its
stubborn insistence that R.A. No. 7890 merely impliedly repealed Section 261 (d)
despite the clear wordings of the law, amounted to an arbitrary and whimsical
exercise of judgment.
WHEREFORE, premises considered, we hereby GRANT the petition and SET ASIDE
the January 12, 2015 per curiam order of the Commission on Elections en banc in
SPA No. 13-254 (DC).
SO ORDERED.

16

G.R. No. 103982

December 11, 1992

ANTONIO A. MECANO, petitioner,

vs.
COMMISSION ON AUDIT, respondent.

CAMPOS, JR., J.:

Antonio A. Mecano, through a petition for certiorari, seeks to nullify the decision of
the Commission on Audit (COA, for brevity) embodied in its 7th Indorsement, dated
January 16, 1992, denying his claim for reimbursement under Section 699 of the
Revised Administrative Code (RAC), as amended, in the total amount of P40,831.00.
Petitioner is a Director II of the National Bureau of Investigation (NBI). He was
hospitalized for cholecystitis from March 26, 1990 to April 7, 1990, on account of
which he incurred medical and hospitalization expenses, the total amount of which
he is claiming from the COA.
On May 11, 1990, in a memorandum to the NBI Director, Alfredo S. Lim (Director
Lim, for brevity), he requested reimbursement for his expenses on the ground that
he is entitled to the benefits under Section 699 1 of the RAC, the pertinent provisions
of which read:
Sec. 699.
Allowances in case of injury, death, or sickness incurred in performance
of duty. When a person in the service of the national government of a province,
city, municipality or municipal district is so injured in the performance of duty as
thereby to receive some actual physical hurt or wound, the proper Head of
Department may direct that absence during any period of disability thereby
occasioned shall be on full pay, though not more than six months, and in such case
he may in his discretion also authorize the payment of the medical attendance,
necessary transportation, subsistence and hospital fees of the injured person.
Absence in the case contemplated shall be charged first against vacation leave, if any
there be.
xxx

xxx

xxx

In case of sickness caused by or connected directly with the performance of some act
in the line of duty, the Department head may in his discretion authorize the payment
of the necessary hospital fees.

17

Director Lim then forwarded petitioner's claim, in a 1st Indorsement dated June 22,
1990, to the Secretary of Justice, along with the comment, bearing the same date,
of Gerarda Galang, Chief, LED of the NBI, "recommending favorable action thereof".
Finding petitioner's illness to be service-connected, the Committee on Physical
Examination of the Department of Justice favorably recommended the payment of
petitioner's claim.
However, then Undersecretary of Justice Silvestre H. Bello III, in a 4th Indorsement
dated November 21, 1990, returned petitioner's claim to Director Lim, having
considered the statements of the Chairman of the COA in its 5th Indorsement dated
19 September 1990, to the effect that the RAC being relied upon was repealed by
the Administrative Code of 1987.
Petitioner then re-submitted his claim to Director Lim, with a copy of Opinion No. 73,
S. 1991 2 dated April 26, 1991 of then Secretary of Justice Franklin M. Drilon
(Secretary Drilon, for brevity) stating that "the issuance of the Administrative Code
did not operate to repeal or abregate in its entirety the Revised Administrative Code,
including the particular Section 699 of the latter".
On May 10, 1991, Director Lim, under a 5th Indorsement transmitted anew Mecano's
claim to then Undersecretary Bello for favorable consideration. Under a 6th
Indorsement, dated July 2, 1991, Secretary Drilon forwarded petitioner's claim to the
COA Chairman, recommending payment of the same. COA Chairman Eufemio C.
Domingo, in his 7th Indorsement of January 16, 1992, however, denied petitioner's
claim on the ground that Section 699 of the RAC had been repealed by the
Administrative Code of 1987, solely for the reason that the same section was not
restated nor re-enacted in the Administrative Code of 1987. He commented,
however, that the claim may be filed with the Employees' Compensation Commission,
considering that the illness of Director Mecano occurred after the effectivity of the
Administrative Code of 1987.
Eventually, petitioner's claim was returned by Undersecretary of Justice Eduardo
Montenegro to Director Lim under a 9th Indorsement dated February 7, 1992, with
the advice that petitioner "elevate the matter to the Supreme Court if he so desires".
On the sole issue of whether or not the Administrative Code of 1987 repealed or
abrogated Section 699 of the RAC, this petition was brought for the consideration of
this Court.
Petitioner anchors his claim on Section 699 of the RAC, as amended, and on the
aforementioned Opinion No. 73, S. 1991 of Secretary Drilon. He further maintains
that in the event that a claim is filed with the Employees' Compensation Commission,
18

as suggested by respondent, he would still not be barred from filing a claim under
the subject section. Thus, the resolution of whether or not there was a repeal of the
Revised Administrative Code of 1917 would decide the fate of petitioner's claim for
reimbursement.
The COA, on the other hand, strongly maintains that the enactment of the
Administrative Code of 1987 (Exec. Order No. 292) operated to revoke or supplant
in its entirety the Revised Administrative Code of 1917. The COA claims that from
the "whereas" clauses of the new Administrative Code, it can be gleaned that it was
the intent of the legislature to repeal the old Code. Moreover, the COA questions the
applicability of the aforesaid opinion of the Secretary of Justice in deciding the matter.
Lastly, the COA contends that employment-related sickness, injury or death is
adequately covered by the Employees' Compensation Program under P.D. 626, such
that to allow simultaneous recovery of benefits under both laws on account of the
same contingency would be unfair and unjust to the Government.
The question of whether a particular law has been repealed or not by a subsequent
law is a matter of legislative intent. The lawmakers may expressly repeal a law by
incorporating therein a repealing provision which expressly and specifically cites the
particular law or laws, and portions thereof, that are intended to be repealed. 3 A
declaration in a statute, usually in its repealing clause, that a particular and specific
law, identified by its number or title, is repealed is an express repeal; all others are
implied repeals. 4
In the case of the two Administrative Codes in question, the ascertainment of whether
or not it was the intent of the legislature to supplant the old Code with the new Code
partly depends on the scrutiny of the repealing clause of the new Code. This provision
is found in Section 27, Book VII (Final Provisions) of the Administrative Code of 1987
which reads:
Sec. 27.
Repealing Clause. All laws, decrees, orders, rules and regulations, or
portions thereof, inconsistent with this Code are hereby repealed or modified
accordingly.
The question that should be asked is: What is the nature of this repealing clause? It
is certainly not an express repealing clause because it fails to identify or designate
the act or acts that are intended to be repealed. 5 Rather, it is an example of a
general repealing provision, as stated in Opinion No. 73, S. 1991. It is a clause which
predicates the intended repeal under the condition that substantial conflict must be
found in existing and prior acts. The failure to add a specific repealing clause indicates
that the intent was not to repeal any existing law, unless an irreconcilable

19

inconcistency and repugnancy exist in the terms of the new and old laws. 6 This latter
situation falls under the category of an implied repeal.
Repeal by implication proceeds on the premise that where a statute of later date
clearly reveals an intention on the part of the legislature to abrogate a prior act on
the subject, that intention must be given effect. 7 Hence, before there can be a
repeal, there must be a clear showing on the part of the lawmaker that the intent in
enacting the new law was to abrogate the old one. The intention to repeal must be
clear and manifest; 8 otherwise, at least, as a general rule, the later act is to be
construed as a continuation of, and not a substitute for, the first act and will continue
so far as the two acts are the same from the time of the first enactment. 9
There are two categories of repeal by implication. The first is where provisions in the
two acts on the same subject matter are in an irreconcilable conflict, the later act to
the extent of the conflict constitutes an implied repeal of the earlier one. The second
is if the later act covers the whole subject of the earlier one and is clearly intended
as a substitute, it will operate to repeal the earlier law. 10
Implied repeal by irreconcilable inconsistency takes place when the two statutes
cover the same subject matter; they are so clearly inconsistent and incompatible with
each other that they cannot be reconciled or harmonized; and both cannot be given
effect, that is, that one law cannot be enforced without nullifying the other. 11
Comparing the two Codes, it is apparent that the new Code does not cover nor
attempt to cover the entire subject matter of the old Code. There are several matters
treated in the old Code which are not found in the new Code, such as the provisions
on notaries public, the leave law, the public bonding law, military reservations, claims
for sickness benefits under Section 699, and still others.
Moreover, the COA failed to demonstrate that the provisions of the two Codes on the
matter of the subject claim are in an irreconcilable conflict. In fact, there can be no
such conflict because the provision on sickness benefits of the nature being claimed
by petitioner has not been restated in the Administrative Code of 1987. However, the
COA would have Us consider that the fact that Section 699 was not restated in the
Administrative Code of 1987 meant that the same section had been repealed. It
further maintained that to allow the particular provisions not restated in the new
Code to continue in force argues against the Code itself. The COA anchored this
argument on the whereas clause of the 1987 Code, which states:
WHEREAS, the effectiveness of the Government will be enhanced by a new
Administrative Code which incorporate in a unified document the major structural,
functional and procedural principles and rules of governance; and
20

xxx

xxx

xxx

It argues, in effect, that what is contemplated is only one Code the Administrative
Code of 1987. This contention is untenable.
The fact that a later enactment may relate to the same subject matter as that of an
earlier statute is not of itself sufficient to cause an implied repeal of the prior act,
since the new statute may merely be cumulative or a continuation of the old one. 12
What is necessary is a manifest indication of legislative purpose to repeal. 13
We come now to the second category of repeal the enactment of a statute revising
or codifying the former laws on the whole subject matter. This is only possible if the
revised statute or code was intended to cover the whole subject to be a complete and
perfect system in itself. It is the rule that a subsequent statute is deemed to repeal
a prior law if the former revises the whole subject matter of the former statute. 14
When both intent and scope clearly evidence the idea of a repeal, then all parts and
provisions of the prior act that are omitted from the revised act are deemed repealed.
15 Furthermore, before there can be an implied repeal under this category, it must
be the clear intent of the legislature that the later act be the substitute to the prior
act. 16
According to Opinion No. 73, S. 1991 of the Secretary of Justice, what appears clear
is the intent to cover only those aspects of government that pertain to administration,
organization and procedure, understandably because of the many changes that
transpired in the government structure since the enactment of the RAC decades of
years ago. The COA challenges the weight that this opinion carries in the
determination of this controversy inasmuch as the body which had been entrusted
with the implementation of this particular provision has already rendered its decision.
The COA relied on the rule in administrative law enunciated in the case of Sison vs.
Pangramuyen 17 that in the absence of palpable error or grave abuse of discretion,
the Court would be loathe to substitute its own judgment for that of the
administrative agency entrusted with the enforcement and implementation of the
law. This will not hold water. This principle is subject to limitations. Administrative
decisions may be reviewed by the courts upon a showing that the decision is vitiated
by fraud, imposition or mistake. 18 It has been held that Opinions of the Secretary
and Undersecretary of Justice are material in the construction of statutes in pari
materia. 19
Lastly, it is a well-settled rule of statutory construction that repeals of statutes by
implication are not favored. 20 The presumption is against inconsistency and

21

repugnancy for the legislature is presumed to know the existing laws on the subject
and not to have enacted inconsistent or conflicting statutes. 21
This Court, in a case, explains the principle in detail as follows: "Repeals by
implication are not favored, and will not be decreed unless it is manifest that the
legislature so intended. As laws are presumed to be passed with deliberation with full
knowledge of all existing ones on the subject, it is but reasonable to conclude that in
passing a statute it was not intended to interfere with or abrogate any former law
relating to some matter, unless the repugnancy between the two is not only
irreconcilable, but also clear and convincing, and flowing necessarily from the
language used, unless the later act fully embraces the subject matter of the earlier,
or unless the reason for the earlier act is beyond peradventure renewed. Hence, every
effort must be used to make all acts stand and if, by any reasonable construction,
they can be reconciled, the later act will not operate as a repeal of the earlier. 22
Regarding respondent's contention that recovery under this subject section shall bar
the recovery of benefits under the Employees' Compensation Program, the same
cannot be upheld. The second sentence of Article 173, Chapter II, Title II (dealing on
Employees' Compensation and State Insurance Fund), Book IV of the Labor Code, as
amended by P.D. 1921, expressly provides that "the payment of compensation under
this Title shall not bar the recovery of benefits as provided for in Section 699 of the
Revised Administrative Code . . . whose benefits are administered by the system
(meaning SSS or GSIS) or by other agencies of the government."
WHEREFORE, premises considered, the Court resolves to GRANT the petition;
respondent is hereby ordered to give due course to petitioner's claim for benefits. No
costs.
SO ORDERED.

22

G.R. No. 124293

January 31, 2005

J.G. SUMMIT HOLDINGS, INC., petitioner,

vs.
COURT OF APPEALS; COMMITTEE ON PRIVATIZATION, its Chairman and Members;
ASSET PRIVATIZATION TRUST; and PHILYARDS HOLDINGS, INC., respondents.
RESOLUTION
PUNO, J.:
For resolution before this Court are two motions filed by the petitioner, J.G. Summit
Holdings, Inc. for reconsideration of our Resolution dated September 24, 2003 and
to elevate this case to the Court En Banc. The petitioner questions the Resolution
which reversed our Decision of November 20, 2000, which in turn reversed and set
aside a Decision of the Court of Appeals promulgated on July 18, 1995.
I. Facts
The undisputed facts of the case, as set forth in our Resolution of September 24,
2003, are as follows:
On January 27, 1997, the National Investment and Development Corporation (NIDC),
a government corporation, entered into a Joint Venture Agreement (JVA) with
Kawasaki Heavy Industries, Ltd. of Kobe, Japan (KAWASAKI) for the construction,
operation and management of the Subic National Shipyard, Inc. (SNS) which
subsequently became the Philippine Shipyard and Engineering Corporation
(PHILSECO). Under the JVA, the NIDC and KAWASAKI will contribute P330 million for
the capitalization of PHILSECO in the proportion of 60%-40% respectively. One of its
salient features is the grant to the parties of the right of first refusal should either of
them decide to sell, assign or transfer its interest in the joint venture, viz:
1.4 Neither party shall sell, transfer or assign all or any part of its interest in SNS
[PHILSECO] to any third party without giving the other under the same terms the
right of first refusal. This provision shall not apply if the transferee is a corporation
owned or controlled by the GOVERNMENT or by a KAWASAKI affiliate.
On November 25, 1986, NIDC transferred all its rights, title and interest in PHILSECO
to the Philippine National Bank (PNB). Such interests were subsequently transferred
to the National Government pursuant to Administrative Order No. 14. On December
8, 1986, President Corazon C. Aquino issued Proclamation No. 50 establishing the
Committee on Privatization (COP) and the Asset Privatization Trust (APT) to take title
23

to, and possession of, conserve, manage and dispose of non-performing assets of the
National Government. Thereafter, on February 27, 1987, a trust agreement was
entered into between the National Government and the APT wherein the latter was
named the trustee of the National Government's share in PHILSECO. In 1989, as a
result of a quasi-reorganization of PHILSECO to settle its huge obligations to PNB,
the National Government's shareholdings in PHILSECO increased to 97.41% thereby
reducing KAWASAKI's shareholdings to 2.59%.
In the interest of the national economy and the government, the COP and the APT
deemed it best to sell the National Government's share in PHILSECO to private
entities. After a series of negotiations between the APT and KAWASAKI, they agreed
that the latter's right of first refusal under the JVA be "exchanged" for the right to
top by five percent (5%) the highest bid for the said shares. They further agreed that
KAWASAKI would be entitled to name a company in which it was a stockholder, which
could exercise the right to top. On September 7, 1990, KAWASAKI informed APT that
Philyards Holdings, Inc. (PHI)1 would exercise its right to top.
At the pre-bidding conference held on September 18, 1993, interested bidders were
given copies of the JVA between NIDC and KAWASAKI, and of the Asset Specific
Bidding Rules (ASBR) drafted for the National Government's 87.6% equity share in
PHILSECO. The provisions of the ASBR were explained to the interested bidders who
were notified that the bidding would be held on December 2, 1993. A portion of the
ASBR reads:
1.0 The subject of this Asset Privatization Trust (APT) sale through public bidding is
the National Government's equity in PHILSECO consisting of 896,869,942 shares of
stock (representing 87.67% of PHILSECO's outstanding capital stock), which will be
sold as a whole block in accordance with the rules herein enumerated.
xxx xxx xxx
2.0 The highest bid, as well as the buyer, shall be subject to the final approval of
both the APT Board of Trustees and the Committee on Privatization (COP).
2.1 APT reserves the right in its sole discretion, to reject any or all bids.
3.0 This public bidding shall be on an Indicative Price Bidding basis. The Indicative
price set for the National Government's 87.67% equity in PHILSECO is PESOS: ONE
BILLION THREE HUNDRED MILLION (P1,300,000,000.00).
xxx xxx xxx

24

6.0 The highest qualified bid will be submitted to the APT Board of Trustees at its
regular meeting following the bidding, for the purpose of determining whether or not
it should be endorsed by the APT Board of Trustees to the COP, and the latter
approves the same. The APT shall advise Kawasaki Heavy Industries, Inc. and/or its
nominee, [PHILYARDS] Holdings, Inc., that the highest bid is acceptable to the
National Government. Kawasaki Heavy Industries, Inc. and/or [PHILYARDS]
Holdings, Inc. shall then have a period of thirty (30) calendar days from the date of
receipt of such advice from APT within which to exercise their "Option to Top the
Highest Bid" by offering a bid equivalent to the highest bid plus five (5%) percent
thereof.
6.1 Should Kawasaki Heavy Industries, Inc. and/or [PHILYARDS] Holdings, Inc.
exercise their "Option to Top the Highest Bid," they shall so notify the APT about such
exercise of their option and deposit with APT the amount equivalent to ten percent
(10%) of the highest bid plus five percent (5%) thereof within the thirty (30)-day
period mentioned in paragraph 6.0 above. APT will then serve notice upon Kawasaki
Heavy Industries, Inc. and/or [PHILYARDS] Holdings, Inc. declaring them as the
preferred bidder and they shall have a period of ninety (90) days from the receipt of
the APT's notice within which to pay the balance of their bid price.
6.2 Should Kawasaki Heavy Industries, Inc. and/or [PHILYARDS] Holdings, Inc. fail
to exercise their "Option to Top the Highest Bid" within the thirty (30)-day period,
APT will declare the highest bidder as the winning bidder.
xxx xxx xxx
12.0 The bidder shall be solely responsible for examining with appropriate care these
rules, the official bid forms, including any addenda or amendments thereto issued
during the bidding period. The bidder shall likewise be responsible for informing itself
with respect to any and all conditions concerning the PHILSECO Shares which may,
in any manner, affect the bidder's proposal. Failure on the part of the bidder to so
examine and inform itself shall be its sole risk and no relief for error or omission will
be given by APT or COP. . . .
At the public bidding on the said date, petitioner J.G. Summit Holdings, Inc.2
submitted a bid of Two Billion and Thirty Million Pesos (P2,030,000,000.00) with an
acknowledgment of KAWASAKI/[PHILYARDS'] right to top, viz:
4. I/We understand that the Committee on Privatization (COP) has up to thirty (30)
days to act on APT's recommendation based on the result of this bidding. Should the
COP approve the highest bid, APT shall advise Kawasaki Heavy Industries, Inc. and/or
its nominee, [PHILYARDS] Holdings, Inc. that the highest bid is acceptable to the
25

National Government. Kawasaki Heavy Industries, Inc. and/or [PHILYARDS]

Holdings, Inc. shall then have a period of thirty (30) calendar days from the date of
receipt of such advice from APT within which to exercise their "Option to Top the
Highest Bid" by offering a bid equivalent to the highest bid plus five (5%) percent
thereof.
As petitioner was declared the highest bidder, the COP approved the sale on
December 3, 1993 "subject to the right of Kawasaki Heavy Industries,
Inc./[PHILYARDS] Holdings, Inc. to top JGSMI's bid by 5% as specified in the bidding
rules."
On December 29, 1993, petitioner informed APT that it was protesting the offer of
PHI to top its bid on the grounds that: (a) the KAWASAKI/PHI consortium composed
of KAWASAKI, [PHILYARDS], Mitsui, Keppel, SM Group, ICTSI and Insular Life
violated the ASBR because the last four (4) companies were the losing bidders
thereby circumventing the law and prejudicing the weak winning bidder; (b) only
KAWASAKI could exercise the right to top; (c) giving the same option to top to PHI
constituted unwarranted benefit to a third party; (d) no right of first refusal can be
exercised in a public bidding or auction sale; and (e) the JG Summit consortium was
not estopped from questioning the proceedings.
On February 2, 1994, petitioner was notified that PHI had fully paid the balance of
the purchase price of the subject bidding. On February 7, 1994, the APT notified
petitioner that PHI had exercised its option to top the highest bid and that the COP
had approved the same on January 6, 1994. On February 24, 1994, the APT and PHI
executed a Stock Purchase Agreement. Consequently, petitioner filed with this Court
a Petition for Mandamus under G.R. No. 114057. On May 11, 1994, said petition was
referred to the Court of Appeals. On July 18, 1995, the Court of Appeals denied the
same for lack of merit. It ruled that the petition for mandamus was not the proper
remedy to question the constitutionality or legality of the right of first refusal and the
right to top that was exercised by KAWASAKI/PHI, and that the matter must be
brought "by the proper party in the proper forum at the proper time and threshed
out in a full blown trial." The Court of Appeals further ruled that the right of first
refusal and the right to top are prima facie legal and that the petitioner, "by
participating in the public bidding, with full knowledge of the right to top granted to
KAWASAKI/[PHILYARDS] isestopped from questioning the validity of the award
given to [PHILYARDS] after the latter exercised the right to top and had paid in full
the purchase price of the subject shares, pursuant to the ASBR." Petitioner filed a
Motion for Reconsideration of said Decision which was denied on March 15, 1996.
Petitioner thus filed a Petition for Certiorari with this Court alleging grave abuse of
discretion on the part of the appellate court.

26

On November 20, 2000, this Court rendered x x x [a] Decision ruling among others
that the Court of Appeals erred when it dismissed the petition on the sole ground of
the impropriety of the special civil action of mandamus because the petition was also
one of certiorari. It further ruled that a shipyard like PHILSECO is a public utility
whose capitalization must be sixty percent (60%) Filipino-owned. Consequently, the
right to top granted to KAWASAKI under the Asset Specific Bidding Rules (ASBR)
drafted for the sale of the 87.67% equity of the National Government in PHILSECO
is illegal not only because it violates the rules on competitive bidding but more
so, because it allows foreign corporations to own more than 40% equity in the
shipyard. It also held that "although the petitioner had the opportunity to examine
the ASBR before it participated in the bidding, it cannot be estopped from questioning
the unconstitutional, illegal and inequitable provisions thereof." Thus, this Court
voided the transfer of the national government's 87.67% share in PHILSECO to
Philyard[s] Holdings, Inc., and upheld the right of JG Summit, as the highest bidder,
to take title to the said shares, viz:
WHEREFORE, the instant petition for review on certiorari is GRANTED. The assailed
Decision and Resolution of the Court of Appeals are REVERSED and SET ASIDE.
Petitioner is ordered to pay to APT its bid price of Two Billion Thirty Million Pesos
(P2,030,000,000.00), less its bid deposit plus interests upon the finality of this
Decision. In turn, APT is ordered to:
(a) accept the said amount of P2,030,000,000.00 less bid deposit and interests from
petitioner;
(b) execute a Stock Purchase Agreement with petitioner;
(c) cause the issuance in favor of petitioner of the certificates of stocks representing
87.6% of PHILSECO's total capitalization;
(d) return to private respondent PHGI the amount of Two Billion One Hundred ThirtyOne Million Five Hundred Thousand Pesos (P2,131,500,000.00); and
(e) cause the cancellation of the stock certificates issued to PHI.
SO ORDERED.
In separate Motions for Reconsideration, respondents submit[ted] three basic issues
for x x x resolution: (1) Whether PHILSECO is a public utility; (2) Whether under the
1977 JVA, KAWASAKI can exercise its right of first refusal only up to 40% of the total
capitalization of PHILSECO; and (3) Whether the right to top granted to KAWASAKI
violates the principles of competitive bidding.3 (citations omitted)
27

In a Resolution dated September 24, 2003, this Court ruled in favor of the
respondents. On the first issue, we held that Philippine Shipyard and Engineering
Corporation (PHILSECO) is not a public utility, as by nature, a shipyard is not a public
utility4 and that no law declares a shipyard to be a public utility.5 On the second
issue, we found nothing in the 1977 Joint Venture Agreement (JVA) which prevents
Kawasaki Heavy Industries, Ltd. of Kobe, Japan (KAWASAKI) from acquiring more
than 40% of PHILSECOs total capitalization.6 On the final issue, we held that the
right to top granted to KAWASAKI in exchange for its right of first refusal did not
violate the principles of competitive bidding.7
On October 20, 2003, the petitioner filed a Motion for Reconsideration8 and a Motion
to Elevate This Case to the Court En Banc.9 Public respondents Committee on
Privatization (COP) and Asset Privatization Trust (APT), and private respondent
Philyards Holdings, Inc. (PHILYARDS) filed their Comments on J.G. Summit Holdings,
Inc.s (JG Summits) Motion for Reconsideration and Motion to Elevate This Case to
the Court En Banc on January 29, 2004 and February 3, 2004, respectively.
II. Issues
Based on the foregoing, the relevant issues to resolve to end this litigation are the
following:
1. Whether there are sufficient bases to elevate the case at bar to the Court en banc.
2. Whether the motion for reconsideration raises any new matter or cogent reason
to warrant a reconsideration of this Courts Resolution of September 24, 2003.
Motion to Elevate this Case to the
Court En Banc
The petitioner prays for the elevation of the case to the Court en banc on the following
grounds:
1. The main issue of the propriety of the bidding process involved in the present case
has been confused with the policy issue of the supposed fate of the shipping industry
which has never been an issue that is determinative of this case.10
2. The present case may be considered under the Supreme Court Resolution dated
February 23, 1984 which included among en banc cases those involving a novel

28

question of law and those where a doctrine or principle laid down by the Court en
banc or in division may be modified or reversed.11
3. There was clear executive interference in the judicial functions of the Court when
the Honorable Jose Isidro Camacho, Secretary of Finance, forwarded to Chief Justice
Davide, a memorandum dated November 5, 2001, attaching a copy of the Foreign
Chambers Report dated October 17, 2001, which matter was placed in the agenda of
the Court and noted by it in a formal resolution dated November 28, 2001.12
Opposing J.G. Summits motion to elevate the case en banc, PHILYARDS points out
the petitioners inconsistency in previously opposing PHILYARDS Motion to Refer the
Case to the Court En Banc. PHILYARDS contends that J.G. Summit should now be
estopped from asking that the case be referred to the Court en banc. PHILYARDS
further contends that the Supreme Court en banc is not an appellate court to which
decisions or resolutions of its divisions may be appealed citing Supreme Court Circular
No. 2-89 dated February 7, 1989.13 PHILYARDS also alleges that there is no novel
question of law involved in the present case as the assailed Resolution was based on
well-settled jurisprudence. Likewise, PHILYARDS stresses that the Resolution was
merely an outcome of the motions for reconsideration filed by it and the COP and APT
and is "consistent with the inherent power of courts to amend and control its process
and orders so as to make them conformable to law and justice. (Rule 135, sec. 5)"14
Private respondent belittles the petitioners allegations regarding the change in
ponente and the alleged executive interference as shown by former Secretary of
Finance Jose Isidro Camachos memorandum dated November 5, 2001 arguing that
these do not justify a referral of the present case to the Court en banc.
In insisting that its Motion to Elevate This Case to the Court En Banc should be
granted, J.G. Summit further argued that: its Opposition to the Office of the Solicitor
Generals Motion to Refer is different from its own Motion to Elevate; different
grounds are invoked by the two motions; there was unwarranted "executive
interference"; and the change in ponente is merely noted in asserting that this case
should be decided by the Court en banc.15
We find no merit in petitioners contention that the propriety of the bidding process
involved in the present case has been confused with the policy issue of the fate of
the shipping industry which, petitioner maintains, has never been an issue that is
determinative of this case. The Courts Resolution of September 24, 2003 reveals a
clear and definitive ruling on the propriety of the bidding process. In discussing
whether the right to top granted to KAWASAKI in exchange for its right of first refusal
violates the principles of competitive bidding, we made an exhaustive discourse on
the rules and principles of public bidding and whether they were complied with in the
case at bar.16 This Court categorically ruled on the petitioners argument that
29

PHILSECO, as a shipyard, is a public utility which should maintain a 60%-40%

Filipino-foreign equity ratio, as it was a pivotal issue. In doing so, we recognized the
impact of our ruling on the shipbuilding industry which was beyond avoidance.17
We reject petitioners argument that the present case may be considered under the
Supreme Court Resolution dated February 23, 1984 which included among en banc
cases those involving a novel question of law and those where a doctrine or principle
laid down by the court en banc or in division may be modified or reversed. The case
was resolved based on basic principles of the right of first refusal in commercial law
and estoppel in civil law. Contractual obligations arising from rights of first refusal
are not new in this jurisdiction and have been recognized in numerous cases.18
Estoppel is too known a civil law concept to require an elongated discussion.
Fundamental principles on public bidding were likewise used to resolve the issues
raised by the petitioner. To be sure, petitioner leans on the right to top in a public
bidding in arguing that the case at bar involves a novel issue. We are not swayed.
The right to top was merely a condition or a reservation made in the bidding rules
which was fully disclosed to all bidding parties. In Bureau Veritas, represented by
Theodor H. Hunermann v. Office of the President, et al., 19 we dealt with this
conditionality, viz:
x x x It must be stressed, as held in the case of A.C. Esguerra & Sons v. Aytona, et
al., (L-18751, 28 April 1962, 4 SCRA 1245), that in an "invitation to bid, there is a
condition imposed upon the bidders to the effect that the bidding shall be subject to
the right of the government to reject any and all bids subject to its discretion. In the
case at bar, the government has made its choice and unless an unfairness or injustice
is shown, the losing bidders have no cause to complain nor right to dispute that
choice. This is a well-settled doctrine in this jurisdiction and elsewhere."
The discretion to accept or reject a bid and award contracts is vested in the
Government agencies entrusted with that function. The discretion given to the
authorities on this matter is of such wide latitude that the Courts will not interfere
therewith, unless it is apparent that it is used as a shield to a fraudulent award
(Jalandoni v. NARRA, 108 Phil. 486 [1960]). x x x The exercise of this discretion is a
policy decision that necessitates prior inquiry, investigation, comparison, evaluation,
and deliberation. This task can best be discharged by the Government agencies
concerned, not by the Courts. The role of the Courts is to ascertain whether a branch
or instrumentality of the Government has transgressed its constitutional boundaries.
But the Courts will not interfere with executive or legislative discretion exercised
within those boundaries. Otherwise, it strays into the realm of policy decision-making.
It is only upon a clear showing of grave abuse of discretion that the Courts will set
aside the award of a contract made by a government entity. Grave abuse of discretion
30

implies a capricious, arbitrary and whimsical exercise of power (Filinvest Credit Corp.
v. Intermediate Appellate Court, No. 65935, 30 September 1988, 166 SCRA 155).
The abuse of discretion must be so patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform a duty enjoined by law, as to act at all
in contemplation of law, where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility (Litton Mills, Inc. v. Galleon Trader, Inc., et
al[.], L-40867, 26 July 1988, 163 SCRA 489).
The facts in this case do not indicate any such grave abuse of discretion on the part
of public respondents when they awarded the CISS contract to Respondent SGS. In
the "Invitation to Prequalify and Bid" (Annex "C," supra), the CISS Committee made
an express reservation of the right of the Government to "reject any or all bids or
any part thereof or waive any defects contained thereon and accept an offer most
advantageous to the Government." It is a well-settled rule that where such
reservation is made in an Invitation to Bid, the highest or lowest bidder, as the case
may be, is not entitled to an award as a matter of right (C & C Commercial Corp. v.
Menor, L-28360, 27 January 1983, 120 SCRA 112). Even the lowest Bid or any Bid
may be rejected or, in the exercise of sound discretion, the award may be made to
another than the lowest bidder (A.C. Esguerra & Sons v. Aytona, supra, citing 43 Am.
Jur., 788). (emphases supplied)1awphi1.nt
Like the condition in the Bureau Veritas case, the right to top was a condition imposed
by the government in the bidding rules which was made known to all parties. It was
a condition imposed on all bidders equally, based on the APTs exercise of its
discretion in deciding on how best to privatize the governments shares in PHILSECO.
It was not a whimsical or arbitrary condition plucked from the ether and inserted in
the bidding rules but a condition which the APT approved as the best way the
government could comply with its contractual obligations to KAWASAKI under the
JVA and its mandate of getting the most advantageous deal for the government. The
right to top had its history in the mutual right of first refusal in the JVA and was
reached by agreement of the government and KAWASAKI.
Further, there is no "executive interference" in the functions of this Court by the mere
filing of a memorandum by Secretary of Finance Jose Isidro Camacho. The
memorandum was merely "noted" to acknowledge its filing. It had no further legal
significance. Notably too, the assailed Resolution dated September 24, 2003 was
decided unanimously by the Special First Division in favor of the respondents.
Again, we emphasize that a decision or resolution of a Division is that of the Supreme
Court20 and the Court en banc is not an appellate court to which decisions or
resolutions of a Division may be appealed.21

31

For all the foregoing reasons, we find no basis to elevate this case to the Court en
banc.
Motion for Reconsideration
Three principal arguments were raised in the petitioners Motion for Reconsideration.
First, that a fair resolution of the case should be based on contract law, not on policy
considerations; the contracts do not authorize the right to top to be derived from the
right of first refusal.22 Second, that neither the right of first refusal nor the right to
top can be legally exercised by the consortium which is not the proper party granted
such right under either the JVA or the Asset Specific Bidding Rules (ASBR).23 Third,
that the maintenance of the 60%-40% relationship between the National Investment
and Development Corporation (NIDC) and KAWASAKI arises from contract and from
the Constitution because PHILSECO is a landholding corporation and need not be a
public utility to be bound by the 60%-40% constitutional limitation.24
On the other hand, private respondent PHILYARDS asserts that J.G. Summit has not
been able to show compelling reasons to warrant a reconsideration of the Decision of
the Court.25 PHILYARDS denies that the Decision is based mainly on policy
considerations and points out that it is premised on principles governing obligations
and contracts and corporate law such as the rule requiring respect for contractual
stipulations, upholding rights of first refusal, and recognizing the assignable nature
of contracts rights.26 Also, the ruling that shipyards are not public utilities relies on
established case law and fundamental rules of statutory construction. PHILYARDS
stresses that KAWASAKIs right of first refusal or even the right to top is not limited
to the 40% equity of the latter.27 On the landholding issue raised by J.G. Summit,
PHILYARDS emphasizes that this is a non-issue and even involves a question of fact.
Even assuming that this Court can take cognizance of such question of fact even
without the benefit of a trial, PHILYARDS opines that landholding by PHILSECO at the
time of the bidding is irrelevant because what is essential is that ultimately a qualified
entity would eventually hold PHILSECOs real estate properties.28 Further, given the
assignable nature of the right of first refusal, any applicable nationality restrictions,
including landholding limitations, would not affect the right of first refusal itself, but
only the manner of its exercise.29 Also, PHILYARDS argues that if this Court takes
cognizance of J.G. Summits allegations of fact regarding PHILSECOs landholding, it
must also recognize PHILYARDS assertions that PHILSECOs landholdings were sold
to another corporation.30 As regards the right of first refusal, private respondent
explains that KAWASAKIs reduced shareholdings (from 40% to 2.59%) did not
translate to a deprivation or loss of its contractually granted right of first refusal.31
Also, the bidding was valid because PHILYARDS exercised the right to top and it was
of no moment that losing bidders later joined PHILYARDS in raising the purchase
price.32
32

In cadence with the private respondent PHILYARDS, public respondents COP and APT
contend:
1. The conversion of the right of first refusal into a right to top by 5% does not violate
any provision in the JVA between NIDC and KAWASAKI.
2. PHILSECO is not a public utility and therefore not governed by the constitutional
restriction on foreign ownership.
3. The petitioner is legally estopped from assailing the validity of the proceedings of
the public bidding as it voluntarily submitted itself to the terms of the ASBR which
included the provision on the right to top.
4. The right to top was exercised by PHILYARDS as the nominee of KAWASAKI and
the fact that PHILYARDS formed a consortium to raise the required amount to
exercise the right to top the highest bid by 5% does not violate the JVA or the ASBR.
5. The 60%-40% Filipino-foreign constitutional requirement for the acquisition of
lands does not apply to PHILSECO because as admitted by petitioner itself, PHILSECO
no longer owns real property.
6. Petitioners motion to elevate the case to the Court en banc is baseless and would
only delay the termination of this case.33
In a Consolidated Comment dated March 8, 2004, J.G. Summit countered the
arguments of the public and private respondents in this wise:
1. The award by the APT of 87.67% shares of PHILSECO to PHILYARDS with losing
bidders through the exercise of a right to top, which is contrary to law and the
constitution is null and void for being violative of substantive due process and the
abuse of right provision in the Civil Code.
a. The bidders[] right to top was actually exercised by losing bidders.
b. The right to top or the right of first refusal cannot co-exist with a genuine
competitive bidding.
c. The benefits derived from the right to top were unwarranted.
2. The landholding issue has been a legitimate issue since the start of this case but
is shamelessly ignored by the respondents.
33

a. The landholding issue is not a non-issue.

b. The landholding issue does not pose questions of fact.
c. That PHILSECO owned land at the time that the right of first refusal was agreed
upon and at the time of the bidding are most relevant.
d. Whether a shipyard is a public utility is not the core issue in this case.
3. Fraud and bad faith attend the alleged conversion of an inexistent right of first
refusal to the right to top.
a. The history behind the birth of the right to top shows fraud and bad faith.
b. The right of first refusal was, indeed, "effectively useless."
4. Petitioner is not legally estopped to challenge the right to top in this case.
a. Estoppel is unavailing as it would stamp validity to an act that is prohibited by law
or against public policy.
b. Deception was patent; the right to top was an attractive nuisance.
c. The 10% bid deposit was placed in escrow.
J.G. Summits insistence that the right to top cannot be sourced from the right of first
refusal is not new and we have already ruled on the issue in our Resolution of
September 24, 2003. We upheld the mutual right of first refusal in the JVA.34 We
also ruled that nothing in the JVA prevents KAWASAKI from acquiring more than 40%
of PHILSECOs total capitalization.35 Likewise, nothing in the JVA or ASBR bars the
conversion of the right of first refusal to the right to top. In sum, nothing new and of
significance in the petitioners pleading warrants a reconsideration of our ruling.
Likewise, we already disposed of the argument that neither the right of first refusal
nor the right to top can legally be exercised by the consortium which is not the proper
party granted such right under either the JVA or the ASBR. Thus, we held:
The fact that the losing bidder, Keppel Consortium (composed of Keppel, SM Group,
Insular Life Assurance, Mitsui and ICTSI), has joined PHILYARDS in the latter's effort
to raise P2.131 billion necessary in exercising the right to top is not contrary to law,
public policy or public morals. There is nothing in the ASBR that bars the losing
34

bidders from joining either the winning bidder (should the right to top is not
exercised) or KAWASAKI/PHI (should it exercise its right to top as it did), to raise the
purchase price. The petitioner did not allege, nor was it shown by competent
evidence, that the participation of the losing bidders in the public bidding was done
with fraudulent intent. Absent any proof of fraud, the formation by [PHILYARDS] of
a consortium is legitimate in a free enterprise system. The appellate court is thus
correct in holding the petitioner estopped from questioning the validity of the transfer
of the National Government's shares in PHILSECO to respondent.36
Further, we see no inherent illegality on PHILYARDS act in seeking funding from
parties who were losing bidders. This is a purely commercial decision over which the
State should not interfere absent any legal infirmity. It is emphasized that the case
at bar involves the disposition of shares in a corporation which the government
sought to privatize. As such, the persons with whom PHILYARDS desired to enter into
business with in order to raise funds to purchase the shares are basically its business.
This is in contrast to a case involving a contract for the operation of or construction
of a government infrastructure where the identity of the buyer/bidder or financier
constitutes an important consideration. In such cases, the government would have
to take utmost precaution to protect public interest by ensuring that the parties with
which it is contracting have the ability to satisfactorily construct or operate the
infrastructure.
On the landholding issue, J.G. Summit submits that since PHILSECO is a landholding
company, KAWASAKI could exercise its right of first refusal only up to 40% of the
shares of PHILSECO due to the constitutional prohibition on landholding by
corporations with more than 40% foreign-owned equity. It further argues that since
KAWASAKI already held at least 40% equity in PHILSECO, the right of first refusal
was inutile and as such, could not subsequently be converted into the right to top.
37 Petitioner also asserts that, at present, PHILSECO continues to violate the
constitutional provision on landholdings as its shares are more than 40% foreignowned.38 PHILYARDS admits that it may have previously held land but had already
divested such landholdings.39 It contends, however, that even if PHILSECO owned
land, this would not affect the right of first refusal but only the exercise thereof. If
the land is retained, the right of first refusal, being a property right, could be assigned
to a qualified party. In the alternative, the land could be divested before the exercise
of the right of first refusal. In the case at bar, respondents assert that since the right
of first refusal was validly converted into a right to top, which was exercised not by
KAWASAKI, but by PHILYARDS which is a Filipino corporation (i.e., 60% of its shares
are owned by Filipinos), then there is no violation of the Constitution.40 At first, it
would seem that questions of fact beyond cognizance by this Court were involved in
the issue. However, the records show that PHILYARDS admits it had owned land up
until the time of the bidding.41 Hence, the only issue is whether KAWASAKI had a
35

valid right of first refusal over PHILSECO shares under the JVA considering that
PHILSECO owned land until the time of the bidding and KAWASAKI already held 40%
of PHILSECOs equity.
We uphold the validity of the mutual rights of first refusal under the JVA between
KAWASAKI and NIDC. First of all, the right of first refusal is a property right of
PHILSECO shareholders, KAWASAKI and NIDC, under the terms of their JVA. This
right allows them to purchase the shares of their co-shareholder before they are
offered to a third party. The agreement of co-shareholders to mutually grant this
right to each other, by itself, does not constitute a violation of the provisions of the
Constitution limiting land ownership to Filipinos and Filipino corporations. As
PHILYARDS correctly puts it, if PHILSECO still owns land, the right of first refusal can
be validly assigned to a qualified Filipino entity in order to maintain the 60%-40%
ratio. This transfer, by itself, does not amount to a violation of the Anti-Dummy Laws,
absent proof of any fraudulent intent. The transfer could be made either to a nominee
or such other party which the holder of the right of first refusal feels it can comfortably
do business with. Alternatively, PHILSECO may divest of its landholdings, in which
case KAWASAKI, in exercising its right of first refusal, can exceed 40% of PHILSECOs
equity. In fact, it can even be said that if the foreign shareholdings of a landholding
corporation exceeds 40%, it is not the foreign stockholders ownership of the shares
which is adversely affected but the capacity of the corporation to own land that is,
the corporation becomes disqualified to own land. This finds support under the basic
corporate law principle that the corporation and its stockholders are separate juridical
entities. In this vein, the right of first refusal over shares pertains to the shareholders
whereas the capacity to own land pertains to the corporation. Hence, the fact that
PHILSECO owns land cannot deprive stockholders of their right of first refusal. No law
disqualifies a person from purchasing shares in a landholding corporation even if the
latter will exceed the allowed foreign equity, what the law disqualifies is the
corporation from owning land. This is the clear import of the following provisions in
the Constitution:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora
and fauna, and other natural resources are owned by the State. With the exception
of agricultural lands, all other natural resources shall not be alienated. The
exploration, development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such activities,
or it may enter into co-production, joint venture, or production-sharing agreements
with Filipino citizens, or corporations or associations at least sixty per centum of
whose capital is owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law. In cases of water rights
36

for irrigation, water supply, fisheries, or industrial uses other than the development
of water power, beneficial use may be the measure and limit of the grant.
xxx xxx xxx
Section 7. Save in cases of hereditary succession, no private lands shall be
transferred or conveyed except to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain.42 (emphases supplied)
The petitioner further argues that "an option to buy land is void in itself (Philippine
Banking Corporation v. Lui She, 21 SCRA 52 [1967]). The right of first refusal granted
to KAWASAKI, a Japanese corporation, is similarly void. Hence, the right to top,
sourced from the right of first refusal, is also void."43 Contrary to the contention of
petitioner, the case of Lui She did not that say "an option to buy land is void in itself,"
for we ruled as follows:
x x x To be sure, a lease to an alien for a reasonable period is valid. So is an option
giving an alien the right to buy real property on condition that he is granted Philippine
citizenship. As this Court said in Krivenko vs. Register of Deeds:
[A]liens are not completely excluded by the Constitution from the use of lands for
residential purposes. Since their residence in the Philippines is temporary, they may
be granted temporary rights such as a lease contract which is not forbidden by the
Constitution. Should they desire to remain here forever and share our fortunes and
misfortunes, Filipino citizenship is not impossible to acquire.
But if an alien is given not only a lease of, but also an option to buy, a piece of land,
by virtue of which the Filipino owner cannot sell or otherwise dispose of his property,
this to last for 50 years, then it becomes clear that the arrangement is a virtual
transfer of ownership whereby the owner divests himself in stages not only of the
right to enjoy the land (jus possidendi, jus utendi, jus fruendi and jus abutendi) but
also of the right to dispose of it (jus disponendi) rights the sum total of which make
up ownership. It is just as if today the possession is transferred, tomorrow, the use,
the next day, the disposition, and so on, until ultimately all the rights of which
ownership is made up are consolidated in an alien. And yet this is just exactly what
the parties in this case did within this pace of one year, with the result that Justina
Santos'[s] ownership of her property was reduced to a hollow concept. If this can be
done, then the Constitutional ban against alien landholding in the Philippines, as
announced in Krivenko vs. Register of Deeds, is indeed in grave peril.44 (emphases
supplied; Citations omitted)

37

In Lui She, the option to buy was invalidated because it amounted to a virtual transfer
of ownership as the owner could not sell or dispose of his properties. The contract in
Lui She prohibited the owner of the land from selling, donating, mortgaging, or
encumbering the property during the 50-year period of the option to buy. This is not
so in the case at bar where the mutual right of first refusal in favor of NIDC and
KAWASAKI does not amount to a virtual transfer of land to a non-Filipino. In fact, the
case at bar involves a right of first refusal over shares of stock while the Lui She case
involves an option to buy the land itself. As discussed earlier, there is a distinction
between the shareholders ownership of shares and the corporations ownership of
land arising from the separate juridical personalities of the corporation and its
shareholders.
We note that in its Motion for Reconsideration, J.G. Summit alleges that PHILSECO
continues to violate the Constitution as its foreign equity is above 40% and yet owns
long-term leasehold rights which are real rights.45 It cites Article 415 of the Civil
Code which includes in the definition of immovable property, "contracts for public
works, and servitudes and other real rights over immovable property."46 Any existing
landholding, however, is denied by PHILYARDS citing its recent financial
statements.47 First, these are questions of fact, the veracity of which would require
introduction of evidence. The Court needs to validate these factual allegations based
on competent and reliable evidence. As such, the Court cannot resolve the questions
they pose. Second, J.G. Summit misreads the provisions of the Constitution cited in
its own pleadings, to wit:
29.2 Petitioner has consistently pointed out in the past that private respondent is not
a 60%-40% corporation, and this violates the Constitution x x x The violation
continues to this day because under the law, it continues to own real property
xxx xxx xxx
32. To review the constitutional provisions involved, Section 14, Article XIV of the
1973 Constitution (the JVA was signed in 1977), provided:
"Save in cases of hereditary succession, no private lands shall be transferred or
conveyed except to individuals, corporations, or associations qualified to acquire or
hold lands of the public domain."
32.1 This provision is the same as Section 7, Article XII of the 1987 Constitution.
32.2 Under the Public Land Act, corporations qualified to acquire or hold lands of the
public domain are corporations at least 60% of which is owned by Filipino citizens
(Sec. 22, Commonwealth Act 141, as amended). (emphases supplied)
38

As correctly observed by the public respondents, the prohibition in the Constitution

applies only to ownership of land.48 It does not extend to immovable or real property
as defined under Article 415 of the Civil Code. Otherwise, we would have a strange
situation where the ownership of immovable property such as trees, plants and
growing fruit attached to the land49 would be limited to Filipinos and Filipino
corporations only.
III.
WHEREFORE, in view of the foregoing, the petitioners Motion for Reconsideration is
DENIED WITH FINALITY and the decision appealed from is AFFIRMED. The Motion to
Elevate This Case to the Court En Banc is likewise DENIED for lack of merit.
SO ORDERED.

39

G.R. No. 179267

June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch
41, Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor
children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA,
Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million
Filipinos- or 93 percent of a total population of 93.3 million adhering to the
teachings of Jesus Christ.1 Yet, the admonition for husbands to love their wives as
their own bodies just as Christ loved the church and gave himself up for her2 failed
to prevent, or even to curb, the pervasiveness of violence against Filipino women.
The National Commission on the Role of Filipino Women (NCRFW) reported that, for
the years 2000-2003, "female violence comprised more than 90o/o of all forms of
abuse and violence and more than 90% of these reported cases were committed by
the women's intimate partners such as their husbands and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups,
Congress enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence
Against Women and Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other Purposes." It took effect on March 27,
2004.4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence
against women and their children (VAWC) perpetrated by women's intimate partners,
i.e, husband; former husband; or any person who has or had a sexual or dating
relationship, or with whom the woman has a common child.5 The law provides for
protection orders from the barangay and the courts to prevent the commission of
further acts of VAWC; and outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court personnel, social workers, health care
providers, and other local government officials in responding to complaints of VAWC
or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as
being violative of the equal protection and due process clauses, and an undue
delegation of judicial power to barangay officials.
40

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and
in behalf of her minor children, a verified petition6 (Civil Case No. 06-797) before the
Regional Trial Court (RTC) of Bacolod City for the issuance of a Temporary Protection
Order (TPO) against her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262.
She claimed to be a victim of physical abuse; emotional, psychological, and economic
violence as a result of marital infidelity on the part of petitioner, with threats of
deprivation of custody of her children and of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the
former was eleven years her senior. They have three (3) children, namely: Jo-Ann J.
Garcia, 17 years old, who is the natural child of petitioner but whom private
respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J.
Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life revolved
around her husband. On the other hand, petitioner, who is of Filipino-Chinese
descent, is dominant, controlling, and demands absolute obedience from his wife and
children. He forbade private respondent to pray, and deliberately isolated her from
her friends. When she took up law, and even when she was already working part time
at a law office, petitioner trivialized her ambitions and prevailed upon her to just stay
at home. He was often jealous of the fact that his attractive wife still catches the eye
of some men, at one point threatening that he would have any man eyeing her
killed.9
Things turned for the worse when petitioner took up an affair with a bank manager
of Robinson's Bank, Bacolod City, who is the godmother of one of their sons.
Petitioner admitted to the affair when private respondent confronted him about it in
2004. He even boasted to the household help about his sexual relations with said
bank manager. Petitioner told private respondent, though, that he was just using the
woman because of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent physically
and emotionally wounded. In one of their quarrels, petitioner grabbed private
respondent on both arms and shook her with such force that caused bruises and
hematoma. At another time, petitioner hit private respondent forcefully on the lips
that caused some bleeding. Petitioner sometimes turned his ire on their daughter,
Jo-Ann, who had seen the text messages he sent to his paramour and whom he
41

blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many
times. When private respondent decided to leave petitioner, Jo-Ann begged her
mother to stay for fear that if the latter leaves, petitioner would beat her up. Even
the small boys are aware of private respondent's sufferings. Their 6-year-old son said
that when he grows up, he would beat up his father because of his cruelty to private
respondent.11
All the emotional and psychological turmoil drove private respondent to the brink of
despair. On December 17, 2005, while at home, she attempted suicide by cutting her
wrist. She was found by her son bleeding on the floor. Petitioner simply fled the house
instead of taking her to the hospital. Private respondent was hospitalized for about
seven (7) days in which time petitioner never bothered to visit, nor apologized or
showed pity on her. Since then, private respondent has been undergoing therapy
almost every week and is taking anti-depressant medications.12
When private respondent informed the management of Robinson's Bank that she
intends to file charges against the bank manager, petitioner got angry with her for
jeopardizing the manager's job. He then packed his things and told private
respondent that he was leaving her for good. He even told private respondent's
mother, who lives with them in the family home, that private respondent should just
accept his extramarital affair since he is not cohabiting with his paramour and has
not sired a child with her.13
Private respondent is determined to separate from petitioner but she is afraid that he
would take her children from her and deprive her of financial support. Petitioner had
previously warned her that if she goes on a legal battle with him, she would not get
a single centavo.14
Petitioner controls the family businesses involving mostly the construction of deep
wells. He is the President of three corporations 326 Realty Holdings, Inc., Negros
Rotadrill Corporation, and J-Bros Trading Corporation of which he and private
respondent are both stockholders. In contrast to the absolute control of petitioner
over said corporations, private respondent merely draws a monthly salary of
P20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household
expenses amounting to not less than P200,000.00 a month are paid for by private
respondent through the use of credit cards, which, in turn, are paid by the same
corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros
Rotadrill Corporation, and enjoys unlimited cash advances and other benefits in
hundreds of thousands of pesos from the corporations.16 After private respondent
confronted him about the affair, petitioner forbade her to hold office at JBTC Building,
42

Mandalagan, where all the businesses of the corporations are conducted, thereby
depriving her of access to full information about said businesses. Until the filing of
the petition a quo, petitioner has not given private respondent an accounting of the
businesses the value of which she had helped raise to millions of pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence against
the private respondent and her children exists or is about to recur, the RTC issued a
TPO18 on March 24, 2006 effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal dwelling or family
home within 24 hours from receipt of the Temporary Restraining Order and if he
refuses, ordering that he be removed by police officers from the conjugal dwelling;
this order is enforceable notwithstanding that the house is under the name of 236
Realty Holdings Inc. (Republic Act No. 9262 states "regardless of ownership"), this is
to allow the Petitioner (private respondent herein) to enter the conjugal dwelling
without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or anytime
the Petitioner decides to return to the conjugal dwelling to remove things, the
Petitioner shall be assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March
2006 because of the danger that the Respondent will attempt to take her children
from her when he arrives from Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her household
help and driver from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the
Petitioner, directly or indirectly, or through other persons, or contact directly or
indirectly her children, mother and household help, nor send gifts, cards, flowers,
letters and the like. Visitation rights to the children may be subject of a modified TPO
in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK
and ordering the Philippine National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the Respondent's firearm licenses. He
43

should also be ordered to surrender any unlicensed firearms in his possession or

control.
e) To pay full financial support for the Petitioner and the children, including rental of
a house for them, and educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other cash he
received from all the corporations from 1 January 2006 up to 31 March 2006, which
himself and as President of the corporations and his Comptroller, must submit to the
Court not later than 2 April 2006. Thereafter, an accounting of all these funds shall
be reported to the court by the Comptroller, copy furnished to the Petitioner, every
15 days of the month, under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support pendente lite,
and considering the financial resources of the Respondent and his threat that if the
Petitioner sues she will not get a single centavo, the Respondent is ordered to put up
a BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient
sureties.
On April 24, 2006, upon motion19 of private respondent, the trial court issued an
amended TPO,20 effective for thirty (30) days, which included the following additional
provisions:
i) The petitioners (private respondents herein) are given the continued use of the
Nissan Patrol and the Starex Van which they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the house in
Paraaque, the continued use of the Starex van in Metro Manila, whenever they go
to Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in two
sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One
Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of
Fifty Thousand Pesos (Php 50,000.00) per month until the matter of support could
be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent ExParte Motion for Renewal of the TPO21 seeking the denial of the renewal of the TPO
44

on the grounds that it did not (1) comply with the three-day notice rule, and (2)
contain a notice of hearing. He further asked that the TPO be modified by (1)
removing one vehicle used by private respondent and returning the same to its
rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the
amount of the bond from P5,000,000.00 to a more manageable level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO
to allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject only to
the following modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other personal
belongings of Rosalie and her children to Judge Jesus Ramos, co-counsel for
Petitioner, within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the
conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours
from receipt of the Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters
to remove Respondent from the conjugal dwelling within eight (8) hours from receipt
of the Temporary Protection Order by his counsel, and that he cannot return until 48
hours after the petitioners have left, so that the petitioner Rosalie and her
representatives can remove things from the conjugal home and make an inventory
of the household furniture, equipment and other things in the conjugal home, which
shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from
receipt of the Temporary Protection Order by his counsel, otherwise be declared in
indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk
of Court within 24 hours from receipt of the Temporary Protection Order by his
counsel;
f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23

45

Claiming that petitioner continued to deprive them of financial support; failed to

faithfully comply with the TPO; and committed new acts of harassment against her
and their children, private respondent filed another application24 for the issuance of
a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc.,
of which the latter was purportedly no longer president, with the end in view of
recovering the Nissan Patrol and Starex Van used by private respondent and the
children. A writ of replevin was served upon private respondent by a group of six or
seven policemen with long firearms that scared the two small boys, Jessie Anthone
and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men allegedly
attempted to kidnap him, which incident traumatized the boy resulting in his refusal
to go back to school. On another occasion, petitioner allegedly grabbed their
daughter, Jo-Ann, by the arm and threatened her.26 The incident was reported to
the police, and Jo-Ann subsequently filed a criminal complaint against her father for
violation of R.A. 7610, also known as the "Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids
working at the conjugal home of a complaint for kidnapping and illegal detention
against private respondent. This came about after private respondent, armed with a
TPO, went to said home to get her and her children's belongings. Finding some of her
things inside a housemaid's (Sheryl Jamola) bag in the maids' room, private
respondent filed a case for qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which
reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or through
another, acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise
communicating in any form with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends, relatives, employees or
agents, from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's
three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo
Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and
46

the petitioner's other household helpers from a distance of 1,000 meters, and shall
not enter the gate of the subdivision where the Petitioners are temporarily residing,
as well as from the schools of the three children; Furthermore, that respondent shall
not contact the schools of the children directly or indirectly in any manner including,
ostensibly to pay for their tuition or other fees directly, otherwise he will have access
to the children through the schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther
PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and
Php50,000.00 for rental for the period from August 6 to September 6, 2006; and
support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount of
Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and
a Starex van with Plate No. FFD 991 and should the respondent fail to deliver said
vehicles, respondent is ordered to provide the petitioner another vehicle which is the
one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of
the conjugal assets, or those real properties in the name of Jesus Chua Garcia only
and those in which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia
and respondent have an interest in, especially the conjugal home located in No. 14,
Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which are
conjugal assets or those in which the conjugal partnership of gains of Petitioner
Rosalie J. Garcia and the respondent have an interest in and listed in Annexes "I," "I1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be
served a copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow
the transfer, sale, encumbrance or disposition of these above-cited properties to any
person, entity or corporation without the personal presence of petitioner Rosalie J.
Garcia, who shall affix her signature in the presence of the Register of Deeds, due to
the fear of petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal partnership
of gains.

47

In its Order29 dated September 26, 2006, the trial court extended the aforequoted
TPO for another ten (10) days, and gave petitioner a period of five (5) days within
which to show cause why the TPO should not be renewed, extended, or modified.
Upon petitioner's manifestation,30 however, that he has not received a copy of
private respondent's motion to modify/renew the TPO, the trial court directed in its
Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had already been issued
renewing the TPO dated August 23, 2006. The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally terminated, the
Temporary Protection Order issued on August 23, 2006 is hereby renewed and
extended for thirty (30) days and continuously extended and renewed for thirty (30)
days, after each expiration, until further orders, and subject to such modifications as
may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no longer submitted
the required comment to private respondent's motion for renewal of the TPO arguing
that it would only be an "exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court of
Appeals (CA) a petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer
for injunction and temporary restraining order, challenging (1) the constitutionality
of R.A. 9262 for being violative of the due process and the equal protection clauses,
and (2) the validity of the modified TPO issued in the civil case for being "an unwanted
product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36
(TRO) against the enforcement of the TPO, the amended TPOs and other orders
pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed36 the
petition for failure of petitioner to raise the constitutional issue in his pleadings before
the trial court in the civil case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the protection orders
issued by the trial court constituted a collateral attack on said law.

48

His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY
THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST
OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON
THE VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE
THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A.
9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE
TO THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS
INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION
OF JUDICIAL POWER TO THE BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the
constitutionality of R.A. 9262, we shall first tackle the propriety of the dismissal by
the appellate court of the petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed
by petitioner.

49

As a general rule, the question of constitutionality must be raised at the earliest

opportunity so that if not raised in the pleadings, ordinarily it may not be raised in
the trial, and if not raised in the trial court, it will not be considered on appeal.39
Courts will not anticipate a question of constitutional law in advance of the necessity
of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of
Bacolod City, petitioner argues that the Family Court has limited authority and
jurisdiction that is "inadequate to tackle the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the constitutionality of a
statute.
At the outset, it must be stressed that Family Courts are special courts, of the same
level as Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family
Courts Act of 1997," family courts have exclusive original jurisdiction to hear and
decide cases of domestic violence against women and children.42 In accordance with
said law, the Supreme Court designated from among the branches of the Regional
Trial Courts at least one Family Court in each of several key cities identified.43 To
achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides
that Regional Trial Courts designated as Family Courts shall have original and
exclusive jurisdiction over cases of VAWC defined under the latter law, viz:
SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have
original and exclusive jurisdiction over cases of violence against women and their
children under this law. In the absence of such court in the place where the offense
was committed, the case shall be filed in the Regional Trial Court where the crime or
any of its elements was committed at the option of the complainant. (Emphasis
supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed
of authority as a court of general original jurisdiction to pass upon all kinds of cases
whether civil, criminal, special proceedings, land registration, guardianship,
naturalization, admiralty or insolvency.44 It is settled that RTCs have jurisdiction to
resolve the constitutionality of a statute,45 "this authority being embraced in the
general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law."46 The Constitution
vests the power of judicial review or the power to declare the constitutionality or
validity of a law, treaty, international or executive agreement, presidential decree,
order, instruction, ordinance, or regulation not only in this Court, but in all RTCs.47
50

We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final
judgments of inferior courts in cases where such constitutionality happens to be in
issue." Section 5, Article VIII of the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A.
9262 could have been raised at the earliest opportunity in his Opposition to the
petition for protection order before the RTC of Bacolod City, which had jurisdiction to
determine the same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their
Children, lays down a new kind of procedure requiring the respondent to file an
opposition to the petition and not an answer.49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the
petition which he himself shall verify. It must be accompanied by the affidavits of
witnesses and shall show cause why a temporary or permanent protection order
should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or
third-party complaint, but any cause of action which could be the subject thereof may
be litigated in a separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim,
cross-claim and third-party complaint are to be excluded from the opposition, the
issue of constitutionality cannot likewise be raised therein. A counterclaim is defined
as any claim for money or other relief which a defending party may have against an
opposing party.50 A cross-claim, on the other hand, is any claim by one party against
51

a co-party arising out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein.51 Finally, a third-party
complaint is a claim that a defending party may, with leave of court, file against a
person not a party to the action for contribution, indemnity, subrogation or any other
relief, in respect of his opponent's claim.52 As pointed out by Justice Teresita J.
Leonardo-De Castro, the unconstitutionality of a statute is not a cause of action that
could be the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in view of the
familiar maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the case a quo
because the right of private respondent to a protection order is founded solely on the
very statute the validity of which is being attacked53 by petitioner who has sustained,
or will sustain, direct injury as a result of its enforcement. The alleged
unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid cause for the
non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not have
deterred petitioner from raising the same in his Opposition. The question relative to
the constitutionality of a statute is one of law which does not need to be supported
by evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless
allows the conduct of a hearing to determine legal issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need for further
hearing, it may issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be
presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the
form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be done in
one day, to the extent possible, within the 30-day period of the effectivity of the
temporary protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a hearing
when necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary
52

protection order issued is due to expire, the trial court may extend or renew the said
order for a period of thirty (30) days each time until final judgment is rendered. It
may likewise modify the extended or renewed temporary protection order as may be
necessary to meet the needs of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the constitutional issues, without
necessarily running afoul of the very purpose for the adoption of the rules on
summary procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition for
prohibition with prayer for injunction and temporary restraining order (CA-G.R. CEB
- SP. No. 01698). Petitioner may have proceeded upon an honest belief that if he
finds succor in a superior court, he could be granted an injunctive relief. However,
Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of a petition for
certiorari, mandamus or prohibition against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders pursuant thereto was
improper, and it effectively hindered the case from taking its normal course in an
expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is
prohibited. Moreover, if the appeal of a judgment granting permanent protection shall
not stay its enforcement,55 with more reason that a TPO, which is valid only for thirty
(30) days at a time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of
itself entitle a litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the
Supreme Court of the United States declared, thus:
Federal injunctions against state criminal statutes, either in their entirety or with
respect to their separate and distinct prohibitions, are not to be granted as a matter
of course, even if such statutes are unconstitutional. No citizen or member of the
community is immune from prosecution, in good faith, for his alleged criminal acts.
The imminence of such a prosecution even though alleged to be unauthorized and,
hence, unlawful is not alone ground for relief in equity which exerts its extraordinary
powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)
The sole objective of injunctions is to preserve the status quo until the trial court
hears fully the merits of the case. It bears stressing, however, that protection orders
are granted ex parte so as to protect women and their children from acts of violence.
To issue an injunction against such orders will defeat the very purpose of the law
against VAWC.
53

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to
determine novel issues, or issues of first impression, with far-reaching implications.
We have, time and again, discharged our solemn duty as final arbiter of constitutional
issues, and with more reason now, in view of private respondent's plea in her
Comment59 to the instant Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal
and child abuse, which could very well be committed by either the husband or the
wife, gender alone is not enough basis to deprive the husband/father of the remedies
under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became
R.A. 9262, reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better
known as Senator Loi Estrada), had originally proposed what she called a
"synthesized measure"62 an amalgamation of two measures, namely, the "AntiDomestic Violence Act" and the "Anti-Abuse of Women in Intimate Relationships
Act"63 providing protection to "all family members, leaving no one in isolation" but
at the same time giving special attention to women as the "usual victims" of violence
and abuse,64 nonetheless, it was eventually agreed that men be denied protection
under the same measure. We quote pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some
women's groups have expressed concerns and relayed these concerns to me that if
we are to include domestic violence apart from against women as well as other
members of the household, including children or the husband, they fear that this
would weaken the efforts to address domestic violence of which the main victims or
the bulk of the victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good Senator
respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves
"WIIR" Women in Intimate Relationship. They do not want to include men in this
domestic violence. But plenty of men are also being abused by women. I am playing
safe so I placed here members of the family, prescribing penalties therefor and
providing protective measures for victims. This includes the men, children, live-in,
common-law wives, and those related with the family.65
54

xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion whether to limit
this to women and not to families which was the issue of the AWIR group. The
understanding that I have is that we would be having a broader scope rather than
just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the
interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure. Do not
get me wrong. However, I believe that there is a need to protect women's rights
especially in the domestic environment.
As I said earlier, there are nameless, countless, voiceless women who have not had
the opportunity to file a case against their spouses, their live-in partners after years,
if not decade, of battery and abuse. If we broaden the scope to include even the men,
assuming they can at all be abused by the women or their spouses, then it would not
equalize the already difficult situation for women, Mr. President.
I think that the sponsor, based on our earlier conversations, concurs with this
position. I am sure that the men in this Chamber who love their women in their lives
so dearly will agree with this representation. Whether we like it or not, it is an unequal
world. Whether we like it or not, no matter how empowered the women are, we are
not given equal opportunities especially in the domestic environment where the
macho Filipino man would always feel that he is stronger, more superior to the Filipino
woman.
xxxx
The President Pro Tempore. What does the sponsor say?
55

Senator Estrada. Mr. President, before accepting this, the committee came up with
this bill because the family members have been included in this proposed measure
since the other members of the family other than women are also possible victims of
violence. While women are most likely the intended victims, one reason incidentally
why the measure focuses on women, the fact remains that in some relatively few
cases, men also stand to be victimized and that children are almost always the
helpless victims of violence. I am worried that there may not be enough protection
extended to other family members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses the special needs of
abused children. The same law is inadequate. Protection orders for one are not
available in said law.
I am aware that some groups are apprehensive about granting the same protection
to men, fearing that they may use this law to justify their abusive behavior against
women. However, we should also recognize that there are established procedures
and standards in our courts which give credence to evidentiary support and cannot
just arbitrarily and whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family relations and to protect
the family as the basic social institution. Though I recognize the unequal power
relations between men and women in our society, I believe we have an obligation to
uphold inherent rights and dignity of both husband and wife and their immediate
family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other family
members as a critical input arrived at after a series of consultations/meetings with
various NGOs, experts, sports groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator
Legarda would be removing the "men and children" in this particular bill and focus
specifically on women alone. That will be the net effect of that proposed amendment.
Hearing the rationale mentioned by the distinguished sponsor, Sen. Luisa "Loi"

56

Ejercito Estrada, I am not sure now whether she is inclined to accept the proposed
amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is going to
accept this, I will propose an amendment to the amendment rather than object to
the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the
distinguished proponent of the amendment. As a matter of fact, I tend to agree. Kung
may maaabuso, mas malamang iyong babae kaysa sa lalake. At saka iyong mga
lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I cannot agree that we
remove the children from this particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the children are very much abused. As a
matter of fact, it is not limited to minors. The abuse is not limited to seven, six, 5year-old children. I have seen 14, 15-year-old children being abused by their fathers,
even by their mothers. And it breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of children, this particular measure
will update that. It will enhance and hopefully prevent the abuse of children and not
only women.

57

SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men
in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none, the
amendment, as amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy, or
expediency of a statute.67 Hence, we dare not venture into the real motivations and
wisdom of the members of Congress in limiting the protection against violence and
abuse under R.A. 9262 to women and children only. No proper challenge on said
grounds may be entertained in this proceeding. Congress has made its choice and it
is not our prerogative to supplant this judgment. The choice may be perceived as
erroneous but even then, the remedy against it is to seek its amendment or repeal
by the legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any law.68 We only
step in when there is a violation of the Constitution. However, none was sufficiently
shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed. The oftrepeated disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union69
is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against inequality, that
every man, woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on persons merely as
such, but on persons according to the circumstances surrounding them. It guarantees
equality, not identity of rights. The Constitution does not require that things which
58

are different in fact be treated in law as though they were the same. The equal
protection clause does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it is directed or
by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the
grouping of things in speculation or practice because they agree with one another in
certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of constitutionality. All that is required
of a valid classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences; that it
must be germane to the purpose of the law; that it must not be limited to existing
conditions only; and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or distinction is based
on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is
based on a valid classification as shall hereinafter be discussed and, as such, did not
violate the equal protection clause by favoring women over men as victims of violence
and abuse to whom the State extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that women are
more likely than men to be victims of violence; and the widespread gender bias and
prejudice against women all make for real differences justifying the classification
under the law. As Justice McIntyre succinctly states, "the accommodation of
differences ... is the essence of true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National Machinery for
Gender Equality and Women's Empowerment), violence against women (VAW) is
deemed to be closely linked with the unequal power relationship between women and
men otherwise known as "gender-based violence". Societal norms and traditions
dictate people to think men are the leaders, pursuers, providers, and take on
dominant roles in society while women are nurturers, men's companions and
supporters, and take on subordinate roles in society. This perception leads to men
gaining more power over women. With power comes the need to control to retain
59

that power. And VAW is a form of men's expression of controlling women to retain
power.71
The United Nations, which has long recognized VAW as a human rights issue, passed
its Resolution 48/104 on the Declaration on Elimination of Violence Against Women
on December 20, 1993 stating that "violence against women is a manifestation of
historically unequal power relations between men and women, which have led to
domination over and discrimination against women by men and to the prevention of
the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared
with men."72
Then Chief Justice Reynato S. Puno traced the historical and social context of genderbased violence and developments in advocacies to eradicate VAW, in his remarks
delivered during the Joint Launching of R.A. 9262 and its Implementing Rules last
October 27, 2004, the pertinent portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against women.
The patriarch of a family was accorded the right to use force on members of the
family under his control. I quote the early studies:
Traditions subordinating women have a long history rooted in patriarchy the
institutional rule of men. Women were seen in virtually all societies to be naturally
inferior both physically and intellectually. In ancient Western societies, women
whether slave, concubine or wife, were under the authority of men. In law, they were
treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even kill, his
wife if she endangered his property right over her. Judaism, Christianity and other
religions oriented towards the patriarchal family strengthened the male dominated
structure of society.
English feudal law reinforced the tradition of male control over women. Even the
eminent Blackstone has been quoted in his commentaries as saying husband and
wife were one and that one was the husband. However, in the late 1500s and through
the entire 1600s, English common law began to limit the right of husbands to chastise
their wives. Thus, common law developed the rule of thumb, which allowed husbands
to beat their wives with a rod or stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights to chastise
wives or inflict corporeal punishment ceased. Even then, the preservation of the
family was given more importance than preventing violence to women.
60

The metamorphosis of the law on violence in the United States followed that of the
English common law. In 1871, the Supreme Court of Alabama became the first
appellate court to strike down the common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her
hair, choke her, spit in her face or kick her about the floor, or to inflict upon her like
indignities, is not now acknowledged by our law... In person, the wife is entitled to
the same protection of the law that the husband can invoke for himself.
As time marched on, the women's advocacy movement became more organized. The
temperance leagues initiated it. These leagues had a simple focus. They considered
the evils of alcoholism as the root cause of wife abuse. Hence, they demonstrated
and picketed saloons, bars and their husbands' other watering holes. Soon, however,
their crusade was joined by suffragette movements, expanding the liberation
movement's agenda. They fought for women's right to vote, to own property, and
more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to
the public gaze. They succeeded in transforming the issue into an important public
concern. No less than the United States Supreme Court, in 1992 case Planned
Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million women are
the victims of severe assaults by their male partners. In a 1985 survey, women
reported that nearly one of every eight husbands had assaulted their wives during
the past year. The [American Medical Association] views these figures as "marked
underestimates," because the nature of these incidents discourages women from
reporting them, and because surveys typically exclude the very poor, those who do
not speak English well, and women who are homeless or in institutions or hospitals
when the survey is conducted. According to the AMA, "researchers on family violence
agree that the true incidence of partner violence is probably double the above
estimates; or four million severely assaulted women per year."
Studies on prevalence suggest that from one-fifth to one-third of all women will be
physically assaulted by a partner or ex-partner during their lifetime... Thus on an
average day in the United States, nearly 11,000 women are severely assaulted by
their male partners. Many of these incidents involve sexual assault... In families
where wife beating takes place, moreover, child abuse is often present as well.

61

Other studies fill in the rest of this troubling picture. Physical violence is only the
most visible form of abuse. Psychological abuse, particularly forced social and
economic isolation of women, is also common.
Many victims of domestic violence remain with their abusers, perhaps because they
perceive no superior alternative...Many abused women who find temporary refuge in
shelters return to their husbands, in large part because they have no other source of
income... Returning to one's abuser can be dangerous. Recent Federal Bureau of
Investigation statistics disclose that 8.8 percent of all homicide victims in the United
States are killed by their spouses...Thirty percent of female homicide victims are
killed by their male partners.
Finally in 1994, the United States Congress enacted the Violence Against Women Act.
In the International front, the women's struggle for equality was no less successful.
The United States Charter and the Universal Declaration of Human Rights affirmed
the equality of all human beings. In 1979, the UN General Assembly adopted the
landmark Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW). In 1993, the UN General Assembly also adopted the Declaration
on the Elimination of Violence Against Women. World conferences on the role and
rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and
Beijing. The UN itself established a Commission on the Status of Women.
The Philippines has been in cadence with the half and full steps of all these
women's movements. No less than Section 14, Article II of our 1987 Constitution
mandates the State to recognize the role of women in nation building and to ensure
the fundamental equality before the law of women and men. Our Senate has ratified
the CEDAW as well as the Convention on the Rights of the Child and its two protocols.
To cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An
Act Defining Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties therefor and for other Purposes."
(Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on violence
against women and children show that
x x x physical injuries had the highest number of cases at 5,058 in 2002 representing
55.63% of total cases reported (9,903). And for the first semester of 2003, there
62

were 2,381 reported cases out of 4,354 cases which represent 54.31%. xxx (T)he
total number of women in especially difficult circumstances served by the Department
of Social Welfare and Development (DSWD) for the year 2002, there are 1,417
physically abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are
1,091 DSWD cases out of a total number of 3,471 cases for the first semester of
2003. Female violence comprised more than 90% of all forms of abuse and violence
and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners.73
Recently, the Philippine Commission on Women presented comparative statistics on
violence against women across an eight-year period from 2004 to August of 2011
with violations under R.A. 9262 ranking first among the different VAW categories
since its implementation in 2004,74 thus:
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*
Reported
Cases 2004 2005 2006
Rape 997 927 659
Incestuous Rape 38
Attempted Rape
194
Acts of
Lasciviousness
580
Physical
Injuries
3,553 2,335
Sexual
Harassment 53
37
RA 9262
218 924
Threats
319 223
Seduction
62
19
Concubinage 121 102
RA 9208
17
11
Abduction
/Kidnapping 29
16
Unjust Vexation
90
Total 6,271 5,374 4,881
*2011 report covers only

2007
837
46
148

2008
811
26
185

2009
770
22
147

2010
1,042
28
204

2011
832
27
19
167 268

23
201

536

382

358

445

485

625

745

1,892 1,505 1,307 1,498 2,018 1,588

38
1,269
199
29
93
16

46
2,387
182
30
109
24

18
3,599
220
19
109
34

54
5,285
208
19
99
152

83
9,974
374
25
158
190

34
23
28
18
25
50
59
59
83
703
5,729 6,905 9,485 15,104
from January to August

63
9,021
213
15
128
62
22
183 155
12,948

Source: Philippine National Police Women and Children Protection Center (WCPC)
On the other hand, no reliable estimates may be obtained on domestic abuse and
violence against men in the Philippines because incidents thereof are relatively low
63

and, perhaps, because many men will not even attempt to report the situation. In
the United Kingdom, 32% of women who had ever experienced domestic violence did
so four or five (or more) times, compared with 11% of the smaller number of men
who had ever experienced domestic violence; and women constituted 89% of all
those who had experienced 4 or more incidents of domestic violence.75 Statistics in
Canada show that spousal violence by a woman against a man is less likely to cause
injury than the other way around (18 percent versus 44 percent). Men, who
experience violence from their spouses are much less likely to live in fear of violence
at the hands of their spouses, and much less likely to experience sexual assault. In
fact, many cases of physical violence by a woman against a spouse are in self-defense
or the result of many years of physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and abuse perpetrated
against men in the Philippines, the same cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of animaldrawn vehicles to pick up, gather and deposit in receptacles the manure emitted or
discharged by their vehicle-drawing animals in any public highways, streets, plazas,
parks or alleys, said ordinance was challenged as violative of the guaranty of equal
protection of laws as its application is limited to owners and drivers of vehicle-drawing
animals and not to those animals, although not utilized, but similarly pass through
the same streets.
The ordinance was upheld as a valid classification for the reason that, while there
may be non-vehicle-drawing animals that also traverse the city roads, "but their
number must be negligible and their appearance therein merely occasional,
compared to the rig-drawing ones, as not to constitute a menace to the health of the
community."77 The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every classification of
persons or things for regulation by law produces inequality in some degree, but the
law is not thereby rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and sentencing, crimes
against women are often treated differently and less seriously than other crimes. This
was argued by then United States Senator Joseph R. Biden, Jr., now Vice President,
chief sponsor of the Violence Against Women Act (VAWA), in defending the civil rights
remedy as a valid exercise of the U.S. Congress' authority under the Commerce and
Equal Protection Clauses. He stressed that the widespread gender bias in the U.S.
has institutionalized historic prejudices against victims of rape or domestic violence,

64

subjecting them to "double victimization" first at the hands of the offender and then
of the legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No.
2723 that "(w)henever violence occurs in the family, the police treat it as a private
matter and advise the parties to settle the conflict themselves. Once the complainant
brings the case to the prosecutor, the latter is hesitant to file the complaint for fear
that it might later be withdrawn. This lack of response or reluctance to be involved
by the police and prosecution reinforces the escalating, recurring and often serious
nature of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases against our
women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila
for Conduct Unbecoming of a Judge. He used derogatory and irreverent language in
reference to the complainant in a petition for TPO and PPO under R.A. 9262, calling
her as "only a live-in partner" and presenting her as an "opportunist" and a "mistress"
in an "illegitimate relationship." Judge Amila even called her a "prostitute," and
accused her of being motivated by "insatiable greed" and of absconding with the
contested property.81 Such remarks betrayed Judge Amila's prejudices and lack of
gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by
biases and prejudices against women. As emphasized by the CEDAW Committee on
the Elimination of Discrimination against Women, addressing or correcting
discrimination through specific measures focused on women does not discriminate
against men.82 Petitioner's contention,83 therefore, that R.A. 9262 is discriminatory
and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves scant
consideration. As a State Party to the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and cultural patterns of conduct of men
and women, with a view to achieving the elimination of prejudices and customary
and all other practices which are based on the idea of the inferiority or the superiority
of either of the sexes or on stereotyped roles for men and women."84 Justice Puno
correctly pointed out that "(t)he paradigm shift changing the character of domestic
violence from a private affair to a public offense will require the development of a
distinct mindset on the part of the police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.

65

The distinction between men and women is germane to the purpose of R.A. 9262,
which is to address violence committed against women and children, spelled out in
its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity
of women and children and guarantees full respect for human rights. The State also
recognizes the need to protect the family and its members particularly women and
children, from violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against
women and children in keeping with the fundamental freedoms guaranteed under the
Constitution and the provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination Against Women,
Convention on the Rights of the Child and other international human rights
instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines
ratified on August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was
also ratified by the Philippines on October 6, 2003.86 This Convention mandates that
State parties shall accord to women equality with men before the law87 and shall
take all appropriate measures to eliminate discrimination against women in all
matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child
and its two protocols.89 It is, thus, bound by said Conventions and their respective
protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing conditions when
it was promulgated, but to future conditions as well, for as long as the safety and
security of women and their children are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse.
Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman who is
his wife, former wife, or against a woman with whom the person has or had a sexual
or dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in
or is likely to result in physical, sexual, psychological harm or suffering, or economic
66

abuse including threats of such acts, battery, assault, coercion, harassment or

arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a
woman or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as
a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to cause
mental or emotional suffering of the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule or humiliation, repeated
verbal abuse and marital infidelity. It includes causing or allowing the victim to
witness the physical, sexual or psychological abuse of a member of the family to
which the victim belongs, or to witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of the right to custody and/or
visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in any
legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in Article
73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use
and enjoyment of the conjugal, community or property owned in common;
3. destroying household property;
67

4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are
attributable to research that has exposed the dimensions and dynamics of battery.
The acts described here are also found in the U.N. Declaration on the Elimination of
Violence Against Women.90 Hence, the argument advanced by petitioner that the
definition of what constitutes abuse removes the difference between violent action
and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will
confuse petitioner in his defense. The acts enumerated above are easily understood
and provide adequate contrast between the innocent and the prohibited acts. They
are worded with sufficient definiteness that persons of ordinary intelligence can
understand what conduct is prohibited, and need not guess at its meaning nor differ
in its application.91 Yet, petitioner insists92 that phrases like "depriving or
threatening to deprive the woman or her child of a legal right," "solely controlling the
conjugal or common money or properties," "marital infidelity," and "causing mental
or emotional anguish" are so vague that they make every quarrel a case of spousal
abuse. However, we have stressed that the "vagueness" doctrine merely requires a
reasonable degree of certainty for the statute to be upheld not absolute precision
or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of the statute
are clearly delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out the husband
or father as the culprit. As defined above, VAWC may likewise be committed "against
a woman with whom the person has or had a sexual or dating relationship." Clearly,
the use of the gender-neutral word "person" who has or had a sexual or dating
relationship with the woman encompasses even lesbian relationships. Moreover,
while the law provides that the offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating relationship, it does not preclude
the application of the principle of conspiracy under the Revised Penal Code (RPC).
Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L.
Go-Tan, the victim, were held to be proper respondents in the case filed by the latter
upon the allegation that they and their son (Go-Tan's husband) had community of
design and purpose in tormenting her by giving her insufficient financial support;
harassing and pressuring her to be ejected from the family home; and in repeatedly
abusing her verbally, emotionally, mentally and physically.

68

R.A. 9262 is not violative of the

due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of
all protections afforded by the due process clause of the Constitution. Says he: "On
the basis of unsubstantiated allegations, and practically no opportunity to respond,
the husband is stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an inkling of what
happened."95
A protection order is an order issued to prevent further acts of violence against
women and their children, their family or household members, and to grant other
necessary reliefs. Its purpose is to safeguard the offended parties from further harm,
minimize any disruption in their daily life and facilitate the opportunity and ability to
regain control of their life.96
"The scope of reliefs in protection orders is broadened to ensure that the victim or
offended party is afforded all the remedies necessary to curtail access by a
perpetrator to the victim. This serves to safeguard the victim from greater risk of
violence; to accord the victim and any designated family or household member safety
in the family residence, and to prevent the perpetrator from committing acts that
jeopardize the employment and support of the victim. It also enables the court to
award temporary custody of minor children to protect the children from violence, to
prevent their abduction by the perpetrator and to ensure their financial support."97
The rules require that petitions for protection order be in writing, signed and verified
by the petitioner98 thereby undertaking full responsibility, criminal or civil, for every
allegation therein. Since "time is of the essence in cases of VAWC if further violence
is to be prevented,"99 the court is authorized to issue ex parte a TPO after raffle but
before notice and hearing when the life, limb or property of the victim is in jeopardy
and there is reasonable ground to believe that the order is necessary to protect the
victim from the immediate and imminent danger of VAWC or to prevent such violence,
which is about to recur.100
There need not be any fear that the judge may have no rational basis to issue an ex
parte order. The victim is required not only to verify the allegations in the petition,
but also to attach her witnesses' affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right
to due process. Just like a writ of preliminary attachment which is issued without
notice and hearing because the time in which the hearing will take could be enough
to enable the defendant to abscond or dispose of his property,102 in the same way,
69

the victim of VAWC may already have suffered harrowing experiences in the hands
of her tormentor, and possibly even death, if notice and hearing were required before
such acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting
vital public interests,103 among which is protection of women and children from
violence and threats to their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise
order that notice be immediately given to the respondent directing him to file an
opposition within five (5) days from service. Moreover, the court shall order that
notice, copies of the petition and TPO be served immediately on the respondent by
the court sheriffs. The TPOs are initially effective for thirty (30) days from service on
the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the immediate
issuance and service of the notice upon the respondent requiring him to file an
opposition to the petition within five (5) days from service. The date of the
preliminary conference and hearing on the merits shall likewise be indicated on the
notice.105
The opposition to the petition which the respondent himself shall verify, must be
accompanied by the affidavits of witnesses and shall show cause why a temporary or
permanent protection order should not be issued.106
It is clear from the foregoing rules that the respondent of a petition for protection
order should be apprised of the charges imputed to him and afforded an opportunity
to present his side. Thus, the fear of petitioner of being "stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of
seconds, without an inkling of what happened" is a mere product of an overactive
imagination. The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of one's defense. "To
be heard" does not only mean verbal arguments in court; one may be heard also
through pleadings. Where opportunity to be heard, either through oral arguments or
pleadings, is accorded, there is no denial of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent
Ex-Parte Motion for Renewal of the TPO that was granted only two days earlier on
April 24, 2006. Likewise, on May 23, 2006, petitioner filed a motion for the
modification of the TPO to allow him visitation rights to his children. Still, the trial
court in its Order dated September 26, 2006, gave him five days (5) within which to
show cause why the TPO should not be renewed or extended. Yet, he chose not to
file the required comment arguing that it would just be an "exercise in futility,"
70

conveniently forgetting that the renewal of the questioned TPO was only for a limited
period (30 days) each time, and that he could prevent the continued renewal of said
order if he can show sufficient cause therefor. Having failed to do so, petitioner may
not now be heard to complain that he was denied due process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC
case from the residence of the victim, regardless of ownership of the residence, is
virtually a "blank check" issued to the wife to claim any property as her conjugal
home.108
The wording of the pertinent rule, however, does not by any stretch of the
imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order shall include
any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the offended party,
regardless of ownership of the residence, either temporarily for the purpose of
protecting the offended party, or permanently where no property rights are violated.
If the respondent must remove personal effects from the residence, the court shall
direct a law enforcement agent to accompany the respondent to the residence,
remain there until the respondent has gathered his things and escort him from the
residence;
xxxx
Indubitably, petitioner may be removed and excluded from private respondent's
residence, regardless of ownership, only temporarily for the purpose of protecting
the latter. Such removal and exclusion may be permanent only where no property
rights are violated. How then can the private respondent just claim any property and
appropriate it for herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of
encouraging mediation and counseling, the law has done violence to the avowed
policy of the State to "protect and strengthen the family as a basic autonomous social
institution."109

71

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or
any issue thereof to a mediator. The reason behind this provision is well-explained
by the Commentary on Section 311 of the Model Code on Domestic and Family
Violence as follows:110
This section prohibits a court from ordering or referring parties to mediation in a
proceeding for an order for protection. Mediation is a process by which parties in
equivalent bargaining positions voluntarily reach consensual agreement about the
issue at hand. Violence, however, is not a subject for compromise. A process which
involves parties mediating the issue of violence implies that the victim is somehow
at fault. In addition, mediation of issues in a proceeding for an order of protection is
problematic because the petitioner is frequently unable to participate equally with
the person against whom the protection order has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial power
which, under the Constitution, is placed upon the "Supreme Court and such other
lower courts as may be established by law" and, thus, protests the delegation of
power to barangay officials to issue protection orders.111 The pertinent provision
reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay
Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay
ordering the perpetrator to desist from committing acts under Section 5 (a) and (b)
of this Act.1wphi1 A Punong Barangay who receives applications for a BPO shall
issue the protection order to the applicant on the date of filing after ex parte
determination of the basis of the application. If the Punong Barangay is unavailable
to act on the application for a BPO, the application shall be acted upon by any
available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the order
must be accompanied by an attestation by the Barangay Kagawad that the Punong
Barangay was unavailable at the time of the issuance of the BPO. BPOs shall be
effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO,
the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same
on the respondent, or direct any barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before
the Punong Barangay.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
72

whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.112 On the other hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance."113
As clearly delimited by the aforequoted provision, the BPO issued by the Punong
Barangay or, in his unavailability, by any available Barangay Kagawad, merely orders
the perpetrator to desist from (a) causing physical harm to the woman or her child;
and (2) threatening to cause the woman or her child physical harm. Such function of
the Punong Barangay is, thus, purely executive in nature, in pursuance of his duty
under the Local Government Code to "enforce all laws and ordinances," and to
"maintain public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to inquire into
the existence of certain facts and to apply the law thereto in order to determine what
his official conduct shall be and the fact that these acts may affect private rights do
not constitute an exercise of judicial powers."115
In the same manner as the public prosecutor ascertains through a preliminary inquiry
or proceeding "whether there is reasonable ground to believe that an offense has
been committed and the accused is probably guilty thereof," the Punong Barangay
must determine reasonable ground to believe that an imminent danger of violence
against the woman and her children exists or is about to recur that would necessitate
the issuance of a BPO. The preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds true with the
issuance of a BPO.
We need not even belabor the issue raised by petitioner that since barangay officials
and other law enforcement agencies are required to extend assistance to victims of
violence and abuse, it would be very unlikely that they would remain objective and
impartial, and that the chances of acquittal are nil. As already stated, assistance by
barangay officials and other law enforcement agencies is consistent with their duty
to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal breach
of, or a clear conflict with the Constitution, not merely a doubtful or argumentative
one, must be demonstrated in such a manner as to leave no doubt in the mind of the
Court. In other words, the grounds for nullity must be beyond reasonable doubt.116
In the instant case, however, no concrete evidence and convincing arguments were
73

presented by petitioner to warrant a declaration of the unconstitutionality of R.A.

9262, which is an act of Congress and signed into law by the highest officer of the
co-equal executive department. As we said in Estrada v. Sandiganbayan, 117 courts
must assume that the legislature is ever conscious of the borders and edges of its
plenary powers, and passed laws with full knowledge of the facts and for the purpose
of promoting what is right and advancing the welfare of the majority.
We reiterate here Justice Puno's observation that "the history of the women's
movement against domestic violence shows that one of its most difficult struggles
was the fight against the violence of law itself. If we keep that in mind, law will not
again be a hindrance to the struggle of women for equality but will be its
fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack
of merit.
SO ORDERED.

74

G.R. No. 171396

May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L.

ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL
REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF
NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF,
PHILIPPINE NATIONAL POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409

May 3, 2006

NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485

May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO,

AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN,
JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC
SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P.
ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA,
FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG,
Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY,
DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF
STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents.
x-------------------------------------x

75

G.R. No. 171483

May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND

SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR
UNIONS KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL
PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN,
Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL,
ARTURO LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400

May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND
DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489

May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR

M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P.
LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN
HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO,
IN HIS CAPACITY AS PNP CHIEF, Respondents.
x-------------------------------------x
G.R. No. 171424

May 3, 2006

LOREN B. LEGARDA, Petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDERIN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE
76

PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS

CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO
ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength the use of force cannot make wrongs into rights.
In this regard, the courts should be vigilant in safeguarding the constitutional rights
of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He
said: "In cases involving liberty, the scales of justice should weigh heavily against
government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak." Laws and actions that restrict fundamental rights come
to the courts "with a heavy presumption against their constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege that in
issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O.
No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion.
Petitioners contend that respondent officials of the Government, in their professed
efforts to defend and preserve democratic institutions, are actually trampling upon
the very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How
does the Constitution of a free people combine the degree of liberty, without which,
law becomes tyranny, with the degree of law, without which, liberty becomes
license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the
Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue
of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution
which states that: "The President. . . whenever it becomes necessary, . . . may call
out (the) armed forces to prevent or suppress. . .rebellion. . .," and in my capacity
as their Commander-in-Chief, do hereby command the Armed Forces of the
77

Philippines, to maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in Section 17,
Article 12 of the Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA
and the extreme Right, represented by military adventurists the historical enemies
of the democratic Philippine State who are now in a tactical alliance and engaged
in a concerted and systematic conspiracy, over a broad front, to bring down the duly
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State by obstructing
governance including hindering the growth of the economy and sabotaging the
peoples confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity
of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA
78

and the extreme Right, represented by military adventurists - the historical enemies
of the democratic Philippine State and who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging the
peoples confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity
of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a
State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested
in me under the Constitution as President of the Republic of the Philippines, and
Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation
No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress
acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the
officers and men of the AFP and PNP, to immediately carry out the necessary and

79

appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP 1017.
She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring
a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which
were issued on the basis of Proclamation No. 1017, the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain
law and order throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action as may be
necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the
acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, hereby declare that the
state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents
stated that the proximate cause behind the executive issuances was the conspiracy
among some military officers, leftist insurgents of the New Peoples Army (NPA), and
some members of the political opposition in a plot to unseat or assassinate President
Arroyo.4 They considered the aim to oust or assassinate the President and take-over
the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give full
discretionary powers to the President in determining the necessity of calling out the
armed forces. He emphasized that none of the petitioners has shown that PP 1017
was without factual bases. While he explained that it is not respondents task to state
the facts behind the questioned Proclamation, however, they are presenting the
same, narrated hereunder, for the elucidation of the issues.
80

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo
Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio,
Taguig City. In a public statement, they vowed to remain defiant and to elude arrest
at all costs. They called upon the people to "show and proclaim our displeasure at
the sham regime. Let us demonstrate our disgust, not only by going to the streets in
protest, but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle
I " which detailed plans for bombings and attacks during the Philippine Military
Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected
targets including some cabinet members and President Arroyo herself.6 Upon the
advice of her security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing
minutes of the meetings between members of the Magdalo Group and the National
Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies
of subversive documents.7 Prior to his arrest, Lt. San Juan announced through DZRH
that the "Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of
Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr. to "disavow"
any defection. The latter promptly obeyed and issued a public statement: "All SAF
units are under the effective control of responsible and trustworthy officers with
proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco, President
Cory Aquinos brother, businessmen and mid-level government officials plotted
moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine
reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official
about his groups plans if President Arroyo is ousted. Saycon also phoned a man
code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the
Armys elite Scout Ranger. Lim said "it was all systems go for the planned movement
against Arroyo."8

81

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a
huge number of soldiers would join the rallies to provide a critical mass and armed
component to the Anti-Arroyo protests to be held on February 24, 2005. According
to these two (2) officers, there was no way they could possibly stop the soldiers
because they too, were breaking the chain of command to join the forces foist to
unseat the President. However, Gen. Senga has remained faithful to his Commanderin-Chief and to the chain of command. He immediately took custody of B/Gen. Lim
and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort
Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work
within the military and the police establishments in order to forge alliances with its
members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The
Communist Party and revolutionary movement and the entire people look forward to
the possibility in the coming year of accomplishing its immediate task of bringing
down the Arroyo regime; of rendering it to weaken and unable to rule that it will not
take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front
(NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo groups within the
military and police are growing rapidly, hastened by the economic difficulties suffered
by the families of AFP officers and enlisted personnel who undertake counterinsurgency operations in the field." He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties, coalitions, plus
the groups that have been reinforcing since June 2005, it is probable that the
Presidents ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist
Party of the Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and
ensure that the chain of command remains solid and undivided. To protect the young
students from any possible trouble that might break loose on the streets, the
President suspended classes in all levels in the entire National Capital Region.

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For their part, petitioners cited the events that followed after the issuance of PP 1017
and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs
and activities related to the 20th anniversary celebration of Edsa People Power I; and
revoked the permits to hold rallies issued earlier by the local governments. Justice
Secretary Raul Gonzales stated that political rallies, which to the Presidents mind
were organized for purposes of destabilization, are cancelled.Presidential Chief of
Staff Michael Defensor announced that "warrantless arrests and take-over of
facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various
parts of Metro Manila with the intention of converging at the EDSA shrine. Those who
were already near the EDSA site were violently dispersed by huge clusters of antiriot police. The well-trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and scatter the
massed participants. The same police action was used against the protesters
marching forward to Cubao, Quezon City and to the corner of Santolan Street and
EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration
rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground
for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and
newspaper columnist. Also arrested was his companion, Ronald Llamas, president of
party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and
G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated
news stories by reporters, documents, pictures, and mock-ups of the Saturday issue.
Policemen from Camp Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the Manila Police District
were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.
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The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show
a strong presence, to tell media outlets not to connive or do anything that would
help the rebels in bringing down this government." The PNP warned that it would
take over any media organization that would not follow "standards set by the
government during the state of national emergency." Director General Lomibao
stated that "if they do not follow the standards and the standards are - if they
would contribute to instability in the government, or if they do not subscribe to what
is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover."
National Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the
events surrounding the coup attempt foiled by the government. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while
leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated
1985. Beltrans lawyer explained that the warrant, which stemmed from a case of
inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran,
however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were
told they could not be admitted because of PP 1017 and G.O. No. 5. Two members
were arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers,
identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club
in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was
arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the
custody of the House of Representatives where the "Batasan 5" decided to stay
indefinitely.

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Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017
and G.O. No. 5 were filed with this Court against the above-named respondents.
Three (3) of these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a
subterfuge to avoid the constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of the press, of speech
and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear case of
"censorship" or "prior restraint." They also claimed that the term "emergency" refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza,
and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation
of legislative powers"; "violation of freedom of expression" and "a declaration of
martial law." They alleged that President Arroyo "gravely abused her discretion in
calling out the armed forces without clear and verifiable factual basis of the possibility
of lawless violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that
PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President
Arroyo the power to enact laws and decrees; (2) their issuance was without factual
basis; and (3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 415 of
Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI,
and (d) Section 1720 of Article XII of the Constitution.

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In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is
an "arbitrary and unlawful exercise by the President of her Martial Law powers." And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued
that "it amounts to an exercise by the President of emergency powers without
congressional approval." In addition, petitioners asserted that PP 1017 "goes beyond
the nature and function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017
and G.O. No. 5 are "unconstitutional for being violative of the freedom of expression,
including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4
of the 1987 Constitution." In this regard, she stated that these issuances prevented
her from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered that: first,
the petitions should be dismissed for being moot; second,petitioners in G.R. Nos.
171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.)
and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for
petitioners to implead President Arroyo as respondent; fourth, PP 1017 has
constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right
to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the
above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483
(KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge

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b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.21 This concept rests on
the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate
source of all political authority. It confers limited powers on the national government.
x x x If the government consciously or unconsciously oversteps these limitations
there must be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the
people as expressed in the Constitution. This power the courts exercise. This is the
beginning and the end of the theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-starting
capacity."23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have
to raise a question of constitutionality; third, the constitutional question must be
raised at the earliest opportunity; and fourth, the decision of the constitutional
question must be necessary to the determination of the case itself.24
Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal
relations of parties having adverse legal interest;" a real and substantial controversy
admitting of specific relief.25 The Solicitor General refutes the existence of such
actual case or controversy, contending that the present petitions were rendered
"moot and academic" by President Arroyos issuance of PP 1021.
Such contention lacks merit.

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A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,26 so that a declaration thereon would be of no practical
use or value.27 Generally, courts decline jurisdiction over such case28 or dismiss it
on ground of mootness.29
The Court holds that President Arroyos issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners, committed illegal acts in
implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify
these alleged illegal acts? These are the vital issues that must be resolved in the
present petitions. It must be stressed that "an unconstitutional act is not a law, it
confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution;31 second, the
exceptional character of the situation and the paramount public interest is
involved;32 third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public;33 and fourth, the case is
capable of repetition yet evading review.34
All the foregoing exceptions are present here and justify this Courts assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017
and G.O. No. 5 violates the Constitution. There is no question that the issues being
raised affect the publics interest, involving as they do the peoples basic rights to
freedom of expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts, doctrines or rules.
It has the symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents contested actions are capable
of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive
Secretary.36 However, they failed to take into account the Chief Justices very
statement that an otherwise "moot" case may still be decided "provided the party
raising it in a proper case has been and/or continues to be prejudiced or damaged as
a direct result of its issuance." The present case falls right within this exception to
the mootness rule pointed out by the Chief Justice.
II- Legal Standing
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In view of the number of petitioners suing in various personalities, the Court deems
it imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given
question."37 In private suits, standing is governed by the "real-parties-in interest"
rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
amended. It provides that "every action must be prosecuted or defended in the name
of the real party in interest." Accordingly, the "real-party-in interest" is "the party
who stands to be benefited or injured by the judgment in the suit or the party entitled
to the avails of the suit."38 Succinctly put, the plaintiffs standing is based on his own
right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a "public right" in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no
differently from any other person. He could be suing as a "stranger," or in the
category of a "citizen," or taxpayer." In either case, he has to adequately show that
he is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,39 where it
was held that the plaintiff in a taxpayers suit is in a different category from the
plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure
of public funds, while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel Case v. Collins:40
"In matter of mere public right, howeverthe people are the real partiesIt is at least
the right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With
respect to taxpayers suits, Terr v. Jordan41 held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public funds
to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court
laid down the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed
in Tileston v. Ullman.43 The same Court ruled that for a private individual to invoke
the judicial power to determine the validity of an executive or legislative action, he

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must show that he has sustained a direct injury as a result of that action, and it is
not sufficient that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it
held that the person who impugns the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury
as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate,45 Manila Race Horse Trainers Association v. De la Fuente,46
Pascual v. Secretary of Public Works47 and Anti-Chinese League of the Philippines v.
Felix.48
However, being a mere procedural technicality, the requirement of locus standi may
be waived by the Court in the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan,49 where the "transcendental
importance" of the cases prompted the Court to act liberally. Such liberality was
neither a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass
upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality
to file the suit. Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic organizations
to prosecute actions involving the constitutionality or validity of laws, regulations and
rulings.51
Thus, the Court has adopted a rule that even where the petitioners have failed to
show direct injury, they have been allowed to sue under the principle of
"transcendental importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement
of the constitutional right to information and the equitable diffusion of natural
resources are matters of transcendental importance which clothe the petitioner with
locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given
the transcendental importance of the issues involved, the Court may relax the
standing requirements and allow the suit to prosper despite the lack of direct injury
to the parties seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not
file suit in their capacity as taxpayers absent a showing that "Balikatan 02-01"
involves the exercise of Congress taxing or spending powers, it reiterated its ruling
in Bagong Alyansang Makabayan v. Zamora,55that in cases of transcendental

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importance, the cases must be settled promptly and definitely and standing
requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or
that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Courts attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a
peoples organization does not give it the requisite personality to question the validity
of the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that
public funds are being misused. Nor can it sue as a concerned citizen as it does not
allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,57 the Court reiterated the "direct injury" test with respect to concerned
citizens cases involving constitutional issues. It held that "there must be a showing
that the citizen personally suffered some actual or threatened injury arising from the
alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.

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In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who
are members of Congress have standing to sue, as they claim that the Presidents
declaration of a state of rebellion is a usurpation of the emergency powers of
Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to be devoid of
standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, CachoOlivares and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from
"illegal arrest" and "unlawful search" committed by police operatives pursuant to PP
1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are
used. Moreover, it is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform,62 Basco v. Philippine Amusement and Gaming Corporation,63 and
Taada v. Tuvera,64 that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right
to peaceful assembly may be deemed sufficient to give it legal standing.
Organizations may be granted standing to assert the rights of their members.65 We
take judicial notice of the announcement by the Office of the President banning all
rallies and canceling all permits for public assemblies following the issuance of PP
1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege
any direct or potential injury which the IBP as an institution or its members may
suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated
Bar of the Philippines v. Zamora,66 the Court held that the mere invocation by the
IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true,
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is not sufficient to clothe it with standing in this case. This is too general an interest
which is shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner have locus
standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact
that she is a former Senator is of no consequence. She can no longer sue as a
legislator on the allegation that her prerogatives as a lawmaker have been impaired
by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise
aid her because there was no showing that the enforcement of these issuances
prevented her from pursuing her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is likewise of no relevance.
She has not sufficiently shown that PP 1017 will affect the proceedings or result of
her case. But considering once more the transcendental importance of the issue
involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to
the bigger question of proper exercise of judicial power. This is the underlying legal
tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the
validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount
importance to the Filipino people. To paraphrase Justice Laurel, the whole of
Philippine society now waits with bated breath the ruling of this Court on this very
critical matter. The petitions thus call for the application of the "transcendental
importance" doctrine, a relaxation of the standing requirements for the petitioners in
the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is
the doctrine that the President, during his tenure of office or actual incumbency,67
may not be sued in any civil or criminal case, and there is no need to provide for it
in the Constitution or law. It will degrade the dignity of the high office of the President,
the Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance
or distraction to enable him to fully attend to the performance of his official duties
and functions. Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the discharge of the
many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he remains

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accountable to the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary"
for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the Presidents
exercise of his Commander-in-Chief power has reached its distilled point - from the
indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the volatile
era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74
The tug-of-war always cuts across the line defining "political questions," particularly
those questions "in regard to which full discretionary authority has been delegated to
the legislative or executive branch of the government."75 Barcelon and Montenegro
were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the courts.
Lansang took the opposite view. There, the members of the Court were unanimous
in the conviction that the Court has the authority to inquire into the existence of
factual bases in order to determine their constitutional sufficiency. From the principle
of separation of powers, it shifted the focus to the system of checks and balances,
"under which the President is supreme, x x x only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which in this respect, is, in
turn, constitutionally supreme."76 In 1973, the unanimous Court of Lansang was
divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the issue
of whether the validity of the imposition of Martial Law is a political or justiciable
question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It
declared that there is a need to re-examine the latter case, ratiocinating that "in
times of war or national emergency, the President must be given absolute control for
the very life of the nation and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to
these cases at bar -- echoed a principle similar to Lansang. While the Court
considered the Presidents "calling-out" power as a discretionary power solely vested
in his wisdom, it stressed that "this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion."This ruling is mainly a
result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which
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fortifies the authority of the courts to determine in an appropriate action the validity
of the acts of the political departments. Under the new definition of judicial power,
the courts are authorized not only "to settle actual controversies involving rights
which are legally demandable and enforceable," but also "to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." The
latter part of the authority represents a broadening of judicial power to enable the
courts of justice to review what was before a forbidden territory, to wit, the discretion
of the political departments of the government.81 It speaks of judicial prerogative
not only in terms of power but also of duty.82
As to how the Court may inquire into the Presidents exercise of power, Lansang
adopted the test that "judicial inquiry can go no further than to satisfy the Court not
that the Presidents decision is correct," but that "the President did not act arbitrarily."
Thus, the standard laid down is not correctness, but arbitrariness.83 In Integrated
Bar of the Philippines, this Court further ruled that "it is incumbent upon the petitioner
to show that the Presidents decision is totally bereft of factual basis" and that if he
fails, by way of proof, to support his assertion, then "this Court cannot undertake an
independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyos exercise of the calling-out power,
by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor
Generals Consolidated Comment and Memorandum shows a detailed narration of the
events leading to the issuance of PP 1017, with supporting reports forming part of
the records. Mentioned are the escape of the Magdalo Group, their audacious threat
of the Magdalo D-Day, the defections in the military, particularly in the Philippine
Marines, and the reproving statements from the communist leaders. There was also
the Minutes of the Intelligence Report and Security Group of the Philippine Army
showing the growing alliance between the NPA and the military. Petitioners presented
nothing to refute such events. Thus, absent any contrary allegations, the Court is
convinced that the President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected
to simply fold her arms and do nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

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This case brings to fore a contentious subject -- the power of the President in times
of emergency. A glimpse at the various political theories relating to this subject
provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger
to the nation, positive law enacted by the legislature might be inadequate or even a
fatal obstacle to the promptness of action necessary to avert catastrophe. In these
situations, the Crown retained a prerogative "power to act according to discretion for
the public good, without the proscription of the law and sometimes even against
it."84 But Locke recognized that this moral restraint might not suffice to avoid abuse
of prerogative powers. Who shall judge the need for resorting to the prerogative and
how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that
"the people have no other remedy in this, as in all other cases where they have no
judge on earth, but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring
about, at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as strong as to render it
impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the
laws and suspend for a moment the sovereign authority. In such a case, there is no
doubt about the general will, and it clear that the peoples first intention is that the
State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme
magistracy" as he termed it. For him, it would more likely be cheapened by "indiscreet
use." He was unwilling to rely upon an "appeal to heaven." Instead, he relied upon a
tenure of office of prescribed duration to avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: "I am
far from condemning, in cases of extreme necessity, the assumption of absolute
power in the form of a temporary dictatorship."88

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Nicollo Machiavellis view of emergency powers, as one element in the whole scheme
of limited government, furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this chasm in democratic political
theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra
constitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects, they
will in a little while be disregarded under that pretext but for evil purposes. Thus, no
republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it.89
Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with
suitable checks and controls in time of national danger. He attempted forthrightly to
meet the problem of combining a capacious reserve of power and speed and vigor in
its application in time of emergency, with effective constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of response
to emergency by constitutional democracies, have employed the doctrine of
constitutional dictatorship.91 Frederick M. Watkins saw "no reason why absolutism
should not be used as a means for the defense of liberal institutions," provided it
"serves to protect established institutions from the danger of permanent injury in a
period of temporary emergency and is followed by a prompt return to the previous
forms of political life."92 He recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional governance: increasing
administrative powers of the executive, while at the same time "imposing limitation
upon that power."93 Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: "The period
of dictatorship must be relatively shortDictatorship should always be strictly
legitimate in characterFinal authority to determine the need for dictatorship in any
given case must never rest with the dictator himself"94 and the objective of such
an emergency dictatorship should be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a
problem of concentrating power in a government where power has consciously been
divided to cope with situations of unprecedented magnitude and gravity. There
must be a broad grant of powers, subject to equally strong limitations as to who shall
exercise such powers, when, for how long, and to what end."96 Friedrich, too, offered
criteria for judging the adequacy of any of scheme of emergency powers, to wit: "The
emergency executive must be appointed by constitutional means i.e., he must be
legitimate; he should not enjoy power to determine the existence of an emergency;
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emergency powers should be exercised under a strict time limitation; and last, the
objective of emergency action must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of emergency
powers in Great Britain, France, Weimar, Germany and the United States, reverted
to a description of a scheme of "constitutional dictatorship" as solution to the vexing
problems presented by emergency.98 Like Watkins and Friedrich, he stated a priori
the conditions of success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship should be
initiated unless it is necessary or even indispensable to the preservation of the State
and its constitutional order
2) the decision to institute a constitutional dictatorship should never be in the hands
of the man or men who will constitute the dictator
3) No government should initiate a constitutional dictatorship without making specific
provisions for its termination
4) all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements
5) no dictatorial institution should be adopted, no right invaded, no regular
procedure altered any more than is absolutely necessary for the conquest of the
particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should
never be permanent in character or effect
7) The dictatorship should be carried on by persons representative of every part of
the citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a
constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute
one should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis
for which it was instituted

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11) the termination of the crisis must be followed by a complete return as possible
to the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship99
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final responsibility
for declaring the existence or termination of an emergency, and he places great faith
in the effectiveness of congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, "the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of grave danger to the nation
is not based upon sound constitutional theory." To appraise emergency power in
terms of constitutional dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term "dictator" is used in its normal
sense (as applied to authoritarian rulers) or is employed to embrace all chief
executives administering emergency powers. However used, "constitutional
dictatorship" cannot be divorced from the implication of suspension of the processes
of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of
emergency powers, and which is consistent with the findings of this study, is that
formulated by Charles H. McIlwain. While it does not by any means necessarily
exclude some indeterminate limitations upon the substantive powers of government,
full emphasis is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in government. And
in discussing the meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling
of government by an exaggerated emphasis upon separation of powers and
substantive limitations on governmental power. He found that the really effective
checks on despotism have consisted not in the weakening of government but, but
rather in the limiting of it; between which there is a great and very significant
difference. In associating constitutionalism with "limited" as distinguished from
"weak" government, McIlwain meant government limited to the orderly procedure of
law as opposed to the processes of force. The two fundamental correlative elements
of constitutionalism for which all lovers of liberty must yet fight are the legal limits
to arbitrary power and a complete political responsibility of government to the
governed.101

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In the final analysis, the various approaches to emergency of the above political
theorists - from Locks "theory of prerogative," to Watkins doctrine of
"constitutional dictatorship" and, eventually, to McIlwains "principle of
constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice Jacksons
"balanced power structure."102 Executive, legislative, and judicial powers are
dispersed to the President, the Congress, and the Supreme Court, respectively. Each
is supreme within its own sphere. But none has the monopoly of power in times of
emergency. Each branch is given a role to serve as limitation or check upon the other.
This system does not weaken the President, it just limits his power, using the
language of McIlwain. In other words, in times of emergency, our Constitution
reasonably demands that we repose a certain amount of faith in the basic integrity
and wisdom of the Chief Executive but, at the same time, it obliges him to operate
within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They
claim that its enforcement encroached on both unprotected and protected rights
under Section 4, Article III of the Constitution and sent a "chilling effect" to the
citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing
"on their faces" statutes in free speech cases, also known under the American Law
as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all
forms of lawless violence. In United States v. Salerno,104 the US Supreme Court
held that "we have not recognized an overbreadth doctrine outside the limited
context of the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law
that "reflects legitimate state interest in maintaining comprehensive control over
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harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence,

insurrection and rebellion are considered "harmful" and "constitutionally unprotected
conduct." In Broadrick v. Oklahoma,105 it was held:
It remains a matter of no little difficulty to determine when a law may properly be
held void on its face and when such summary action is inappropriate. But the plain
import of our cases is, at the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it forbids the State to
sanction moves from pure speech toward conduct and that conduct even if
expressive falls within the scope of otherwise valid criminal laws that reflect
legitimate state interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which,
by their terms, seek to regulate only "spoken words" and again, that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct."106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free
speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to
be used "sparingly and only as a last resort," and is "generally disfavored;"107 The
reason for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court.108 A writer
and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a particular
litigant claims that a statute is unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional aspects of the law by invalidating
its improper applications on a case to case basis. Moreover, challengers to a law are
not permitted to raise the rights of third parties and can only assert their own
interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute "on its
face," not merely "as applied for" so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern with the
"chilling;" deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad laws "very existence may
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cause others not before the court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent effect on the
speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the
Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its
actual operation to petitioners, but on the assumption or prediction that its very
existence may cause others not before the Court to refrain from constitutionally
protected speech or expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever
an appropriate task for the judiciary. The combination of the relative remoteness of
the controversy, the impact on the legislative process of the relief sought, and above
all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can
be no instance when the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This,
too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds
that "a law is facially invalid if men of common intelligence must necessarily guess at
its meaning and differ as to its application."110 It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool for testing "on
their faces" statutes in free speech cases. And like overbreadth, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to show that PP 1017 is vague
in all its application. They also failed to establish that men of common intelligence
cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions,
thus:
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First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout
the Philippines, prevent or suppress all forms of lawless violence as well any act of
insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State
of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the Presidents calling-out power. In Sanlakas v.
Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that
Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or
any part thereof under martial law. Within forty-eight hours from the proclamation
of martial law or the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the Congress may, in
the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.
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The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual bases of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must promulgate
its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers.
From the most to the least benign, these are: the calling-out power, the power to
suspend the privilege of the writ of habeas corpus, and the power to declare Martial
Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the
only criterion for the exercise of the calling-out power is that "whenever it becomes
necessary," the President may call the armed forces "to prevent or suppress lawless
violence, invasion or rebellion." Are these conditions present in the instant cases? As
stated earlier, considering the circumstances then prevailing, President Arroyo found
it necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is
in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him
in suppressing lawless violence, invasion and rebellion. This involves ordinary police
action. But every act that goes beyond the Presidents calling-out power is considered
illegal or ultra vires. For this reason, a President must be careful in the exercise of
his powers. He cannot invoke a greater power when he wishes to act under a lesser
power. There lies the wisdom of our Constitution, the greater the power, the greater
are the limitations.
It is pertinent to state, however, that there is a distinction between the Presidents
authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim
a state of national emergency. While President Arroyos authority to declare a "state
of rebellion" emanates from her powers as Chief Executive, the statutory authority
cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative
Code of 1987, which provides:
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SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or

condition of public moment or interest, upon the existence of which the operation of
a specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
President Arroyos declaration of a "state of rebellion" was merely an act declaring a
status or condition of public moment or interest, a declaration allowed under Section
4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not only rely on Section
18, Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article
XII, a provision on the States extraordinary power to take over privately-owned
public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed
harmless, without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration
of Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It
is plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order, and
that, while the emergency lasts, they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more difficult the restoration of order
and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr.
Justice Vicente V. Mendoza,114 an authority in constitutional law, said that of the
three powers of the President as Commander-in-Chief, the power to declare Martial
Law poses the most severe threat to civil liberties. It is a strong medicine which
should not be resorted to lightly. It cannot be used to stifle or persecute critics of the
government. It is placed in the keeping of the President for the purpose of enabling
him to secure the people from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.

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Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no
more than a call by the President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only under a valid declaration
of Martial Law can be done. Its use for any other purpose is a perversion of its nature
and scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without
judicial warrants; (b) ban on public assemblies; (c) take-over of news media and
agencies and press censorship; and (d) issuance of Presidential Decrees, are powers
which can be exercised by the President as Commander-in-Chief only where there is
a valid declaration of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President Arroyos calling-out power for the armed
forces to assist her in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws
be faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary function of
the President is to enforce the laws as well as to formulate policies to be embodied
in existing laws. He sees to it that all laws are enforced by the officials and employees
of his department. Before assuming office, he is required to take an oath or
affirmation to the effect that as President of the Philippines, he will, among others,
"execute its laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all the armed
forces of the country,117 including the Philippine National Police118 under the
Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,
Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power
to enact laws in Congress. They assail the clause "to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me personally or upon my
direction."

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\
Petitioners contention is understandable. A reading of PP 1017 operative clause
shows that it was lifted120 from Former President Marcos Proclamation No. 1081,
which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue
of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1
of the Constitution under martial law and, in my capacity as their Commander-inChief, do hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the laws
and decrees, orders and regulations promulgated by me personally or upon my
direction.
We all know that it was PP 1081 which granted President Marcos legislative power.
Its enabling clause states: "to enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my direction." Upon the other
hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x
promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular
aspect of governmental operations in pursuance of his duties as administrative head
shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of

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a specific law or regulation is made to depend, shall be promulgated in proclamations

which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of administrative
detail or of subordinate or temporary interest which only concern a particular officer
or office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of
the departments, agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be
issued as general or special orders.
President Arroyos ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate "decrees." Legislative power is
peculiarly within the province of the Legislature. Section 1, Article VI categorically
states that "[t]he legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives." To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify President
Arroyos exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It
follows that these decrees are void and, therefore, cannot be enforced. With respect
to "laws," she cannot call the military to enforce or implement certain laws, such as
customs laws, laws governing family and property relations, laws on obligations and
contracts and the like. She can only order the military, under PP 1017, to enforce
laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
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x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby declare a state of national
emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience "to all
the laws and to all decrees x x x" but also to act pursuant to the provision of Section
17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the
State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately-owned public utility or
business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when
she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP
1017 purports to grant the President, without any authority or delegation from
Congress, to take over or direct the operation of any privately-owned public utility or
business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the
"martial law" thinking of the 1971 Constitutional Convention.122 In effect at the time
of its approval was President Marcos Letter of Instruction No. 2 dated September 22,
1972 instructing the Secretary of National Defense to take over "the management,
control and operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient
Airways . . . for the successful prosecution by the Government of its effort to contain,
solve and end the present national emergency."
Petitioners, particularly the members of the House of Representatives, claim that
President Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment
on the legislatures emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents authority to declare "a state of
national emergency" and to exercise emergency powers. To the first, as elucidated
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by the Court, Section 18, Article VII grants the President such power, hence, no
legitimate constitutional objection can be raised. But to the second, manifold
constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of
a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe,
to exercise powers necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon
the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not
only to war but also to "other national emergency." If the intention of the Framers of
our Constitution was to withhold from the President the authority to declare a "state
of national emergency" pursuant to Section 18, Article VII (calling-out power) and
grant it to Congress (like the declaration of the existence of a state of war), then the
Framers could have provided so. Clearly, they did not intend that Congress should
first authorize the President before he can declare a "state of national emergency."
The logical conclusion then is that President Arroyo could validly declare the existence
of a state of national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a different matter. This
requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions of a
constitution which relate to the same subject matter will be construed together and
considered in the light of each other.123 Considering that Section 17 of Article XII
and Section 23 of Article VI, previously quoted, relate to national emergencies, they
must be read together to determine the limitation of the exercise of emergency
powers.
Generally, Congress is the repository of emergency powers. This is evident in the
tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not reposed upon it. However,
knowing that during grave emergencies, it may not be possible or practicable for
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Congress to meet and exercise its powers, the Framers of our Constitution deemed
it wise to allow Congress to grant emergency powers to the President, subject to
certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may
prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared
by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just another
facet of the emergency powers generally reposed upon Congress. Thus, when Section
17 states that the "the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest," it refers to Congress, not the
President. Now, whether or not the President may exercise such power is dependent
on whether Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it must be
found in some provision of the Constitution. And it is not claimed that express
constitutional language grants this power to the President. The contention is that
presidential power should be implied from the aggregate of his powers under the
Constitution. Particular reliance is placed on provisions in Article II which say that
"The executive Power shall be vested in a President . . . .;" that "he shall take Care
that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of
the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the Presidents military
power as Commander-in-Chief of the Armed Forces. The Government attempts to do
so by citing a number of cases upholding broad powers in military commanders
engaged in day-to-day fighting in a theater of war. Such cases need not concern us
here. Even though "theater of war" be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-Chief of the
Armed Forces has the ultimate power as such to take possession of private property
in order to keep labor disputes from stopping production. This is a job for the nations
lawmakers, not for its military authorities.
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Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of our
Constitution, the Presidents power to see that the laws are faithfully executed refutes
the idea that he is to be a lawmaker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise and the vetoing of
laws he thinks bad. And the Constitution is neither silent nor equivocal about who
shall make laws which the President is to execute. The first section of the first article
says that "All legislative Powers herein granted shall be vested in a Congress of the
United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section
17, Article XII refers to "tsunami," "typhoon," "hurricane"and"similar occurrences."
This is a limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity, variety,
and perception.127 Emergencies, as perceived by legislature or executive in the
United Sates since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a) economic,128 b) natural disaster,129
and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions or effect.131 This is evident in the
Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of "national emergency" which
appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct
the operation of any privately owned public utility or business affected with public
interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example,
calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes
and riots?

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MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military
national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able
to convene and, therefore, unable to delegate to the President the power to take over
privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through
which extraordinary measures are exercised, remains in Congress even in times of
crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of
the separation of powers, the fact remains that the Constitution has set up this form
of government, with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino people by adopting
parliamentary government have given notice that they share the faith of other
democracy-loving peoples in this system, with all its faults, as the ideal. The point is,
under this framework of government, legislation is preserved for Congress all the
time, not excepting periods of crisis no matter how serious. Never in the history of
the United States, the basic features of whose Constitution have been copied in ours,
have specific functions of the legislative branch of enacting laws been surrendered to
another department unless we regard as legislating the carrying out of a legislative
policy according to prescribed standards; no, not even when that Republic was
fighting a total war, or when it was engaged in a life-and-death struggle to preserve
the Union. The truth is that under our concept of constitutional government, in times
of extreme perils more than in normal circumstances the various branches,
executive, legislative, and judicial, given the ability to act, are called upon to perform
the duties and discharge the responsibilities committed to them respectively."
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Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during
the emergency to temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without authority from
Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privatelyowned public utility or business affected with public interest. The President cannot
decide whether exceptional circumstances exist warranting the take over of privatelyowned public utility or business affected with public interest. Nor can he determine
when such exceptional circumstances have ceased. Likewise, without legislation, the
President has no power to point out the types of businesses affected with public
interest that should be taken over. In short, the President has no absolute authority
to exercise all the powers of the State under Section 17, Article VII in the absence of
an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security,
is that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are
curtailed and trampled upon. Here, the right against unreasonable search and
seizure; the right against warrantless arrest; and the freedom of speech, of
expression, of the press, and of assembly under the Bill of Rights suffered the
greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006,
they were arrested without warrants on their way to EDSA to celebrate the 20th
Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the
arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives "raided and ransacked
without warrant" their office. Three policemen were assigned to guard their office as
a possible "source of destabilization." Again, the basis was PP 1017.

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And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were "turned away and dispersed" when they went to EDSA and later, to
Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that
they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general, does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although
they may be abused and misabused135 and may afford an opportunity for abuse in
the manner of application.136 The validity of a statute or ordinance is to be
determined from its general purpose and its efficiency to accomplish the end desired,
not from its effects in a particular case.137 PP 1017 is merely an invocation of the
Presidents calling-out power. Its general purpose is to command the AFP to suppress
all forms of lawless violence, invasion or rebellion. It had accomplished the end
desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP
1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or
violate the citizens constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that
its implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the
exercise of power, and not a mere incidental result arising from its exertion.138 This
is logical. Just imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted arbitrarily.
If this were so, judging from the blunders committed by policemen in the cases
passed upon by the Court, majority of the provisions of the Revised Penal Code would
have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017.
General orders are "acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines." They are internal rules
issued by the executive officer to his subordinates precisely for the proper and
efficient administration of law. Such rules and regulations create no relation except
between the official who issues them and the official who receives them.139 They
are based on and are the product of, a relationship in which power is their source,
and obedience, their object.140 For these reasons, one requirement for these rules
to be valid is that they must be reasonable, not arbitrary or capricious.

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G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary
and appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or
rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of
terrorism" confronts not only our country, but the international community as well.
The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism"
has become one of the basic slogans when it comes to the justification of the use of
force against certain states and against groups operating internationally. Lists of
states "sponsoring terrorism" and of terrorist organizations are set up and constantly
being updated according to criteria that are not always known to the public, but are
clearly determined by strategic interests.
The basic problem underlying all these military actions or threats of the use of force
as the most recent by the United States against Iraq consists in the absence of an
agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence
either by states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One countrys terrorist is another
countrys freedom fighter." The apparent contradiction or lack of consistency in the
use of the term "terrorism" may further be demonstrated by the historical fact that
leaders of national liberation movements such as Nelson Mandela in South Africa,
Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few,
were originally labeled as terrorists by those who controlled the territory at the time,
but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts the differentia specifica
distinguishing those acts from eventually legitimate acts of national resistance or
self-defense?
Since the times of the Cold War the United Nations Organization has been trying in
vain to reach a consensus on the basic issue of definition. The organization has
intensified its efforts recently, but has been unable to bridge the gap between those
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who associate "terrorism" with any violent act by non-state groups against civilians,
state functionaries or infrastructure or military installations, and those who believe
in the concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious groups within
a state is concerned.
The dilemma facing the international community can best be illustrated by reference
to the contradicting categorization of organizations and movements such as Palestine
Liberation Organization (PLO) which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims the Kashmiri resistance groups who are
terrorists in the perception of India, liberation fighters in that of Pakistan the earlier
Contras in Nicaragua freedom fighters for the United States, terrorists for the
Socialist camp or, most drastically, the Afghani Mujahedeen (later to become the
Taliban movement): during the Cold War period they were a group of freedom
fighters for the West, nurtured by the United States, and a terrorist gang for the
Soviet Union. One could go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way because of opposing political
interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis,
the basic reason for these striking inconsistencies lies in the divergent interest of
states. Depending on whether a state is in the position of an occupying power or in
that of a rival, or adversary, of an occupying power in a given territory, the definition
of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector
of the rights of a certain ethnic group outside its territory and will therefore speak of
a "liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition
of terrorism exactly because of these conflicting interests of sovereign states that
determine in each and every instance how a particular armed movement (i.e. a nonstate actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A "policy
of double standards" on this vital issue of international affairs has been the
unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states
and not of peoples, in spite of the emphasis in the Preamble to the United Nations
Charter! has become even more serious in the present global power constellation:
one superpower exercises the decisive role in the Security Council, former great
powers of the Cold War era as well as medium powers are increasingly being

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marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and oppression
on the part of the police or military. An illustration is when a group of persons are
merely engaged in a drinking spree. Yet the military or the police may consider the
act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5.
Obviously, this is abuse and oppression on their part. It must be remembered that
an act can only be considered a crime if there is a law defining the same as such and
imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No.
1835 dated January 16, 1981 enacted by President Marcos during the Martial Law
regime. This decree is entitled "Codifying The Various Laws on Anti-Subversion and
Increasing The Penalties for Membership in Subversive Organizations." The word
"terrorism" is mentioned in the following provision: "That one who conspires with any
other person for the purpose of overthrowing the Government of the Philippines x x
x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2)
laws, however, do not define "acts of terrorism." Since there is no law defining "acts
of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion
to determine what acts constitute terrorism. Her judgment on this aspect is absolute,
without restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings unfriendly to the
administration. All these can be effected in the name of G.O. No. 5. These acts go far
beyond the calling-out power of the President. Certainly, they violate the due process
clause of the Constitution. Thus, this Court declares that the "acts of terrorism"
portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to
commit acts beyond what are necessary and appropriate to suppress and prevent
lawless violence, the limitation of their authority in pursuing the Order. Otherwise,
such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant of
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arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and
the persons or things to be seized."142 The plain import of the language of the
Constitution is that searches, seizures and arrests are normally unreasonable unless
authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and police
must stand the protective authority of a magistrate clothed with power to issue or
refuse to issue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are established:
first, he was arrested without warrant; second, the PNP operatives arrested him on
the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he
was fingerprinted, photographed and booked like a criminal suspect; fourth,he was
treated brusquely by policemen who "held his head and tried to push him" inside an
unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880145 and Inciting to Sedition; sixth, he was detained for seven (7) hours; and
seventh,he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner Davids
warrantless arrest. During the inquest for the charges of inciting to sedition and
violation of BP 880, all that the arresting officers could invoke was their observation
that some rallyists were wearing t-shirts with the invective "Oust Gloria Now" and
their erroneous assumption that petitioner David was the leader of the rally.146
Consequently, the Inquest Prosecutor ordered his immediate release on the ground
of insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge him
with inciting to sedition. Further, he also stated that there is insufficient evidence for
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the charge of violation of BP 880 as it was not even known whether petitioner David
was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was their
right against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of freedom
of expression, this right is not to be limited, much less denied, except on a showing
of a clear and present danger of a substantive evil that Congress has a right to
prevent. In other words, like other rights embraced in the freedom of expression, the
right to assemble is not subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization from the government
authorities except, of course, if the assembly is intended to be held in a public place,
a permit for the use of such place, and not for the assembly itself, may be validly
required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime,
neither was there a showing of a clear and present danger that warranted the
limitation of that right. As can be gleaned from circumstances, the charges of inciting
to sedition and violation of BP 880 were mere afterthought. Even the Solicitor
General, during the oral argument, failed to justify the arresting officers conduct. In
De Jonge v. Oregon,148 it was held that peaceable assembly cannot be made a crime,
thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The question,
if the rights of free speech and peaceful assembly are not to be preserved, is not as
to the auspices under which the meeting was held but as to its purpose; not as to
the relations of the speakers, but whether their utterances transcend the bounds of
the freedom of speech which the Constitution protects. If the persons assembling
have committed crimes elsewhere, if they have formed or are engaged in a
conspiracy against the public peace and order, they may be prosecuted for their
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conspiracy or other violations of valid laws. But it is a different matter when the State,
instead of prosecuting them for such offenses, seizes upon mere participation in a
peaceable assembly and a lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently,
their dispersal was done merely on the basis of Malacaangs directive canceling all
permits previously issued by local government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the principle that "freedom
of assembly is not to be limited, much less denied, except on a showing of a clear
and present danger of a substantive evil that the State has a right to prevent."149
Tolerance is the rule and limitation is the exception. Only upon a showing that an
assembly presents a clear and present danger that the State may deny the citizens
right to exercise it. Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or rebellion. With
the blanket revocation of permits, the distinction between protected and unprotected
assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged
with the local government units. They have the power to issue permits and to revoke
such permits after due notice and hearing on the determination of the presence of
clear and present danger. Here, petitioners were not even notified and heard on the
revocation of their permits.150 The first time they learned of it was at the time of
the dispersal. Such absence of notice is a fatal defect. When a persons right is
restricted by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of
speech i.e., the freedom of the press. Petitioners narration of facts, which the
Solicitor General failed to refute, established the following: first, the Daily Tribunes
offices were searched without warrant;second, the police operatives seized several
materials for publication; third, the search was conducted at about 1:00 o clock in
the morning of February 25, 2006; fourth, the search was conducted in the absence
of any official of the Daily Tribune except the security guard of the building; and fifth,
policemen stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of
Staff Michael Defensor was quoted as saying that such raid was "meant to show a
strong presence, to tell media outlets not to connive or do anything that would help
the rebels in bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards and the standards are if they would
contribute to instability in the government, or if they do not subscribe to what is in
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General Order No. 5 and Proc. No. 1017 we will recommend a takeover." National
Telecommunications Commissioner Ronald Solis urged television and radio networks
to "cooperate" with the government for the duration of the state of national
emergency. He warned that his agency will not hesitate to recommend the closure of
any broadcast outfit that violates rules set out for media coverage during times when
the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down
the steps in the conduct of search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce. Section 8 mandates that the
search of a house, room, or any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in the
daytime, unless the property is on the person or in the place ordered to be searched,
in which case a direction may be inserted that it be served at any time of the day or
night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners freedom of the press. The best gauge
of a free and democratic society rests in the degree of freedom enjoyed by its media.
In the Burgos v. Chief of Staff152 this Court held that -As heretofore stated, the premises searched were the business and printing offices
of the "Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the
freedom of the press guaranteed under the fundamental law, and constitutes a virtual
denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant
press is essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded their enforcement duties. The search and
seizure of materials for publication, the stationing of policemen in the vicinity of the
The Daily Tribune offices, and the arrogant warning of government officials to media,
are plain censorship. It is that officious functionary of the repressive government who
tells the citizen that he may speak only if allowed to do so, and no more and no less
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than what he is permitted to say on pain of punishment should he be so rash as to

disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary
intrusions because of its anti-government sentiments. This Court cannot tolerate the
blatant disregard of a constitutional right even if it involves the most defiant of our
citizens. Freedom to comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments thereon.
The motto should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the Tribunes offices and the seizure of its materials for publication and
other papers are illegal; and that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted that
the policemen were able to get the clippings. Is that not in admission of the
admissibility of these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know,
Your Honor, and these are inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to do
is to get those past issues. So why do you have to go there at 1 oclock in the morning
and without any search warrant? Did they become suddenly part of the evidence of
rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law, and
it is not based on Proclamation 1017.
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SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017
which says that the police could go and inspect and gather clippings from Daily
Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature
to say this, we do not condone this. If the people who have been injured by this
would want to sue them, they can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were, according
to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts
committed on the occasion of 1017, as I said, it cannot be condoned. You cannot
blame the President for, as you said, a misapplication of the law. These are acts of
the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and "should result in no constitutional or statutory breaches if applied
according to their letter."
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The Court has passed upon the constitutionality of these issuances. Its ratiocination
has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is
limited to the calling out by the President of the military to prevent or suppress
lawless violence, invasion or rebellion. When in implementing its provisions, pursuant
to G.O. No. 5, the military and the police committed acts which violate the citizens
rights under the Constitution, this Court has to declare such acts unconstitutional and
illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached
hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event
would have normally rendered this case moot and academic. However, while PP
1017 was still operative, illegal acts were committed allegedly in pursuance thereof.
Besides, there is no guarantee that PP 1017, or one similar to it, may not again be
issued. Already, there have been media reports on April 30, 2006 that allegedly PP
1017 would be reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not be
"evaded;" they must now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article VII of the Constitution and the
relevant jurisprudence discussed earlier. However, PP 1017s extraneous provisions
giving the President express or implied power (1) to issue decrees; (2) to direct the
AFP to enforce obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards on media
or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President,
in the absence of a legislation, cannot take over privately-owned public utility and
private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President acting as Commander-in-Chief addressed to subalterns in the AFP to
carry out the provisions of PP 1017. Significantly, it also provides a valid standard
that the military and the police should take only the "necessary and appropriate
actions and measures to suppress and prevent acts of lawless violence."But the words
"acts of terrorism" found in G.O. No. 5 have not been legally defined and made
punishable by Congress and should thus be deemed deleted from the said G.O. While
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"terrorism" has been denounced generally in media, no law has been enacted to guide
the military, and eventually the courts, to determine the limits of the AFPs authority
in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald
Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLUKMU members; (3) the imposition of standards on media or any prior restraint on
the press; and (4) the warrantless search of the Tribune offices and the whimsical
seizures of some articles for publication and other materials, are not authorized by
the Constitution, the law and jurisprudence. Not even by the valid provisions of PP
1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal
or administrative sanctions on the individual police officers concerned. They have not
been individually identified and given their day in court. The civil complaints or causes
of action and/or relevant criminal Informations have not been presented before this
Court. Elementary due process bars this Court from making any specific
pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil
rights are ends in themselves. How to give the military the power it needs to protect
the Republic without unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency, governmental action may
vary in breadth and intensity from normal times, yet they should not be arbitrary as
to unduly restrain our peoples liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the
various competing political philosophies is that, it is possible to grant government the
authority to cope with crises without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary power, and political
responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria MacapagalArroyo on the AFP to prevent or suppress lawless violence. However, the provisions
of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as
well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In
addition, the provision in PP 1017 declaring national emergency under Section 17,
Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not
authorize the President to take over privately-owned public utility or business
affected with public interest without prior legislation.
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G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate
actions and measures to suppress and prevent acts of lawless violence." Considering
that "acts of terrorism" have not yet been defined and made punishable by the
Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless
violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search
of the Tribune offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.

127

DEPARTMENT OF AGRARIAN G.R. No. 162070

REFORM, represented by SECRETARY
JOSE MARI B. PONCE (OIC), Present:
Petitioner, Davide, C.J.,
Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
- versus - Austria-Martinez,
Corona,
Carpio Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario and
Garcia, JJ.
DELIA T. SUTTON, ELLA T.
SUTTON-SOLIMAN and Promulgated:
HARRY T. SUTTON,
Respondents. October 19, 2005
x-----------------------------------x

DECISION

PUNO, J.:

This is a petition for review filed by the Department of Agrarian Reform (DAR) of the
Decision and Resolution of the Court of Appeals, dated September 19, 2003 and
February 4, 2004, respectively, which declared DAR Administrative Order (A.O.) No.
9, series of 1993, null and void for being violative of the Constitution.
The case at bar involves a land in Aroroy, Masbate, inherited by respondents which
has been devoted exclusively to cow and calf breeding. On October 26, 1987,
pursuant to the then existing agrarian reform program of the government,
respondents made a voluntary offer to sell (VOS)[1] their landholdings to petitioner
DAR to avail of certain incentives under the law.

128

On June 10, 1988, a new agrarian law, Republic Act (R.A.) No. 6657, also known as
the Comprehensive Agrarian Reform Law (CARL) of 1988, took effect. It included in
its coverage farms used for raising livestock, poultry and swine.
On December 4, 1990, in an en banc decision in the case of Luz Farms v. Secretary
of DAR,[2] this Court ruled that lands devoted to livestock and poultry-raising are
not included in the definition of agricultural land. Hence, we declared as
unconstitutional certain provisions of the CARL insofar as they included livestock
farms in the coverage of agrarian reform.
In view of the Luz Farms ruling, respondents filed with petitioner DAR a formal
request to withdraw their VOS as their landholding was devoted exclusively to cattleraising and thus exempted from the coverage of the CARL.[3]
On December 21, 1992, the Municipal Agrarian Reform Officer of Aroroy, Masbate,
inspected respondents land and found that it was devoted solely to cattle-raising and
breeding. He recommended to the DAR Secretary that it be exempted from the
coverage of the CARL.
On April 27, 1993, respondents reiterated to petitioner DAR the withdrawal of their
VOS and requested the return of the supporting papers they submitted in connection
therewith.[4] Petitioner ignored their request.
On December 27, 1993, DAR issued A.O. No. 9, series of 1993,[5] which provided
that only portions of private agricultural lands used for the raising of livestock, poultry
and swine as of June 15, 1988 shall be excluded from the coverage of the CARL. In
determining the area of land to be excluded, the A.O. fixed the following retention
limits, viz: 1:1 animal-land ratio (i.e., 1 hectare of land per 1 head of animal shall be
retained by the landowner), and a ratio of 1.7815 hectares for livestock infrastructure
for every 21 heads of cattle shall likewise be excluded from the operations of the
CARL.
On February 4, 1994, respondents wrote the DAR Secretary and advised him to
consider as final and irrevocable the withdrawal of their VOS as, under the Luz Farms
doctrine, their entire landholding is exempted from the CARL.[6]
On September 14, 1995, then DAR Secretary Ernesto D. Garilao issued an Order[7]
partially granting the application of respondents for exemption from the coverage of
CARL. Applying the retention limits outlined in the DAR A.O. No. 9, petitioner
exempted 1,209 hectares of respondents land for grazing purposes, and a maximum
of 102.5635 hectares for infrastructure. Petitioner ordered the rest of respondents
landholding to be segregated and placed under Compulsory Acquisition.

129

Respondents moved for reconsideration. They contend that their entire landholding
should be exempted as it is devoted exclusively to cattle-raising. Their motion was
denied.[8] They filed a notice of appeal[9] with the Office of the President assailing:
(1) the reasonableness and validity of DAR A.O. No. 9, s. 1993, which provided for a
ratio between land and livestock in determining the land area qualified for exclusion
from the CARL, and (2) the constitutionality of DAR A.O. No. 9, s. 1993, in view of
the Luz Farms case which declared cattle-raising lands excluded from the coverage
of agrarian reform.
On October 9, 2001, the Office of the President affirmed the impugned Order of
petitioner DAR.[10] It ruled that DAR A.O. No. 9, s. 1993, does not run counter to
the Luz Farms case as the A.O. provided the guidelines to determine whether a
certain parcel of land is being used for cattle-raising. However, the issue on the
constitutionality of the assailed A.O. was left for the determination of the courts as
the sole arbiters of such issue.
On appeal, the Court of Appeals ruled in favor of the respondents. It declared DAR
A.O. No. 9, s. 1993, void for being contrary to the intent of the 1987 Constitutional
Commission to exclude livestock farms from the land reform program of the
government. The dispositive portion reads:
WHEREFORE, premises considered, DAR Administrative Order No. 09, Series of 1993
is hereby DECLARED null and void. The assailed order of the Office of the President
dated 09 October 2001 in so far as it affirmed the Department of Agrarian Reforms
ruling that petitioners landholding is covered by the agrarian reform program of the
government is REVERSED and SET ASIDE.
SO ORDERED.[11]
Hence, this petition.
The main issue in the case at bar is the constitutionality of DAR A.O. No. 9, series of
1993, which prescribes a maximum retention limit for owners of lands devoted to
livestock raising.
Invoking its rule-making power under Section 49 of the CARL, petitioner submits that
it issued DAR A.O. No. 9 to limit the area of livestock farm that may be retained by
a landowner pursuant to its mandate to place all public and private agricultural lands
under the coverage of agrarian reform. Petitioner also contends that the A.O. seeks
to remedy reports that some unscrupulous landowners have converted their
agricultural farms to livestock farms in order to evade their coverage in the agrarian
reform program.
Petitioners arguments fail to impress.
Administrative agencies are endowed with powers legislative in nature, i.e., the
power to make rules and regulations. They have been granted by Congress with the
130

authority to issue rules to regulate the implementation of a law entrusted to them.

Delegated rule-making has become a practical necessity in modern governance due
to the increasing complexity and variety of public functions. However, while
administrative rules and regulations have the force and effect of law, they are not
immune from judicial review.[12] They may be properly challenged before the courts
to ensure that they do not violate the Constitution and no grave abuse of
administrative discretion is committed by the administrative body concerned.
The fundamental rule in administrative law is that, to be valid, administrative rules
and regulations must be issued by authority of a law and must not contravene the
provisions of the Constitution.[13] The rule-making power of an administrative
agency may not be used to abridge the authority given to it by Congress or by the
Constitution. Nor can it be used to enlarge the power of the administrative agency
beyond the scope intended. Constitutional and statutory provisions control with
respect to what rules and regulations may be promulgated by administrative agencies
and the scope of their regulations.[14]
In the case at bar, we find that the impugned A.O. is invalid as it contravenes the
Constitution. The A.O. sought to regulate livestock farms by including them in the
coverage of agrarian reform and prescribing a maximum retention limit for their
ownership. However, the deliberations of the 1987 Constitutional Commission show
a clear intent to exclude, inter alia, all lands exclusively devoted to livestock, swine
and poultry- raising. The Court clarified in the Luz Farms case that livestock, swine
and poultry-raising are industrial activities and do not fall within the definition of
agriculture or agricultural activity. The raising of livestock, swine and poultry is
different from crop or tree farming. It is an industrial, not an agricultural, activity. A
great portion of the investment in this enterprise is in the form of industrial fixed
assets, such as: animal housing structures and facilities, drainage, waterers and
blowers, feedmill with grinders, mixers, conveyors, exhausts and generators,
extensive warehousing facilities for feeds and other supplies, anti-pollution
equipment like bio-gas and digester plants augmented by lagoons and concrete
ponds, deepwells, elevated water tanks, pumphouses, sprayers, and other
technological appurtenances.[15]
Clearly, petitioner DAR has no power to regulate livestock farms which have been
exempted by the Constitution from the coverage of agrarian reform. It has exceeded
its power in issuing the assailed A.O.
The subsequent case of Natalia Realty, Inc. v. DAR[16] reiterated our ruling in the
Luz Farms case. In Natalia Realty, the Court held that industrial, commercial and
residential lands are not covered by the CARL.[17] We stressed anew that while
Section 4 of R.A. No. 6657 provides that the CARL shall cover all public and private
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agricultural lands, the term agricultural land does not include lands classified as
mineral, forest, residential, commercial or industrial. Thus, in Natalia Realty, even
portions of the Antipolo Hills Subdivision, which are arable yet still undeveloped, could
not be considered as agricultural lands subject to agrarian reform as these lots were
already classified as residential lands.
A similar logical deduction should be followed in the case at bar. Lands devoted to
raising of livestock, poultry and swine have been classified as industrial, not
agricultural, lands and thus exempt from agrarian reform. Petitioner DAR argues that,
in issuing the impugned A.O., it was seeking to address the reports it has received
that some unscrupulous landowners have been converting their agricultural lands to
livestock farms to avoid their coverage by the agrarian reform. Again, we find neither
merit nor logic in this contention. The undesirable scenario which petitioner seeks to
prevent with the issuance of the A.O. clearly does not apply in this case. Respondents
family acquired their landholdings as early as 1948. They have long been in the
business of breeding cattle in Masbate which is popularly known as the cattlebreeding capital of the Philippines.[18] Petitioner DAR does not dispute this fact.
Indeed, there is no evidence on record that respondents have just recently engaged
in or converted to the business of breeding cattle after the enactment of the CARL
that may lead one to suspect that respondents intended to evade its coverage. It
must be stressed that what the CARL prohibits is the conversion of agricultural lands
for non-agricultural purposes after the effectivity of the CARL. There has been no
change of business interest in the case of respondents.
Moreover, it is a fundamental rule of statutory construction that the reenactment of
a statute by Congress without substantial change is an implied legislative approval
and adoption of the previous law. On the other hand, by making a new law, Congress
seeks to supersede an earlier one.[19] In the case at bar, after the passage of the
1988 CARL, Congress enacted R.A. No. 7881[20] which amended certain provisions
of the CARL. Specifically, the new law changed the definition of the terms agricultural
activity and commercial farming by dropping from its coverage lands that are devoted
to commercial livestock, poultry and swine-raising.[21] With this significant
modification, Congress clearly sought to align the provisions of our agrarian laws with
the intent of the 1987 Constitutional Commission to exclude livestock farms from the
coverage of agrarian reform.
In sum, it is doctrinal that rules of administrative bodies must be in harmony with
the provisions of the Constitution. They cannot amend or extend the Constitution. To
be valid, they must conform to and be consistent with the Constitution. In case of
conflict between an administrative order and the provisions of the Constitution, the
latter prevails.[22] The assailed A.O. of petitioner DAR was properly stricken down

132

as unconstitutional as it enlarges the coverage of agrarian reform beyond the scope

intended by the 1987 Constitution.
IN VIEW WHEREOF, the petition is DISMISSED. The assailed Decision and Resolution
of the Court of Appeals, dated September 19, 2003 and February 4, 2004,
respectively, are AFFIRMED. No pronouncement as to costs.
SO ORDERED.

133

G.R. No. 109835

November 22, 1993

JMM PROMOTIONS & MANAGEMENT, INC., petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and ULPIANO L. DE LOS SANTOS,
respondent.
Don P. Porciuncula for petitioner.
Eulogio Nones, Jr. for private respondent.

CRUZ, J.:
The sole issue submitted in this case is the validity of the order of respondent National
Labor Relations Commission dated October 30, 1992, dismissing the petitioner's
appeal from a decision of the Philippine Overseas Employment Administration on the
ground of failure to post the required appeal bond. 1
The respondent cited the second paragraph of Article 223 of the Labor Code as
amended, providing that:
In the case of a judgment involving a monetary award, an appeal by the employer
may be perfected only upon the posting of a cash or surety bond issued by a reputable
bonding company duly accredited by the Commission in an amount equivalent to the
monetary award in the judgment appealed from.
and Rule VI, Section 6 of the new Rules of Procedure of the NLRC, as amended,
reading as follows:
Sec. 6.
Bond In case the decision of a Labor Arbiter involves a monetary
award, an appeal by the employer shall be perfected only upon the posting of a cash
or surety bond issued by a reputable bonding company duly accredited by the
Commission or the Supreme Court in an amount equivalent to the monetary award.
The petitioner contends that the NLRC committed grave abuse of discretion in
applying these rules to decisions rendered by the POEA. It insists that the appeal
bond is not necessary in the case of licensed recruiters for overseas employment
because they are already required under Section 4, Rule II, Book II of the POEA Rules
not only to pay a license fee of P30,000 but also to post a cash bond of P100,000 and
a surety bond of P50,000, thus:
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Upon approval of the application, the applicant shall pay a license fee of P30,000. It
shall also post a cash bond of P100,000 and surety bond of P50,000 from a bonding
company acceptable to the Administration and duly accredited by the Insurance
Commission. The bonds shall answer for all valid and legal claims arising from
violations of the conditions for the grant and use of the license, and/or accreditation
and contracts of employment. The bonds shall likewise guarantee compliance with
the provisions of the Code and its implementing rules and regulations relating to
recruitment and placement, the Rules of the Administration and relevant issuances
of the Department and all liabilities which the Administration may impose. The surety
bonds shall include the condition that the notice to the principal is notice to the surety
and that any judgment against the principal in connection with matters falling under
POEA's jurisdiction shall be binding and conclusive on the surety. The surety bonds
shall be co-terminus with the validity period of license. (Emphasis supplied)
In addition, the petitioner claims it has placed in escrow the sum of P200,000 with
the Philippine National Bank in compliance with Section 17, Rule II, Book II of the
same Rule, "to primarily answer for valid and legal claims of recruited workers as a
result of recruitment violations or money claims."
Required to comment, the Solicitor General sustains the appeal bond requirement
but suggest that the rules cited by the NLRC are applicable only to decisions of the
Labor Arbiters and not of the POEA. Appeals from decisions of the POEA, he says, are
governed by the following provisions of Rule V, Book VII of the POEA Rules:
Sec. 5.
Requisites for Perfection of Appeal. The appeal shall be filed within the
reglementary period as provided in Section 1 of this Rule; shall be under oath with
proof of payment of the required appeal fee and the posting of a cash or surety bond
as provided in Section 6 of this Rule; shall be accompanied by a memorandum of
appeal which shall state the grounds relied upon and the arguments in support
thereof; the relief prayed for; and a statement of the date when the appellant
received the appealed decision and/or award and proof of service on the other party
of such appeal.
A mere notice of appeal without complying with the other requisites aforestated shall
not stop the running of the period for perfecting an appeal.
Sec. 6. Bond.
In case the decision of the Administration involves a monetary
award, an appeal by the employer shall be perfected only upon the posting of a cash
or surety bond issued by a reputable bonding company duly accredited by the
Commission in an amount equivalent to the monetary award. (Emphasis supplied)

135

The question is, having posted the total bond of P150,000 and placed in escrow the
amount of P200,000 as required by the POEA Rules, was the petitioner still required
to post an appeal bond to perfect its appeal from a decision of the POEA to the NLRC?
It was.
The POEA Rules are clear. A reading thereof readily shows that in addition to the cash
and surety bonds and the escrow money, an appeal bond in an amount equivalent to
the monetary award is required to perfect an appeal from a decision of the POEA.
Obviously, the appeal bond is intended to further insure the payment of the monetary
award in favor of the employee if it is eventually affirmed on appeal to the NLRC.
It is true that the cash and surety bonds and the money placed in escrow are
supposed to guarantee the payment of all valid and legal claims against the employer,
but these claims are not limited to monetary awards to employees whose contracts
of employment have been violated. The POEA can go against these bonds also for
violations by the recruiter of the conditions of its license, the provisions of the Labor
Code and its implementing rules, E.O. 247 (reorganizing POEA) and the POEA Rules,
as well as the settlement of other liabilities the recruiter may incur.
As for the escrow agreement, it was presumably intended to provide for a standing
fund, as it were, to be used only as a last resort and not to be reduced with the
enforcement against it of every claim of recruited workers that may be adjudged
against the employer. This amount may not even be enough to cover such claims
and, even if it could initially, may eventually be exhausted after satisfying other
subsequent claims.
As it happens, the decision sought to be appealed grants a monetary award of about
P170,000 to the dismissed employee, the herein private respondent. The standby
guarantees required by the POEA Rules would be depleted if this award were to be
enforced not against the appeal bond but against the bonds and the escrow money,
making them inadequate for the satisfaction of the other obligations the recruiter
may incur.
Indeed, it is possible for the monetary award in favor of the employee to exceed the
amount of P350,000, which is the sum of the bonds and escrow money required of
the recruiter.
It is true that these standby guarantees are not imposed on local employers, as the
petitioner observes, but there is a simple explanation for this distinction. Overseas
recruiters are subject to more stringent requirement because of the special risks to
which our workers abroad are subjected by their foreign employers, against whom
136

there is usually no direct or effective recourse. The overseas recruiter is solidarily

liable with a foreign employer. The bonds and the escrow money are intended to
insure more care on the part of the local agent in its choice of the foreign principal to
whom our overseas workers are to be sent.
It is a principle of legal hermeneutics that in interpreting a statute (or a set of rules
as in this case), care should be taken that every part thereof be given effect, on the
theory that it was enacted as an integrated measure and not as a hodge-podge of
conflicting provisions. Ut res magis valeat quam pereat. 2 Under the petitioner's
interpretation, the appeal bond required by Section 6 of the aforementioned POEA
Rule should be disregarded because of the earlier bonds and escrow money it has
posted. The petitioner would in effect nullify Section 6 as a superfluity but we do not
see any such redundancy; on the contrary, we find that Section 6 complements
Section 4 and Section 17. The rule is that a construction that would render a provision
inoperative should be avoided; instead, apparently inconsistent provisions should be
reconciled whenever possible as parts of a coordinated and harmonious whole.
Accordingly, we hold that in addition to the monetary obligations of the overseas
recruiter prescribed in Section 4, Rule II, Book II of the POEA Rules and the escrow
agreement under Section 17 of the same Rule, it is necessary to post the appeal bond
required under Section 6, Rule V, Book VII of the POEA Rules, as a condition for
perfecting an appeal from a decision of the POEA.
Every intendment of the law must be interpreted in favor of the working class,
conformably to the mandate of the Constitution. By sustaining rather than annulling
the appeal bond as a further protection to the claimant employee, this Court affirms
once again its commitment to the interest of labor.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so
ordered.

137

G.R. No. 80593

December 18, 1989

PHILIPPINE NATIONAL BANK, petitioner,

vs.
TERESITA CRUZ, JOSE AGRIPINO, BERNARDO BAUZON, LUCRECIA BILBAO, MA.
LUISA CABRERA, FRANCIS BAACLO GUADALUPE CAMACHO, LUZ DE LEON, MIKE
VILLAVERDE, NEPOMUCENO MEDINA, EDGARDO MENDOZA, JENNIFER VELEZ,
AMELIA MEDINA, EDUARDO ESPEJO and RICARDO BATTO respondents.
The Chief Legal Officer for petitioner.
Romualdo C. Delos Santos for respondents.

GANCAYCO, J.:
The focus of the instant petition for certiorari is the application of Article 110 of the
Labor Code. The said article provides that workers shall enjoy first preference with
regard to wages due them in cases of bankruptcy or liquidation of an employer's
business.
The antecedent facts of the case are as follows:
Sometime in 1980 Aggregate Mining Exponents (AMEX) laid-off about seventy
percent (70%) of its employees because it was experiencing business reverses. The
retained employees constituting thirty percent (30%) of the work force however,
were not paid their wages. This non-payment of salaries went on until July 1982 when
AMEX completely ceased operations and instead entered into an operating agreement
with T.M. San Andres Development Corporation whereby the latter would be leasing
the equipment and machineries of AMEX.
The unpaid employees sought redress from the Labor Arbiter 1 who, on August
27,1986 rendered a decision finding their claim valid and meritorious. The dispositive
part of the said decision, reads:
WHEREFORE, finding the claims of complainants for payment of unpaid wages and
separation pay to be valid and meritorious, respondents Aggregate Mining Exponent
and its president Luis Tirso Revilla should, as they are hereby ordered to pay the
same to said complainants in the following amounts:
Employees
138

Yrs. of Service
Rate
Separation Pay
Backwages
1. Jose Agripino
8
P1,300.00
P5,200.00
P6,174.96
2.Bernardo Bauzon
9
1,900.00
8,550.00
11,712.85
3. Lucresia Bilbao
7
2,300.00
8,050.00
19,247.00
4. Teresita S. Cruz
12
139

2,700.00
16,200.00
23,485.70
5. Ma. Luisa Cabrera
3
1,800.00
2,700.00
5,004.35
6. Francis Baaclo
7
3,500.00
12,550.00
32,986.90
7. Guadalupe Camacho
6
1,300.00
3,900.00
3,227.15
8. Luz de Leon
5
1,300.00
140

3,250.00
3,110.85
9. Mike Villaverde
6
1,500.00
4,500.00
4,793.80
10. Nepomuceno Medina
5
1,200.00
3,000.00
4,287.10
11. Edgardo Mendoza
4
920.00
1,840.00
832.10
12. Jennifer Velez
2
740.00
740.00
141

4,287.66
13. Amelia Medina
2
740.00
740.00
6,822.81
14. Eduardo Espejo
4
970.00
1,940.00
234.10
15. Ricardo Batto
7
3,000.00
10,500.00
9,874.70
TOTAL
83,360.00
136,092.03
in the total amount of P219,452.03. To properly effectuate the payment of the same,
the necessary arrangement should be made between respondents Amex and T.M.
San Andres Development Corp. and Philippine National Bank (PNB) on their
142

respective role and participation herein. For should the principal respondent be
unable to satisfy these Awards, the same can be satisfied from the proceeds or fruits
of its machineries and equipment being operated by respondent T.M. San Andres
Dev. Corp. either by operating agreement with respondent Amex or thru lease of the
same from PNB.
To obviate any further differences between complainants and their counsel to the
latter's attorney's fees which seems to be the cause of their earlier misunderstanding,
as can be gleaned from the Charging Lien filed by said counsel, respondents are,
moreover, ordered to segregate and pay the same directly to said counsel, the
amount of which is to be computed pursuant to their agreement on July 14, 1983
(Annex A of Position to Enter Attorney's Charging Lien in the Record of the Case). 2
AMEX and its President, Tirso Revilla did not appeal from this decision. But PNB, in
its capacity as mortgagee-creditor of AMEX interposed an appeal with the respondent
Commission, not being satisfied with the outcome of the case. The appeal was
primarily based on the allegation that the workers' lien covers unpaid wages only and
not the termination or severance pay which the workers likewise claimed they were
entitled to. In a resolution 3 dated October 27, 1987, the National Labor Relations
Commission affirmed the decision appealed from. Hence the instant petition filed by
the petitioner bank based on the following grounds:
I.
ARTICLE 110 OF THE LABOR CODE MUST BE READ IN RELATION TO ARTICLES
2241, 2242, 2243, 2244 AND 2245 OF THE CIVIL CODE CONCERNING THE
CLASSIFICATION, CONCURRENCE AND PREFERENCE OF CREDITS.
II.
ARTICLE 110 OF THE LABOR CODE DOES NOT PURPORT TO CREATE A LIEN IN
FAVOR OF WORKERS OR EMPLOYEES FOR UNPAID WAGES EITHER UPON ALL OF THE
PROPERTIES OR UPON ANY PARTICULAR PROPERTY OWNED BY THEIR EMPLOYER. 4
The petition is devoid of merit.
At the outset, petitioner PNB did not question the validity of the workers' claim for
unpaid wages with respect to the mortgaged properties of AMEX, provided that the
same be limited to the unpaid wages, and to the exclusion of termination pay. In the
instant petition however, PNB starts off with the question of whether or not the
workers' lien take precedence over any other claim considering that this Court has
ruled otherwise in Republic vs. Peralta. 5
This Court cannot allow the petitioner to alter its stance at this stage inasmuch as it
is deemed to have acquiesced in the decision of the labor arbiter concerning payment
of unpaid wages. The records reveal that the petitioner failed to question the same
143

on appeal. Hence, it is now barred from claiming that the workers' lien applies only
to the products of their labor and not to other properties of the employer which are
encumbered by mortgage contracts or otherwise.
Notwithstanding the foregoing, an attempt on the part of the petitioner to seek relief
from that portion of the decision would still be in vain.
Article 110 of the Labor Code provides that:
Art. 110.
Worker preference in case of bankruptcy. In the event of bankcruptcy
or liquidation of an employer's business - his workers shall enjoy first preference as
regards their unpaid wages and other monetary claims, any provision of law to the
contrary notwithstanding. Such unpaid wages and monetary claims, shall be paid in
full before claims of the government and other creditors may be paid. 6
This Court must uphold the preference accorded to the private respondents in view
of the provisions of Article 110 of the Labor Code which are clear and which admit of
no other interpretation. The phrase "any provision of law to the contrary
notwithstanding" indicates that such preference shall prevail despite the order set
forth in Articles 2241 to 2245 of the Civil Code. 6-a No exceptions were provided
under the said article, henceforth, none shall be considered. Furthermore, the Labor
Code was signed into Law decades after the Civil Code took effect.
In Herman vs. Radio Corporation of the Philippines, 7 this Court declared that
whenever two statutes of different dates and of contrary tenor are of equal theoretical
application to a particular case, the statute of later date must prevail being a later
expression of legislative will. Applying the aforecited case in the instant petition, the
Civil Code provisions cited by the petitioner must yield to Article 110 of the Labor
Code.
Moreover, Our pronouncement in A. C. Ransom Labor Union-CCLU vs. NLRC, 8
reinforces the above-mentioned interpretation where this Court, speaking through
Associate Justice Melencio-Herrera, explicitly stated that "(t)he worker preference
applies even if the employer's properties are encumbered by means of a mortgage
contract ... So that, when (the) machinery and equipment of RANSOM were sold to
Revelations Manufacturing Corporation for P2M in 1975, the right of the 22 laborers
to be paid from the proceeds should have been recognized ... " 9
Reliance by the petitioners on Republic vs. Peralta is without basis. The said case
involved a question of workers' preference as against the tax claims of the State. In
the said case the Court held that the State must prevail in that instance since "it has
been frequently said that taxes are the very lifeblood of government. The effective
144

collection of taxes is a task of highest importance for the sovereign. It is critical

indeed for its own survival ." 10
Nevertheless, under Article 110 of the Labor Code as amended, the unpaid wages
and other monetary claims of workers should be paid in full before the claims of the
Government and other creditors. Thus not even tax claims could have preference
over the workers' claim.
Consistent with the ruling of this Court in Volkschel Labor Union vs. Bureau of Labor
Relations, 11 this court adopts the doctrine that "(i)n the implementation and
interpretation of the provisions of the Labor Code and its implementing regulations,
the workingman's welfare should be the primordial and paramount consideration."
12 Bearing this in mind, this Court must reiterate the dictum laid down in A.C.
Ransom that the conflict between Article 110 of the Labor Code and Article 2241 to
2245 of the Civil Code must be resolved in favor of the former. A contrary ruling
would defeat the purpose for which Article 110 was intended; that is, for the
protection of the working class, pursuant to the never-ending quest for social justice.
Petitioner next advances the theory that "even if the worker's lien applies in the
instant case, the same should cover only unpaid wages excluding termination or
severance pay. 13 To support this contention, petitioner cites Section 7, Rule 1, Book
VI of the Rules and Regulations implementing the Labor Code which provides that:
The just causes for terminating the services of an employee shall be those provided
under article 283 of the Code. The separation from work of an employee for a just
cause does not entitle him to termination pay provided in the Code, emphasis
supplied)
Based on that premise, petitioner contends that the claim for termination pay should
not be enforced against AMEX properties mortgaged to petitioner PNB because Article
110 of the Labor Code refers only to "wages due them for services rendered during
the period prior to bankcruptcy or liquidation." 14 Citing serious financial losses as
the basis for the termination of the private respondents, petitioner alleges that the
employees are not entitled to the termination pay which they claim.
This contention is, again, bereft of merit.
The respondent Commission noted that "AMEX failed to adduce convincing evidence
to prove that the financial reverses were indeed serious." 15 After a careful study of
the records of the case, this Court finds no reason to alter the findings of the
respondent Commission.

145

In Garcia vs. National Labor Relations Commission , 16 it was held that "it is
essentially required that the alleged losses in business operations must be proved. "
17 This policy was adopted to obviate the possibility of an employer fabricating
business reverses in order to ease out employees for no apparent reason. Hence, no
departure shall be made by this Court from the ruling in Philippine Commercial and
Industrial Bank vs. National Mines and Allied Workers Union (NAMAWU-MIF) 18 where
it was categorically stated that the term "wages" includes not only remunerations or
earnings payable by an employer for services rendered or to be rendered, but also
covers all benefits of the employees under a Collective Bargaining Agreement like
severance pay, educational allowance, accrued vacation leave earned but not
enjoyed, as well as workmen's compensation awards and unpaid salaries for services
rendered. All of these benefits fall under the term "wages" which enjoy first
preference over all other claims against the employer. 19
Furthermore, in Peralta, this Court held that for purposes of the application of Article
110, "termination pay is reasonably regarded as forming part of the remuneration or
other money benefits accruing to employees or workers by reason of their having
previously rendered services..." 20 Hence, separation pay must be considered as part
of remuneration for services rendered or to be rendered.
Indeed Article 110 of the Labor Code, as amended, aforecited, now provides that the
workers' preference covers not only unpaid wages but also other monetary claims.
The respondent Commission was, therefore, not in error when it awarded the
termination pay claimed by the private respondents. As far as the latter are
concerned, the termination pay which they so rightfully claim is an additional
remuneration for having rendered services to their employer for a certain period of
time. Noteworthy also is the relationship between termination pay and services
rendered by an employee, that in computing the amount to be given to an employee
as termination pay, the length of service of such employee is taken into consideration
such that the former must be considered as part and parcel of wages. Under these
circumstances then, this Court holds that the termination or severance pay awarded
by the respondent Commission to the private respondents is proper and should be
sustained.
Lastly, it must be noted that the amount claimed by petitioner PNB for the satisfaction
of the obligations of AMEX is relatively insubstantial and is not significant enough as
to drain its coffers. By contrast, that same amount could mean subsistence or
starvation for the workingman. Quoting further from Philippine Commercial and
Industrial Bank, this Court supports the equitable principle that "it is but humane and
partakes of the divine that labor, as human beings, must be treated over and above
chattels, machineries and other kinds of properties and the interests of the employer
146

who can afford and survive the hardships of life better than their workers. Universal
sense of human justice, not to speak of our specific social justice and protection to
labor constitutional injunctions dictate the preferential lien that the above provision
accord to labor. 21 In line with this policy, measures must be undertaken to ensure
that such constitutional mandate on protection to labor is not rendered meaningless
by an erroneous interpretation of the applicable laws.
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of
merit. No costs.
SO ORDERED.

147

G.R. No. 111097

July 20, 1994

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,

vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING
CORPORATION, respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.

CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino in
Cagayan de Oro City. Civic organizations angrily denounced the project. The religious
elements echoed the objection and so did the women's groups and the youth.
Demonstrations were led by the mayor and the city legislators. The media trumpeted
the protest, describing the casino as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in several cities,
PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it
leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of
the herein private respondents, renovated and equipped the same, and prepared to
inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and
hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND
CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING
AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FOR THE
OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in
session assembled that:

148

Sec. 1.
That pursuant to the policy of the city banning the operation of casino
within its territorial jurisdiction, no business permit shall be issued to any person,
partnership or corporation for the operation of casino within the city limits.
Sec. 2.
That it shall be a violation of existing business permit by any persons,
partnership or corporation to use its business establishment or portion thereof, or
allow the use thereof by others for casino operation and other gambling activities.
Sec. 3.
PENALTIES. Any violation of such existing business permit as
defined in the preceding section shall suffer the following penalties, to wit:
a)
Suspension of the business permit for sixty (60) days for the first offense and
a fine of P1,000.00/day
b)
Suspension of the business permit for Six (6) months for the second offense,
and a fine of P3,000.00/day
c)
Permanent revocation of the business permit and imprisonment of One (1)
year, for the third and subsequent offenses.
Sec. 4.
thereof.

This Ordinance shall take effect ten (10) days from publication

Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93
reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING
PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO
under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another Resolution No.
2673, reiterating its policy against the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353,
prohibiting the issuance of Business Permit and to cancel existing Business Permit to
any establishment for the using and allowing to be used its premises or portion
thereof for the operation of CASINO;

149

WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local
Government Code of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI
of the implementing rules of the Local Government Code, the City Council as the
Legislative Body shall enact measure to suppress any activity inimical to public morals
and general welfare of the people and/or regulate or prohibit such activity pertaining
to amusement or entertainment in order to protect social and moral welfare of the
community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1.
The operation of gambling CASINO in the City of Cagayan de Oro is
hereby prohibited.
Sec. 2.
penalties:

Any violation of this Ordinance shall be subject to the following

a)
Administrative fine of P5,000.00 shall be imposed against the proprietor,
partnership or corporation undertaking the operation, conduct, maintenance of
gambling CASINO in the City and closure thereof;
b)
Imprisonment of not less than six (6) months nor more than one (1) year or a
fine in the amount of P5,000.00 or both at the discretion of the court against the
manager, supervisor, and/or any person responsible in the establishment, conduct
and maintenance of gambling CASINO.
Sec. 3.
This Ordinance shall take effect ten (10) days after its publication in
a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by
PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On
March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the
writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was
denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review under
Rule 45 of the Rules of Court. 3 They aver that the respondent Court of Appeals erred
in holding that:

150

1.
Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de
Oro does not have the power and authority to prohibit the establishment and
operation of a PAGCOR gambling casino within the City's territorial limits.
2.
The phrase "gambling and other prohibited games of chance" found in Sec.
458, par. (a), sub-par. (1) (v) of R.A. 7160 could only mean "illegal gambling."
3.
The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid
on that point.
4.
The questioned Ordinances are discriminatory to casino and partial to
cockfighting and are therefore invalid on that point.
5.
The questioned Ordinances are not reasonable, not consonant with the general
powers and purposes of the instrumentality concerned and inconsistent with the laws
or policy of the State.
6.
It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR,
G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing of the issues presented in
this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate
all games of chance, including casinos on land and sea within the territorial
jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming
Corporation, 4 this Court sustained the constitutionality of the decree and even cited
the benefits of the entity to the national economy as the third highest revenue-earner
in the government, next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact
ordinances for the purposes indicated in the Local Government Code. It is expressly
vested with the police power under what is known as the General Welfare Clause now
embodied in Section 16 as follows:
Sec. 16.
General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
151

promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458.
Powers, Duties, Functions and Compensation. (a) The Sangguniang
Panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1)
Approve ordinances and pass resolutions necessary for an efficient and
effective city government, and in this connection, shall:
xxx

xxx

xxx

(v)
Enact ordinances intended to prevent, suppress and impose appropriate
penalties for habitual drunkenness in public places, vagrancy, mendicancy,
prostitution, establishment and maintenance of houses of ill repute, gambling and
other prohibited games of chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or pornographic
materials or publications, and such other activities inimical to the welfare and morals
of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and
businesses within their territorial limits in the interest of the general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod
may prohibit the operation of casinos because they involve games of chance, which
are detrimental to the people. Gambling is not allowed by general law and even by
the Constitution itself. The legislative power conferred upon local government units
may be exercised over all kinds of gambling and not only over "illegal gambling" as
the respondents erroneously argue. Even if the operation of casinos may have been
permitted under P.D. 1869, the government of Cagayan de Oro City has the authority
to prohibit them within its territory pursuant to the authority entrusted to it by the
Local Government Code.
It is submitted that this interpretation is consonant with the policy of local autonomy
as mandated in Article II, Section 25, and Article X of the Constitution, as well as
various other provisions therein seeking to strengthen the character of the nation. In
giving the local government units the power to prevent or suppress gambling and
152

other social problems, the Local Government Code has recognized the competence
of such communities to determine and adopt the measures best expected to promote
the general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local
government units to prevent and suppress gambling and other prohibited games of
chance, like craps, baccarat, blackjack and roulette, it meant all forms of gambling
without distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6 Otherwise,
it would have expressly excluded from the scope of their power casinos and other
forms of gambling authorized by special law, as it could have easily done. The fact
that it did not do so simply means that the local government units are permitted to
prohibit all kinds of gambling within their territories, including the operation of
casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of
modifying the charter of the PAGCOR. The Code is not only a later enactment than
P.D. 1869 and so is deemed to prevail in case of inconsistencies between them. More
than this, the powers of the PAGCOR under the decree are expressly discontinued by
the Code insofar as they do not conform to its philosophy and provisions, pursuant
to Par. (f) of its repealing clause reading as follows:
(f)
All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local
Government Code on P.D. 1869, the doubt must be resolved in favor of the
petitioners, in accordance with the direction in the Code calling for its liberal
interpretation in favor of the local government units. Section 5 of the Code specifically
provides:
Sec. 5.
Rules of Interpretation. In the interpretation of the provisions of this
Code, the following rules shall apply:
(a)
Any provision on a power of a local government unit shall be liberally
interpreted in its favor, and in case of doubt, any question thereon shall be resolved
in favor of devolution of powers and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be interpreted in favor of the
local government unit concerned;
xxx

xxx

xxx
153

(c)
The general welfare provisions in this Code shall be liberally interpreted to give
more powers to local government units in accelerating economic development and
upgrading the quality of life for the people in the community; . . . (Emphasis
supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various
provisions of the Constitution and several decisions of this Court expressive of the
general and official disapprobation of the vice. They invoke the State policies on the
family and the proper upbringing of the youth and, as might be expected, call
attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal ordinance
prohibiting the playing of panguingue. The petitioners decry the immorality of
gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a
martial law instrument") in creating PAGCOR and authorizing it to operate casinos
"on land and sea within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se.
While it is generally considered inimical to the interests of the people, there is nothing
in the Constitution categorically proscribing or penalizing gambling or, for that
matter, even mentioning it at all. It is left to Congress to deal with the activity as it
sees fit. In the exercise of its own discretion, the legislature may prohibit gambling
altogether or allow it without limitation or it may prohibit some forms of gambling
and allow others for whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In
making such choices, Congress has consulted its own wisdom, which this Court has
no authority to review, much less reverse. Well has it been said that courts do not sit
to resolve the merits of conflicting theories. 8 That is the prerogative of the political
departments. It is settled that questions regarding the wisdom, morality, or
practicibility of statutes are not addressed to the judiciary but may be resolved only
by the legislative and executive departments, to which the function belongs in our
scheme of government. That function is exclusive. Whichever way these branches
decide, they are answerable only to their own conscience and the constituents who
will ultimately judge their acts, and not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance
No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of
Cagayan de Oro City. And we shall do so only by the criteria laid down by law and
not by our own convictions on the propriety of gambling.

154

The tests of a valid ordinance are well established. A long line of decisions 9 has held
that to be valid, an ordinance must conform to the following substantive
requirements:
1)

It must not contravene the constitution or any statute.

2)

It must not be unfair or oppressive.

3)

It must not be partial or discriminatory.

4)

It must not prohibit but may regulate trade.

5)

It must be general and consistent with public policy.

6)

It must not be unreasonable.

We begin by observing that under Sec. 458 of the Local Government Code, local
government units are authorized to prevent or suppress, among others, "gambling
and other prohibited games of chance." Obviously, this provision excludes games of
chance which are not prohibited but are in fact permitted by law. The petitioners are
less than accurate in claiming that the Code could have excluded such games of
chance but did not. In fact it does. The language of the section is clear and
unmistakable. Under the rule of noscitur a sociis, a word or phrase should be
interpreted in relation to, or given the same meaning of, words with which it is
associated. Accordingly, we conclude that since the word "gambling" is associated
with "and other prohibited games of chance," the word should be read as referring to
only illegal gambling which, like the other prohibited games of chance, must be
prevented or suppressed.
We could stop here as this interpretation should settle the problem quite conclusively.
But we will not. The vigorous efforts of the petitioners on behalf of the inhabitants of
Cagayan de Oro City, and the earnestness of their advocacy, deserve more than short
shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869
and the public policy embodied therein insofar as they prevent PAGCOR from
exercising the power conferred on it to operate a casino in Cagayan de Oro City. The
petitioners have an ingenious answer to this misgiving. They deny that it is the
ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail
against a statute. Their theory is that the change has been made by the Local
Government Code itself, which was also enacted by the national lawmaking authority.
In their view, the decree has been, not really repealed by the Code, but merely
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"modified pro tanto" in the sense that PAGCOR cannot now operate a casino over the
objection of the local government unit concerned. This modification of P.D. 1869 by
the Local Government Code is permissible because one law can change or repeal
another law.
It seems to us that the petitioners are playing with words. While insisting that the
decree has only been "modified pro tanto," they are actually arguing that it is already
dead, repealed and useless for all intents and purposes because the Code has shorn
PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its
operations may now be not only prohibited by the local government unit; in fact, the
prohibition is not only discretionary but mandated by Section 458 of the Code if the
word "shall" as used therein is to be given its accepted meaning. Local government
units have now no choice but to prevent and suppress gambling, which in the
petitioners' view includes both legal and illegal gambling. Under this construction,
PAGCOR will have no more games of chance to regulate or centralize as they must
all be prohibited by the local government units pursuant to the mandatory duty
imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist
except only as a toothless tiger or a white elephant and will no longer be able to
exercise its powers as a prime source of government revenue through the operation
of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause,
conveniently discarding the rest of the provision which painstakingly mentions the
specific laws or the parts thereof which are repealed (or modified) by the Code.
Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause,
which is reproduced below, will disclose the omission:
Sec. 534.
Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as
the "Local Government Code," Executive Order No. 112 (1987), and Executive Order
No. 319 (1988) are hereby repealed.
(b)
Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders,
instructions, memoranda and issuances related to or concerning the barangay are
hereby repealed.
(c)
The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding
hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the
Special Education Fund; Presidential Decree No. 144 as amended by Presidential
Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential
Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree
Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered
of no force and effect.
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(d)
Presidential Decree No. 1594 is hereby repealed insofar as it governs locallyfunded projects.
(e)
The following provisions are hereby repealed or amended insofar as they are
inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential
Decree No. 704; Sections 12 of Presidential Decree No. 87, as amended; Sections
52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree No. 972, as amended, and
(f)
All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the
absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v.
Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication all proceed on the
assumption that if the act of later date clearly reveals an intention on the part of the
lawmaking power to abrogate the prior law, this intention must be given effect; but
there must always be a sufficient revelation of this intention, and it has become an
unbending rule of statutory construction that the intention to repeal a former law will
not be imputed to the Legislature when it appears that the two statutes, or provisions,
with reference to which the question arises bear to each other the relation of general
to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary,
as the private respondent points out, PAGCOR is mentioned as the source of funding
in two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims
under the Department of Justice for the benefit of victims of unjust punishment or
detention or of violent crimes, and R.A. 7648, providing for measures for the solution
of the power crisis. PAGCOR revenues are tapped by these two statutes. This would
show that the PAGCOR charter has not been repealed by the Local Government Code
but has in fact been improved as it were to make the entity more responsive to the
fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute against another
in an inevitably destructive confrontation, courts must exert every effort to reconcile
them, remembering that both laws deserve a becoming respect as the handiwork of
a coordinate branch of the government. On the assumption of a conflict between P.D.
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1869 and the Code, the proper action is not to uphold one and annul the other but
to give effect to both by harmonizing them if possible. This is possible in the case
before us. The proper resolution of the problem at hand is to hold that under the
Local Government Code, local government units may (and indeed must) prevent and
suppress all kinds of gambling within their territories except only those allowed by
statutes like P.D. 1869. The exception reserved in such laws must be read into the
Code, to make both the Code and such laws equally effective and mutually
complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit,
the illegal and those authorized by law. Legalized gambling is not a modern concept;
it is probably as old as illegal gambling, if not indeed more so. The petitioners'
suggestion that the Code authorizes them to prohibit all kinds of gambling would
erase the distinction between these two forms of gambling without a clear indication
that this is the will of the legislature. Plausibly, following this theory, the City of Manila
could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from
conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the
San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion
urged on us by the petitioners that the ordinances in question are valid. On the
contrary, we find that the ordinances violate P.D. 1869, which has the character and
force of a statute, as well as the public policy expressed in the decree allowing the
playing of certain games of chance despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute
is obvious. Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred on them by Congress
as the national lawmaking body. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter. It is a heresy to suggest that the
local government units can undo the acts of Congress, from which they have derived
their power in the first place, and negate by mere ordinance the mandate of the
statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly
from the legislature. It breathes into them the breath of life, without which they
cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and
control. Unless there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great a folly and so
great a wrong, sweep from existence all of the municipal corporations in the State,
and the corporation could not prevent it. We know of no limitation on the right so far

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as to the corporation themselves are concerned. They are, so to phrase it, the mere
tenants at will of the legislature. 11
This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units although in
significantly reduced degree now than under our previous Constitutions. The power
to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power
to tax, 12 which cannot now be withdrawn by mere statute. By and large, however,
the national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of
their constituents and their apprehensions that the welfare of Cagayan de Oro City
will be endangered by the opening of the casino. We share the view that "the hope
of large or easy gain, obtained without special effort, turns the head of the workman"
13 and that "habitual gambling is a cause of laziness and ruin." 14 In People v.
Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out.
The laws against gambling must be enforced to the limit." George Washington called
gambling "the child of avarice, the brother of iniquity and the father of mischief."
Nevertheless, we must recognize the power of the legislature to decide, in its own
wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and impliedly
affirmed in the Local Government Code. That decision can be revoked by this Court
only if it contravenes the Constitution as the touchstone of all official acts. We do not
find such contravention here.
We hold that the power of PAGCOR to centralize and regulate all games of chance,
including casinos on land and sea within the territorial jurisdiction of the Philippines,
remains unimpaired. P.D. 1869 has not been modified by the Local Government Code,
which empowers the local government units to prevent or suppress only those forms
of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute
that cannot be amended or nullified by a mere ordinance. Hence, it was not
competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact
Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy
motives, these ordinances are contrary to P.D. 1869 and the public policy announced
therein and are therefore ultra vires and void.
159

WHEREFORE, the petition is DENIED and the challenged decision of the respondent
Court of Appeals is AFFIRMED, with costs against the petitioners. It is so ordered.

160

A.M. No. 10-7-17-SC

February 8, 2011

IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE

JUSTICE MARIANO C. DEL CASTILLO.
RESOLUTION
PER CURIAM:
Petitioners Isabelita C. Vinuya, et al., all members of the Malaya Lolas Organization,
seek reconsideration of the decision of the Court dated October 12, 2010 that
dismissed their charges of plagiarism, twisting of cited materials, and gross neglect
against Justice Mariano Del Castillo in connection with the decision he wrote for the
Court in G.R. No. 162230, entitled Vinuya v. Romulo.1
Mainly, petitioners claim that the Court has by its decision legalized or approved of
the commission of plagiarism in the Philippines. This claim is absurd. The Court, like
everyone else, condemns plagiarism as the world in general understands and uses
the term.
Plagiarism, a term not defined by statute, has a popular or common definition. To
plagiarize, says Webster, is "to steal and pass off as ones own" the ideas or words
of another. Stealing implies malicious taking. Blacks Law Dictionary, the worlds
leading English law dictionary quoted by the Court in its decision, defines plagiarism
as the "deliberate and knowing presentation of another person's original ideas or
creative expressions as ones own."2 The presentation of another persons ideas as
ones own must be deliberate or premeditateda taking with ill intent.
There is no commonly-used dictionary in the world that embraces in the meaning of
plagiarism errors in attribution by mere accident or in good faith.
Certain educational institutions of course assume different norms in its application.
For instance, the Loyola Schools Code of Academic Integrity ordains that "plagiarism
is identified not through intent but through the act itself. The objective act of falsely
attributing to ones self what is not ones work, whether intentional or out of neglect,
is sufficient to conclude that plagiarism has occurred. Students who plead ignorance
or appeal to lack of malice are not excused."3
But the Courts decision in the present case does not set aside such norm. The
decision makes this clear, thus:

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To paraphrase Bast and Samuels, while the academic publishing model is based on
the originality of the writers thesis, the judicial system is based on the doctrine of
stare decisis, which encourages courts to cite historical legal data, precedents, and
related studies in their decisions. The judge is not expected to produce original
scholarship in every respect. The strength of a decision lies in the soundness and
general acceptance of the precedents and long held legal opinions it draws from.4
Original scholarship is highly valued in the academe and rightly so. A college thesis,
for instance, should contain dissertations embodying results of original research,
substantiating a specific view.5 This must be so since the writing is intended to earn
for the student an academic degree, honor, or distinction. He earns no credit nor
deserves it who takes the research of others, copies their dissertations, and proclaims
these as his own. There should be no question that a cheat deserves neither reward
nor sympathy.
But the policy adopted by schools of disregarding the element of malicious intent
found in dictionaries is evidently more in the nature of establishing what evidence is
sufficient to prove the commission of such dishonest conduct than in rewriting the
meaning of plagiarism. Since it would be easy enough for a student to plead ignorance
or lack of malice even as he has copied the work of others, certain schools have
adopted the policy of treating the mere presence of such copied work in his paper
sufficient objective evidence of plagiarism. Surely, however, if on its face the
students work shows as a whole that he has but committed an obvious mistake or a
clerical error in one of hundreds of citations in his thesis, the school will not be so
unreasonable as to cancel his diploma.
In contrast, decisions of courts are not written to earn merit, accolade, or prize as an
original piece of work or art. Deciding disputes is a service rendered by the
government for the public good. Judges issue decisions to resolve everyday conflicts
involving people of flesh and blood who ache for speedy justice or juridical beings
which have rights and obligations in law that need to be protected. The interest of
society in written decisions is not that they are originally crafted but that they are
fair and correct in the context of the particular disputes involved. Justice, not
originality, form, and style, is the object of every decision of a court of law.
There is a basic reason for individual judges of whatever level of courts, including the
Supreme Court, not to use original or unique language when reinstating the laws
involved in the cases they decide. Their duty is to apply the laws as these are written.
But laws include, under the doctrine of stare decisis, judicial interpretations of such
laws as are applied to specific situations. Under this doctrine, Courts are "to stand by
precedent and not to disturb settled point." Once the Court has "laid down a principle
of law as applicable to a certain state of facts, it will adhere to that principle, and
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apply it to all future cases, where facts are substantially the same; regardless of
whether the parties or property are the same."6
And because judicial precedents are not always clearly delineated, they are quite
often entangled in apparent inconsistencies or even in contradictions, prompting
experts in the law to build up regarding such matters a large body of commentaries
or annotations that, in themselves, often become part of legal writings upon which
lawyers and judges draw materials for their theories or solutions in particular cases.
And, because of the need to be precise and correct, judges and practitioners alike,
by practice and tradition, usually lift passages from such precedents and writings, at
times omitting, without malicious intent, attributions to the originators.
Is this dishonest? No. Duncan Webb, writing for the International Bar Association
puts it succinctly. When practicing lawyers (which include judges) write about the
law, they effectively place their ideas, their language, and their work in the public
domain, to be affirmed, adopted, criticized, or rejected. Being in the public domain,
other lawyers can thus freely use these without fear of committing some wrong or
incurring some liability. Thus:
The tendency to copy in law is readily explicable. In law accuracy of words is
everything. Legal disputes often centre round the way in which obligations have been
expressed in legal documents and how the facts of the real world fit the meaning of
the words in which the obligation is contained. This, in conjunction with the riskaversion of lawyers means that refuge will often be sought in articulations that have
been tried and tested. In a sense therefore the community of lawyers have together
contributed to this body of knowledge, language, and expression which is common
property and may be utilized, developed and bettered by anyone.7
The implicit right of judges to use legal materials regarded as belonging to the public
domain is not unique to the Philippines. As Joyce C. George, whom Justice Maria
Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion
Writing Handbook:
A judge writing to resolve a dispute, whether trial or appellate, is exempted from a
charge of plagiarism even if ideas, words or phrases from a law review article, novel
thoughts published in a legal periodical or language from a partys brief are used
without giving attribution. Thus judges are free to use whatever sources they deem
appropriate to resolve the matter before them, without fear of reprisal. This
exemption applies to judicial writings intended to decide cases for two reasons: the
judge is not writing a literary work and, more importantly, the purpose of the writing
is to resolve a dispute. As a result, judges adjudicating cases are not subject to a
claim of legal plagiarism.8
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If the Court were to inquire into the issue of plagiarism respecting its past decisions
from the time of Chief Justice Cayetano S. Arellano to the present, it is likely to
discover that it has not on occasion acknowledged the originators of passages and
views found in its decisions. These omissions are true for many of the decisions that
have been penned and are being penned daily by magistrates from the Court of
Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts
nationwide and with them, the municipal trial courts and other first level courts.
Never in the judiciarys more than 100 years of history has the lack of attribution
been regarded and demeaned as plagiarism.
This is not to say that the magistrates of our courts are mere copycats. They are not.
Their decisions analyze the often conflicting facts of each case and sort out the
relevant from the irrelevant. They identify and formulate the issue or issues that need
to be resolved and evaluate each of the laws, rulings, principles, or authorities that
the parties to the case invoke. The decisions then draw their apt conclusions
regarding whether or not such laws, rulings, principles, or authorities apply to the
particular cases before the Court. These efforts, reduced in writing, are the product
of the judges creativity. It is hereactually the substance of their decisionsthat
their genius, originality, and honest labor can be found, of which they should be
proud.
In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the
opposing sides in a way that no one has ever done. He identified and formulated the
core of the issues that the parties raised. And when he had done this, he discussed
the state of the law relevant to their resolution. It was here that he drew materials
from various sources, including the three foreign authors cited in the charges against
him. He compared the divergent views these present as they developed in history.
He then explained why the Court must reject some views in light of the peculiar facts
of the case and applied those that suit such facts. Finally, he drew from his
discussions of the facts and the law the right solution to the dispute in the case. On
the whole, his work was original. He had but done an honest work.
The Court will not, therefore, consistent with established practice in the Philippines
and elsewhere, dare permit the filing of actions to annul the decisions promulgated
by its judges or expose them to charges of plagiarism for honest work done.
This rule should apply to practicing lawyers as well. Counsels for the petitioners, like
all lawyers handling cases before courts and administrative tribunals, cannot object
to this. Although as a rule they receive compensation for every pleading or paper
they file in court or for every opinion they render to clients, lawyers also need to
strive for technical accuracy in their writings. They should not be exposed to charges
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of plagiarism in what they write so long as they do not depart, as officers of the court,
from the objective of assisting the Court in the administration of justice.
As Duncan Webb said:
In presenting legal argument most lawyers will have recourse to either previous
decisions of the courts, frequently lifting whole sections of a judges words to lend
weight to a particular point either with or without attribution. The words of scholars
are also sometimes given weight, depending on reputation. Some encyclopaedic
works are given particular authority. In England this place is given to Halsburys Laws
of England which is widely considered authoritative. A lawyer can do little better than
to frame an argument or claim to fit with the articulation of the law in Halsburys.
While in many cases the very purpose of the citation is to claim the authority of the
author, this is not always the case. Frequently commentary or dicta of lesser standing
will be adopted by legal authors, largely without attribution.
xxxx
The converse point is that originality in the law is viewed with skepticism. It is only
the arrogant fool or the truly gifted who will depart entirely from the established
template and reformulate an existing idea in the belief that in doing so they will
improve it. While over time incremental changes occur, the wholesale abandonment
of established expression is generally considered foolhardy.9
The Court probably should not have entertained at all the charges of plagiarism
against Justice Del Castillo, coming from the losing party. But it is a case of first
impression and petitioners, joined by some faculty members of the University of the
Philippines school of law, have unfairly maligned him with the charges of plagiarism,
twisting of cited materials, and gross neglect for failing to attribute lifted passages
from three foreign authors. These charges as already stated are false, applying the
meaning of plagiarism as the world in general knows it.
True, Justice Del Castillo failed to attribute to the foreign authors materials that he
lifted from their works and used in writing the decision for the Court in the Vinuya
case. But, as the Court said, the evidence as found by its Ethics Committee shows
that the attribution to these authors appeared in the beginning drafts of the decision.
Unfortunately, as testified to by a highly qualified and experienced court-employed
researcher, she accidentally deleted the same at the time she was cleaning up the
final draft. The Court believed her since, among other reasons, she had no motive
for omitting the attribution. The foreign authors concerned, like the dozens of other
sources she cited in her research, had high reputations in international law.1awphi1

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Notably, those foreign authors expressly attributed the controversial passages found
in their works to earlier writings by others. The authors concerned were not
themselves the originators. As it happened, although the ponencia of Justice Del
Castillo accidentally deleted the attribution to them, there remained in the final draft
of the decision attributions of the same passages to the earlier writings from which
those authors borrowed their ideas in the first place. In short, with the remaining
attributions after the erroneous clean-up, the passages as it finally appeared in the
Vinuya decision still showed on their face that the lifted ideas did not belong to Justice
Del Castillo but to others. He did not pass them off as his own.
With our ruling, the Court need not dwell long on petitioners allegations that Justice
Del Castillo had also committed plagiarism in writing for the Court his decision in
another case, Ang Ladlad v. Commission on Elections.10 Petitioners are nit-picking.
Upon close examination and as Justice Del Castillo amply demonstrated in his
comment to the motion for reconsideration, he in fact made attributions to passages
in such decision that he borrowed from his sources although they at times suffered
in formatting lapses.
Considering its above ruling, the Court sees no point in further passing upon the
motion of the Integrated Bar of the Philippines for leave to file and admit motion for
reconsideration-in-intervention dated January 5, 2011 and Dr. Peter Payoyos claim
of other instances of alleged plagiarism in the Vinuya decision.
ACCORDINGLY, the Court DENIES petitioners motion for reconsideration for lack of
merit.
SO ORDERED.

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G.R. No. 144412

November 18, 2003

ALLIED BANKING CORPORATION, Petitioner,

vs.
COURT OF APPEALS and POTENCIANO L. GALANIDA, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the Decision2 of 27 April 2000 and
the Resolution of 8 August 2000 of the Court of Appeals in CA-G.R. SP No. 51451.
The Court of Appeals upheld the Decision3 of 18 September 1998 and the Resolution
of 24 December 1998 of the National Labor Relations Commission ("NLRC") in NLRC
Case No. V-000180-98. The NLRC modified the Decision dated 23 December 1997 of
Labor Arbiter Dominador A. Almirante ("Labor Arbiter") in NLRC Case No. RAB VII05-0545-94 holding that Allied Banking Corporation ("Allied Bank") illegally dismissed
Potenciano L. Galanida ("Galanida"). The NLRC awarded Galanida separation pay,
backwages, moral and exemplary damages, and other amounts totaling P
1,264,933.33.
Antecedent Facts
For a background of this case, we quote in part from the Decision of the Court of
Appeals:
Private respondent Potenciano Galanida was hired by petitioner Allied Banking
Corporation on 11 January 1978 and rose from accountant-book(k)eeper to assistant
manager in 1991. His appointment was covered by a "Notice of Personnel Action"
which provides as one of the conditions of employment the provision on petitioners
right to transfer employees:
"REGULAR APPOINTMENT: xxx It is understood that the bank reserves the right to
transfer or assign you to other departments or branches of the bank as the need
arises and in the interest of maintaining smooth and uninterrupted service to the
public."
Private respondent was promoted several times and was transferred to several
branches as follows:

167

"a) January, 1978 to March, 1982 Tagbilaran City Branch

"b) April, 1982 to May, 1984 Lapulapu City Branch
"c) June, 1984 Mandaue City Branch
"d) July, 1984 to April, 1986 Tagbilaran City Branch
"e) May, 1986 to May, 1987 Dumaguete City Branch
"f) June, 1987 to August, 1987 Carbon Branch, Cebu City
"g) September, 1987 to Sept. 1989 Lapulapu City Branch, Cebu
"h) October, 1989 to Sept. 1992 Carbon Branch, Cebu City
"i) October 1992 to Sept. 1994 Jakosalem Regional Branch, Cebu City" (Rollo, p.
47)
Effecting a rotation/movement of officers assigned in the Cebu homebase, petitioner
listed respondent as second in the order of priority of assistant managers to be
assigned outside of Cebu City having been stationed in Cebu for seven years already.
Private respondent manifested his refusal to be transferred to Bacolod City in a letter
dated 19 April 1994 citing as reason parental obligations, expenses, and the anguish
that would result if he is away from his family. He then filed a complaint before the
Labor Arbiter for constructive dismissal.
Subsequently, petitioner bank informed private respondent (Rollo, p. 86) that he was
to report to the Tagbilaran City Branch effective 23 May 1994. Private respondent
refused. In a letter dated 13 June 1994, petitioner warned and required of private
respondent as follows:
"There is no discrimination in your transfer. In fact, among the officers mentioned,
only you have refused the new assignment citing difficulty of working away from your
family as if the other officers concerned do not suffer the same predicament. To
exempt you from the officer transfer would result in favoritism in your favor and
discrimination as against the other officers concerned.
"In furtherance of maintaining a smooth and uninterrupted service to the public, and
in accordance with the Banks order of priority of rotating its accountants places of
assignments, you are well aware that Roberto Isla, AM/Accountant, assigned in Cebu
for more than ten (10) years, was, on February 14, 1994, reassigned to Iligan City
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Branch and then to Cagayan de Oro City Branch on June 8, 1994. Hence, your
objection on the ground of your length of service is without merit.
xxx
"As discussed, your refusal to follow instruction concerning your transfer and
reassignment to Bacolod City and to Tagbilaran City is penalized under Article XII of
the Banks Employee Discipline Policy and Procedure [which] provides:
XII Transfer and Reassignment
Refusal to follow instruction concerning transfers and reassignments.
First and subsequent offenses
The penalty may range from suspension to dismissal as determined by management.
The employee shall be required to comply with the order of transfer and
reassignment, if the penalty is not termination of employment.
"In view of the foregoing, please explain in writing within three (3) days from receipt
hereof why no disciplinary action should be meted against you for your having refused
to follow instructions concerning the foregoing transfer and reassignment." xxx4
On 16 June 1994, Galanida replied that "(w)hether the banks penalty for my refusal
be Suspension or Dismissal xxx it will all the more establish and fortify my complaint
now pending at NLRC, RAB 7."5 In the same letter, he charged Allied Bank with
discrimination and favoritism in ordering his transfer, thus:
xxx What I cannot decipher now under the headship of Mr. Olveda is managements
discriminatory act of transferring only the long staying accountants of Cebu in the
guise of its exercise of management prerogative when in truth and in fact, the ulterior
motive is to accommodate some new officers who happen to enjoy favorable
connection with management. How can the bank ever justify the transfer of Melinda
T. Co, a new officer who had experienced being assigned outside of Cebu for more
than a year only to Tabunok Branch? If the purpose is for check and balance, is
management implying that Melinda Co can better carry out such function over Mr.
Larry Sabelino, who is a seasoned and experienced accountant or any of the Metro
Cebu accountants for that matter? Isnt this act of management an obvious display
of favoritism? xxx6
On 5 October 1994, Galanida received an inter-office communication7 ("Memo")
dated 8 September 1994 from Allied Banks Vice-President for Personnel, Mr. Leonso
169

C. Pe. The Memo informed Galanida that Allied Bank had terminated his services
effective 1 September 1994. The reasons given for the dismissal were: (1) Galanidas
continued refusal to be transferred from the Jakosalem, Cebu City branch; and (2)
his refusal to report for work despite the denial of his application for additional
vacation leave. The salient portion of the Memo reads:
Therefore, your refusal to follow instruction concerning your transfer and
reassignment to Bacolod City and to Tagbilaran City is without any justifiable reason
and constituted violations of Article XII of the Banks EDPP xxx
In view of the foregoing, please be informed that the Bank has terminated your
services effective September 1, 1994 and considered whatever benefit, if any, that
you are entitled as forfeited in accordance with 04, V Administrative Penalties, page
6 of the Banks EDPP which provides as follows:
"04. Dismissal.
Dismissal is a permanent separation for cause xxx
Notice of termination shall be issued by the Investigation Committee subject to the
confirmation of the President or his authorized representative as officer/employee
who is terminated for cause shall not be eligible to receive any benefit arising from
her/his employment with the Bank or to termination pay."
It is understood that the termination of your service shall be without prejudice to
whatever legal remedies which the Bank may have already undertaken and/or will
undertake against you.
Please be guided accordingly. (Emphasis supplied)8
The Ruling of the Labor Arbiter
After several hearings, the Labor Arbiter held that Allied Bank had abused its
management prerogative in ordering the transfer of Galanida to its Bacolod and
Tagbilaran branches. In ruling that Galanidas refusal to transfer did not amount to
insubordination, the Labor Arbiter misquoted this Courts decision in Dosch v. NLRC,9
thus:
As a general rule, the right to transfer or reassign an employee is recognized as an
employers exclusive right and the prerogative of management (Abbott Laboratories
vs. NLRC, 154 SCRA 713 [1987]).

170

The exercise of this right, is not however, absolute. It has certain limitations. Thus,
in Helmut Dosch vs. NLRC, et al. 123 SCRA 296 (1983), the Supreme Court, ruled:
"While it may be true that the right to transfer or reassign an employee is an
employers exclusive right and the prerogative of management, such right is not
absolute. The right of an employer to freely select or discharge his employee is limited
by the paramount police power xxx for the relations between capital and labor are
not merely contractual but impressed with public interest. xxx And neither capital nor
labor shall act oppressively against each other.
Refusal to obey a transfer order cannot be considered insubordination where
employee cited reason for said refusal, such (sic) as that of being away from the
family."10 (Underscoring supplied by the Labor Arbiter)
The Labor Arbiter reasoned that Galanidas transfer was inconvenient and prejudicial
because Galanida would have to incur additional expenses for board, lodging and
travel. On the other hand, the Labor Arbiter held that Allied Bank failed to show any
business urgency that would justify the transfer.
The Labor Arbiter also gave credence to Galanidas claim that Allied Bank gave Ms.
Co special treatment. The Labor Arbiter stated that Allied Bank deliberately left out
Ms. Cos name from the list of accountants transferred to Cebu as contained in Allied
Banks letter dated 13 June 1994. However, Mr. Regidor Olveda, Allied Banks Vice
President for Operations Accounting, testified that the bank transferred Ms. Co to the
Tabunok, Cebu branch within the first half of 1994.
Still, the Labor Arbiter declined to award Galanida back wages because he was not
entirely free from blame. Since another bank had already employed Galanida, the
Labor Arbiter granted Galanida separation pay in lieu of reinstatement. The
dispositive portion of the Labor Arbiters Decision of 23 December 1997 provides:
WHEREFORE, premises considered, judgment is hereby rendered ordering
respondent Allied Banking Corporation to pay complainant the aggregate total
amount of Three Hundred Twenty Four Thousand Pesos (P 324,000.00) representing
the following awards:
a) Separation pay for P 272,000.00;
b) Quarter bonus for 1994 P 16,000.00;
c) 13th month pay for 1994 P 16,000.00;

171

d) Refund of contribution to Provident Fund - P 20,000.00.

SO ORDERED.11
The Ruling of the NLRC
On appeal, the NLRC likewise ruled that Allied Bank terminated Galanida without just
cause. The NLRC agreed that the transfer order was unreasonable and unjustified,
considering the family considerations mentioned by Galanida. The NLRC
characterized the transfer as a demotion since the Bacolod and Tagbilaran branches
were smaller than the Jakosalem branch, a regional office, and because the bank
wanted Galanida, an assistant manager, to replace an assistant accountant in the
Tagbilaran branch. The NLRC found unlawful discrimination since Allied Bank did not
transfer several junior accountants in Cebu. The NLRC also held that Allied Bank gave
Ms. Co special treatment by assigning her to Cebu even though she had worked for
the bank for less than two years.
The NLRC ruled that Galanidas termination was illegal for lack of due process. The
NLRC stated that Allied Bank did not conduct any hearing. The NLRC declared that
Allied Bank failed to send a termination notice, as required by law for a valid
termination. The Memo merely stated that Allied Bank would issue a notice of
termination, but the bank did not issue any notice.
The NLRC concluded that Allied Bank dismissed Galanida in bad faith, tantamount to
an unfair labor practice as the dismissal undermined Galanidas right to security of
tenure and equal protection of the laws. On these grounds, the NLRC promulgated
its Decision of 18 September 1998, the relevant portion of which states:
In this particular case, We view as impractical, unrealistic and no longer
advantageous to both parties to order reinstatement of the complainant. xxx For lack
of sufficient basis, We deny the claim for 1994 quarter bonus. Likewise, no attorneys
fees is awarded as counsels for complainant-appellee are from the City Prosecutors
Office of Cebu.
WHEREFORE, premises considered, the decision of the Labor Arbiter dated December
23, 1997 is hereby MODIFIED by increasing the award of separation pay and granting
in addition thereto backwages, moral and exemplary damages. The respondentappellant, ALLIED BANKING CORPORATION, is thus ordered to pay to herein
complainant-appellee, POTENCIANO L. GALANIDA, the following amounts:
a)
b>

P 336,000.00,
P 833,600.00,

representing separation pay

representing backwages
172

c>
d>
e>
f>

P
P
P
P

5,333.23
20,000.00
50,000.00
20,000.00

representing
representing
representing
representing

proportional 1994 13th month pay

refund of Provident Fund Contribution
moral damages
exemplary damages

===========P 1,264,933.33
TOTAL AWARD
All other claims are dismissed for lack of basis. The other respondents are dropped
for lack of sufficient basis that they acted in excess of their corporate powers.
SO ORDERED.12
Allied Bank filed a motion for reconsideration which the NLRC denied in its Resolution
of 24 December 1998.13
Dissatisfied, Allied Bank filed a petition for review questioning the Decision and
Resolution of the NLRC before the Court of Appeals.
The Ruling of the Court of Appeals
Citing Dosch v. NLRC,14 the Court of Appeals held that Galanidas refusal to comply
with the transfer orders did not warrant his dismissal. The appellate court ruled that
the transfer from a regional office to the smaller Bacolod or Tagbilaran branches was
effectively a demotion. The appellate court agreed that Allied Bank did not afford
Galanida procedural due process because there was no hearing and no notice of
termination. The Memo merely stated that the bank would issue a notice of
termination but there was no such notice.
The Court of Appeals affirmed the ruling of the NLRC in its Decision of 27 April 2000,
thus:
WHEREFORE, for lack of merit, the petition is DISMISSED and the assailed Decision
of public respondent NLRC is AFFIRMED.
SO ORDERED. 15
Allied Bank filed a motion for reconsideration which the appellate court denied in its
Resolution of 8 August 2000.16
On 26 April 2001, Allied Bank appealed the appellate courts decision and resolution
to the Supreme Court. Allied Bank prayed that the Supreme Court: (1) issue a
temporary restraining order or writ of preliminary injunction ex parte to restrain the
implementation or execution of the questioned Decision and Resolution; (2) declare
173

Galanidas termination as valid and legal; (3) set aside the Court of Appeals Decision
and Resolution; (4) make permanent the restraining order or preliminary injunction;
(5) order Galanida to pay the costs; and (6) order other equitable reliefs.
The Issues
Allied Bank raises the following issues:
1. WHETHER UNDER THE FACTS PRESENTED THERE IS LEGAL BASIS IN
PETITIONERS EXERCISE OF ITS MANAGEMENT PREROGATIVE.
2. WHETHER PRIVATE RESPONDENTS VIOLATIONS OF COMPANY
CONSTITUTE A GROUND TO WARRANT THE PENALTY OF DISMISSAL.

RULES

3. WHETHER UNDER THE FACTS PRESENTED, THERE IS LEGAL BASIS TO HOLD THAT
ALLIED BANK AFFORDED PRIVATE RESPONDENT THE REQUIRED DUE PROCESS.
4. WHETHER UNDER THE FACTS, THERE IS LEGAL BASIS TO HOLD THAT PRIVATE
RESPONDENT CANNOT RECOVER ANY MONETARY AWARD.17
In sum, Allied Bank argues that the transfer of Galanida was a valid exercise of its
management prerogative. Allied Bank contends that Galanidas continued refusal to
obey the transfer orders constituted willful disobedience or insubordination, which is
a just cause for termination under the Labor Code.
On the other hand, Galanida defended his right to refuse the transfer order. The
memorandum for Galanida filed with this Court, prepared by Atty. Loreto M. Durano,
again misquoted the Courts ruling in Dosch v. NLRC, thus:
xxx His [Galanidas] refusal to transfer falls well within the ruling of the Supreme
Court in Helmut Dosch vs. NLRC, et. al., 123 SCRA 296 (1983) quoted as follows:
xxx
Refusal to obey a transfer order cannot be considered insubordination where
employee cited reason for said refusal, such as that of being away from the family."18
The Ruling of the Court
The petition is partly meritorious.
Preliminary Matter: Misquoting Decisions of the Supreme Court
174

The memorandum prepared by Atty. Durano and, worse, the assailed Decision of the
Labor Arbiter, both misquoted the Supreme Courts ruling in Dosch v. NLRC. The
Court held in Dosch:
We cannot agree to Northwests submission that petitioner was guilty of disobedience
and insubordination which respondent Commission sustained. The only piece of
evidence on which Northwest bases the charge of contumacious refusal is petitioners
letter dated August 28, 1975 to R.C. Jenkins wherein petitioner acknowledged receipt
of the formers memorandum dated August 18, 1975, appreciated his promotion to
Director of International Sales but at the same time regretted "that at this time for
personal reasons and reasons of my family, I am unable to accept the transfer from
the Philippines" and thereafter expressed his preference to remain in his position,
saying: "I would, therefore, prefer to remain in my position of Manager-Philippines
until such time that my services in that capacity are no longer required by Northwest
Airlines." From this evidence, We cannot discern even the slightest hint of defiance,
much less imply insubordination on the part of petitioner.19
The phrase "[r]efusal to obey a transfer order cannot be considered insubordination
where employee cited reason for said refusal, such as that of being away from the
family" does not appear anywhere in the Dosch decision. Galanidas counsel lifted the
erroneous phrase from one of the italicized lines in the syllabus of Dosch found in the
Supreme Court Reports Annotated ("SCRA").
The syllabus of cases in official or unofficial reports of Supreme Court decisions or
resolutions is not the work of the Court, nor does it state this Courts decision. The
syllabus is simply the work of the reporter who gives his understanding of the
decision. The reporter writes the syllabus for the convenience of lawyers in reading
the reports. A syllabus is not a part of the courts decision.20 A counsel should not
cite a syllabus in place of the carefully considered text in the decision of the Court.
In the present case, Labor Arbiter Almirante and Atty. Durano began by quoting from
Dosch, but substituted a portion of the decision with a headnote from the SCRA
syllabus, which they even underscored. In short, they deliberately made the quote
from the SCRA syllabus appear as the words of the Supreme Court. We admonish
them for what is at the least patent carelessness, if not an outright attempt to mislead
the parties and the courts taking cognizance of this case. Rule 10.02, Canon 10 of
the Code of Professional Responsibility mandates that a lawyer shall not knowingly
misquote or misrepresent the text of a decision or authority. It is the duty of all
officers of the court to cite the rulings and decisions of the Supreme Court
accurately.21

175

Whether Galanida was dismissed for just cause

We accord great weight and even finality to the factual findings of the Court of
Appeals, particularly when they affirm the findings of the NLRC or the lower courts.
However, there are recognized exceptions to this rule. These exceptions are: (1)
when the findings are grounded on speculation, surmise and conjecture; (2) when
the inference made is manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion in the appreciation of facts; (4) when the factual findings
of the trial and appellate courts are conflicting; (5) when the Court of Appeals, in
making its findings, has gone beyond the issues of the case and such findings are
contrary to the admissions of both appellant and appellee; (6) when the judgment of
the appellate court is premised on a misapprehension of facts or when it has failed
to consider certain relevant facts which, if properly considered, will justify a different
conclusion; (7) when the findings of fact are conclusions without citation of specific
evidence on which they are based; and (8) when the findings of fact of the Court of
Appeals are premised on the absence of evidence but are contradicted by the
evidence on record.22 After a scrutiny of the records, we find that some of these
exceptions obtain in the present case.
The rule is that the transfer of an employee ordinarily lies within the ambit of the
employers prerogatives.23 The employer exercises the prerogative to transfer an
employee for valid reasons and according to the requirement of its business, provided
the transfer does not result in demotion in rank or diminution of the employees
salary, benefits and other privileges.24 In illegal dismissal cases, the employer has
the burden of showing that the transfer is not unnecessary, inconvenient and
prejudicial to the displaced employee.25
The constant transfer of bank officers and personnel with accounting responsibilities
from one branch to another is a standard practice of Allied Bank, which has more
than a hundred branches throughout the country.26 Allied Bank does this primarily
for internal control. It also enables bank employees to gain the necessary experience
for eventual promotion. The Bangko Sentral ng Pilipinas, in its Manual of Regulations
for Banks and Other Financial Intermediaries,27 requires the rotation of these
personnel. The Manual directs that the "duties of personnel handling cash, securities
and bookkeeping records should be rotated" and that such rotation "should be
irregular, unannounced and long enough to permit disclosure of any irregularities or
manipulations."28
Galanida was well aware of Allied Banks policy of periodically transferring personnel
to different branches. As the Court of Appeals found, assignment to the different
branches of Allied Bank was a condition of Galanidas employment. Galanida
consented to this condition when he signed the Notice of Personnel Action.29
176

The evidence on record contradicts the charge that Allied Bank discriminated against
Galanida and was in bad faith when it ordered his transfer. Allied Banks letter of 13
June 199430 showed that at least 14 accounting officers and personnel from various
branches, including Galanida, were transferred to other branches. Allied Bank did not
single out Galanida. The same letter explained that Galanida was second in line for
assignment outside Cebu because he had been in Cebu for seven years already. The
person first in line, Assistant Manager Roberto Isla, who had been in Cebu for more
than ten years, had already transferred to a branch in Cagayan de Oro City. We note
that none of the other transferees joined Galanida in his complaint or corroborated
his allegations of widespread discrimination and favoritism.
As regards Ms. Co, Galanidas letter of 16 June 1994 itself showed that her
assignment to Cebu was not in any way related to Galanidas transfer. Ms. Co was
supposed to replace a certain Larry Sabelino in the Tabunok branch. The employer
has the prerogative, based on its assessment of the employees qualifications and
competence, to rotate them in the various areas of its business operations to
ascertain where they will function with maximum benefit to the company.31
Neither was Galanidas transfer in the nature of a demotion. Galanida did not present
evidence showing that the transfer would diminish his salary, benefits or other
privileges. Instead, Allied Banks letter of 13 June 1994 assured Galanida that he
would not suffer any reduction in rank or grade, and that the transfer would involve
the same rank, duties and obligations. Mr. Olveda explained this further in the
affidavit he submitted to the Labor Arbiter, thus:
19. There is
benefits and
premised on
operations of

no demotion in position/rank or diminution of complainants salary,

other privileges as the transfer/assignment of branch officers is
the role/functions that they will assume in the management and
the branch, as shown below:

(a) The Branch Accountant, as controller of the branch is responsible for the proper
discharge of the functions of the accounting section of the branch, review of
documentation/proper accounting and control of transaction. As such, the accounting
functions in the branch can be assumed by any of the following officers with the rank
of: Senior Manager/Acctg.; Manager/ Acctg.; Senior Asst. Manager/Acctg.; Asst.
Manager/Acctg.; Accountant or Asst. Accountant.
xxx
20. The transfer/assignment of branch officer from one branch, to another
branch/office is lateral in nature and carries with it the same position/rank, salary,
177

benefits and other privileges. The assignment/transfer is for the officer to assume
the functions relative to his job and NOT the position/rank of the officer to be
replaced.
There is also no basis for the finding that Allied Bank was guilty of unfair labor practice
in dismissing Galanida. Unfair labor practices relate only to violations of "the
constitutional right of workers and employees to self-organization"32 and are limited
to the acts enumerated in Article 248 of the Labor Code, none of which applies to the
present case. There is no evidence that Galanida took part in forming a union, or
even that a union existed in Allied Bank.
This leaves the issue of whether Galanida could validly refuse the transfer orders on
the ground of parental obligations, additional expenses, and the anguish he would
suffer if assigned away from his family.
The Court has ruled on this issue before. In the case of Homeowners Savings and
Loan Association, Inc. v. NLRC,33 we held:
The acceptability of the proposition that transfer made by an employer for an illicit
or underhanded purpose i.e., to defeat an employees right to self-organization, to
rid himself of an undesirable worker, or to penalize an employee for union activities
cannot be upheld is self-evident and cannot be gainsaid. The difficulty lies in the
situation where no such illicit, improper or underhanded purpose can be ascribed to
the employer, the objection to the transfer being grounded solely upon the personal
inconvenience or hardship that will be caused to the employee by reason of the
transfer. What then?
This was the very same situation we faced in Phil. Telegraph and Telephone Corp. v.
Laplana. In that case, the employee, Alicia Laplana, was a cashier at the Baguio City
Branch of PT&T who was directed to transfer to the companys branch office at Laoag
City. In refusing the transfer, the employee averred that she had established Baguio
City as her permanent residence and that such transfer will involve additional
expenses on her part, plus the fact that an assignment to a far place will be a big
sacrifice for her as she will be kept away from her family which might adversely affect
her efficiency. In ruling for the employer, the Court upheld the transfer from one city
to another within the country as valid as long as there is no bad faith on the part of
the employer. We held then:
"Certainly the Court cannot accept the proposition that when an employee opposes
his employers decision to transfer him to another work place, there being no bad
faith or underhanded motives on the part of either party, it is the employees wishes
that should be made to prevail."
178

Galanida, through counsel, invokes the Courts ruling in Dosch v. NLRC.34 Dosch,
however, is not applicable to the present case. Helmut Dosch refused a transfer
consequential to a promotion. We upheld the refusal because no law compels an
employee to accept a promotion, and because the position Dosch was supposed to
be promoted to did not even exist at that time.35 This left as the only basis for the
charge of insubordination a letter from Dosch in which the Court found "not even the
slightest hint of defiance, much less xxx insubordination."36
Moreover, the transfer of an employee to an overseas post, as in the Dosch case,
cannot be likened to a transfer from one city to another within the country,37 which
is the situation in the present case. The distance from Cebu City to Bacolod City or
from Cebu City to Tagbilaran City does not exceed the distance from Baguio City to
Laoag City or from Baguio City to Manila, which the Court considered a reasonable
distance in PT&T v. Laplana.38
The refusal to obey a valid transfer order constitutes willful disobedience of a lawful
order of an employer.39 Employees may object to, negotiate and seek redress
against employers for rules or orders that they regard as unjust or illegal. However,
until and unless these rules or orders are declared illegal or improper by competent
authority, the employees ignore or disobey them at their peril.40 For Galanidas
continued refusal to obey Allied Banks transfer orders, we hold that the bank
dismissed Galanida for just cause in accordance with Article 282 (a) of the Labor
Code.41 Galanida is thus not entitled to reinstatement or to separation pay.
Whether Galanidas dismissal violated the
requirement of notice and hearing
To be effective, a dismissal must comply with Section 2 (d), Rule 1, Book VI of the
Omnibus Rules Implementing the Labor Code ("Omnibus Rules"), which provides:
For termination of employment based on just causes as defined in Article 282 of the
Labor Code:
(i) A written notice served on the employee specifying the ground or grounds of
termination, and giving said employee reasonable opportunity within which to explain
his side.
(ii) A hearing or conference during which the employee concerned, with the
assistance of counsel if he so desires is given opportunity to respond to the charge,
present his evidence, or rebut the evidence presented against him.

179

(iii) A written notice of termination served on the employee indicating that upon due
consideration of all the circumstances, grounds have been established to justify his
termination.
The first written notice was embodied in Allied Banks letter of 13 June 1994. The
first notice required Galanida to explain why no disciplinary action should be taken
against him for his refusal to comply with the transfer orders.
On the requirement of a hearing, this Court has held that the essence of due process
is simply an opportunity to be heard.42 An actual hearing is not necessary. The
exchange of several letters, in which Galanidas wife, a lawyer with the City
Prosecutors Office, assisted him, gave Galanida an opportunity to respond to the
charges against him.
The remaining issue is whether the Memo dated 8 September 1994 sent to Galanida
constitutes the written notice of termination required by the Omnibus Rules. In
finding that it did not, the Court of Appeals and the NLRC cited Allied Banks rule on
dismissals, quoted in the Memo, that, "Notice of termination shall be issued by the
Investigation Committee subject to the confirmation of the President or his authorized
representative."43 The appellate court and NLRC held that Allied Bank did not send
any notice of termination to Galanida. The Memo, with the heading "Transfer and
Reassignment," was not the termination notice required by law.
We do not agree.
Even a cursory reading of the Memo will show that it unequivocally informed Galanida
of Allied Banks decision to dismiss him. The statement, "please be informed that the
Bank has terminated your services effective September 1, 1994 and considered
whatever benefit, if any, that you are entitled [to] as forfeited xxx"44 is plainly
worded and needs no interpretation. The Memo also discussed the findings of the
Investigation Committee that served as grounds for Galanidas dismissal. The Memo
referred to Galanidas "open defiance and refusal" to transfer first to the Bacolod City
branch and then to the Tagbilaran City branch. The Memo also mentioned his
continued refusal to report for work despite the denial of his application for additional
vacation leave.45 The Memo also refuted Galanidas charges of discrimination and
demotion, and concluded that he had violated Article XII of the banks Employee
Discipline Policy and Procedure.
The Memo, although captioned "Transfer and Reassignment," did not preclude it from
being a notice of termination. The Court has held that the nature of an instrument is
characterized not by the title given to it but by its body and contents.46 Moreover, it

180

appears that Galanida himself regarded the Memo as a notice of termination. We

quote from the Memorandum for Private Respondent-Appellee, as follows:
The proceedings may be capsulized as follows:
1. On March 13, 199447 Private Respondent-Appellee filed before the Region VII
Arbitration Branch a Complaint for Constructive Dismissal. A copy of the Complaint
is attached to the Petition as Annex "H";
xxx
5. On September 8, 1994, Petitioner-Appellant issued him a Letter of Termination. A
copy of said letter is attached to the Petition as Annex "N";
6. Private Respondent-Appellee filed an Amended/ Supplemental Complaint wherein
he alleged illegal dismissal. A copy of the Amended/Supplemental Complaint is
attached to the Petition as Annex "O"; xxx 48 (Emphasis supplied)
The Memorandum for Private Respondent-Appellee refers to the Memo as a "Letter
of Termination." Further, Galanida amended his complaint for constructive
dismissal49 to one for illegal dismissal50 after he received the Memo. Clearly,
Galanida had understood the Memo to mean that Allied Bank had terminated his
services.
The Memo complied with Allied Banks internal rules which required the banks
President or his authorized representative to confirm the notice of termination. The
banks Vice-President for Personnel, as the head of the department that handles the
movement of personnel within Allied Bank, can certainly represent the bank president
in cases involving the dismissal of employees.
Nevertheless, we agree that the Memo suffered from certain errors.1wphi1 Although
the Memo stated that Allied Bank terminated Galanidas services as of 1 September
1994, the Memo bore the date 8 September 1994. More importantly, Galanida only
received a copy of the Memo on 5 October 1994, or more than a month after the
supposed date of his dismissal. To be effective, a written notice of termination must
be served on the employee.51 Allied Bank could not terminate Galanida on 1
September 1994 because he had not received as of that date the notice of Allied
Banks decision to dismiss him. Galanidas dismissal could only take effect on 5
October 1994, upon his receipt of the Memo. For this reason, Galanida is entitled to
backwages for the period from 1 September 1994 to 4 October 1994.

181

Under the circumstances, we also find an award of P 10,000 in nominal damages

proper. Courts award nominal damages to recognize or vindicate the right of a person
that another has violated.52 The law entitles Galanida to receive timely notice of
Allied Banks decision to dismiss him. Allied Bank should have exercised more care in
issuing the notice of termination.
WHEREFORE, the Decision of 27 April 2000 of the Court of Appeals in CA-G.R. SP No.
51451 upholding the Decision of 18 September 1998 of the NLRC in NLRC Case No.
V-000180-98 is AFFIRMED, with the following MODIFICATIONS:
1) The awards of separation pay, moral damages and exemplary damages are hereby
deleted for lack of basis;
2) Reducing the award of backwages to cover only the period from 1 September 1994
to 4 October 1994; and
3) Awarding nominal damages to private respondent for P 10,000.
This case is REMANDED to the Labor Arbiter for the computation, within thirty (30)
days from receipt of this Decision, of the backwages, inclusive of allowances and
other benefits, due to Potenciano L. Galanida for the time his dismissal was ineffectual
from 1 September 1994 until 4 October 1994.
Labor Arbiter Dominador A. Almirante and Atty. Loreto M. Durano are ADMONISHED
to be more careful in citing the decisions of the Supreme Court in the future.
SO ORDERED.

182

G.R. No. L-33672

September 28, 1973

VICENTE MUOZ, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and THE COURT OF APPEALS, respondents, DELIA T.
SUTTON, respondent.
RESOLUTION

FERNANDO, J.:
We have before us a task far from pleasant. Respondent, Delia T. Sutton, a member
of the Philippine Bar, connected with the law firm of Salonga, Ordoez, Yap, Parlade,
and Associates, must be held accountable for failure to live up to that exacting
standard expected of counsel, more specifically with reference to a duty owing this
Tribunal. She failed to meet the test of candor and honesty required of pleaders
when, in a petition for certiorari prepared by her to review a Court of Appeals
decision, she attributed to it a finding of facts in reckless disregard, to say the least,
of what in truth was its version as to what transpired. When given an opportunity to
make proper amends, both in her appearance before us and thereafter in her
memorandum, there was lacking any showing of regret for a misconduct so obvious
and so inexcusable. Such an attitude of intransigence hardly commends itself. Her
liability is clear. Only her relative inexperience in the ways of the law did save her
from a penalty graver than severe censure. So we rule.
The background of the incident before us was set forth in our resolution of July 12,
1971. It reads as follows: "Acting upon the petition for review in G.R. No. L-33672,
Vicente Muoz v. People of the Philippines and the Court of Appeals, and considering
that the main issue therein is whether petitioner Muoz is guilty of homicide through
reckless negligence, as charged in the information; that in the language of the
decision of the Court of Appeals "the prosecution and the defense offered two
conflicting versions of the incident that gave rise to the case"; that, upon examination
of the evidence, the Court of Appeals found, as did the trial court, that the version of
the prosecution is the true one and that of the defense is unbelievable; that this
finding of the Court of Appeals is borne out by substantial evidence, whereas the
version of the defense is inconsistent with some established facts, for: (a) petitioner's
theory, to the effect that his boat had been rammed by that of the complainant, is
refuted by the fact that after hitting the left frontal outrigger of the latter's boat, the
prow and front outrigger of petitioner's motorboat hit also the left front portion of
complainant's boat where the complainant was seated, thereby hitting him on the
183

back and inflicting the injury that cause his death so that, immediately after the
collision - part of petitioner's boat was on top of that of the complainant; (b) these
circumstances, likewise, indicate the considerable speed at which petitioner's
motorboat was cruising, (c) petitioner's motorboat had suffered very little damage,
which would have been considerable had it been rammed by the offended party's
boat, the latter being bigger than, as well as provided with an engine twice as
powerful as, that of the petitioner; and (d) although appellant's boat carried several
passengers, including children, and was, in fact, overloaded, appellant acted as pilot
and, at the same time, as its machinist, thereby rendering it difficult for him to
manuever it properly; the Court resolved to [deny] the petition upon the ground that
it is mainly factual and for lack of merit. Considering further, that the petition quotes,
on page 5 thereof a portion of the decision appealed from, summing up evidence for
the defense, and makes reference thereto "findings" of the Court of Appeals, which
is not true; that, on page 6 of the petition, petitioner states, referring to a portion of
the same quotation, that the same "are the established uncontroverted facts
recognized by the Court of Appeals," which is, likewise, untrue; that, on page 8 of
the petition, it is averred "It being conceded that the two versions recounted above
are by themselves credible, although they are conflicting the same cannot be binding
on, and is therefore, reviewable by the Honorable Supreme Court. Where the findings
of fact of the Court of Appeals [are conflicting], the same [are not binding] on the
Supreme Court. (Cesica v. Villaseca, G.R. L-9590, April 30, 1957)" although, in fact,
no conflicting findings of fact are made in the decision appealed from; and that, on
page 9 of the petition, it is alleged that the Court of Appeals had"affirmed the
minimum penalty of one (1) year and one (1) day imposed by the lower court,"
although, in fact, minimum penalty imposed by the trial court was "four(4) months
of arresto mayor"; the Court resolved to require counsel for the petitioner to show
cause, within ten (10) days from notice, why they should not be dealt with for
contempt of court [or] otherwise subjected to disciplinary action for making
aforementioned misrepresentations." " 1
A pleading entitled "Compliance with Resolution" by the aforesaid law firm was filed
on August 14, 1971. There was no attempt at justification, because in law there is
none, but it did offer what was hoped to be a satisfactory explanation. If so, such
optimism was misplaced. It betrayed on its face more than just a hint of lack of
candor, of minimizing the effects of grave inaccuracies in the attribution to the Court
of Appeals certain alleged facts not so considered as such. It was then to say that
the least a far from meticulous appraisal of the matter in issue. Much of what was
therein contained did not ring true.
Under the circumstances, we set the matter for hearing on September 14 of the same
year, requiring all lawyers-partners in said firm to be present. At such a hearing,
respondent Delia T. Sutton appeared. While her demeanor was respectful, it was
184

obvious that she was far from contrite. On the contrary, the impression she gave the
Court was that what was done by her was hardly deserving of any reproach. Even
when subjected to intensive questioning by several members of the Court, she was
not to be budged from such an untenable position. It was as if she was serenely
unconcerned, oblivious of the unfavorable reaction to, which her evasive answers
gave rise. There certainly was lack of awareness of the serious character of her
misdeed. The act of unruffled assurance under the circumstances was hard to
understand. Perhaps realizing that the Court was not disposed to look at the matter
as a minor peccadillo, Attorney Sedfrey A. Ordoez of the law firm expressly
acknowledged that what appeared in its petition for certiorari prepared by respondent
Delia T. Sutton insofar as it did misrepresent what is set forth in the Court of Appeals
decision sought to be reviewed was reprehensible, and did make with the proper
spirit of humility the necessary expression of regret.
What is more, the law firm in a pleading entitled "Joint Apology to the Supreme Court"
filed on December 1, 1971, signed jointly by Sedfrey A. Ordoez and Delia Sutton,
did seek to make amends thus: "1. That undersigned attorney, Delia T. Sutton,
together with Messrs. Sedfrey A. Ordoez, Pedro L. Yap and Custodio O. Parlade,
partners in the firm of Salonga, Ordoez, Yap, Parlade & Associates, appeared before
this Honorable Court on November 22, 1971, pursuant to an order dated October 18,
1971; 2. That with all the sincerity and candor at the command of undersigned
attorney, the circumstances surrounding her preparation of the pleading which gave
rise to the instant citation to show cause why she should not be punished for
contempt of court were explained by her, with the assistance of Atty. Sedfrey A.
Ordoez; 3. That the undersigned Delia T. Sutton had no intention to misrepresent
any question of fact before this Honorable Court for her personal gain or benefit, and
that it was her lack of adequate extensive experience in preparing petitions for
certiorari which may have caused the inaccurate statements in the said petition which
were enumerated in the order of this Honorable Court; 4. That undersigned Delia T.
Sutton contritely realizes the errors which she committed in the preparation of the
said petition for certiorari and that the same will not recur in the future as she will
always abide by the provisions on candor and fairness in the Canons of Professional
Ethics, which reads: "22. [Candor and Fairness]. The conduct of the lawyer before
the court and with other lawyers should be characterized by candor and fairness. It
is not candid or fair for the lawyer knowingly to misquote the contents of a paper,
the testimony of a witness, the language or the argument of opposing counsel, or the
language of a decision or a textbook or; with knowledge of its invalidity, to cite as
authority a decision that has been overruled, or a statute that has been repealed; or
in argument to assert as fact that which has not been proved, or in those jurisdictions
where a side has the opening and closing arguments to mislead his opponent by
concealing or withholding positions in his opening argument upon which his side then
intends to rely. ..." 5. That undersigned Atty. Sedfrey A. Ordoez joins Atty. Delia T.
185

Sutton in expressing his own apologies to the Honorable Court for not having
thoroughly supervised the preparation by Atty. Delia T. Sutton of a type of pleading
with which she was not thoroughly familiar." 2
The "Joint Apology" thus offered did mitigate to some extent the liability of
respondent Sutton. Some members of the Court feel, however, that it does not go
far enough. While expressing regret and offering apology, there was lacking that free
admission that what was done by her should not characterized merely as "errors"
consisting as they do of "inaccurate statements." If there were a greater sincerity on
her part, the offense should have been acknowledged as the submission of deliberate
misstatements. There ought to be, for the apology to gain significance, no further
attempt at minimizing the enormity of the misdeed. It is then as if there was hardly
any retreat from the untenable stand originally taken. The mood, even at this stage,
seems to be that she could brazen it out as long as the words indicative of an apology
were offered. This Court does not view matters thus. To purge herself of the
contempt, she ought to have displayed the proper spirit of contrition and humility.
The burden cast on the judiciary would be intolerable if it could not take at face value
what is asserted by counsel. The time that will have to be devoted just to the task of
verification of allegations submitted could easily be imagined. Even with due
recognition then that counsel is expected to display the utmost zeal in defense of a
client's cause, it must never be at the expense of deviation from the truth. As set
forth in the applicable Canon of Legal Ethics: "Nothing operates more certainly to
create or to foster popular prejudice against lawyers as a class, and to deprive the
profession of that full measure of public esteem and confidence which belongs to the
proper discharge of its duties than does the false claim, often set up by the
unscrupulous in defense of questionable transactions, that it is the duty of the lawyer
to do whatever may enable him to succeed in winning his client's cause." 3 What is
more, the obligation to the bench, especially to this Court, for candor and honesty
takes precedence. It is by virtue of such considerations that punishment that must
fit the offense has to be meted out to respondent Delia T. Sutton.
At the same time, the attitude displayed by one of the senior partners, Attorney
Sedfrey A. Ordoez, both in the appearances before the Court and in the pleadings
submitted, must be commended. He has made manifest that his awareness of the
role properly incumbent on counsel, especially in his relationship to this Court, is
deep-seated. It must be stated, however, that in the future he, as well as the other
senior partners, should exercise greater care in the supervision of the attorneys
connected with their law firm, perhaps inexperienced as yet but nonetheless called
upon to comply with the peremptory tenets of ethical conduct.
WHEREFORE, respondent Delia T. Sutton is severely censured. Let a copy of this
resolution be spread on her record.
186

187

G.R. No. 100643

December 12, 1995

ADEZ REALTY, INCORPORATED, petitioner,

vs.
HONORABLE COURT OF APPEALS, THE PRESIDING JUDGE, REGIONAL TRIAL COURT,
Br. 79, Morong Rizal, THE REGISTER OF DEEDS FOR QUEZON CITY, and AGUEDO
EUGENIO, respondents.
RESOLUTION

BELLOSILLO, J.:
On 30 October 1992 the Court found movant, Atty. Benjamin M. Dacanay, guilty of
intercalating a material fact in a decision of the Court of Appeals, which he appealed
to this Court on certiorari, thereby altering the factual findings of the Court of Appeals
with the apparent purpose of misleading this Court in order to obtain a favorable
judgment. Consequently, Atty. Dacanay was disbarred from the practice of law. 1
On 20 November 1992 movant filed a Motion for Reconsideration and Leave to Offer
Evidence Re Charge of Unauthorized Intercalation in a Judicial Record dated 18
November 1992. He claimed that the inserted words were written by his client, the
President of Adez Realty, Inc., in the draft of the petition to be filed before the
Supreme Court and unwittingly adopted by movant's secretary when the latter
formalized the petition. He manifested that he would not risk committing the act for
which he was found guilty considering that he was a nominee of the Judicial and Bar
Council to the President for appointment as regional trial judge. 2 But the Court on 3
December 1992 denied the motion for want of a compelling reason to justify a
reversal of the questioned resolution. 3
On 23 February 1994 movant Dacanay filed a Motion to Lift (Disbarment) stating that
he was already 62 years old, has learned his lesson from his mistake, was terribly
sorry for what he had done, and in all candor promised that if given another chance
he would live up to the exacting demands of the legal profession. He appended to his
motion certifications of good moral character from: Fr. Celso Fernando, Parochial
Vicar, Parish of St. Michael Archangel, Marilao, Bulacan; Fr. Lauro V. Larlar, OAR,
Rector, San Sebastian College-Recoletos; Sis. Aniceta B. Abion, EMM, Chairperson,
Center for Housing and Ecology Development Foundation, Inc.; Dean Rufus B.
Rodriquez, College of Law, San Sebastian College-Recoletos; Judge Pedro T.
Santiago, Executive Judge, RTC, Quezon City; Judge Teodoro P. Regino, RTC-Br. 84,
Quezon City; Judge Antonio P. Solano, RTC-Br. 86, Quezon City; and Judge Gregorio
188

D. Dayrit, MTC-Br. 35, Quezon City. 4 However, on 11 August 1994 the Court denied
the motion. 5
On 1 December 1994 movant again filed an Ex-Parte Motion to Lift Disbarment
alleging among others that he had been deprived of his means to life; he had pursued
civic, religious and community work, especially for the poor and the underprivileged
short of extending legal assistance because of his incapacity; he had admitted "with
profound regret and with utmost humility his commission of an unpardonable mistake
and ask(ed) that he be given another chance;" and, he was "remorseful for what he
has done and comes to this Honorable Court with a contrite heart." 6
His wife Norma M. Dacanay likewise wrote the Court on 1 December 1994 saying that
while she did not condone what her husband had done, it had been her fervent wish
that the Court took a second look into its decision disbarring her husband as her
entire family had been traumatized by his disbarment. 7
On 6 March 1995 movant sent a letter addressed to the Chief Justice and the
Associate Justices of the Court reiterating his Ex-Parte Motion to Lift Disbarment of 1
December 1994. Thus
I am truly penitent for the serious offense I committed and admit full responsibility
for it. I realize it was dishonest and unfair to pass the blame to my secretary who
was merely following my instructions. The intercalation was my own act and I am
justly punished for it.
Your Honors, I do not question your decision but I only beg for your mercy. I have a
wife and children to support but my only means of livelihood has been withdrawn
from me. I am destitute and desperate and can only turn to you for relief . . . .
Looking back, I cannot imagine how I could have even thought of blackening the law
profession, to which I owe so much. Please let me redeem myself by admitting me
back to its precincts, where I swear to live strictly according to its canons . . . . 8
On 21 March 1995 the Court noted the letter of 6 March 1995 of movant Dacanay.
On 4 August 1995 movant again prayed for his reinstatement
It has been 33 long months since my disbarment, during which time I have been
struggling to make both ends meet to provide for my wife and three children. Please
give me the chance to prove that I am a reformed offender who will henceforth do
nothing whatsoever to dishonor the legal profession. 9

189

On 12 September 1995 the Court noted respondent's 4 August 1995 letter. 10

On 17 November, 1995 movant once more wrote the Court
I humbly acknowledge again that I committed a grievous offense for which I was
justly punished at the time with the extreme sanction of disbarment.
I have been suffering much since my disbarment more than 36 months ago, but it is
my wife and children who have suffered more for my transgression. Although
innocent, they bear with me the stigma and burden of my punishment. 11
The disbarment of movant Benjamin M. Dacanay for three (3) years has, quite
apparently, given him sufficient time and occasion to soul-search and reflect on his
professional conduct, redeem himself and prove once more that he is worthy to
practice law and be capable of upholding the dignity of the legal profession. His
admission of guilt and repeated pleas for compassion and reinstatement show that
he is ready once more to meet the exacting standards the legal profession demands
from its practitioners. Accordingly, the Court lifts the disbarment of Benjamin M.
Dacanay. However he should be sternly warned that
[T]he practice of law is a privilege burdened with conditions. Adherence to the rigid
standards of mental fitness, maintenance of the highest degree of morality and
faithful compliance with the rules of the legal profession are the conditions required
for remaining a member of good standing of the bar and for enjoying the privilege to
practice law. The Supreme Court, as guardian of the legal profession, has ultimate
disciplinary power over attorneys. This authority to discipline its members is not only
a right, but a bounden duty as well . . . That is why respect and fidelity to the Court
is demanded of its members . . . 12
WHEREFORE, the disbarment of BENJAMIN M. DACANAY from the practice of law is
LIFTED and he is therefore allowed to resume the practice of law upon payment of
the required legal fees. This resolution is effective immediately.
SO ORDERED.

190

G.R. No. L-25291

January 30, 1971

THE INSULAR LIFE ASSURANCE CO., LTD., EMPLOYEES ASSOCIATION-NATU, FGU

INSURANCE GROUP WORKERS and EMPLOYEES ASSOCIATION-NATU, and INSULAR
LIFE BUILDING EMPLOYEES ASSOCIATION-NATU, petitioners,
vs.
THE INSULAR LIFE ASSURANCE CO., LTD., FGU INSURANCE GROUP, JOSE M. OLBES
and COURT OF INDUSTRIAL RELATIONS, respondents.
Lacsina, Lontok and Perez and Luis F. Aquino for petitioners.
Francisco de los Reyes for respondent Court of Industrial Relations.
Araneta, Mendoza and Papa for other respondents.

CASTRO, J.:
Appeal, by certiorari to review a decision and a resolution en banc of the Court of
Industrial Relations dated August 17, 1965 and October 20, 1965, respectively, in
Case 1698-ULP.
The Insular Life Assurance Co., Ltd., Employees Association-NATU, FGU Insurance
Group Workers & Employees Association-NATU, and Insular Life Building Employees
Association-NATU (hereinafter referred to as the Unions), while still members of the
Federation of Free Workers (FFW), entered into separate collective bargaining
agreements with the Insular Life Assurance Co., Ltd. and the FGU Insurance Group
(hereinafter referred to as the Companies).
Two of the lawyers of the Unions then were Felipe Enaje and Ramon Garcia; the latter
was formerly the secretary-treasurer of the FFW and acting president of the Insular
Life/FGU unions and the Insular Life Building Employees Association. Garcia, as such
acting president, in a circular issued in his name and signed by him, tried to dissuade
the members of the Unions from disaffiliating with the FFW and joining the National
Association of Trade Unions (NATU), to no avail.
Enaje and Garcia soon left the FFW and secured employment with the Anti-Dummy
Board of the Department of Justice. Thereafter, the Companies hired Garcia in the
latter part of 1956 as assistant corporate secretary and legal assistant in their Legal
Department, and he was soon receiving P900 a month, or P600 more than he was
receiving from the FFW. Enaje was hired on or about February 19, 1957 as personnel
191

manager of the Companies, and was likewise made chairman of the negotiating panel
for the Companies in the collective bargaining with the Unions.
In a letter dated September 16, 1957, the Unions jointly submitted proposals to the
Companies for a modified renewal of their respective collective bargaining contracts
which were then due to expire on September 30, 1957. The parties mutually agreed
and to make whatever benefits could be agreed upon retroactively effective October
1, 1957.
Thereafter, in the months of September and October 1957 negotiations were
conducted on the Union's proposals, but these were snagged by a deadlock on the
issue of union shop, as a result of which the Unions filed on January 27, 1958 a notice
of strike for "deadlock on collective bargaining." Several conciliation conferences were
held under the auspices of the Department of Labor wherein the conciliators urged
the Companies to make reply to the Unions' proposals en toto so that the said Unions
might consider the feasibility of dropping their demand for union security in exchange
for other benefits. However, the Companies did not make any counter-proposals but,
instead, insisted that the Unions first drop their demand for union security, promising
money benefits if this was done. Thereupon, and prior to April 15, 1958, the petitioner
Insular Life Building Employees Association-NATU dropped this particular demand,
and requested the Companies to answer its demands, point by point, en toto. But the
respondent Insular Life Assurance Co. still refused to make any counter-proposals.
In a letter addressed to the two other Unions by the joint management of the
Companies, the former were also asked to drop their union security demand,
otherwise the Companies "would no longer consider themselves bound by the
commitment to make money benefits retroactive to October 1, 1957." By a letter
dated April 17, 1958, the remaining two petitioner unions likewise dropped their
demand for union shop. April 25, 1958 then was set by the parties to meet and
discuss the remaining demands.
From April 25 to May 6, 1958, the parties negotiated on the labor demands but with
no satisfactory result due to a stalemate on the matter of salary increases. On May
13, 1958 the Unions demanded from the Companies final counter-proposals on their
economic demands, particularly on salary increases. Instead of giving counterproposals, the Companies on May 15, 1958 presented facts and figures and requested
the Unions to submit a workable formula which would justify their own proposals,
taking into account the financial position of the former. Forthwith the Unions voted
to declare a strike in protest against what they considered the Companies' unfair
labor practices.
Meanwhile, eighty-seven (87) unionists were reclassified as supervisors without
increase in salary nor in responsibility while negotiations were going on in the
192

Department of Labor after the notice to strike was served on the Companies. These
employees resigned from the Unions.
On May 20, 1958 the Unions went on strike and picketed the offices of the Insular
Life Building at Plaza Moraga.
On May 21, 1958 the Companies through their acting manager and president, the
respondent Jose M. Olbes (hereinafter referred to as the respondent Olbes), sent to
each of the strikers a letter (exhibit A) quoted verbatim as follows:
We recognize it is your privilege both to strike and to conduct picketing.
However, if any of you would like to come back to work voluntarily, you may:
1.

Advise the nearest police officer or security guard of your intention to do so.

2.

Take your meals within the office.

3.
Make a choice whether to go home at the end of the day or to sleep nights at
the office where comfortable cots have been prepared.
4.

Enjoy free coffee and occasional movies.

5.

Be paid overtime for work performed in excess of eight hours.

6.

Be sure arrangements will be made for your families.

The decision to make is yours whether you still believe in the motives of the strike
or in the fairness of the Management.
The Unions, however, continued on strike, with the exception of a few unionists who
were convinced to desist by the aforesaid letter of May 21, 1958.
From the date the strike was called on May 21, 1958, until it was called off on May
31, 1958, some management men tried to break thru the Unions' picket lines. Thus,
on May 21, 1958 Garcia, assistant corporate secretary, and Vicente Abella, chief of
the personnel records section, respectively of the Companies, tried to penetrate the
picket lines in front of the Insular Life Building. Garcia, upon approaching the picket
line, tossed aside the placard of a picketer, one Paulino Bugay; a fight ensued
between them, in which both suffered injuries. The Companies organized three busloads of employees, including a photographer, who with the said respondent Olbes,
succeeded in penetrating the picket lines in front of the Insular Life Building, thus
193

causing injuries to the picketers and also to the strike-breakers due to the resistance
offered by some picketers.
Alleging that some non-strikers were injured and with the use of photographs as
evidence, the Companies then filed criminal charges against the strikers with the City
Fiscal's Office of Manila. During the pendency of the said cases in the fiscal's office,
the Companies likewise filed a petition for injunction with damages with the Court of
First Instance of Manila which, on the basis of the pendency of the various criminal
cases against striking members of the Unions, issued on May 31, 1958 an order
restraining the strikers, until further orders of the said court, from stopping,
impeding, obstructing, etc. the free and peaceful use of the Companies' gates,
entrance and driveway and the free movement of persons and vehicles to and from,
out and in, of the Companies' building.
On the same date, the Companies, again through the respondent Olbes, sent
individually to the strikers a letter (exhibit B), quoted hereunder in its entirety:
The first day of the strike was last 21 May 1958.
Our position remains unchanged and the strike has made us even more convinced of
our decision.
We do not know how long you intend to stay out, but we cannot hold your positions
open for long. We have continued to operate and will continue to do so with or without
you.
If you are still interested in continuing in the employ of the Group Companies, and if
there are no criminal charges pending against you, we are giving you until 2 June
1958 to report for work at the home office. If by this date you have not yet reported,
we may be forced to obtain your replacement.
Before, the decisions was yours to make.
So it is now.
Incidentally, all of the more than 120 criminal charges filed against the members of
the Unions, except three (3), were dismissed by the fiscal's office and by the courts.
These three cases involved "slight physical injuries" against one striker and "light
coercion" against two others.
At any rate, because of the issuance of the writ of preliminary injunction against them
as well as the ultimatum of the Companies giving them until June 2, 1958 to return
194

to their jobs or else be replaced, the striking employees decided to call off their strike
and to report back to work on June 2, 1958.
However, before readmitting the strikers, the Companies required them not only to
secure clearances from the City Fiscal's Office of Manila but also to be screened by a
management committee among the members of which were Enage and Garcia. The
screening committee initially rejected 83 strikers with pending criminal charges.
However, all non-strikers with pending criminal charges which arose from the
breakthrough incident were readmitted immediately by the Companies without being
required to secure clearances from the fiscal's office. Subsequently, when practically
all the strikers had secured clearances from the fiscal's office, the Companies
readmitted only some but adamantly refused readmission to 34 officials and
members of the Unions who were most active in the strike, on the ground that they
committed "acts inimical to the interest of the respondents," without however stating
the specific acts allegedly committed. Among those who were refused readmission
are Emiliano Tabasondra, vice president of the Insular Life Building Employees'
Association-NATU; Florencio Ibarra, president of the FGU Insurance Group Workers
& Employees Association-NATU; and Isagani Du Timbol, acting president of the
Insular Life Assurance Co., Ltd. Employees Association-NATU. Some 24 of the above
number were ultimately notified months later that they were being dismissed
retroactively as of June 2, 1958 and given separation pay checks computed under
Rep. Act 1787, while others (ten in number) up to now have not been readmitted
although there have been no formal dismissal notices given to them.
On July 29, 1958 the CIR prosecutor filed a complaint for unfair labor practice against
the Companies under Republic Act 875. The complaint specifically charged the
Companies with (1) interfering with the members of the Unions in the exercise of
their right to concerted action, by sending out individual letters to them urging them
to abandon their strike and return to work, with a promise of comfortable cots, free
coffee and movies, and paid overtime, and, subsequently, by warning them that if
they did not return to work on or before June 2, 1958, they might be replaced; and
(2) discriminating against the members of the Unions as regards readmission to work
after the strike on the basis of their union membership and degree of participation in
the strike.
On August 4, 1958 the Companies filed their answer denying all the material
allegations of the complaint, stating special defenses therein, and asking for the
dismissal of the complaint.
After trial on the merits, the Court of Industrial Relations, through Presiding Judge
Arsenio Martinez, rendered on August 17, 1965 a decision dismissing the Unions'
complaint for lack of merit. On August 31, 1965 the Unions seasonably filed their
195

motion for reconsideration of the said decision, and their supporting memorandum
on September 10, 1965. This was denied by the Court of Industrial Relations en banc
in a resolution promulgated on October 20, 1965.
Hence, this petition for review, the Unions contending that the lower court erred:
1.
In not finding the Companies guilty of unfair labor practice in sending out
individually to the strikers the letters marked Exhibits A and B;
2.
In not finding the Companies guilty of unfair labor practice for discriminating
against the striking members of the Unions in the matter of readmission of employees
after the strike;
3.
In not finding the Companies guilty of unfair labor practice for dismissing
officials and members of the Unions without giving them the benefit of investigation
and the opportunity to present their side in regard to activities undertaken by them
in the legitimate exercise of their right to strike; and
4.
In not ordering the reinstatement of officials and members of the Unions, with
full back wages, from June 2, 1958 to the date of their actual reinstatement to their
usual employment.
I.
The respondents contend that the sending of the letters, exhibits A and B,
constituted a legitimate exercise of their freedom of speech. We do not agree. The
said letters were directed to the striking employees individually by registered
special delivery mail at that without being coursed through the Unions which were
representing the employees in the collective bargaining.
The act of an employer in notifying absent employees individually during a strike
following unproductive efforts at collective bargaining that the plant would be
operated the next day and that their jobs were open for them should they want to
come in has been held to be an unfair labor practice, as an active interference with
the right of collective bargaining through dealing with the employees individually
instead of through their collective bargaining representatives. (31 Am. Jur. 563, citing
NLRB v. Montgomery Ward & Co. [CA 9th] 133 F2d 676, 146 ALR 1045)
Indeed, it is an unfair labor practice for an employer operating under a collective
bargaining agreement to negotiate or to attempt to negotiate with his employees
individually in connection with changes in the agreement. And the basis of the
prohibition regarding individual bargaining with the strikers is that although the union
is on strike, the employer is still under obligation to bargain with the union as the

196

employees' bargaining representative (Melo Photo Supply Corporation vs. National

Labor Relations Board, 321 U.S. 332).
Indeed, some such similar actions are illegal as constituting unwarranted acts of
interference. Thus, the act of a company president in writing letters to the strikers,
urging their return to work on terms inconsistent with their union membership, was
adjudged as constituting interference with the exercise of his employees' right to
collective bargaining (Lighter Publishing, CCA 7th, 133 F2d 621). It is likewise an act
of interference for the employer to send a letter to all employees notifying them to
return to work at a time specified therein, otherwise new employees would be
engaged to perform their jobs. Individual solicitation of the employees or visiting
their homes, with the employer or his representative urging the employees to cease
union activity or cease striking, constitutes unfair labor practice. All the abovedetailed activities are unfair labor practices because they tend to undermine the
concerted activity of the employees, an activity to which they are entitled free from
the employer's molestation.1
Moreover, since exhibit A is a letter containing promises of benefits to the employees
in order to entice them to return to work, it is not protected by the free speech
provisions of the Constitution (NLRB v. Clearfield Cheese Co., Inc., 213 F2d 70). The
same is true with exhibit B since it contained threats to obtain replacements for the
striking employees in the event they did not report for work on June 2, 1958. The
free speech protection under the Constitution is inapplicable where the expression of
opinion by the employer or his agent contains a promise of benefit, or threats, or
reprisal (31 Am. Jur. 544; NLRB vs. Clearfield Cheese Co., Inc., 213 F2d 70; NLRB
vs. Goigy Co., 211 F2d 533, 35 ALR 2d 422).
Indeed, when the respondents offered reinstatement and attempted to "bribe" the
strikers with "comfortable cots," "free coffee and occasional movies," "overtime" pay
for "work performed in excess of eight hours," and "arrangements" for their families,
so they would abandon the strike and return to work, they were guilty of strikebreaking and/or union-busting and, consequently, of unfair labor practice. It is
equivalent to an attempt to break a strike for an employer to offer reinstatement to
striking employees individually, when they are represented by a union, since the
employees thus offered reinstatement are unable to determine what the
consequences of returning to work would be.
Likewise violative of the right to organize, form and join labor organizations are the
following acts: the offer of a Christmas bonus to all "loyal" employees of a company
shortly after the making of a request by the union to bargain; wage increases given
for the purpose of mollifying employees after the employer has refused to bargain
with the union, or for the purpose of inducing striking employees to return to work;
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the employer's promises of benefits in return for the strikers' abandonment of their
strike in support of their union; and the employer's statement, made about 6 weeks
after the strike started, to a group of strikers in a restaurant to the effect that if the
strikers returned to work, they would receive new benefits in the form of
hospitalization, accident insurance, profit-sharing, and a new building to work in.2
Citing paragraph 5 of the complaint filed by the acting prosecutor of the lower court
which states that "the officers and members of the complainant unions decided to
call off the strike and return to work on June 2, 1958 by reason of the injunction
issued by the Manila Court of First Instance," the respondents contend that this was
the main cause why the strikers returned to work and not the letters, exhibits A and
B. This assertion is without merit. The circumstance that the strikers later decided to
return to work ostensibly on account of the injunctive writ issued by the Court of First
Instance of Manila cannot alter the intrinsic quality of the letters, which were
calculated, or which tended, to interfere with the employees' right to engage in lawful
concerted activity in the form of a strike. Interference constituting unfair labor
practice will not cease to be such simply because it was susceptible of being thwarted
or resisted, or that it did not proximately cause the result intended. For success of
purpose is not, and should not, be the criterion in determining whether or not a
prohibited act constitutes unfair labor practice.
The test of whether an employer has interfered with and coerced employees within
the meaning of subsection (a) (1) is whether the employer has engaged in conduct
which it may reasonably be said tends to interfere with the free exercise of
employees' rights under section 3 of the Act, and it is not necessary that there be
direct evidence that any employee was in fact intimidated or coerced by statements
of threats of the employer if there is a reasonable inference that anti-union conduct
of the employer does have an adverse effect on self-organization and collective
bargaining. (Francisco, Labor Laws 1956, Vol. II, p. 323, citing NLRB v. Ford, C.A.,
1948, 170 F2d 735).
Besides, the letters, exhibits A and B, should not be considered by themselves alone
but should be read in the light of the preceding and subsequent circumstances
surrounding them. The letters should be interpreted according to the "totality of
conduct doctrine,"
... whereby the culpability of an employer's remarks were to be evaluated not only
on the basis of their implicit implications, but were to be appraised against the
background of and in conjunction with collateral circumstances. Under this "doctrine"
expressions of opinion by an employer which, though innocent in themselves,
frequently were held to be culpable because of the circumstances under which they
were uttered, the history of the particular employer's labor relations or anti-union
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bias or because of their connection with an established collateral plan of coercion or

interference. (Rothenberg on Relations, p. 374, and cases cited therein.)
It must be recalled that previous to the petitioners' submission of proposals for an
amended renewal of their respective collective bargaining agreements to the
respondents, the latter hired Felipe Enage and Ramon Garcia, former legal counsels
of the petitioners, as personnel manager and assistant corporate secretary,
respectively, with attractive compensations. After the notice to strike was served on
the Companies and negotiations were in progress in the Department of Labor, the
respondents reclassified 87 employees as supervisors without increase in salary or in
responsibility, in effect compelling these employees to resign from their unions. And
during the negotiations in the Department of Labor, despite the fact that the
petitioners granted the respondents' demand that the former drop their demand for
union shop and in spite of urgings by the conciliators of the Department of Labor, the
respondents adamantly refused to answer the Unions' demands en toto. Incidentally,
Enage was the chairman of the negotiating panel for the Companies in the collective
bargaining between the former and the Unions. After the petitioners went to strike,
the strikers were individually sent copies of exhibit A, enticing them to abandon their
strike by inducing them to return to work upon promise of special privileges. Two
days later, the respondents, thru their president and manager, respondent Jose M.
Olbes, brought three truckloads of non-strikers and others, escorted by armed men,
who, despite the presence of eight entrances to the three buildings occupied by the
Companies, entered thru only one gate less than two meters wide and in the process,
crashed thru the picket line posted in front of the premises of the Insular Life Building.
This resulted in injuries on the part of the picketers and the strikebreakers.lwph1.t Then the respondents brought against the picketers criminal
charges, only three of which were not dismissed, and these three only for slight
misdemeanors. As a result of these criminal actions, the respondents were able to
obtain an injunction from the court of first instance restraining the strikers from
stopping, impeding, obstructing, etc. the free and peaceful use of the Companies'
gates, entrance and driveway and the free movement of persons and vehicles to and
from, out and in, of the Companies' buildings. On the same day that the injunction
was issued, the letter, Exhibit B, was sent again individually and by registered
special delivery mail to the strikers, threatening them with dismissal if they did
not report for work on or before June 2, 1958. But when most of the petitioners
reported for work, the respondents thru a screening committee of which Ramon
Garcia was a member refused to admit 63 members of the Unions on the ground
of "pending criminal charges." However, when almost all were cleared of criminal
charges by the fiscal's office, the respondents adamantly refused admission to 34
officials and union members. It is not, however, disputed that all-non-strikers with
pending criminal charges which arose from the breakthrough incident of May 23,
1958 were readmitted immediately by the respondents. Among the non-strikers with
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pending criminal charges who were readmitted were Generoso Abella, Enrique
Guidote, Emilio Carreon, Antonio Castillo, Federico Barretto, Manuel Chuidian and
Nestor Cipriano. And despite the fact that the fiscal's office found no probable cause
against the petitioning strikers, the Companies adamantly refused admission to them
on the pretext that they committed "acts inimical to the interest of the respondents,"
without stating specifically the inimical acts allegedly committed. They were soon to
admit, however, that these alleged inimical acts were the same criminal charges
which were dismissed by the fiscal and by the courts..
Verily, the above actuations of the respondents before and after the issuance of the
letters, exhibit A and B, yield the clear inference that the said letters formed of the
respondents scheme to preclude if not destroy unionism within them.
To justify the respondents' threat to dismiss the strikers and secure replacements for
them in order to protect and continue their business, the CIR held the petitioners'
strike to be an economic strike on the basis of exhibit 4 (Notice of Strike) which states
that there was a "deadlock in collective bargaining" and on the strength of the
supposed testimonies of some union men who did not actually know the very reason
for the strike. It should be noted that exhibit 4, which was filed on January 27, 1958,
states, inter alia:
TO: BUREAU OF LABOR RELATIONS
DEPARTMENT OF LABOR
MANILA
Thirty (30) days from receipt of this notice by the Office, this [sic] unions intends to
go on strike against
THE INSULAR LIFE ASSURANCE CO., LTD.
Plaza Moraga, Manila
THE FGU INSURANCE GROUP
Plaza Moraga, Manila
INSULAR LIFE BUILDING ADMINISTRATION
Plaza Moraga, Manila .
for the following reason: DEADLOCK IN COLLECTIVE BARGAINING...
However, the employees did not stage the strike after the thirty-day period, reckoned
from January 27, 1958. This simply proves that the reason for the strike was not the
deadlock on collective bargaining nor any lack of economic concessions. By letter
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dated April 15, 1958, the respondents categorically stated what they thought was
the cause of the "Notice of Strike," which so far as material, reads:
3.
Because you did not see fit to agree with our position on the union shop, you
filed a notice of strike with the Bureau of Labor Relations on 27 January 1958, citing
`deadlock in collective bargaining' which could have been for no other issue than the
union shop." (exhibit 8, letter dated April 15, 1958.)
The strike took place nearly four months from the date the said notice of strike was
filed. And the actual and main reason for the strike was, "When it became crystal
clear the management double crossed or will not negotiate in good faith, it is
tantamount to refusal collectively and considering the unfair labor practice in the
meantime being committed by the management such as the sudden resignation of
some unionists and [who] became supervisors without increase in salary or change
in responsibility, such as the coercion of employees, decided to declare the strike."
(tsn., Oct. 14, 1958, p. 14.) The truth of this assertion is amply proved by the
following circumstances: (1) it took the respondents six (6) months to consider the
petitioners' proposals, their only excuse being that they could not go on with the
negotiations if the petitioners did not drop the demand for union shop (exh. 7,
respondents' letter dated April 7, 1958); (2) when the petitioners dropped the
demand for union shop, the respondents did not have a counter-offer to the
petitioners' demands. Sec. 14 of Rep. Act 875 required the respondents to make a
reply to the petitioners' demands within ten days from receipt thereof, but instead
they asked the petitioners to give a "well reasoned, workable formula which takes
into account the financial position of the group companies." (tsn., Sept. 8, 1958, p.
62; tsn., Feb. 26, 1969, p. 49.)
II.
Exhibit H imposed three conditions for readmission of the strikers, namely: (1)
the employee must be interested in continuing his work with the group companies;
(2) there must be no criminal charges against him; and (3) he must report for work
on June 2, 1958, otherwise he would be replaced. Since the evidence shows that all
the employees reported back to work at the respondents' head office on June 2, 1953,
they must be considered as having complied with the first and third conditions.
Our point of inquiry should therefore be directed at whether they also complied with
the second condition. It is not denied that when the strikers reported for work on
June 2, 1958, 63 members of the Unions were refused readmission because they had
pending criminal charges. However, despite the fact that they were able to secure
their respective clearances 34 officials and union members were still refused
readmission on the alleged ground that they committed acts inimical to the
Companies. It is beyond dispute, however, that non-strikers who also had criminal
charges pending against them in the fiscal's office, arising from the same incidents
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whence the criminal charges against the strikers evolved, were readily readmitted
and were not required to secure clearances. This is a clear act of discrimination
practiced by the Companies in the process of rehiring and is therefore a violation of
sec. 4(a) (4) of the Industrial Peace Act.
The respondents did not merely discriminate against all the strikers in general. They
separated the active from the less active unionists on the basis of their militancy, or
lack of it, on the picket lines. Unionists belonging to the first category were refused
readmission even after they were able to secure clearances from the competent
authorities with respect to the criminal charges filed against them. It is significant to
note in this connection that except for one union official who deserted his union on
the second day of the strike and who later participated in crashing through the picket
lines, not a single union officer was taken back to work. Discrimination undoubtedly
exists where the record shows that the union activity of the rehired strikers has been
less prominent than that of the strikers who were denied reinstatement.
So is there an unfair labor practice where the employer, although authorized by the
Court of Industrial Relations to dismiss the employees who participated in an illegal
strike, dismissed only the leaders of the strikers, such dismissal being evidence of
discrimination against those dismissed and constituting a waiver of the employer's
right to dismiss the striking employees and a condonation of the fault committed by
them." (Carlos and Fernando, Labor and Social Legislation, p. 62, citing Phil. Air Lines,
Inc. v. Phil. Air Lines Emloyees Association, L-8197, Oct. 31, 1958.)
It is noteworthy that perhaps in an anticipatory effort to exculpate themselves
from charges of discrimination in the readmission of strikers returning to work the
respondents delegated the power to readmit to a committee. But the respondent
Olbes had chosen Vicente Abella, chief of the personnel records section, and Ramon
Garcia, assistant corporate secretary, to screen the unionists reporting back to work.
It is not difficult to imagine that these two employees having been involved in
unpleasant incidents with the picketers during the strike were hostile to the
strikers. Needless to say, the mere act of placing in the hands of employees hostile
to the strikers the power of reinstatement, is a form of discrimination in rehiring.
Delayed reinstatement is a form of discrimination in rehiring, as is having the
machinery of reinstatement in the hands of employees hostile to the strikers, and
reinstating a union official who formerly worked in a unionized plant, to a job in
another mill, which was imperfectly organized. (Morabe, The Law on Strikes, p. 473,
citing Sunshine Mining Co., 7 NLRB 1252; Cleveland Worsted Mills, 43 NLRB 545;
emphasis supplied.)

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Equally significant is the fact that while the management and the members of the
screening committee admitted the discrimination committed against the strikers,
they tossed back and around to each other the responsibility for the discrimination.
Thus, Garcia admitted that in exercising for the management the authority to screen
the returning employees, the committee admitted the non-strikers but refused
readmission to the strikers (tsn., Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella,
chairman of the management's screening committee, while admitting the
discrimination, placed the blame therefor squarely on the management (tsn., Sept.
20, 1960, pp. 7-8, 14-18). But the management, speaking through the respondent
Olbes, head of the Companies, disclaimed responsibility for the discrimination. He
testified that "The decision whether to accept or not an employee was left in the
hands of that committee that had been empowered to look into all cases of the
strikers." (tsn., Sept. 6, 1962, p. 19.)
Of course, the respondents through Ramon Garcia tried to explain the basis for
such discrimination by testifying that strikers whose participation in any alleged
misconduct during the picketing was not serious in nature were readmissible, while
those whose participation was serious were not. (tsn., Aug. 4, 1961, pp. 48-49, 56).
But even this distinction between acts of slight misconduct and acts of serious
misconduct which the respondents contend was the basis for either reinstatement or
discharge, is completely shattered upon a cursory examination of the evidence on
record. For with the exception of Pascual Esquillo whose dismissal sent to the other
strikers cited the alleged commission by them of simple "acts of misconduct."
III.
Anent the third assignment of error, the record shows that not a single
dismissed striker was given the opportunity to defend himself against the supposed
charges against him. As earlier mentioned, when the striking employees reported
back for work on June 2, 1958, the respondents refused to readmit them unless they
first secured the necessary clearances; but when all, except three, were able to
secure and subsequently present the required clearances, the respondents still
refused to take them back. Instead, several of them later received letters from the
respondents in the following stereotyped tenor:
This will confirm the termination of your employment with the Insular Life-FGU
Insurance Group as of 2 June 1958.
The termination of your employment was due to the fact that you committed acts of
misconduct while picketing during the last strike. Because this may not constitute
sufficient cause under the law to terminate your employment without pay, we are
giving you the amount of P1,930.32 corresponding to one-half month pay for every
year of your service in the Group Company.

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Kindly acknowledge receipt of the check we are sending herewith.

Very truly yours,
(Sgd.) JOSE M. OLBES
President, Insurance Life
Acting President, FGU.
The respondents, however, admitted that the alleged "acts of misconduct" attributed
to the dismissed strikers were the same acts with which the said strikers were
charged before the fiscal's office and the courts. But all these charges except three
were dropped or dismissed.
Indeed, the individual cases of dismissed officers and members of the striking unions
do not indicate sufficient basis for dismissal.
Emiliano Tabasondra, vice-president of the petitioner FGU Insurance Group Workers
& Employees Association-NATU, was refused reinstatement allegedly because he did
not report for duty on June 2, 1958 and, hence, had abandoned his office. But the
overwhelming evidence adduced at the trial and which the respondents failed to
rebut, negates the respondents' charge that he had abandoned his job. In his
testimony, corroborated by many others, Tabasondra particularly identified the
management men to whom he and his group presented themselves on June 2, 1958.
He mentioned the respondent Olbes' secretary, De Asis, as the one who received
them and later directed them when Olbes refused them an audience to Felipe
Enage, the Companies' personnel manager. He likewise categorically stated that he
and his group went to see Enage as directed by Olbes' secretary. If Tabasondra were
not telling the truth, it would have been an easy matter for the respondents to
produce De Asis and Enage who testified anyway as witnesses for the respondents
on several occasions to rebut his testimony. The respondents did nothing of the
kind. Moreover, Tabasondra called on June 21, 1958 the respondents' attention to
his non-admission and asked them to inform him of the reasons therefor, but instead
of doing so, the respondents dismissed him by their letter dated July 10, 1958.
Elementary fairness required that before being dismissed for cause, Tabasondra be
given "his day in court."
At any rate, it has been held that mere failure to report for work after notice to return,
does not constitute abandonment nor bar reinstatement. In one case, the U.S.
Supreme Court held that the taking back of six of eleven men constituted
discrimination although the five strikers who were not reinstated, all of whom were
prominent in the union and in the strike, reported for work at various times during
the next three days, but were told that there were no openings. Said the Court:
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... The Board found, and we cannot say that its finding is unsupported, that, in taking
back six union men, the respondent's officials discriminated against the latter on
account of their union activities and that the excuse given that they did not apply
until after the quota was full was an afterthought and not the true reason for the
discrimination against them. (NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333,
58 Sup. Ct. 904, 82 L. Ed. 1381) (Mathews, Labor Relations and the Law, p. 725,
728)
The respondents' allegation that Tabasondra should have returned after being
refused readmission on June 2, 1958, is not persuasive. When the employer puts off
reinstatement when an employee reports for work at the time agreed, we consider
the employee relieved from the duty of returning further.
Sixto Tongos was dismissed allegedly because he revealed that despite the fact that
the Companies spent more than P80,000 for the vacation trips of officials, they
refused to grant union demands; hence, he betrayed his trust as an auditor of the
Companies. We do not find this allegation convincing. First, this accusation was
emphatically denied by Tongos on the witness stand. Gonzales, president of one of
the respondent Companies and one of the officials referred to, took a trip abroad in
1958. Exchange controls were then in force, and an outgoing traveller on a combined
business and vacation trip was allowed by the Central Bank, per its Circular 52
(Notification to Authorized Agent Banks) dated May 9, 1952, an allocation of $1,000
or only P2,000, at the official rate of two pesos to the dollar, as pocket money; hence,
this was the only amount that would appear on the books of the Companies. It was
only on January 21, 1962, per its Circular 133 (Notification to Authorized Agent
Banks), that the Central Bank lifted the exchange controls. Tongos could not
therefore have revealed an amount bigger than the above sum. And his competence
in figures could not be doubted considering that he had passed the board
examinations for certified public accountants. But assuming arguendo that Tongos
indeed revealed the true expenses of Gonzales' trip which the respondents never
denied or tried to
disprove his statements clearly fall within the sphere of a unionist's right to discuss
and advertise the facts involved in a labor dispute, in accordance with section 9(a)(5)
of Republic Act 875 which guarantees the untramelled exercise by striking employees
of the right to give "publicity to the existence of, or the fact involved in any labor
dispute, whether by advertising, speaking, patrolling or by any method not involving
fraud or violence." Indeed, it is not only the right, it is as well the duty, of every
unionist to advertise the facts of a dispute for the purpose of informing all those
affected thereby. In labor disputes, the combatants are expected to expose the truth
before the public to justify their respective demands. Being a union man and one of
the strikers, Tongos was expected to reveal the whole truth on whether or not the
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respondent Companies were justified in refusing to accede to union demands. After

all, not being one of the supervisors, he was not a part of management. And his
statement, if indeed made, is but an expression of free speech protected by the
Constitution.
Free speech on both sides and for every faction on any side of the labor relation is to
me a constitutional and useful right. Labor is free ... to turn its publicity on any labor
oppression, substandard wages, employer unfairness, or objectionable working
conditions. The employer, too, should be free to answer and to turn publicity on the
records of the leaders of the unions which seek the confidence of his men ...
(Concurring opinion of Justice Jackson in Thomas v. Collins, 323 U.S. 516, 547, 65
Sup. Ct. 315, 89 L. Ed. 430.) (Mathews, Labor Relations and the Law, p. 591.)
The respondents also allege that in revealing certain confidential information, Tongos
committed not only a betrayal of trust but also a violation of the moral principles and
ethics of accountancy. But nowhere in the Code of Ethics for Certified Public
Accountants under the Revised Rules and Regulations of the Board of Accountancy
formulated in 1954, is this stated. Moreover, the relationship of the Companies with
Tongos was that of an employer and not a client. And with regard to the testimonies
of Juan Raymundo and Antolin Carillo, both vice-presidents of the Trust Insurance
Agencies, Inc. about the alleged utterances made by Tongos, the lower court should
not have given them much weight. The firm of these witnesses was newly established
at that time and was still a "general agency" of the Companies. It is not therefore
amiss to conclude that they were more inclined to favor the respondents rather than
Tongos.
Pacifico Ner, Paulino Bugay, Jose Garcia, Narciso Dao, Vicente Alsol and
Hermenigildo Ramirez, opined the lower court, were constructively dismissed by nonreadmission allegedly because they not only prevented Ramon Garcia, assistant
corporate secretary, and Vicente Abella, chief of the personnel records section of the
Companies, from entering the Companies' premises on May 21, 1958, but they also
caused bruises and abrasions on Garcia's chest and forehead acts considered
inimical to the interest of the respondents. The Unions, upon the other hand, insist
that there is complete lack of evidence that Ner took part in pushing Garcia; that it
was Garcia who elbowed his way through the picket lines and therefore Ner shouted
"Close up," which the picketers did; and that Garcia tossed Paulino Bugay's placard
and a fight ensued between them in which both suffered injuries. But despite these
conflicting versions of what actually happened on May 21, 1958, there are grounds
to believe that the picketers are not responsible for what happened.lwph1.t The
picketing on May 21, 1958, as reported in the police blotter, was peaceful (see Police
blotter report, exh. 3 in CA-G.R. No. 25991-R of the Court of Appeals, where Ner was
acquitted). Moreover, although the Companies during the strike were holding offices
206

at the Botica Boie building at Escolta, Manila; Tuason Building at San Vicente Street,
Manila; and Ayala, Inc. offices at Makati, Rizal, Garcia, the assistant corporate
secretary, and Abella, the chief of the personnel records section, reported for work
at the Insular Life Building. There is therefore a reasonable suggestion that they were
sent to work at the latter building to create such an incident and have a basis for
filing criminal charges against the petitioners in the fiscal's office and applying for
injunction from the court of first instance. Besides, under the circumstances the
picketers were not legally bound to yield their grounds and withdraw from the picket
lines. Being where the law expects them to be in the legitimate exercise of their
rights, they had every reason to defend themselves and their rights from any assault
or unlawful transgression. Yet the police blotter, about adverted to, attests that they
did not resort to violence.
The heated altercations and occasional blows exchanged on the picket line do not
affect or diminish the right to strike. Persuasive on this point is the following
commentary: .
We think it must be conceded that some disorder is unfortunately quite usual in any
extensive or long drawn out strike. A strike is essentially a battle waged with
economic weapons. Engaged in it are human beings whose feelings are stirred to the
depths. Rising passions call forth hot words. Hot words lead to blows on the picket
line. The transformation from economic to physical combat by those engaged in the
contest is difficult to prevent even when cool heads direct the fight. Violence of this
nature, however much it is to be regretted, must have been in the contemplation of
the Congress when it provided in Sec. 13 of Act 29 USCA Sec. 163, that nothing
therein should be construed so as to interfere with or impede or diminish in any way
the right to strike. If this were not so, the rights afforded to employees by the Act
would indeed be illusory. We accordingly recently held that it was not intended by
the Act that minor disorders of this nature would deprive a striker of the possibility
of reinstatement. (Republic Steel Corp. v. N. L. R. B., 107 F2d 472, cited in Mathews,
Labor Relations and the Law, p. 378)
Hence the incident that occurred between Ner, et al. and Ramon Garcia was but a
necessary incident of the strike and should not be considered as a bar to
reinstatement. Thus it has been held that:
Fist-fighting between union and non-union employees in the midst of a strike is no
bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining, Vol. II, p.
855 citing Stackpole Carbon, Co. 6 NLRB 171, enforced 105 F2d 167.)

207

Furthermore, assuming that the acts committed by the strikers were transgressions
of law, they amount only to mere ordinary misdemeanors and are not a bar to
reinstatement.
In cases involving misdemeanors the board has generally held that unlawful acts are
not bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining, Id., p.
854, citing Ford Motor Company, 23 NLRB No. 28.)
Finally, it is not disputed that despite the pendency of criminal charges against nonstriking employees before the fiscal's office, they were readily admitted, but those
strikers who had pending charges in the same office were refused readmission. The
reinstatement of the strikers is thus in order.
[W]here the misconduct, whether in reinstating persons equally guilty with those
whose reinstatement is opposed, or in other ways, gives rise to the inference that
union activities rather than misconduct is the basis of his [employer] objection, the
Board has usually required reinstatement." (Teller, supra, p. 853, citing the Third
Annual Report of NLRB [1938], p. 211.)
Lastly, the lower Court justified the constructive dismissal of Florencio Ibarra
allegedly because he committed acts inimical to the interest of the respondents when,
as president of the FGU Workers and Employees Association-NATU, he advised the
strikers that they could use force and violence to have a successful picket and that
picketing was precisely intended to prevent the non-strikers and company clients and
customers from entering the Companies' buildings. Even if this were true, the record
discloses that the picket line had been generally peaceful, and that incidents
happened only when management men made incursions into and tried to break the
picket line. At any rate, with or without the advice of Ibarra, picketing is inherently
explosive. For, as pointed out by one author, "The picket line is an explosive front,
charged with the emotions and fierce loyalties of the union-management dispute. It
may be marked by colorful name-calling, intimidating threats or sporadic fights
between the pickets and those who pass the line." (Mathews, Labor Relations and the
Law, p. 752). The picket line being the natural result of the respondents' unfair labor
practice, Ibarra's misconduct is at most a misdemeanor which is not a bar to
reinstatement. Besides, the only evidence presented by the Companies regarding
Ibarra's participation in the strike was the testimony of one Rodolfo Encarnacion, a
former member of the board of directors of the petitioner FGU Insurance Group
Workers and Employees Union-NATU, who became a "turncoat" and who likewise
testified as to the union activities of Atty. Lacsina, Ricardo Villaruel and others (annex
C, Decision, p. 27) another matter which emphasizes the respondents' unfair labor
practice. For under the circumstances, there is good ground to believe that
Encarnacion was made to spy on the actvities of the union members. This act of the
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respondents is considered unjustifiable interference in the union activities of the

petitioners and is unfair labor practice.
It has been held in a great number of decisions at espionage by an employer of union
activities, or surveillance thereof, are such instances of interference, restraint or
coercion of employees in connection with their right to organize, form and join unions
as to constitute unfair labor practice.
... "Nothing is more calculated to interfere with, restrain and coerce employees in the
exercise of their right to self-organization than such activity even where no
discharges result. The information obtained by means of espionage is in valuable to
the employer and can be used in a variety of cases to break a union." The unfair labor
practice is committed whether the espionage is carried on by a professional labor spy
or detective, by officials or supervisory employees of the employer, or by fellow
employees acting at the request or direction of the employer, or an ex-employee..."
(Teller, Labor Disputes and Collective Bargaining, Vol. II, pp. 765-766, and cases
cited.) .
IV.
The lower court should have ordered the reinstatement of the officials and
members of the Unions, with full back wages from June 2, 1958 to the date of their
actual reinstatement to their usual employment. Because all too clear from the factual
and environmental milieu of this case, coupled with settled decisional law, is that the
Unions went on strike because of the unfair labor practices committed by the
respondents, and that when the strikers reported back for work upon the invitation
of the respondents they were discriminatorily dismissed. The members and officials
of the Unions therefore are entitled to reinstatement with back pay.
[W]here the strike was induced and provoked by improper conduct on the part of an
employer amounting to an 'unfair labor practice,' the strikers are entitled to
reinstatement with back pay. (Rothenberg on Labor Relations, p. 418.)
[A]n employee who has been dismissed in violation of the provisions of the Act is
entitled to reinstatement with back pay upon an adjudication that the discharge was
illegal." (Id., citing Waterman S. S. Corp. v. N. L. R. B., 119 F2d 760; N. L. R. B. v.
Richter's Bakery, 140 F2d 870; N. L. R. B. v. Southern Wood Preserving Co., 135 F.
2d 606; C. G. Conn, Ltd. v. N. L. R. B., 108 F2d 390; N. L. R. B. v. American Mfg.
Co., 106 F2d 61; N. L. R. B. v. Kentucky Fire Brick Co., 99 F2d 99.)
And it is not a defense to reinstatement for the respondents to allege that the
positions of these union members have already been filled by replacements.

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[W]here the employers' "unfair labor practice" caused or contributed to the strike or
where the 'lock-out' by the employer constitutes an "unfair labor practice," the
employer cannot successfully urge as a defense that the striking or lock-out
employees position has been filled by replacement. Under such circumstances, if no
job sufficiently and satisfactorily comparable to that previously held by the aggrieved
employee can be found, the employer must discharge the replacement employee, if
necessary, to restore the striking or locked-out worker to his old or comparable
position ... If the employer's improper conduct was an initial cause of the strike, all
the strikers are entitled to reinstatement and the dismissal of replacement employees
wherever necessary; ... . (Id., p. 422 and cases cited.)
A corollary issue to which we now address ourselves is, from what date should the
backpay payable to the unionists be computed? It is now a settled doctrine that
strikers who are entitled to reinstatement are not entitled to back pay during the
period of the strike, even though it is caused by an unfair labor practice. However, if
they offer to return to work under the same conditions just before the strike, the
refusal to re-employ or the imposition of conditions amounting to unfair labor practice
is a violation of section 4(a) (4) of the Industrial Peace Act and the employer is liable
for backpay from the date of the offer (Cromwell Commercial Employees and Laborers
Union vs. Court of Industrial Relations, L-19778, Decision, Sept. 30, 1964, 12 SCRA
124; Id., Resolution on motion for reconsideration, 13 SCRA 258; see also Mathews,
Labor Relations and the Law, p. 730 and the cited cases). We have likewise ruled
that discriminatorily dismissed employees must receive backpay from the date of the
act of discrimination, that is, from the date of their discharge (Cromwell Commercial
Employees and Laborers Union vs. Court of Industrial Relations, supra).
The respondents notified the petitioner strikers to report back for work on June 2,
1958, which the latter did. A great number of them, however, were refused
readmission because they had criminal charges against them pending before the
fiscal's office, although non-strikers who were also facing criminal indictments were
readily readmitted. These strikers who were refused readmission on June 2, 1958
can thus be categorized as discriminatorily dismissed employees and are entitled to
backpay from said date. This is true even with respect to the petitioners Jose Pilapil,
Paulino Bugay, Jr. and Jose Garcia, Jr. who were found guilty only of misdemeanors
which are not considered sufficient to bar reinstatement (Teller, Labor Disputes and
Collective Bargaining, p. 854), especially so because their unlawful acts arose during
incidents which were provoked by the respondents' men. However, since the
employees who were denied readmission have been out of the service of the
Companies (for more than ten years) during which they may have found other
employment or other means of livelihood, it is only just and equitable that whatever
they may have earned during that period should be deducted from their back wages
to mitigate somewhat the liability of the company, pursuant to the equitable principle
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that no one is allowed to enrich himself at the expense of another (Macleod & Co. of
the Philippines v. Progressive Federation of Labor, 97 Phil. 205 [1955]).
The lower court gave inordinate significance to the payment to and acceptance by
the dismissed employees of separation pay. This Court has ruled that while employers
may be authorized under Republic Act 1052 to terminate employment of employees
by serving the required notice, or, in the absence thereof, by paying the required
compensation, the said Act may not be invoked to justify a dismissal prohibited by
law, e.g., dismissal for union activities.
... While Republic Act No. 1052 authorizes a commercial establishment to terminate
the employment of its employee by serving notice on him one month in advance, or,
in the absence thereof, by paying him one month compensation from the date of the
termination of his employment, such Act does not give to the employer a blanket
authority to terminate the employment regardless of the cause or purpose behind
such termination. Certainly, it cannot be made use of as a cloak to circumvent a final
order of the court or a scheme to trample upon the right of an employee who has
been the victim of an unfair labor practice. (Yu Ki Lam, et al. v. Nena Micaller, et al.,
99 Phil. 904 [1956].)
Finally, we do not share the respondents' view that the findings of fact of the Court
of Industrial Relations are supported by substantial and credible proof. This Court is
not therefore precluded from digging deeper into the factual milieu of the case (Union
of Philippine Education Employees v. Philippine Education Company, 91 Phil. 93; Lu
Do & Lu Ym Corporation v. Philippine-Land-Air-Sea Labor Union, 11 SCRA 134
[1964]).
V.
The petitioners (15 of them) ask this Court to cite for contempt the respondent
Presiding Judge Arsenio Martinez of the Court of Industrial Relations and the counsels
for the private respondents, on the ground that the former wrote the following in his
decision subject of the instant petition for certiorari, while the latter quoted the same
on pages 90-91 of the respondents' brief: .
... Says the Supreme Court in the following decisions:
In a proceeding for unfair labor practice, involving a determination as to whether or
not the acts of the employees concerned justified the adoption of the employer of
disciplinary measures against them, the mere fact that the employees may be able
to put up a valid defense in a criminal prosecution for the same acts, does not erase
or neutralize the employer's right to impose discipline on said employees. For it is
settled that not even the acquittal of an employee of the criminal charge against him
is a bar to the employer's right to impose discipline on its employees, should the act
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upon which the criminal charged was based constitute nevertheless an activity
inimical to the employer's interest... The act of the employees now under
consideration may be considered as a misconduct which is a just cause for dismissal.
(Lopez, Sr., et al. vs. Chronicle Publication Employees Ass'n. et al., G.R. No. L-2017981, December 28, 1964.) (emphasis supplied)
The two pertinent paragraphs in the above-cited decision * which contained the
underscored portions of the above citation read however as follows:
Differently as regard the dismissal of Orlando Aquino and Carmelito Vicente, we are
inclined to uphold the action taken by the employer as proper disciplinary measure.
A reading of the article which allegedly caused their dismissal reveals that it really
contains an insinuation albeit subtly of the supposed exertion of political pressure by
the Manila Chronicle management upon the City Fiscal's Office, resulting in the nonfiling of the case against the employer. In rejecting the employer's theory that the
dismissal of Vicente and Aquino was justified, the lower court considered the article
as "a report of some acts and omissions of an Assistant Fiscal in the exercise of his
official functions" and, therefore, does away with the presumption of malice. This
being a proceeding for unfair labor practice, the matter should not have been viewed
or gauged in the light of the doctrine on a publisher's culpability under the Penal
Code. We are not here to determine whether the employees' act could stand criminal
prosecution, but only to find out whether the aforesaid act justifies the adoption by
the employer of disciplinary measure against them. This is not sustaining the ruling
that the publication in question is qualified privileged, but even on the assumption
that this is so, the exempting character thereof under the Penal Code does not
necessarily erase or neutralize its effect on the employer's interest which may
warrant employment of disciplinary measure. For it must be remembered that not
even the acquittal of an employee, of the criminal charges against him, is a bar to
the employer's right to impose discipline on its employees, should the act upon which
the criminal charges was based constitute nevertheless an activity inimical to the
employer's interest.
In the herein case, it appears to us that for an employee to publish his "suspicion,"
which actually amounts to a public accusation, that his employer is exerting political
pressure on a public official to thwart some legitimate activities on the employees,
which charge, in the least, would sully the employer's reputation, can be nothing but
an act inimical to the said employer's interest. And the fact that the same was made
in the union newspaper does not alter its deleterious character nor shield or protect
a reprehensible act on the ground that it is a union activity, because such end can be
achieved without resort to improper conduct or behavior. The act of the employees
now under consideration may be considered as a misconduct which is a just cause
for dismissal.** (Emphasis ours)
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It is plain to the naked eye that the 60 un-underscored words of the paragraph quoted
by the respondent Judge do not appear in the pertinent paragraph of this Court's
decision in L-20179-81. Moreover, the first underscored sentence in the quoted
paragraph starts with "For it is settled ..." whereas it reads, "For it must be
remembered ...," in this Court's decision. Finally, the second and last underlined
sentence in the quoted paragraph of the respondent Judge's decision, appears not in
the same paragraph of this Court's decision where the other sentence is, but in the
immediately succeeding paragraph.
This apparent error, however, does not seem to warrant an indictment for contempt
against the respondent Judge and the respondents' counsels. We are inclined to
believe that the misquotation is more a result of clerical ineptitude than a deliberate
attempt on the part of the respondent Judge to mislead. We fully realize how saddled
with many pending cases are the courts of the land, and it is not difficult to imagine
that because of the pressure of their varied and multifarious work, clerical errors may
escape their notice. Upon the other hand, the respondents' counsels have the prima
facie right to rely on the quotation as it appears in the respondent Judge's decision,
to copy it verbatim, and to incorporate it in their brief. Anyway, the import of the
underscored sentences of the quotation in the respondent Judge's decision is
substantially the same as, and faithfully reflects, the particular ruling in this Court's
decision, i.e., that "[N]ot even the acquittal of an employee, of the criminal charges
against him, is a bar to the employer's right to impose discipline on its employees,
should the act upon which the criminal charges were based constitute nevertheless
an activity inimical to the employer's interest."
Be that as it may, we must articulate our firm view that in citing this Court's decisions
and rulings, it is the bounden duty of courts, judges and lawyers to reproduce or copy
the same word-for-word and punctuation mark-for-punctuation mark. Indeed, there
is a salient and salutary reason why they should do this. Only from this Tribunal's
decisions and rulings do all other courts, as well as lawyers and litigants, take their
bearings. This is because the decisions referred to in article 8 of the Civil Code which
reads, "Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines," are only those enunciated by this
Court of last resort. We said in no uncertain terms in Miranda, et al. vs. Imperial, et
al. (77 Phil. 1066) that "[O]nly the decisions of this Honorable Court establish
jurisprudence or doctrines in this jurisdiction." Thus, ever present is the danger that
if not faithfully and exactly quoted, the decisions and rulings of this Court may lose
their proper and correct meaning, to the detriment of other courts, lawyers and the
public who may thereby be misled. But if inferior courts and members of the bar
meticulously discharge their duty to check and recheck their citations of authorities
culled not only from this Court's decisions but from other sources and make certain
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that they are verbatim reproductions down to the last word and punctuation mark,
appellate courts will be precluded from acting on misinformation, as well as be saved
precious time in finding out whether the citations are correct.
Happily for the respondent Judge and the respondents' counsels, there was no
substantial change in the thrust of this Court's particular ruling which they cited. It
is our view, nonetheless, that for their mistake, they should be, as they are hereby,
admonished to be more careful when citing jurisprudence in the future.
ACCORDINGLY, the decision of the Court of Industrial Relations dated August 17,
1965 is reversed and set aside, and another is entered, ordering the respondents to
reinstate the dismissed members of the petitioning Unions to their former or
comparatively similar positions, with backwages from June 2, 1958 up to the dates
of their actual reinstatements. Costs against the respondents.

214